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China: Open Government Regulations Revised

(Sept. 10, 2019) On April 3, 2019, China’s State Council issued the newly revised Regulations on Open Government Information (2019 Reg.). The Open Government Information (OGI) Regulations were first issued in 2007 (2007 Reg.) (English translation). The new Regulations took effect on May 15, 2019.

The revision expands the OGI Regulations from 38 articles in the 2007 version to 56 articles in the 2019 version. The new Regulations codify the presumption of disclosure of government information, stating that “disclosure is the norm, nondisclosure the exception.” (2019 Reg. art. 5.) Article 13 provides that all government information must be disclosed, except the information specified by the Regulations that may be withheld from disclosure.

Other highlights of the 2019 OGI Regulations include the following:

  1. Expanding “Proactive Disclosure”

Government information may be accessed by two methods: “proactive disclosure”—the dissemination of information by government agencies on their own initiative—and “disclosure by application”—the disclosure of information in response to requests from citizens, legal persons, and other entities. Information to be proactively disclosed includes laws, regulations, and normative/regulatory documents. The revision further expands the scope of information that must be proactively disclosed to include, among other things, (1) the functions and organizational structure of government agencies, and (2) the basis, requirements, and procedures for imposing administrative penalties. (Arts. 13, 27, 20, respectively.)

  1. Removing “Needs Test” for Disclosure by Application

The revision eliminates the “needs test” for requesting information by providing that any citizens, legal persons, and other entities may apply to government agencies to obtain relevant government information. (Art. 27.) When submitting such applications, the 2007 Regulations required that the applications be “based on the special needs of such matters as their own production, livelihood and scientific research.” (2007 Reg. art. 13.)

  1. Clarifying Information Not to Be Disclosed

The OGI Regulations also specify the information that may be withheld from disclosure, which includes

  • state secrets;
  • information prohibited by laws and regulations from being disclosed;
  • information whose disclosure may endanger national security, public security, economic security, or social stability; and
  • information whose disclosure may infringe the lawful rights and interests of a third party, such as commercial secrets and personal privacy. (2019 Reg. arts. 14 & 15.)

The revision further expands the scope of information that may be withheld from disclosure to include internal administrative affairs; in-process information such as discussion notes, deliberative drafts, and consultation letters; and administrative law enforcement files, unless disclosure of such information is otherwise required by laws, regulations, or rules. (Art. 16.)

  1. Extending Replying Time

For an application to obtain government information that cannot be responded to on the spot, under the 2007 Regulations, the government agencies were required to reply within 15 business days from receiving the request, which might be extended for another 15 business days. (2007 Reg. art. 24.) Under the new Regulations, the agencies have 20 business days to reply, which may also be extended for another 20 business days. (2019 Reg. art. 33.)