The government information disclosure system is an important component in the field of administrative law. Its purpose is to ensure the institutionalization, openness, and transparency of government information, and effectively protect citizens' rights to participate in, know, and supervise administrative actions. In the process of producing, obtaining, and preserving government information, administrative agencies often obtain information involving trade secrets. When an applicant applies for the disclosure of such information, if they are informed that the relevant trade secrets will not be disclosed or partially disclosed, they may be dissatisfied with the results of administrative disclosure and may easily lead to subsequent administrative litigation.

Focus on the identification of trade secrets.

Article 9 of the Anti Unfair Competition Law of the People's Republic of China stipulates that "Trade secrets refer to commercial information such as technical information and business information that are not known to the public, have commercial value, and have been subject to appropriate confidentiality measures by the obligee.". When receiving an application, administrative authorities should strictly review whether information that may involve trade secrets meets the constitutive requirements stipulated by law from the following four aspects: first, whether the information belongs to operational or technical information; Whether the information has been known to the public; Whether the information has commercial value and can bring economic benefits to the obligee; Fourth, whether the obligee has taken confidentiality measures.

Double focus open discretion benchmark.

Article 37 of the Regulations of the People's Republic of China on the Disclosure of Government Information stipulates that "if the information applied for publication contains content that should not be disclosed or that does not belong to government information, but can be treated differently, the administrative organ shall provide the applicant with government information that can be disclosed, and explain the reasons for not disclosing the content." If the administrative organ decides not to disclose the government information completely on the grounds that it involves trade secrets, The following four situations should be met: First, the administrative organ believes that the government information applied for publication involves trade secrets, which may harm the legitimate rights and interests of third parties after being disclosed; The second is that the third party does not agree to disclose the government information after seeking the opinions of the third party in writing; Third, not disclosing the government information will not have a significant impact on public interests; The fourth is that the entire content of government information belongs to content that should not be disclosed, or that cannot be disclosed through differentiated processing.

Triple focus on the audit process.

Administrative organs are responsible for the production, preservation, and acquisition of government information within their scope of responsibility. Government information involving trade secrets is not always government information that should not be disclosed. Therefore, upon receiving the applicant's administrative disclosure application, the administrative authority will conduct a preliminary classification and strict review. Meanwhile, in accordance with Article 32 of the Regulations of the People's Republic of China on the Disclosure of Government Information, "If the disclosure of government information applied for publication would harm the legitimate rights and interests of a third party, the administrative organ shall seek the third party's opinions in writing. The third party shall submit its opinions within 15 working days from the date of receiving the request for opinions. If the third party fails to submit its opinions within the time limit, the administrative organ shall decide whether to make the disclosure in accordance with the provisions of these Regulations. If the third party does not agree to the disclosure and has reasonable reasons, the administrative organ shall not make the disclosure. The administrative organ considers that it is not "If disclosure may have a significant impact on the public interest, it may be decided to make it public and notify a third party in writing of the content and reasons for the decision to disclose government information." Before the administrative organ makes a final conclusion, it is also necessary to seek the opinions of a third party in writing.

Fourth, focus on third-party opinion recognition.

The Dongcheng District People's Court of Beijing affirmed in the (2020) Jing 0101 Xing Chu No. 204 administrative judgment, "After receiving the application for the disclosure of government information in this case, the defendant's administrative authority sought opinions from a third party, who disagreed with the disclosure, but stated that the specific reasons for involving its trade secrets were insufficient and could not fully meet the constitutive requirements of trade secrets. However, whether there were circumstances that should not be disclosed or not all should be disclosed according to law still required investigation and discretion by the administrative authority, and did not meet the legal conditions for directly not disclosing government information." If a third party disagrees to disclose relevant government information on the grounds that it involves trade secrets, it is necessary to fully explain the specific reasons for involving its company's trade secrets in combination with the constituent elements of the trade secrets. Otherwise, it shall be deemed that it cannot fully meet the requirements for not disclosing the trade secrets and does not have the conditions for not disclosing them.

Five fold focus on the allocation of the burden of proof.

In the administrative procedure of information disclosure, the administrative organ may require a third party to provide relevant evidence to assist in the review, and the third party may also provide relevant evidence to support the review, but the responsibility for final review and confirmation remains with the administrative organ. "If the administrative counterpart files an administrative litigation case because he or she is not satisfied with some of the disclosed content, according to Article 34 of the Administrative Procedure Law of the People's Republic of China," the defendant bears the burden of proof for the specific administrative act he or she has undertaken. ". "Because it is difficult for the administrative counterpart to prove by itself that the content of the application for administrative disclosure is not a trade secret, the administrative organ shall bear the burden of proof in administrative litigation for the administrative act of not disclosing the government information on the grounds that the government information involves trade secrets.".

(This article is translated by software translator for reference only.)