| In the context of open government information practice in China, there have been situations in which applicants repeatedly submitted large amount of requests for government information disclosure. Courts have defined such requests as "abuse of the right to apply for government information" or "abuse of the right to know". However, it has also been noted that the concept of abuse of right, deriving from private law context, when being transplanted to public law, needs to be carefully defined due to the special nature of public power and the multiple functions of the right to know, and the discretional power of both administrative agencies and courts to judge exercise of rights needs to be restricted. To do that, the concept of abuse of right must be defined clearly by setting forth legal principles and categorizing standards and tests in order to restrict abuse of discretionary power by agency and the court. This paper proposes a three-element analytical framework to identify and deter the abuse of the right to know, so as to fill the gap in the current system of regulation of the disclosure of government. The first is the subjective standard, which focuses on the subjective purpose of the information disclosure applicants. The second is the method standard, which looks at the specific actions taken by the applicants. The Last but not the least, there should be a consequence standard, and those applications that result in disproportionate burdens on public resources should be regarded as abusive. A balance between the protection of the right to know and the restriction from abusing it can be struck only when these endeavors are equally highlighted. |
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