The Testification And The Duty To Give Reasons In Nonexistence Of Government Information

Nonexistence of information is a common cause of action in government information publication litigation. Due to the difficulty in proving the existence of the information, the applicant cannot get the information through litigation. Therefore litigation plays the main function of getting government’s explanations. Considering this function, special rules of evidence should apply to this kind of litigation. General Rules can be summarized through balancing test on cases.Government bears the burden of proof on the legality of its decision of nonexistence of information. After government has completed its task, the applicant bears the burden of proof to carry forward the judicial process. Government’s standard of proof is clear and persuasive, which can be reached by providing abundant direct evidence on the nonexistence of information or a reasonable search. The court then compares evidence on both sides and decides the losing party by preponderance of evidence. After government has fulfilled its burden of proof, it should explain the unclear facts to unravel the applicant’s doubt. When government refuses to provide information to applicants due to nonexistence of information, it had better give reasons, in order to make applicants accept the results. The essential solution to these disputes lies in the institution of government documents management.