Navigating Transparency and Confidentiality under Vietnam’s Draft Amended Law on Access to Information

Introduction

On 30 January 2026, the Ministry of Justice submitted to the Government the Explanatory Report on the Draft Law on Access to Information (amended) (“Draft Amendment“). The Draft Amendment has been included in the 2026 legislative agenda for consideration by the National Assembly (15^th Legislature) at its 9^th Session, signalling a renewed policy focus on transparency reforms in Vietnam. 

The initiative comes nearly a decade after the 2016 Law on Access to Information (“2016 Law“) operationalised citizens’ constitutional right of access to information under Article 25 of the 2013 Constitution. Since then, its implementation has supported greater administrative transparency and more proactive disclosure by public authorities, alongside increased opportunities for public oversight.

However, policy practice and academic discussions, including views raised in scientific workshop materials on improving access to information, suggest that the current framework requires recalibration. In particular, institutional reforms and rapid digitalisation have reshaped how information is created, stored, shared and requested, and have intensified boundary questions between transparency, state secrecy, and the protection of public interests. The Draft Amendment, therefore, appears to go beyond technical revisions and aims to re-balance access and confidentiality in a changing governance and technology landscape.

Workshop discussions also point to persistent implementation bottlenecks such as legal fragmentation across related statutes, limited human and financial resources, slow digitisation of disclosure workflows, and uneven public awareness, contributing to a gap between formal rights and practical access.

What is in the Draft Package and Where does State Secrecy Enter

Public reports (and related government communications) indicate that the Draft Amendment comprises four chapters and 31 articles. It appears that this is intended to amend and update key operational aspects of the 2016 Law while preserving continuity where appropriate.

The interaction with the state secrecy regime appears in two main ways.

First, through categorical exclusions for “state secrets” (i.e. information classified under the state secrecy framework), which are non-accessible unless and until declassified.

Second, through broader harm-based grounds (e.g. harm to State interests, national defence and security, international relations, public order, or public health), which may operate as functional national-security-style exemptions even where information is not formally classified as a state secret.

Where the Draft Amendment addresses confidentiality or secrecy, it appears to do so largely by cross-reference to existing regimes on state secrets, privacy/personal data, intellectual property (including trade secrets), and archives. In practice, the safeguards that matter most often sit at these boundaries – how classification rules, sectoral confidentiality duties, and disclosure obligations interlock and are applied by agencies.

Key Draft Provisions Affecting Access, Secrecy, and Public Interest

Expanded Scope of Information Providers

A core reform objective of the Draft Amendment is to broaden the scope of entities responsible for providing information, including public service units providing essential public services. This could make information that affects daily lives and business operations more routinely accessible, and reduce over-reliance on a single disclosure channel limited to State agencies.

Digitisation and Diversified Request Channels

Public reports suggest that in so far as publication and requests for information under the Draft Amendment, there appears to be a shift towards combined traditional and digital methods: online publication via portals and platforms (including national public service portals), alongside broader request channels (in-person and digital submissions).

This direction aligns with the “open by default” approach observed in open government and open data practice, where proactive publication and usability are treated as core elements of transparency rather than optional add-ons.

Reframed Categories of Non-accessible Information 

Public reports set out a consolidated list of “non-accessible” information under the Draft Amendment, which broadly covers the following:

1. state secrets (subject to declassification);
2. privacy-related information (e.g. private life, personal and family secrets) and personal data (linked to data protection law);
3. trade secrets (linked to intellectual property law);
4. information whose disclosure would cause harm to protected interests (e.g. State interests, national defence and security, international relations, public order, morality, public/community health), or harm the life or property of others; and
5. work secrets” as determined by agencies under internal rules, meeting information, and working drafts.

These categories sit at the centre of the access–secrecy tension. They cover legitimate interests, but also contain open-textured phrases that may be applied expansively unless constrained by a disciplined harm test, narrow construction in implementation, and meaningful review mechanisms.

Conditional-access Content and Cross-regime Alignment 

The Draft Amendment reportedly links conditional access to (i) personal data rules under the data protection framework; and (ii) conditional access rules for archival documents under archival legislation. This direction is sound: coherence across access-to-information, privacy, and archives regimes is increasingly essential.

The practical question is whether the Draft Amendment (or its implementing instruments) will enable workable, privacy-preserving disclosure options such as redaction, anonymisation and partial release, rather than encourage overly cautious default refusals.

Structuring the Transparency–Secrecy Balance

Broad Exemptions Need a Disciplined “Harm Test”

International benchmarking on access to information frameworks and freedom of information legislation consistently points to the same design feature: exemptions should be tied to a demonstrable risk of harm to a protected interest – not simply the presence of a topic label (e.g. “security-related”). In many international principles and benchmarking tools, legitimate refusals require a “harm test”, often framed as a real and identifiable risk of significant harm. Best-practice scoring methodologies such as the Right to Information Rating (RTI Rating) likewise treat a “harm test” as a core safeguard against overbroad exemptions.

Applied to the Draft Amendment, phrases such as “would cause harm to State interests” may function as a harm test only if implementing rules require specificity (e.g. what harm, how likely, and why disclosure would cause it) and discourage formulaic refusals.

Public Interest Override Should be Clearer, and, in Some instances, Mandatory 

Public reports indicate that the Draft Amendment introduces a limited “public interest/public health” necessity basis that may expand the duty to disclose information in certain circumstances.

Comparative practice suggests that an effective public-interest override has three key features:

1. It is structured, requiring a balancing exercise rather than conferring a vague discretion.
2. It is mandatory for at least certain categories, such as disclosures relating to serious wrongdoing or risks to life or health.
3. It is reviewable, with decision-makers required to give reasons, and oversight bodies or courts authorised to can scrutinise the balancing undertaken.

These features are particularly relevant for information that lies at the boundary between secrecy and accountability, such as information relating to procurement and major public projects, environmental and health risks, and indicators of corruption or serious maladministration. 

Partial Disclosure should be a Duty, not an Option 

When the Draft Amendment takes effect, businesses are likely to be affected in two principal ways.

First, enhanced proactive disclosure in regulated domains, such as procurement, licensing, land, environment and labour, may reduce information asymmetries and transaction costs, while increasing scrutiny of contracts, bids, and regulatory interactions.

Second, the handling of trade secrets and commercially confidential information will become higher-stakes. Businesses should expect agencies to require clearer justification for confidentiality claims and, where feasible, disclose information and records on a partial basis through redaction.

What Companies should do Now

1. Build confidentiality mapping into contract workflows and submissions (what is confidential, why it is confidential, and what can be disclosed in redacted form) with public bodies.

2. Document trade secret claims in harm-based terms (what harm would occur, why, and for how long), and review confidentiality positions over time, noting that confidentiality is rarely perpetual across all fields.      

3. In procurement and public spending contexts, anticipate the need for nuanced confidentiality strategies that accommodate transparency expectations while protecting core commercial sensitivities.

Concluding Words

The Draft Amendment’s direction – expanded provider scope, enhanced proactive disclosure, and more digital-first delivery – has the potential to improve both Vietnam’s business and civic environment by lowering information barriers and strengthening accountability.

To implement these reforms credibly while protecting legitimate state secrecy and confidential interests, three priorities stand out.

First, broad exemptions should be disciplined through a clear harm test and narrow construction rules, particularly for “State interests” and security-adjacent grounds.

Second, the framework should embed a structured and reviewable public-interest override – mandatory at least for defined categories such as serious wrongdoing and imminent risks to life or health – rather than leaving “public interest” as a vague discretion.

Third, partial disclosure should be a default duty, supported by standardised redaction/anonymisation processes and written release notes. This is one of the most reliable safeguards for real-world files that mix disclosable and non-disclosable content.

Contribution Note

This Update was authored by Dr. Chau Huy Quang, Mr. Cao Dang Duy, and Dr. Le Hong Phuc (also a lecturer at Phenikaa University).