[2] In a case where the head of the Busan Regional Construction and Management Office and the head of the Busan Regional Construction and Management Office rendered a rejection of information disclosure on the specific basis and criteria for calculation of the estimated amount by type of business specified in the public notice of tender for the construction of the construction project, on the ground that the above information constitutes information subject to non-disclosure under Article 9(1)5 of the Official Information Disclosure Act, the case holding that the above information is not subject to non-disclosure under Article 9(1)5 of the same Act

[2] In a case where the head of the Busan Regional Construction and Management Administration and the head of the Busan Regional Construction and Management, one of the "four River Maintenance Projects", requested the disclosure of information on the detailed calculation basis and criteria for the estimated amount by type of business specified in the public tender notice of construction works, and the above information constitutes information subject to non-disclosure as stipulated in Article 9 (1) 5 of the Official Information Disclosure Act, the case holding that the construction works of the Nakdongdong River shall prove that there is no room to regard the above information as information on the tender process, decision-making process, or internal review process, and that there is no significant meaning in the design and construction package deal project as one of the criteria when selecting the person qualified for qualified for qualified for qualified for qualified for qualified for qualified for qualified for qualified for qualified for qualified for qualified for qualified for qualified for qualified for qualified for qualified for qualified for qualified for qualified for qualified for qualified for qualified for qualified for qualified for qualified for qualified for qualified for working after the completion of the tender in the design and construction package deal project.

2. Of the costs of appeal, the part arising from the Defendant’s appeal is assessed against the Defendant, and the part resulting from the Defendant’s appeal is assessed against the Defendant.

The defendant's refusal to disclose information to the plaintiff on March 11, 2010 shall be revoked.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

A. On June 29, 2009, the Defendant made a public announcement of each international tender on the design and execution method of the project for the scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic

B. (1) As a result of the tender on September 30, 2009, six companies, including SK Construction Co., Ltd., were selected as the person eligible for the design. At the same time, the above companies entered into a final amendment agreement with the Defendant regarding the instant first stage construction project from March 25, 2010 to March 29 of the same month after having conducted the first stage design deliberation by the Defendant. On the other hand, with respect to the instant first stage construction project, the project executor changed the project from the Defendant to the Defendant’s Intervenor by the decision of the Minister of Land, Transport and Maritime Affairs.

(2) As a result of the tender on January 26, 2010, the instant phase 2 project was selected as a person qualified for the design, and at the present time, the instant phase 2 project was under the Defendant’s qualification examination on the shop design.

C. (1) On March 8, 2010, the Plaintiff filed a claim with the Defendant for the disclosure of each of the information indicated in the attached Table on the detailed grounds and criteria for the calculation of the estimated amount by type of business specified in the public announcement of the first and second phase construction project in the instant case (hereinafter “instant information”).

(2) On March 11, 2010, the Defendant rendered a disposition rejecting the disclosure of the instant information (hereinafter “instant disposition”) on the ground that the instant information constitutes a non-disclosure subject under Article 9 of the Official Information Disclosure Act (hereinafter “Information Disclosure Act”) following the process of contract is being implemented in the current package deal method.

D. The Plaintiff filed an objection against the Defendant on March 26, 2010. The Defendant dismissed the Plaintiff’s objection on the ground that the instant information constitutes information subject to non-disclosure under Article 9(1)4 of the Information Disclosure Act, since the instant phase 2 project constitutes information subject to non-disclosure under Article 9(1)5 of the Information Disclosure Act, since the instant phase 2 project is currently in process of contract procedures, it constitutes information subject to non-disclosure under Article 9(1)5 of the Information Disclosure Act.

[Reasons for Recognition] Facts without dispute, Gap evidence 1, 2, Eul evidence 1 to 4, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The parties' assertion

(1) Defendant and Defendant Intervenor’s assertion

(A) At the time of the instant disposition, the administrative litigation was filed with the Busan District Court 2009Guhap5672, which sought the revocation of the Defendant’s notice of the implementation plan for the project of the project of the Nakdong River that was conducted by the Defendant. The instant information is information directly and specifically related to the foregoing administrative litigation and may affect the conclusion of the judgment if the instant information is disclosed. Thus, the instant information constitutes information subject to non-disclosure under Article 9(1)4 of the Information Disclosure Act.

(B) At the time of the instant disposition, the person eligible for the design design for the first and second stage construction works was selected, and the final contract was not concluded. The instant information was information on the “matters in the process of bidding contract, decision-making, or internal review” under Article 9(1)5 of the Information Disclosure Act. Meanwhile, if the instant information is disclosed under the aforementioned circumstances, it would result in a prior notification of the internal allocation criteria for determining the eligibility for the shop design, thereby disclosing the specific allocation criteria for the final contract before the final contract is concluded, and thus, it would result in a significant obstacle to the Defendant’s performance of duties to proceed with the project in the method of internship to make the person eligible for the design creative design. Thus, the instant information constitutes information subject to non-disclosure under Article 9(1)5 of the Information Disclosure Act.

(2) The plaintiff's assertion

(A) The information of this case was not a ground for the disposition of this case under Article 9 (1) 4 of the Information Disclosure Act. The defendant dismissed the plaintiff's objection and added it as a ground for the disposition of this case. Thus, it cannot be a ground for the disposition of this case that the information of this case constitutes information subject to non-disclosure under Article 9 (1) 4 of the Information Disclosure Act. In addition, the information of this case does not constitute information directly or specifically related to the above administrative litigation, and it does not constitute information subject to non-disclosure under Article 9 (1) 4

(B) The instant information constitutes information on the basis and criteria for determining whether a person is subject to international tendering prior to tendering, and does not affect the subsequent tendering process. Moreover, the instant 1 and 2-stage construction is not likely to interfere with the Defendant’s business on the ground that the instant information is disclosed due to the completion of tendering procedures and the progress of construction works. There is no relationship between the qualified review procedure of a person qualified for working plans and the instant information, and the instant information. Accordingly, the instant information does not constitute information subject to non-disclosure under Article 9(1)5 of the Information Disclosure Act.

(b) Relevant statutes: Omitted;

C. Determination

(1) Grounds for the instant disposition, applicable laws and regulations, and whether it is possible to add them

(A) The Plaintiff’s objection was dismissed with the purport that the instant disposition was rendered on the ground that the instant information constitutes subject to non-disclosure pursuant to Article 9(1)4 and 5 of the Information Disclosure Act on the ground that the Defendant’s claim for disclosure of the instant information constitutes the fact that the instant information constitutes currently under contract process, and thus, the Plaintiff’s objection was dismissed to the effect that the instant information was not disclosed because it falls under the information subject to non-disclosure under Article 9(1)4 and 5 of the Information Disclosure Act. As seen earlier, although the Defendant did not clearly indicate that it constitutes the grounds for disposition and grounds under Article 9(1)4 and 5 of the Information Disclosure Act while rendering the instant disposition, it appears obvious that the instant information was in the process of tendering contract and, if disclosed, the grounds for disposition and grounds for law at the time of disposition are deemed to be grounds under Article 9(1)5 of the Information Disclosure Act. Accordingly, the Defendant’s subsequent disposition should be deemed to constitute the grounds for non-disclosure under Article 9(1)4 of the Information Disclosure Act.

(B) In an appeal seeking the revocation of an administrative disposition, the agency may add or change other grounds only to the extent that the basic factual relations are deemed identical to the original grounds for the disposition, and the existence or absence of the basic factual relations here shall be determined based on whether the basic social factual relations are identical in the basic point of view by taking advantage of the specific facts before the legal evaluation of the grounds for the disposition is legally assessed. As such, the grounds for interpreting that it is not allowed to assert the grounds for the disposition on the grounds of a separate fact not recognized as identical to the basic factual relations are to realize the substantial rule of law and protect the other party's trust in the administrative disposition by guaranteeing the other party's right to defense against the administrative disposition. The purport of the additional or modified grounds are to realize the rule of law and protect the other party's trust in the administrative disposition. The additional or modified grounds are not stated in the original disposition, but have already existed at the time of the disposition, and have already been known to the other party (see Supreme Court Decision 2007Du1798, Oct. 23,

Article 9(1)4 of the Information Disclosure Act provides that information related to a trial in progress, which, if disclosed, has considerable grounds to recognize that it is considerably difficult to perform his/her duties if disclosed; subparagraph 5 provides that information pertaining to tendering procedures, decision-making processes, or internal review processes, which, if disclosed, may seriously interfere with the fair performance of duties, shall be subject to non-disclosure; thus, the legislative purport of Article 9(1)4 of the Information Disclosure Act is to protect the fairness and independence of the trial in progress, the general prevention and special prevention of crimes, and smooth investigation and correction administration. Article 9(1)5 of the Information Disclosure Act provides that the legislative purpose of Article 9(1)4 of the Information Disclosure Act is to ensure smooth and fair performance of duties in the process of audit, supervision, testing, and tendering procedures, and that information is not subject to non-disclosure; and that information is not subject to non-disclosure; thus, if the original grounds and legislative purport of Article 9(1)4 and 5 of the Information Disclosure Act are different from the initial grounds for non-disclosure of information Disclosure Act; and its content and scope, etc.

(C) Therefore, the instant information constitutes information subject to non-disclosure under Article 9(1)4 of the Information Disclosure Act cannot be the grounds for the instant disposition.

(D) Even if it is permitted to add Article 9(1)4 of the Information Disclosure Act to the grounds for the disposition of this case, in light of the above purport of Article 9(1)4 of the Information Disclosure Act, "information related to a trial in progress" shall be interpreted only where the information in question is disclosed to the public, and it shall not be expanded to all the information related to the contents of the trial in progress. According to the evidence Nos. 5 and 6, each of the records of evidence Nos. 9(1)4 of the Information Disclosure Act shall be interpreted as "information related to a trial in progress" only where there is a specific danger that the information in question may affect the trial in progress, and it shall not be deemed that there is a possibility of infringing the fairness and independence of the trial in the above case, since it is acknowledged that the claim for cancellation of the river construction project plan and the suspension of its validity is pending at the time of the disposition of this case, it may not be deemed that the information corresponding to the basis for calculation of the estimated amount specified in the notice of tender announcement of a specific eight construction section, as well as the above information in question.

(2) Whether the instant information constitutes information subject to non-disclosure under Article 9(1)5 of the Information Disclosure Act

(A) Article 9(1)5 of the Information Disclosure Act provides that "where disclosed, there is a reasonable ground to believe that the fair performance of duties would substantially interfere with the fair performance of duties" means the case where a high probability exists that the fair performance of duties would objectively and significantly interfere with the fair performance of duties when disclosed in light of the purpose of the information disclosure system under Article 1 of the Information Disclosure Act and the legislative intent of Article 9(1)5 of the Information Disclosure Act. Whether the case constitutes such a high probability shall be determined carefully according to specific matters by comparing and comparing the interests such as fairness in the performance of duties protected by non-disclosure and the interests such as guaranteeing citizens' right to know, guaranteeing citizens' participation in state affairs, and securing transparency in state administration (see Supreme Court Decision 2002Du12946, Aug. 22, 2003).

(B) Based on the above legal principles, with respect to whether the instant information constitutes information subject to non-disclosure under Article 9(1)5 of the Information Disclosure Act, there is only the aforementioned assertion of the Defendant and the Intervenor joining the Defendant, and there is no evidence to support this (the Defendant cannot respond to the non-disclosure of the court’s evidence regarding the instant information). Rather, according to the overall purport of the pleading, the following circumstances are as follows: ① The instant 1/2-stage public corporation calculated the estimated amount by each section, and tender was selected based on the unit, and the person qualified for design and working design was first selected by the person qualified for working plans. As such, there seems to be no room to regard the instant information as information on the matters in the process of bidding contract, decision-making process, or internal review; ② the estimated amount of the instant information in the design and construction package deal project is calculated prior to the public announcement of tender notice by the ordering person, and it is more likely that the Defendant’s decision-making process and disclosure of the pertinent information would not have any significant significance in the process of tender disclosure.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified, and the judgment of the court of first instance is just in conclusion, and all appeals filed by the defendant and the defendant joining the defendant are dismissed. It is so decided as per Disposition.

[Attachment] List of Information: omitted

Judges Jeong-young (Presiding Judge)