[2] Whether the prohibition of disclosure of communications confirmation data under Articles 13-5 and 11(2) of the Protection of Communications Secrets Act is cancelled at the time of notification as stipulated under Article 13-3 of the same Act with respect to a user (affirmative)

[3] The meaning of "information subject to non-disclosure" under Article 9 (1) 4 of the Official Information Disclosure Act

[4] In a case where a mobile phone owner applied for perusal and reproduction of documents related to a request for the provision of communication confirmation data against a telecommunications business operator who provided his/her own monetary content to an investigation agency, the case holding that the aforementioned telecommunications business operator permitted perusal and reproduction only within

[2] Article 13-3 of the Protection of Communications Secrets Act provides that “An employee or a person who is or was an employee of a communications agency involved in the provision of communication confirmation data shall not disclose or divulge matters concerning the provision of communication confirmation data (Articles 13-5 and 11(2)) to the outside, thereby prohibiting disclosure of the fact that the communication confirmation data has been provided to an investigation agency.” However, Article 13-3 of the same Act provides that “In a case where a public prosecution is instituted against a case for which the communication confirmation data was provided under Article 13 or a disposition (excluding a disposition for the suspension of prosecution) has not been instituted or taken against a prosecution, a request agency for the provision of communication confirmation data and the period thereof shall be notified in writing within 30 days from the date of such disposition.” In light of the foregoing, the prohibition of disclosure of the above communication confirmation data under paragraph (2) of the communication confirmation data shall be deemed

[3] Article 9(1)4 of the Official Information Disclosure Act provides as one of the information subject to non-disclosure information, the disclosure of which has considerable grounds to recognize that the disclosure of information constitutes “investigation,” and the purport of which is to prevent disclosure of methods, procedures, etc. of investigation. Thus, the information constitutes information subject to non-disclosure, not evidence related to criminal facts, but directly related to defense activities of the defendant or the suspect, rather than evidence related to criminal facts.

[4] In a case where a mobile phone owner filed an application for perusal and copy of the “register of data verifying communications confirmation, request for provision of data verifying communications confirmation, and document proving approval from the chief prosecutor of the competent district public prosecutor’s office,” against a telecommunications business operator who provided his/her own monetary content to an investigation agency, the case holding that the aforementioned documents are necessary data to verify whether the act of providing data verifying communications confirmation is legitimate, and whether the aforementioned act of providing data verifying communications secrets was not divulged without following lawful procedures, and thus, the above mobile phone subscriber can claim perusal and copy of the documents for confirmation, and the above documents are not subject to non-disclosure under the Act on

2. The defendant shall allow the plaintiff to peruse and copy the documents in the attached list at the head office or the document storage place of the defendant only within business hours.

3. The plaintiff's remaining appeal is dismissed.

4. All costs of the lawsuit shall be borne by the defendant.

The following facts are not disputed between the parties, or may be acknowledged by adding up the whole purport of the pleadings to each entry in Gap evidence 1 and 2:

A. The Defendant is a telecommunications business operator under the Telecommunications Business Act, and the Plaintiff entered into a mobile phone use contract with the Defendant, and uses the mobile phone (hereinafter “instant mobile phone”) via the Plaintiff’s name.

B. On October 27, 2004, around 15:21, 2004, the Defendant issued a statement of domestic currency concerning the instant mobile phone (from August 1, 2004 to October 27, 2004) to the investigative agency, and provided it to the investigation agency.

C. On November 19, 2004, the Plaintiff was arrested as a violation of the Attorney-at-Law Act on November 29, 2004 and was charged for the same crime on November 29, 2004. On January 12, 2005, the Plaintiff appealed and was sentenced to a 30 million won fine in the appellate court as the same crime. The above appellate court judgment became final and conclusive on March 18, 2005.

D. On February 2009, the Plaintiff filed a request with the Defendant that “if the Plaintiff’s domestic currency was issued at the request of the investigative agency, whether it was made by the investigative agency’s request for the provision of communication confirmation data, and if it was made upon such request, a copy of the request for the provision of communication confirmation data by the investigative agency.” However, the Defendant rejected the request on the ground that “the documents requested by the Plaintiff are in violation of the Protection of Communications Secrets Act, etc. if the Defendant provided

2. The parties' assertion

A. The plaintiff's assertion

The plaintiff needs to verify whether the communication confirmation data were provided to an investigative agency as the subscriber himself/herself of the mobile phone of this case. Thus, the defendant is obligated to allow the plaintiff to peruse and copy the documents listed in the separate sheet (hereinafter "the documents of this case").

B. Defendant’s assertion

The documents of this case are documents related to the request of the investigative agency for the provision of communication confirmation data to the defendant, and the defendant is not the plaintiff's personal information, and the plaintiff does not have the right to request the inspection and copying of the documents of this case against the defendant.

3. Determination

(a) A user's right to request the protection of communications secrecy;

Article 18 of the Constitution of the Republic of Korea provides that "All citizens shall not be infringed on the confidentiality of communications," thereby guaranteeing the freedom of communications as a fundamental right, and Article 54 of the Telecommunications Business Act provides that "no person shall infringe on or divulge the confidentiality of communications dealt with by telecommunications business operators (Paragraph 1)," and "no person who is or was engaged in telecommunications services shall divulge any other person's confidential information he/she becomes aware of in the course of his/her service (Paragraph 2)."

The above provisions of the Telecommunications Business Act impose on a telecommunications business operator the obligation not to divulge confidential information of communications, and the purport of the above Constitution and the provisions of the Telecommunications Business Act, which intends to protect the secrecy of communications, are the same as the above Constitution and the regulatory purport of the Telecommunications Business Act, and most citizens in an information and communications society today developed through high level, have made communications using the service facilities of a telecommunications business operator, and accordingly, the possibility of infringement of communication secrecy by a telecommunications business operator has been significantly increased accordingly, the user has the right to demand the telecommunications business operator not to directly divulge confidential information of communications to another person (hereinafter “the right to demand the protection of communications secrecy”).

B. Details of the right to claim protection of communications secrecy

The right of a user to request a telecommunications business operator to divulge his/her communication secret to another person is naturally included in the right of a telecommunications business operator to seek confirmation as to whether the telecommunications business operator disclosed the communication secret to another person. However, the right of a user to request the protection of communication secret cannot be confirmed as to whether the telecommunications business operator violated his/her communication secret, and thus it becomes difficult to guarantee the effectiveness of the right to

Therefore, a user may seek confirmation as to whether a telecommunications business operator disclosed confidential information to a third party, and if necessary, a telecommunications business operator may request perusal and reproduction of “documents confirming whether the provision was legitimate” and “documents confirming whether the provision was legitimate.”

C. Whether to allow perusal and copying of the instant documents

The document of this case is a written request for the provision of communication confirmation data that the prosecutor requested the defendant to provide communication confirmation data such as the telephone details, etc. which are opened to the plaintiff's name, and a ledger under Article 13 (7) of the Protection of Communications Secrets Act stating the chief prosecutor's approval of the request for the provision of communication confirmation data, and the fact of the provision thereof. Since all of them are necessary data to confirm whether the defendant's act of providing communication confirmation data is legitimate, and whether the defendant did not divulge the plaintiff's communication confirmation data without due process, the plaintiff can request the defendant to peruse and copy the document of this case for such confirmation (However, since the right is not exercised in a way that interferes with the operation of the defendant company, it is reasonable to allow the perusal and copy only within

D. Whether restrictions are imposed under the Protection of Communications Secrets Act

The Protection of Communications Secrets Act prohibits disclosure of the fact that a person who is or was an employee of a communications agency involved in the provision of communication confirmation data is provided to an investigation agency by stipulating that "it shall not disclose or divulge matters concerning the provision of communication confirmation data (Articles 13-5 and 11 (2))."

However, Article 13-3 of the same Act provides that "if a public prosecution or a disposition not instituted or taken for the provision of communication confirmation data (excluding a disposition of suspension of prosecution) is made with respect to a case for which the communication confirmation data are provided under Article 13, the public disclosure of the above communication confirmation data shall be notified in writing within 30 days from the date of such disposition." In light of the above, it is reasonable to deem that the restriction is cancelled at the time of the above notification related to the user.

In this case, the prosecutor has already instituted a prosecution on the case of violation of the Attorney-at-Law Act against the plaintiff, who was provided with communication confirmation data, and the judgment became final and conclusive. Thus, the prohibition of disclosure of the communication confirmation data of this case to the plaintiff is deemed to have already been cancelled against the plaintiff. Therefore, the document of this case does not fall under the restriction of the Protection of Communications Secrets Act.

(e) Whether public institutions are subject to restrictions on information disclosure;

The defendant asserts that the documents of this case are internal documents of investigative agencies, which are information subject to non-disclosure under Article 9 (1) 4 of the Official Information Disclosure Act.

Article 9(1)4 of the Official Information Disclosure Act provides that information pertaining to “investigation,” which, if disclosed, has considerable grounds to believe that it would significantly impede the performance of duties if disclosed, is one of the information subject to non-disclosure. The purport of the Act is to prevent disclosure of methods, procedures, etc. of investigation. The purpose of the Act is to prevent disclosure of the methods, procedures, etc. of investigation. Information not directly related to the defense activities of the accused or the suspect, but not evidence related to the proof of criminal facts, constitutes information subject to non-disclosure (see, e.g., Constitutional Court Decisions 94Hun-Ma60, Nov. 27, 1997; 2002Du1342, Dec. 26, 2003).

Of the instant documents, a written request for the provision of communication confirmation data and its approval are related to the procedures of investigation, but they are delivered to a telecommunications business operator to secure the provision of communication confirmation data instead of a mere internal document not related to the defense activities of the accused or suspect, and a telecommunications business operator shall keep the data together with the ledger for seven years (Article 13(7) of the Protection of Communications Secrets Act). This is not the data subject to non-disclosure under Article 9(1)4 of the Official Information Disclosure Act, but the documents that need to be disclosed to verify the legality of the investigation procedure. The Defendant’s assertion is without merit.

F. Sub-committee

Therefore, the Defendant, who is a telecommunications business operator, is obligated to allow the Plaintiff, the user, to peruse and copy the instant documents only within business hours at the Defendant’s head office or document storage place.

4. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted within the above recognized scope and the remainder shall be dismissed. Since the judgment of the court of first instance is partially unfair, the plaintiff's appeal is partially accepted. The part against the plaintiff falling under the above recognized part among the judgment of the court of first instance is revoked and the plaintiff's claim is accepted, and the remaining appeal is dismissed. It is so decided as per Disposition.

Judges Cho Young-chul (Presiding Judge)