List of documents produced or received to rescue the passengers of the Sewol ferry in the Office of the President, Presidential Security Service, and National Security Service on April 16, 2014 (including document title, production year, and person in charge of affairs in accordance with the Act on the Disclosure of Information by Public Institutions) among the "Presidentially-designated records" transferred to the National Archives by the President acting for the President within a specified protection period.

2. The costs of the lawsuit are assessed against the defendant.

A. On May 8, 2017, the Plaintiff filed a claim with the Defendant for the disclosure of information described in Paragraph 1 of the Disposition (hereinafter “instant information”).

B. On May 2, 2017, the Defendant rendered a non-disclosure decision on the ground that the instant information belongs to the 18th presidentially designated records, and that it was designated and transferred as the presidentially designated records pursuant to Article 17(1) of the Presidential Records Management Act (hereinafter “Presidential Records Act”), etc., and thus, it constitutes information subject to non-disclosure under Article 9(1)1 of the Official Information Disclosure Act (hereinafter “Information Disclosure Act”) (hereinafter “the instant disposition”).

[Reasons for Recognition] Unsatisfy, Gap evidence 1-1 and 2-2, the purport of the whole pleadings

2. The parties' assertion

A. Summary of the plaintiff's assertion

The instant information not only does not meet the requirements for designation of presidentially designated records under Article 17(1) of the Presidential Records Act, but also does not have the authority to designate the Presidential records as the presidentially designated records on April 16, 2014, when the President performed his/her duties. Therefore, the act of designating the presidentially designated records on the instant information is illegal and invalid. The instant information cannot be deemed as falling under the information subject to non-disclosure under Article 9(1)1 of the Information Disclosure Act, and thus, the instant disposition is unlawful.

B. Summary of the defendant's assertion

1) Main Safety Defenses

On the premise that the information the Plaintiff requested disclosure is included in “Presidentially-designated records.” Since the Defendant does not have the right to peruse presidentially-designated records, it cannot be confirmed whether the instant information is included in the presidentially-designated records. If the Defendant does not retain the instant information, the instant lawsuit is unlawful since the Plaintiff did not have any interest in seeking the revocation of the instant disposition.

2) The assertion on the merits

Even if the Defendant retains the instant information, the presidentially designated records are restricted by Article 17 of the Presidential Records Act. Therefore, the instant disposition is lawful because such information falls under the information subject to non-disclosure under Article 9(1)1 of the Information Disclosure Act.

3. Judgment on the main defense of this case

A. Relevant legal principles

Information subject to disclosure as referred to in the Information Disclosure Act refers to information, not itself, which is recorded in the media, etc. as shown in subparagraph 1 of Article 2 of the Information Disclosure Act. In principle, information subject to disclosure is specified by the content of a written application for information disclosure prepared by a person who requests disclosure in accordance with Article 10(1)2 of the Information Disclosure Act. If a person who requests disclosure does not retain and manage the information as specified in the said written application, there is no legal interest to seek revocation of a disposition rejecting disclosure of the relevant information, barring any special circumstance. In this regard, the applicant bears the burden of proving that there is a considerable probability that he/she has a public institution that seeks disclosure. (See Supreme Court Decision 2010Du18918, Jan. 24, 20

B. Specific determination

1) In full view of the purport of the entire pleadings, the following facts can be acknowledged in the statement No. 2 of the evidence No. 2.

A) On August 29, 2014, and September 18, 2014, the Chief of the Presidential Security Service rendered a non-disclosure decision on the claim for information disclosure concerning the list of records created or received by each of the pertinent offices on April 16, 2014, on the premise that each of the pertinent information is retained and managed. The Chief of the National Security Service did not decide to disclose the said claim on August 19, 2014 by the lapse of 20 days after the request for information disclosure.

B) The Chief of the Office of the President, the Chief of the Presidential Security Office, and the Chief of the National Security Office asserted that the revocation of each of the above non-disclosure decisions that the above citizens raised and the illegality of omission claims (Seoul Administrative Court 2014Guhap69846, Seoul High Court 2016Nu4148, the appellate court, transfer all of the information on the disclosure claims to the National Archives, and they do not keep and manage them.)

C) Based on the results of the fact-finding reply of the head of the Presidential Archives on January 16, 2018 and the fact-finding reply of the head of the Presidential Archives on September 5, 2017, the court of the instant appellate case acknowledged the following facts: (a) the above information kept by the head of the Presidential Secretariat, the Chief of the Presidential Security Office, and the Chief of the National Security Office was transferred to the Presidential Archives on April 2017; (b) some of the 18 presidential records were designated as the presidentially designated records and transferred to the Presidential Archives; and (c) the fact that it is impossible to confirm which presidential records were designated as the presidentially designated records because they were designated as the list of the presidentially designated records; and (d) based on this, the judgment was finalized at the time of its dismissal on the ground that there was no legal interest in seeking the confirmation of illegality in omission.

D) Meanwhile, according to the documents (documents not designated as presidential records) submitted by the Defendant in the process of perusal and examination of confidential information by this court, the list of records created by the Presidential Secretariat on April 16, 2014 on the sinking accident existed as general Presidential records without being designated as presidentially designated records. However, it is difficult to ascertain whether the records created on the day of the Presidential Secretariat with respect to the sinking of the Sewol Ferry was all the list of records created by the Presidential Security Office or the National Security Office, and the list of records created by the Presidential Security Office or the National Security Office is nonexistent.

2) According to the above facts, the instant information is wholly or partially created and stored in the presidential secretary office, presidential secretary office, national security office, and office, and it is highly probable that the Defendant will possess and manage the instant information after being designated as the presidential records and transferred to the Defendant.

3) Therefore, the Defendant’s main defense is without merit.

4. Determination on the legitimacy of the instant disposition

A. Relevant legal principles and related statutes

1) According to the basic principles of the constitutionalism, any state action or state action must be constitutional and legitimate within the framework thereof based on the Constitution and laws, and the determination of constitutionality and legality is in essence belonging to the competence of the judiciary. However, even if the concept of government action is recognized, it has high level of political nature during the state action, and the judicial agency, which does not hold political responsibility with respect to such high level of political activity, is subject to policy decision by examining the unity or legitimacy of politics, and it is not desirable that the judicial agency is involved in political issues and it cannot be denied the risk of infringing on its impartiality and independence. Thus, with respect to the state action with high level of political nature, it is called the so-called "government action" to restrain the exercise of judicial review by the judicial agency and exclude it from the object of examination. However, even if the concept of government action is recognized, it should be determined with careful discretion so that it does not neglect or waive the responsibilities of the judicial agency to guarantee fundamental rights and the ideology of the rule of law (see, e.g., Supreme Court Decision 2008Do274.

2) A) The purpose of the Information Disclosure Act is to guarantee the citizen’s right to know and secure the citizen’s participation in state affairs and the transparency of state administration (Article 1). Article 3 declares the principle of Information Disclosure that information held and managed by a public institution must be actively disclosed to guarantee the citizen’s right to know (Article 5(1)). Article 9(1) provides that information held and managed by a public institution is subject to disclosure unless it does not fall under information subject to non-disclosure (Article 9(1)). The Presidential Records Act aims to enhance the transparency and accountability of state administration through the efficient management of Presidential records such as the protection, preservation, and utilization of Presidential records (Article 1); Article 1 of the Presidential Records aims to enhance the transparency and accountability of public administration (including acting as the President and the elected President); Article 7(1) of the Presidential Records Act defines the Presidential Records as the records and goods held by the President and the Presidential acquiring institution; Article 17(2) of the Presidential Records Act provides that the results of the disclosure and management institution’s duty should be fully defined as the Presidential records and goods.

(2) However, according to Article 17(1) of the Presidential Records Act, where the presidential records are classified as military. Diplomatic records under the Act and subordinate statutes, which may cause serious harm to national security if opened to the public, such records as economic policies inside and outside the country, trade and finance, which may impede the stability of the national economy if opened to the public, (No. 2) records concerning the personnel affairs of the executive officers, etc. (No. 3) which are private records of individuals, (No. 4) which may cause harm to the life, body, property and honor of the individuals and related persons if opened to the public, (i) during the period of time for public perusal or public announcement of such records, which is not subject to the Presidential and advisory agencies of the President and the President, (ii) during which the term of office of the head of the National Assembly may not be designated within the scope of 3 years prior to the issuance of a public opinion or opinion of the President, (iii) during which the term of office of the head of the Presidential Archives may not be determined separately, and (iv) during which period of time it may not interfere with the public opinion.

C) Other relevant statutes are listed in the attached Form.

B. Specific determination

1) According to the forms and contents of such relevant statutes, the Presidential records are the principle of disclosure to enhance transparency and accountability of the state administration pursuant to Article 9(1) of the Information Disclosure Act and Article 16(1) of the Presidential Records Act. However, the Presidential records, the protection period of which is designated as an exception, are limited to the protection period, but the Presidential Records Act classifys Presidential records that can be designated as presidential-designated records under each subparagraph of Article 17(1) as six types, and sets forth the procedures for such designation as prescribed by Presidential Decree. Considering the principle of disclosing information on Presidential records, the importance of disclosing the presidential records, the importance of the disclosure of the right to know on Presidential records, the effect that the timely realization of the right to know on Presidential records affects the transparency and accountability of the state administration, and it is reasonable for the President to lawfully select and designate the Presidential records without any restriction, and to legally restrict the request for the designation of confidential records to the court for the purpose of protecting the public interest of the Presidential records under Article 17(1) of the Presidential Records Act by satisfying the requirements of the Presidential record disclosure Act.

2) The instant information is merely a list of documents created or received to rescue the passengers of the Sewol ferry in the Office of the President, the Presidential Security Office, and the National Security Office on April 16, 2016, when the Sewol ferry sinking occurred. This is highly probable to suspect that the instant information failed to meet the requirements for presidentially designated records under each subparagraph of Article 17(1) of the Presidential Records Act. The burden of proving that the instant information constitutes a non-disclosure information under Article 9(1)1 of the Information Disclosure Act because disclosure is restricted by the Presidential Records Act as “the presidentially designated records for which the legally designated protection period has been legally designated.” However, the Defendant did not comply with the procedures for perusal and examination of the instant information conducted by the court, and otherwise did not prove that the instant information falls under the legally designated presidential records.

3) Therefore, it is insufficient to recognize that the instant information constitutes information subject to non-disclosure under Article 9(1)1 of the Information Disclosure Act, and there is no other evidence to acknowledge it. Therefore, the instant disposition is unlawful.

5. Conclusion

The claim of this case is reasonable, and it is so accepted as per Disposition.

Judges Kim Gin-han

Judges Hong-man

2) In addition, it is sufficient to determine that the instant disposition is unlawful solely on the ground that the act of designating presidentially-designated records pertaining to the instant information was not recognized as meeting the requirements of presidentially-designated records because the presidential agency did not peruse and examine the instant information in a closed manner. As such, the Plaintiff’s remaining assertion (the assertion that the act of designating presidentially-designated records pertaining to presidential records prior to the appointment of the presidential agency is illegal because it was an act outside the authority) is no longer considered.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.