[2] The standard for determining whether the disclosure of information about the examination in school education significantly interferes with the fair performance of the business

[3] The case holding that although "data on the evaluation of academic achievement at the national level in 2002 and 2003" constitutes information subject to non-disclosure under Article 9 (1) 5 of the Official Information Disclosure Act, "data on the College Ability Test from the level of 2002 to the level of 2005" does not constitute information subject to non-disclosure under the above provision where the disclosure of such information is requested for research purposes

[4] The case holding that where an individual who is not an institution requests disclosure of information about another person, whether to disclose information about an individual should be determined pursuant to Article 9 (1) 6 of the Official Information Disclosure Act, not the former Act on the Protection of Personal Information of Public Institutions

[2] In light of the known right, student learning right, parent's right to education for children, etc., whether disclosure of information about the examination in school education seriously interferes with the fair performance of business should be determined carefully according to specific cases by comparing and comparing the interests protected by non-disclosure such as the fair performance of business, the right to know, student learning right, student's right to education for children, the right to participate in school education, and the right to secure transparency of educational administration, with consideration to the legislative purport of allowing not to disclose the information as to the purpose and purpose of the Official Information Disclosure Act, the nature and contents of the examination and evaluation act, the increase in business due to disclosure and disclosure, and ripple effects caused by disclosure.

[3] The case holding that although it is highly probable that the "data on evaluation of academic achievement at the national level in 2002 and 2003" was conducted as a sample survey method and it includes school identification information, etc., if all of its original data are disclosed as is, it would objectively and significantly obstruct the fair performance of the duties of evaluation of academic achievement, it constitutes information subject to non-disclosure as provided by Article 9 (1) 5 of the Official Information Disclosure Act, although "data which is subject to non-disclosure on academic achievement from 2002 to 2005" is part of the data subject to non-disclosure as provided by Article 9 (1) 5 of the Official Information Disclosure Act, the "data which is subject to non-disclosure on academic achievement test from 2002 to 205" is requested for disclosure of the information for the purpose of research, it is difficult to conclude that the side effect caused by disclosure is greater than the profit that can be obtained by disclosure, and thus

[4] The case holding that if an individual who is not an institution requests disclosure of information about another person, it shall not be governed by the former Act on the Protection of Personal Information of Public Institutions (amended by Act No. 8448 of May 17, 2007), it shall be determined whether to disclose information about an individual pursuant to Article 9 (1) 6 of the Official Information Disclosure Act

1. Regarding ground of appeal No. 1

In principle, the information disclosure system has the burden of proving that there is a substantial probability that the public institution holds and manages the information that is requested to be disclosed as a system that discloses the information held and managed by the public institution in its state. However, if the public institution possesses and manages the information that is requested to be disclosed at once, but no later exists after the document containing the information is destroyed, the burden of proving that the information is no longer held and managed by the public institution (see Supreme Court Decision 2003Du12707, Dec. 9, 2004).

In light of the above legal principles and the records, it is reasonable that the court below held that the defendant holds the original data of the College Ability Test (including data for each school, including individual identification data, excluding individual identification data) (hereinafter referred to as "water-related test information", and the "Credit Ability Test" refers to water-related test) which was requested to be disclosed by the plaintiffs from 2002 to 2005, and there is no error in the misapprehension of legal principles as to whether to hold and manage the information requested for disclosure or not, as otherwise alleged in the ground of appeal

2. Regarding ground of appeal No. 2

Examining the reasoning of the judgment below in light of the records, the court below acknowledged facts based on the evidence presented in the judgment, and determined that the information requested for disclosure of academic achievement evaluation was specified as the above original data on the premise that it is identical between the original data and the "original data on the evaluation of academic achievement evaluation of academic achievement for which the plaintiffs were requested for disclosure in 2002 and 2003 (hereinafter referred to as "academic achievement evaluation data for researchers," and the national level evaluation of academic achievement evaluation for which the plaintiffs were refused to disclose (hereinafter referred to as "academic achievement evaluation") and the "original data on the evaluation of academic achievement evaluation for which the plaintiffs seek disclosure in the lawsuit in this case. There is no error of law by misunderstanding the subject of the request for information disclosure and the disposition of refusal to disclose information, as otherwise alleged in the ground of appeal.

3. As to the third ground for appeal

A. The citizen’s “right to know,” i.e., the freedom of access to, collection and processing of information, which combines both the nature of the right to freedom and the nature of the right to claim, is directly guaranteed by Article 21 of the Constitution. The right to claim information disclosure is a natural nature of the right to know. The Act on the Disclosure of Information by Public Institutions (hereinafter “Information Disclosure Act”) enacted for the specific realization thereof declares the principle of information disclosure by allowing the disclosure of information held and managed by public institutions in principle under Article 3, while Article 9 lists exceptional reasons for exclusion (see Supreme Court Decision 2009Du12785, Dec. 10, 2009, etc.).

In addition, Article 31(1) of the Constitution provides that "All citizens shall have the right to receive equal education according to their abilities," declaring the right to learn as fundamental rights, and the right to education for parents' children may not be explicitly provided in the Constitution, but it is important fundamental rights derived from Article 36(1) of the Constitution that guarantees marriage and family life as human rights, Article 10 of the Constitution that guarantees the right to pursue happiness, Article 37(1) that provides that "the freedom and rights of citizens shall not be neglected for reasons not listed in the Constitution," and Article 37(1) of the Constitution that provides that "The right to education for children of these parents shall not be neglected for reasons not listed in the Constitution," based on the fact that the parents' parents have established an overall plan for school education in consideration of the children's personality and ability in the school area, the right to choose the equivalent curriculum in order to freely realize children's identity, that is, the right to decide or decide the education for children's children or children's children, etc. (see, e.g., Supreme Court Decision 2525Da298, Sept.).

On the other hand, Article 9(1)5 of the Information Disclosure Act provides that information pertaining to testing that may seriously interfere with the fair performance of business if disclosed, shall not be disclosed. Here, the term "where disclosure has a considerable reason to believe that fair performance of business would substantially interfere with the fair performance of business" refers to cases where fair performance of business would substantially interfere with the fair performance of business when disclosed (see Supreme Court Decision 2005Du8733, Jul. 13, 2007, etc.). In addition, in light of the above known right, learning right of students, parent's right to education of children, etc., whether disclosure of information pertaining to school education seriously interferes with fair performance of business should be determined by comparing the purpose and purpose of the Information Disclosure Act, the nature and contents of the examination, the nature of the evaluation act, the increase in business due to disclosure, the ripple effect of disclosure, etc., with the interests protected by non-disclosure such as fairness of business, the rights of students' participation in the public and the interests protected by the rights of education and the interests of the people, such as the right of education of children.

B. First, we examine information on evaluation of academic achievement.

According to Article 5(1)12 and (3) of the Act on Special Cases concerning the Disclosure of Information by Education-Related Institutions (amended by Act No. 8492 of May 25, 2007), Article 3(1) [Attachment 1] 12 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 21119 of Nov. 17, 2008), Article 3(2) proviso to Article 3(2) of the Addenda, the head of an elementary, middle, and high school shall publicly announce the three-class ratio of application for the evaluation of academic achievement from the evaluation in 2010, the three-class ratio of application for the evaluation of academic achievement from the evaluation in 201, the improvement level for the previous year from the evaluation of academic achievement from the evaluation in 201, but each of the above provisions shall not apply to this case for which the disclosure of information on the evaluation of academic achievement was requested.

In addition, according to the facts and records duly admitted by the court below, the Korean Institute of Education and Planning entrusted with evaluation duties by the defendant (the Minister of Education and Human Resources Development at the time) in 2002 and 2003 includes the results of the survey conducted for students, the heads of schools, and teachers to identify the school principals and teachers who responded to the survey if the school identification information is disclosed, with the cooperation of each City/Do Office of Education on the premise that the public disclosure of the school identification information by individual, school, and office of education is carried out.

However, in the case of sample surveys such as the evaluation of academic achievement in 2002 and 2003, there may be doubt about the representativeness of sample, and in the case of the disclosure of all information on school achievement evaluation including school identification information, if it is disclosed as it is, it would be difficult to induce voluntary and active cooperation from the office of education and the school, and in addition, it would be difficult for teachers to understand the student's academic achievement evaluation as it is, in light of the fact that it is highly probable that if the original data is disclosed as it is, it would substantially interfere with the fair performance of their duties if it is made public. Thus, Article 5 (1) of the Information Disclosure Act provides that the part falling under the information subject to non-disclosure should be included in Article 9 (1) of the Information Disclosure Act.

Therefore, the court below should have determined whether there exists a high level of probability that the fair performance of the duties of evaluating academic achievement would be objectively hindered if each part of the information on evaluation of academic achievement is disclosed by examining the contents of the information on evaluation of academic achievement. However, the court below determined that the whole of the information on evaluation of academic achievement does not constitute information subject to non-disclosure under Article 9(1)5 of the Information Disclosure Act for the reasons stated therein. In so doing, the court below erred by misapprehending the legal principles on the scope of application of the above Article, which affected the

C. The following points are examined as to water testing information:

According to the facts and records duly admitted by the court below, it is revealed that the purpose of the test is to train creative human resources while measuring the academic ability necessary for university education, contributing to the normalization of high school education, and the fact that school identification information is also included in the hydro-test information, and the plaintiffs claim the disclosure of hydro-test information for the purpose of studying the actual educational condition of Korea as university professors.

However, in the event that the hydro testing information, including the school identification information, is disclosed as it is, the results of the examination, the rupture between schools takes place, while the curriculum is concentrated mainly on the academic field with a high level of the hydro testing, the dependence on the private education is further deepening due to the occurrence of competition or apprehensions among the students and parents, and the dependence on the private education is deepening due to the high level of sexuality, while the preference of the students and the parents is concentrated on the school with the higher grade, while the school with the higher grade level is subject to the challenge of admission, the school with the higher grade level is inevitably subject to the challenge of admission, and the school with the higher academic desire is likely to cause a trouble in the achievement of the above hydro testing purpose.

However, in reality where the academic gap between schools exists strictly, and the dependence on private education has deepened due to excessive participation in games, it can be deemed that it is more consistent with the purpose of the Information Disclosure Act to make it available to researchers, etc. for the improvement of the above reality rather than disclosing the able testing information including school identification information. In other words, disclosure of able testing information including school identification information can be an opportunity to promote the establishment of educational policies based on the improvement of curriculum and teaching and learning methods and objective data by enabling empirical analysis of educational reality and productive discussions on educational policies. Moreover, in each City/Do, it is limited or guaranteed that students and parents' right of school selection can be limited by adopting multiple support and post lottery methods for high school entrance screening. If the able testing information including school identification information is disclosed to researchers, etc., it will be possible to provide students and parents with useful data in selecting schools through such analysis and analysis of social development factors, including school identification information, if it is discovered through selection of students and parents.

If so, it is difficult to conclude that the side effect that may be caused by the disclosure is greater than the profit that can be obtained from the disclosure in the case of requesting the disclosure of hydro testing information for the purpose of research, as in the case of this case, there is a high probability that such disclosure will seriously interfere with the fair performance of hydro testing affairs objectively.

In this regard, the court below is just in holding that the hydro-testing information does not constitute information subject to non-disclosure under Article 9 (1) 5 of the Information Disclosure Act, and there is no error in the misapprehension of legal principles as to the scope of application of the above Article, as otherwise alleged in

4. As to the fourth ground for appeal

A. Article 4(1) of the Information Disclosure Act provides that “The disclosure of information shall be governed by this Act, except as otherwise provided for in other Acts.” In order to exclude the application of the Information Disclosure Act on the grounds that the disclosure of information constitutes “where there are special provisions in other Acts with respect to the disclosure of information,” the special provisions shall be “Acts,” and further, the contents thereof shall be differently provided for in the Information Disclosure Act on the subject and scope of the disclosure of information, procedures for the disclosure of information, information subject to non-disclosure, etc. (see Supreme Court Decision 2007Du2555, Jun. 1, 2007).

However, Article 3(1) of the former Act on the Protection of Personal Information of Public Institutions (amended by Act No. 8448 of May 17, 2007; hereinafter “former Personal Information Protection Act”) provides that “The protection of personal information processed by a computer of a public institution shall be governed by this Act, except as otherwise provided for in other Acts, with respect to the protection of personal information managed by a computer of a public institution.” However, Articles 12 and 13 provide other agencies with information. As to the case of providing information under Article 10, Articles 12 and 13 provide for the case where a subject of information requests the perusal of information on his/her own, and there is no special provision regarding the case where an individual other than the public

Therefore, in this case where an individual who is not an institution requests the disclosure of information about another person, not the former Personal Information Protection Act, but the disclosure of information about an individual pursuant to Article 9(1)6 of the Information Disclosure Act. However, the lower court determined whether to disclose the information in accordance with Article 10 of the former Personal Information Protection Act. In so doing, the lower court erred by misapprehending the legal doctrine on the relationship between the Information Disclosure Act and the former Personal Information Protection Act.

B. Furthermore, we examine whether the above error affected the conclusion of the judgment on academic achievement evaluation information.

As seen earlier, the school achievement evaluation information includes the result of the survey conducted for the head of the school and teachers to analyze the background background, and if the school identification information is disclosed, it is possible to identify who is the principal and teachers who have responded to the survey. If the person who has responded to the survey is identified among the results of the survey on the head of the school and teachers, it seems that there is a concern that his/her privacy may be infringed.

Therefore, the court below should have determined the scope of disclosure so that it could avoid infringement of the privacy or freedom of private life of the principal and teachers who followed the survey by specifically examining the contents of the study achievement evaluation information. However, as seen earlier, the court below determined the illegality of determining whether to disclose the information about an individual pursuant to Article 10 of the former Personal Information Protection Act, and judged that all of the remaining information on the study achievement evaluation except for the student identification number and the student identification number and name. Thus, the above error affected the conclusion of the judgment on the study achievement evaluation information.

C. Next, it is difficult to distinguish whether the above error affected the conclusion of the judgment on the hydro testing information, and the hydro testing information refers to the information other than the "personal identifiable data" as seen earlier, and even if it is disclosed, it is difficult to distinguish which student is information, so it is not likely to infringe on the privacy or freedom of an individual. Thus, the hydro testing information is not subject to non-disclosure under Article 9 (1) 6 of the Information Disclosure Act. Accordingly, it cannot be said that the above error affected the conclusion of the judgment on the hydro testing information.

5. Conclusion

Therefore, the part of the judgment of the court below against the defendant regarding the information on evaluation of academic achievement is reversed, and that part of the case is remanded to the court below for a new trial and determination. The remaining appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ahn Dai-hee (Presiding Justice)