Nondisclosure of Investigation Record

(15-1 KCCR 282, 2000Hun-Ma474, March 27, 2003)

Held, a decision not to disclose information prohibiting an attorneyfrom inspecting or photocopying letter of complaint or suspect interrogation report in a case under police investigation where the attorneyis representing the suspect is unconstitutional.

A. Background of the Case

The complainant is an attorney retained by a suspect detained for alleged fraud to represent the suspect to request a review on legality of detention. On May 29, 2000, the complainant requestedthat the respondent, the Superintendent of the Western District IncheonPolice, allow the complainant to inspect and photocopy the letter ofcomplaint and the suspect interrogation report among the investigationrecords pertaining to the suspect. The police superintendent denied the above request on the ground that the requested documents for inspection and photocopyingcontained information subject to nondisclosure pursuant to the Criminal Procedure Act and the Act on Disclosure of Information by Public Agencies (hereinafter referred to as the 'Information Disclosure Act'). The complainant thereupon fileda constitutional complaint with the Constitutional Court on the groundthat the decision not to disclose information by the police superintendent was unconstitutional as it violated the basic right of the complainant.

B. Summary of the Decision

The Constitutional Court has held, by the majority of six out of nine Justices, that the above decision not to disclose information is unconstitutional.

(1) Summary of the Majority Opinion

(A) The Constitution explicitly affirms as a basic right the rightof the detainee to assistance of counsel. With respect to the attorney'sright to assist the detainee, the essential part thereof without which the assistance of counsel for the detainee becomes meaningless is one side of the coin the other side of which consists of the 'basic right of the detainee to receive assistance of counsel.' Therefore, the right of the attorney to provide assistance for the detainee with respect to such essential part must also be protected as a basic right under the Constitution.

In a detention legality review proceeding in a criminal case initiated by a letter of complaint, as in this case, it is manifest that an attorney may not sufficiently assist the detainee in a detentionlegality review proceeding if the attorney cannot properly understandthe content of the letter of complaint and the suspect interrogationreport concerning the detainee through the inspection thereof. Therefore, inspection of the above documents is an essential element that should be guaranteed for the complainant who is an attorney in order to sufficiently assist the detainee and, as such, is part of the basic right of the complainant.

On the other hand, the Constitutional Court recognizes that theright of a person who has legitimate interest with respect to theinformation retained by the government to request disclosure thereof is the right to know and has declared that such right to know is a basic right that is as a matter of course included in the freedom of expression.

As seen above, an attorney maynot sufficiently assist the detainee's defense without first properly understanding upon which allegedgrounds the letter of complaint attacks the detainee or on which groundsthe investigative authority has determined to place the detainee in custody. Therefore, the complainant in this case who is an attorney is a person who has legitimate interest and has the right to know the content of the letter of complaint and the suspect interrogation report. Thus, the complainant is entitled to request disclosure of the above documents by exercising the complainant's right to know.

(B)The Information Disclosure Act provides that disclosuremay be denied for such 'information pertaining to the investigation, prosecution, and maintenance thereof that its disclosure may on sufficiently justifying grounds conspicuously deter the performance of official duties or infringe upon the right of the criminal defendant toa fair trial.' In this case, there is no ground to support the allegationthat disclosure of the letter of complaint and the suspect interrogation report would cause the dangers of destruction of evidence, threateningof the witness, conspicuous hindrance in investigation, or unfair trial.

On the other hand, the Criminal Procedure Act provides that thedocuments pertaining to criminal litigation shall not be disclosed priorto trial except for the public interest or other justifying grounds, thereby prohibiting disclosure of documents pertaining to criminallitigation prior to trial. The legislative purpose thereof is to prevent in a criminal proceeding infringement upon the basic rights of the suspect who is presumed innocent until guilty verdict by the disclosure of the investigation records at the investigation stage and is not to restrict exercise of the suspect's right to defend in the pre-trial criminal proceeding. In addition, as the Criminal Procedure Act allows a review on legality of detention only prior to an official charge or official prosecution, if the attorney could not inspect the letter of complaint and the suspect interrogation report in advance,this would inevitably injure the spirit of the Constitution directly guaranteeing the detention legality review system within the Constitutionthereby requesting such system to substantively function to advocatethe human rights of the detainee. Then, the above provision of the Criminal Procedure Act should not be interpreted to mean that it entirely prohibits an attorney from assisting a detainee's right todefense by inspecting the letter of complaint and the suspect interrogation report at the detention legality review stage.

Therefore, the decision not todisclose information by the respondent that denied inspection or photocopying of the letter of complaintand the suspect interrogation report is unconstitutionalas an infringement upon the right to assist the detainee and the right to know of the complainant.

(2) Dissenting Opinion of One Justice

I agree with the majority that the decision not to disclose information by the respondent with respect to the suspect interrogation report is unconstitutional. However, I respectfully disagree with the majority with respect to the letter of complaint.

In many cases, a letterof complaint that initiates criminal investigation states important evidence and major methods of proof in addition to the factual occurrences. Disclosure of the letter of complaint from the initial stage of investigation would as the result thereof disclose to thesuspect those methods of proof not yet investigated or examined by the investigative authority. Discovery of substantive truth would be prejudiced and the exercise of the stateauthority to criminal punishment would be conspicuously hinderedshould an important witness become missing or evidence incriminatingthe suspect be destroyed as a result thereof. Therefore, there is a legitimate ground for the respondent's nondisclosure of the letter of complaint at the initial stage of investigation to avoid such danger.

Therefore, the argument of the complainant that nondisclosure of the letter of complaint is unconstitutional is groundless.

(3) Dissenting Opinion of Two Justices for Dismissal of

the Constitutional Complaint

The majority opinion has concluded that the constitutional complaint in this case, although filed without previously resorting to theprocedure for challenge provided under the Information Disclosure Act, meets legal prerequisites on the ground that it is highly probable that the right of the complainant will not be protected in light of the normal period of time consumed to follow the above procedure for challenge and that it would therefore be inappropriate to demandthe complainant to observe the above procedure as a coercion of unnecessarybypass procedure.

However, with respect to the respondent's decision not to discloseinformation at issue in this case, the Information Disclosure Act provides a procedure for redress by the court. Therefore, filing ofthe constitutional complaint in this case notwithstanding such redressprocedure, which must be followed first, should be dismissed asunjusticiable, as it violates the rule of exhaustion of prior remedies.