(영문) 서울행정법원 2017.9.8.선고 2015구합66493 판결

1. The Defendant’s disposition rejecting the disclosure of information as to the information stated in the separate sheet issued to the Plaintiff on June 8, 2015 is revoked.

2. The costs of the lawsuit shall be borne by the defendant.

Purport of claim

The order is as set forth in the text.

Reasons

1. Details of the disposition;

A. On May 14, 2015, the Plaintiff filed a claim with the Defendant for the disclosure of information on the details of the respective special activity expenses (230 Item (2) (2) of the National Assembly General Accounting of the 2011, 2012, and 2013 (1031), 1032, 1032, 1033, 1033, 1035, 1035).

B. On June 8, 2015, the Defendant: (a) spent the information and case investigation that requires confidentiality; and (b) was used for special parliamentary activities, such as the operation of the Committee and extracurricular activities; and (c) there are reasonable grounds to recognize that if the details of expenditure for special activities are disclosed, the legislative activities of the National Assembly may significantly undermine the national interest, or significantly hinder the fair performance of their duties, due to the decline in the principal activity of the National Assembly.

Since it is judged, it made a decision not to disclose information pursuant to Article 9(1)2 and 5 of the Official Information Disclosure Act (hereinafter referred to as the "Information Disclosure Act") on the ground that "no disclosure may be made pursuant to Article 9(1)2 and 5." (hereinafter referred to as the "disposition in this case").

【Uncontentious facts, Gap evidence Nos. 1 and 2, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. Summary of the parties' assertion

1) Plaintiff 1:

The information listed in the separate sheet (the Plaintiff limited the scope of information that the Plaintiff seeks to disclose during the pleadings of this case to the information listed in the separate sheet) is not subject to non-disclosure under Article 9(1) of the Information Disclosure Act. Thus, the instant disposition is unlawful. 2) The Defendant’s special activity expenses are classified as “the cost of the information and the case investigation that requires confidentiality in the “Guidelines for the Preparation of Budget and Draft Fund Management Plans” of the Ministry of Strategy and Finance, and other expenses directly required for the performance of state affairs corresponding thereto,” and the cost of the budget that is premised on confidentiality from the stage of compilation to the National Assembly’s budget deliberation, execution evidence processing, and the settlement review of the National Assembly’s accounts. Accordingly, considering the maintenance of important state secrets and the possibility of smooth performance of state affairs, the instant information constitutes information subject to non-disclosure under Article 9(1) of the Information Disclosure Act as follows. Thus, if the instant information is disclosed, it constitutes information subject to non-disclosure under Article 9(1) of the Information Disclosure Act, which is considerably limited to diplomatic activities that are inevitably included in the political activity of the National Assembly, and constitutes information disclosure.

B) The instant information contains details of active parliamentary activities of the National Assembly based on the autonomy granted by the Constitution, and activities for monitoring the parliamentary diplomacy and the administration, and thus, it is necessary to maintain confidentiality due to its nature. If disclosed, the role of the National Assembly’s monitoring and checking of the administration related to the auditing of the National Assembly is likely to decline. Thus, the instant information constitutes information subject to non-disclosure, such as “audit and supervision” under Article 9(1)5 of the Information Disclosure Act.

C) Of the instant information, the information on the recipient, if disclosed as personal information of the citizen, may inflict mental and property damage on the recipient. In particular, the information on the name, resident registration number, account number, position, etc. is related to privacy, and thus constitutes information subject to non-disclosure under Article 9(1)3 and 6 of the Information Disclosure Act.

B. Relevant statutes

The provisions of the attached Table shall be as specified in the statutes.

C. Determination

1) Provisions of the Information Disclosure Act and relevant legal principles

Article 9(1) of the Information Disclosure Act provides that information held and managed by a public institution shall be disclosed.

However, any of the following information may not be disclosed. subparagraph 2 provides that "Information which is deemed likely to seriously undermine the national interest if disclosed," "Information which is related to national security, national defense, unification, diplomatic relations, etc." subparagraph 3, "Information which is deemed likely to seriously impede the protection of the lives, bodies, and property of the people if disclosed," subparagraph 5 provides that "Information which is in the process of decision-making or internal review, such as matters concerning audit, supervision, inspection, examination, restriction, tender contract, technology development, personnel management, or matters in the process of making a decision-making process or internal review, and information which is deemed likely to seriously impede the fair performance of duties if disclosed." subparagraph 6 provides that "Information which is related to individuals, such as names, resident registration numbers, etc. included in the relevant information, and information which is deemed likely to infringe on the national privacy or freedom if disclosed."

In light of the fact that the "right to know" of the citizen, namely, the freedom to access, collect and process information, is the right directly guaranteed by Article 21 of the Constitution because it shares the nature of the right to freedom and the right to claim. Article 3 of the Information Disclosure Act, which was enacted for the specific realization thereof, declares the principles of information disclosure by allowing public institutions to disclose information in principle. Article 9 of the Information Disclosure Act lists exceptional reasons, public institutions requested to disclose information held and managed by the citizen shall disclose it unless it falls under reasons for non-disclosure provided for in each subparagraph of Article 9 (1) of the Information Disclosure Act. Even if refusing such request, the public institutions shall specifically ascertain and verify the contents of the information subject to non-disclosure and prove that they conflict with any legal interests or fundamental rights and that they fall under any of the above subparagraphs. According to the purport of Article 9 (1) of the Information Disclosure Act, 3 of the Information Disclosure Act, such as ensuring the citizen's right to know, participation in government affairs, and securing transparency in government affairs, etc., the information shall be determined individually by the court’s decision on 2001 and 20.

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

According to the 2011, 2012, and 2013 Guidelines for the Implementation of Budget and Fund Management Plans (Guidelines of the Ministry of Strategy and Finance), special activity expenses refer to the information required to maintain confidentiality, case investigation, and other expenses directly required for government performance activities equivalent thereto, and the information on the details of the execution of such special activity expenses may have some information that, if disclosed, is likely to seriously undermine the national interest. Such information constitutes information subject to non-disclosure under Article 9(1)2 of the Information Disclosure Act.

However, as seen earlier, in the case of the legislative support, support for operation of the commission, and reserve funds tax, it does not include specific information to grasp the specific duties performed by each member of the National Assembly or the commission with respect to the expenditure thereof, and even if combined with other information disclosed to the press, it does not seem that the detailed contents can be inferred. Therefore, it cannot be said that the instant information contains matters concerning national security, national defense, unification, diplomatic relations, etc., and it does not seem that the disclosure of such information is likely to undermine the national interest even if it is made public because there is no content to deem it necessary

On the other hand, in the case of Congress Diplomaticseses, specific contents concerning a certain diplomatic activity, such as the name of an international conference in which a member of the National Assembly attends or the invitation of a foreign member, such contents may be deemed to fall under “matters concerning diplomatic relations” under Article 9(1)2 of the Information Disclosure Act. However, there is no evidence to acknowledge that the said diplomatic activity itself constitutes information to be protected as confidential. However, since there is no evidence that the amount of special activity expenses related thereto is written only in total, it is not disclosed, and it does not appear that the detailed contents can be inferred in combination with other information disclosed to the press. Therefore, it is difficult to readily conclude that such information may seriously harm the national interest by creating obstacles to diplomatic relations and diplomatic activities or causing diplomatic conflicts.

Rather, it is desirable to disclose the activities of the National Assembly, a representative body of the people, in principle, to free debate and criticism by disclosing the information of this case, which can be said to be the minimum information on the details of special activation of the National Assembly, to realize the people's right to know and to ensure the transparency and legitimacy of the National Assembly's activities, in fact, there is no control from the budget compilation to the execution, and there is a case where special activities of the National Assembly have been executed unfairly.

Therefore, the instant information does not constitute information subject to non-disclosure under Article 9(1)2 of the Information Disclosure Act.

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

In light of the purpose of the information disclosure system under Article 1 of the Information Disclosure Act and the legislative intent under Article 9(1)5 of the Information Disclosure Act, “information which has a reasonable ground to believe that a disclosure would seriously interfere with the fair performance of duties” under Article 9(1)5 of the Information Disclosure Act means a highly probable case in which a fair performance of duties would be objectively and significantly hindered if disclosed (see Supreme Court Decision 2010Du14268, Feb. 9, 2012).

However, in light of the content of the instant information, inspection of state administration or commission activities, etc.

In an administrative litigation seeking the cancellation of an administrative disposition, the agency can add or change other reasons only to the extent that the original reason and basic factual relations are identical to that of the original disposition, and thus, it is difficult to view that it is highly probable that the National Assembly's understanding of the actual state of state administration and checking the government will restrict the National Assembly's function of state control and that the fair performance of its duties would considerably interfere with the National Assembly's independence and autonomy. On the other hand, as seen above, the public interest needs to disclose the instant information. Thus, the instant information cannot be deemed information subject to non-disclosure under Article 9 (1) 3 and 6 of the Information Disclosure Act.

12. See, e.g., Supreme Court Decision 2001Du8827 Decided 11.

The Defendant initially stated that the disclosure of the instant information constitutes information subject to non-disclosure under Article 9(1)3 and 6 of the Information Disclosure Act on the ground that “the disclosure of the instant information constitutes information pertaining to privacy, such as the name, resident registration number, account number, position, etc. of the recipient stated in the instant information, may cause mental and property damage to the recipient if it is disclosed.”

However, Article 9(1)3 and 6 of the Information Disclosure Act provide for protecting the interest of the State, fair performance of duties, etc., and Article 9(1)2 and 5 of the same Act provides for protecting the legal interests related to the life, body, property, or privacy of an individual, and their legislative purport is different, and the content, scope, and requirements of each non-disclosure reason are different. Thus, the grounds alleged in Article 9(1)3 and 6 of the Information Disclosure Act cannot be deemed the same factual basis as those indicated in Article 9(1)2 and 5 of the Information Disclosure Act. Accordingly, any addition to the grounds for disposition is prohibited.

B) However, even when examining the above argument added by the defendant, this part of the defendant's assertion cannot be accepted for the following reasons.

Since the instant information does not include the account number, resident registration number, and position of the recipient (the Plaintiff excluded the account number and date of birth included in the disbursement resolution from the scope of seeking disclosure), the issue is the name of the recipient.

Article 9(1)6 of the Information Disclosure Act provides that "information pertaining to an individual, such as name and resident registration number, which, if disclosed, is likely to infringe on privacy or freedom." However, subparagraph 6 (e) clearly excludes "name and position of a public official who performed his/her duties" from the information subject to non-disclosure. In addition, the aforementioned information stipulates as non-disclosure pursuant to Article 9(1)6 (e) of the Information Disclosure Act, which prevents disclosure from hindering an individual's personal and mental internal life or from being able to freely engage in private life, thereby ensuring the privacy or freedom. The special activity expenses are received by a member of the National Assembly, the committee, and the negotiation body, and thus it is difficult to deem that the disclosure of the name of the recipient would infringe on the privacy or freedom. On the other hand, if the recipient is not a public official, such as the finance officer belonging to the National Assembly, etc. (the name of a public official is not subject to non-disclosure). Therefore, the name of the recipient is not subject to non-disclosure under Article 9(1)6) of the Information Disclosure Act.

Meanwhile, since the name of the recipient of special activity expenses is disclosed and it is not likely to seriously undermine the protection of his/her life, body, and property, it cannot be deemed to constitute information subject to non-disclosure under Article 9(1)3 of the Information Disclosure Act. 6)

Therefore, the instant information does not constitute information subject to non-disclosure under Article 9(1) of the Information Disclosure Act, and thus, the instant disposition rejecting information disclosure is unlawful as it did not recognize the grounds for disposition.

3. Conclusion

If so, the plaintiff's claim is reasonable, and it is decided as per the disposition.