208Guhap1488 Revocation of Disposition Rejecting Information Disclosure

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Korea Health Personnel Licensing Examination Institute as a foundation

July 25, 2008

August 22, 2008

1. The remaining part of the instant lawsuit, excluding the part seeking revocation of a disposition rejecting the disclosure of information regarding the examination issues dealt with as multiple answers at the national examination for herb doctors in 2003 and the national examination for nurses and dentists in 2004, shall be dismissed.

2. The Defendant’s disposition of ordering disclosure of information pertaining to the examination administered in multiple answers at the national examination for herb doctors in 2003, which was rendered against the Plaintiff as of February 27, 2008 by the Plaintiff, and at the national examination for nurses and dentists in 2004, shall be revoked.

3. The costs of the lawsuit shall be borne by the original, the Defendant, each by 50%.

The defendant, as of February 27, 2008, revoked the disposition rejecting the disclosure of information on the examination issues processed in multiple answers from the national examination conducted by dentists, etc. from 2003 to 2005 against the plaintiff (as of February 28, 2008, ‘the amended claims for the correction of claims' appears to be clerically written).

1. Details of the disposition;

A. The Defendant is carrying out national health and medical professional national examination and the development, management, and education and training of health and medical professional subjects, and the State examination, such as dentists, etc., administered by the Defendant, accumulated the problems that were requested to be drawn to the professors of subjects prior to the implementation of the examination, selected the examination questions to be drawn up, and reusified the questions that were set up once again, and lack of consistency, objectivity, and feasibility or there is no different reasoning.

The problem is operated by a problem bank method that can be discarded through a separate examination, such as the understanding power, accident history, and application ability, or there are two or more regular answers or there is no answer.

B. The plaintiff applied for the 57th national examination enforced on January 21, 2005 for dentist, who was disqualified, and received the portion, and then on March 31 of the same year against the defendant on March 31 of the same year, whether all of the above examination was examined and whether his response was confirmed.

However, on April 6, 2005, the defendant refused to disclose each of the above information on the grounds that it constitutes information subject to non-disclosure under Article 9 (1) 5 of the Official Information Disclosure Act (hereinafter "Information Disclosure Act"), and the plaintiff filed a lawsuit seeking revocation of the above rejection disposition but ruled against the plaintiff.

C. After that, on February 24, 2008, the Plaintiff filed a request with the Ministry of Health and Welfare for each information disclosure on the following issues: ① the national examination for herb doctors in 2003, and the examination for multiple answers at the national examination for nurses and dentists in 2004 (hereinafter referred to as the “information of this case”); ② the medical science issues processed as multiple answers at the national examination for dentists in 2005 (hereinafter referred to as the “information of this case”).

D. Accordingly, on February 27, 2008, the Defendant, who received the above claim documents from the Ministry of Health and Welfare, rejected disclosure to the Plaintiff on the ground that each of the above information constitutes information subject to non-disclosure under Article 9(1)5 of the Information Disclosure Act (hereinafter “the instant disposition”).

[Grounds for Recognition: Evidence No. 1, 2, 3, Evidence No. 1-5, Evidence No. 1-5, the purport of the whole pleadings]

2. Judgment on the main defense, etc.

A. ex officio, the part of the instant lawsuit, excluding the instant case ①, ② the Defendant’s 203 through 2005 seeking revocation of a disposition rejecting disclosure of the examination issues processed in multiple answers from the national examination to the 2005, was examined as to the legitimacy of the part seeking revocation of a disposition rejecting disclosure of the examination issues, i.e., the Plaintiff did not request the Defendant to disclose this part of the lawsuit, and there was no disposition rejecting the Defendant’s refusal to reject it. Thus, this part of the lawsuit is unlawful as it is not subject to the claim for revocation

B. The defendant's defense that his lawsuit seeking revocation of the rejection disposition against disclosure of the information of this case was unlawful since he had already disclosed the information of this case to the plaintiff. Thus, it is obvious that the defendant disclosed the pertinent test issue through his preparatory document on June 17, 2008. Thus, this part of the lawsuit is unlawful as there is no benefit to seek revocation.

C. In addition, the defendant defenses that the examination questions processed as multiple answers in the national examination for oriental medical doctors and nurses among the information of this case are unrelated to the plaintiff, and thus, the plaintiff is not entitled to seek an information hole. However, Article 5 (1) of the Information Disclosure Act provides that "all citizens shall have the right to request an information hole," thereby allowing all citizens to claim disclosure of information held and managed by them. Thus, the defendant's defense is without merit.

3. Judgment on the merits of the instant information

A. Party’s assertion

1) The plaintiff's assertion

The examination problem processed by the plaintiff's multiple answers for disclosure of information has become final and conclusive, and even if so, it is difficult to regard the disclosure as causing a significant forum for fair performance of the test work or for research and development. Thus, the disposition of this case, which occurred differently, is unlawful as it infringes citizens' right to know.

2) Defendant’s assertion

The national examination conducted by the Defendant is a problem bank method, where disclosure of the examination issue is impossible, and eventually, the disclosure of the examination issue causes a significant obstacle to the fair performance of duties or to the development of research, and thus, refusal to disclose information of this case constitutes a case where there is a considerable reason to recognize such refusal.

(b) Relevant statutes;

As shown in the attached Form.

(c) Determination:

1) Article 9(1)5 of the Information Disclosure Act provides that "the disclosure of any information pertaining to a test, etc., which, if disclosed, may seriously interfere with the fair performance of business or research and development, shall not be made public." The legislative intent of Article 9(1)5 of the Information Disclosure Act provides that the disclosure of information as a test information may seriously interfere with the fair performance of business, etc. If disclosed, it shall be determined individually by taking into account the purpose of legislation, the nature and contents of the test and evaluation thereof, the nature of the disclosure and evaluation thereof, the increase in business due to the disclosure, and the ripple effect on the disclosure (see Supreme Court Decision 2006Du15936, Jun. 15, 2007, etc.).

2) Comprehensively taking account of these relevant Acts and subordinate statutes, legal principles and facts set forth in the above 1.1., there is no dispute between the parties that the information of this case was processed by multiple answers among the examinations set by the defendant. These problems are those erroneously setting up and should be discarded without the need to store and manage in the problem bank, so even if they are disclosed, the fair conduct of the test is not deemed to significantly hinder research and development. Thus, among the dispositions of this case, the part rejecting the disclosure of the information of this case 1 among the dispositions of this case is illegal.

4. Conclusion

Thus, the part seeking revocation of the disposition rejecting information disclosure other than the part seeking revocation of the disposition rejecting information disclosure of this case among the lawsuit of this case is unlawful, and thus, the plaintiff's claim is dismissed. The plaintiff's claim of this case is justified within the scope of seeking revocation of the part rejecting information disclosure of this case.

Judges Kim Jong-il

Judges Kim Jong-il

Judges Kim Jong-chul

Relevant statutes

* Official Information Disclosure Act

Article 2 (Definitions)

The definitions of terms used in this Act shall be as follows:

1. The term "information" means matters recorded in documents (including electronic documents; hereinafter the same shall apply), drawings, photographs, films, tapes, slides and other media corresponding thereto that are prepared or acquired and managed by public institutions in the course of performing their duties;

Article 3 (Principles for Disclosure of Information)

Information held and managed by a public institution shall be disclosed as prescribed by this Act.

Article 5 (Applicants for Information Disclosure)

1 ① Every citizen has the right to request disclosure of information.

Article 6 (Duties of Public Institutions)

(1) Public institutions shall enforce this Act and amend related Acts and subordinate statutes to ensure that people's rights to request information disclosure are respected.

1 ② Public institutions shall establish an information management system to ensure the proper preservation and prompt search of information, have an appropriate department and human resources in charge of information disclosure affairs, and endeavor to establish an information disclosure system, etc. by utilizing the information and communications network.

Article 8 (Preparation, Keeping, etc. of Information Lists)

(1) A public institution shall prepare and keep a list of information held and managed by it so that the people can easily understand the information, and disclose the list through the information disclosure system, etc. utilizing the information and communications network: Provided, That in cases where information that may not be disclosed pursuant to the provisions of Article 9 (1) is included in the list of information items, the relevant part may not be kept and disclosed.

Article 9 (Information Subject to Non-Disclosure)

(1) Information held and managed by a public institution shall be subject to disclosure: Provided, That the following information may not be disclosed to the public:

5. The end of the information that has a reasonable ground to believe that a fair performance of duties or a significant impediment to research and development is likely to occur if disclosed to the public, such as a private port in the process of personnel management, decision-making, or internal review of the development of technology for audit, supervision, inspection, testing, and regulatory tendering contracts.