[1] Whether information on cash benefits and monthly allowances paid to employees by the National Intelligence Service constitutes “information provided as confidential by other Acts,” which is subject to non-disclosure under Article 9(1)1 of the Official Information Disclosure Act (affirmative)

[2] The case affirming the judgment below holding that, in case where Gap's spouse Eul of National Intelligence Service employee Gap, who was in a divorce lawsuit, requested the head of National Intelligence Service to disclose information, such as "cash pay and monthly allowance paid by the National Intelligence Service to Gap," but the head of National Intelligence Service rejected disclosure on the ground that the above information constitutes information subject to non-disclosure pursuant to the Act on Information Disclosure by Public Institutions, etc., the court below's determination that the

[1] Article 12 of the National Intelligence Service Act limits the disclosure of the budget of the National Assembly in relation to the National Assembly. It is deemed that the disclosure of the budget of the National Intelligence Service is for the purpose of ensuring the confidentiality of information activities, and in other relation, it is premised on the fact that the details of the budget of the National Intelligence Service are closed to the public. Since the disclosure of the budget execution does not differ from the disclosure of the budget contents, the “budget details” which is a non-disclosure item should also include the budget execution contents. Information on cash benefits and the first and second and second allowances paid to the employee by the National Intelligence Service constitutes part of the budget execution contents of the National Intelligence Service. As such, information on the said cash benefits and the first and second allowances is information provided as non-disclosure items under Article 12 of the National Intelligence Service Act, which is the information subject to non-disclosure under Article 9(1)1 of the Official Information Disclosure Act, and it does not change because the said cash benefits and the first and second allowances of the month are in the nature of the employee or the applicant is the spouse of the relevant employee.

[2] The case affirming the part of the judgment below holding that information on cash pay, monthly allowance, etc. constitutes information subject to non-disclosure under Article 9(1)1 of the Official Information Disclosure Act, in case where the head of the National Intelligence Service rejected disclosure on the ground that the information constitutes information subject to non-disclosure pursuant to Article 9(1)1 of the Official Information Disclosure Act, although the spouse B of the National Intelligence Service employee A, who was the spouse of the National Intelligence Service employee A, requested the head of the National Intelligence Service to disclose information, such as “cash pay and monthly allowance paid to Gap,” etc.

[1] Article 9(1)1 of the Official Information Disclosure Act, Article 12 of the National Intelligence Service Act / [2] Articles 9(1)1 and 10(1) of the Official Information Disclosure Act, Article 12 of the National Intelligence Service Act

Plaintiff

Director of the National Intelligence Service (Attorney Sung-soo, Counsel for defendant-appellant)

Seoul High Court Decision 2009Nu32651 decided June 24, 2010

The part of the judgment of the court below concerning the information listed in the separate sheet Nos. 2 and 4 is reversed, and that part of the case is remanded to the Seoul High Court. The remaining appeal is dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Whether the information stated in attached list No. 1 constitutes information subject to non-disclosure under Article 9(1)1 of the Official Information Disclosure Act

Article 9(1)1 of the Official Information Disclosure Act (hereinafter “Information Disclosure Act”) provides that “Information prescribed as confidential or confidential by other Acts or subordinate statutes (limited to the National Assembly Regulations, Supreme Court Regulations, Constitutional Court Regulations, Constitutional Court Regulations, National Election Commission Regulations, Presidential Decree, and municipal ordinances) shall be one of the information subject to non-disclosure.”

However, Article 12 of the National Intelligence Service Act provides that the National Intelligence Service’s request for the expenditure budget of the National Intelligence Service shall be the total amount of the National Intelligence Service’s office and information cost, and the details of the calculation thereof and the documents attached to the budget need not be submitted (Paragraph 2), and that the secret activity expenses that cannot be planned or predicted in advance among the budget of the National Intelligence Service may be included in the budget of other agencies in total (Paragraph 3). Meanwhile, the National Intelligence Service must submit detailed data necessary for the actual examination of all the budget of the National Intelligence Service to the National Assembly Information Committee (Paragraph 4). However, the National Assembly Information Committee provides that the National Assembly Information Committee shall not disclose or divulge the budget of the National Intelligence Service, while a member of the National Assembly Information Committee shall not disclose or divulge the details of the budget (Paragraph 5).

Article 12(1) of the National Intelligence Service Act limits disclosure of the budget of the National Assembly in relation to the National Assembly as above. It is assumed that the disclosure of the budget of the National Intelligence Service is for the purpose of ensuring the confidentiality of information activities, and in other relevant relations, the disclosure of the budget execution is not different from the disclosure of the budget contents. As such, the “budget details” which is a non-disclosure of the budget execution should also include the “budget details.” Since the information on cash benefits and monthly allowances paid to the employee by the National Intelligence Service constitutes part of the details of the National Intelligence Service’s budget execution, the said information on cash benefits and monthly allowances constitutes the “information provided as non-disclosure under other Acts,” which is the information subject to non-disclosure under Article 12(1)1 of the Information Disclosure Act, and the said cash benefits and monthly allowances should be deemed as the “information provided as non-disclosure under other Acts,” which is the information subject to non-disclosure under Article 9(1)1 of the Information Disclosure Act, and the information disclosure should not be deemed as having the nature of the employee’s spouse.

In the same purport, the court below is just in holding that information on “cash pay and monthly allowance paid by the National Intelligence Service” as stated in the attached list No. 1 constitutes information subject to non-disclosure under Article 9(1)1 of the Information Disclosure Act, and it does not err in the misapprehension of legal principles as to the scope of application of the above Act, as otherwise alleged in the ground of appeal. The ground of appeal No.

2. Whether the defendant retains and manages each information listed in paragraphs 2 through 5 of the attached list;

A. In light of the fact that the information disclosure system under the Information Disclosure Act is a system that discloses information held and managed by a public institution in its state, it shall be deemed that a person who seeks to disclose the relevant information has the burden of proving that the public institution possesses and manages the relevant information, but it is sufficient to prove that there is a considerable probability that such information is held and managed by a public institution (see Supreme Court Decision 2006Du20587, Jun. 1, 2007).

B. We examine each information listed in paragraphs 2 and 4 of the attached list.

According to the records, the statement of calculation of retirement allowances of the Korea National Intelligence Service (Evidence No. 6), which appears to have been prepared by the National Intelligence Service, includes the details of calculation of retirement allowances of the Korea National Pension Service (Evidence No. 6) along with the details of calculation of public officials' retirement allowances, and the statement of payment (Evidence No. 4) includes the details of deduction of contributions from the Korea National Pension Service, and the statement of payment (Evidence No. 4) stated that it is difficult for the Defendant to specifically calculate the estimated retirement allowances at the time of retirement since the Defendant paid the retirement allowances as profits accrued from the operation of the contributions at the present time before the name of the lower court, and did not actively dispute the fact-finding of Seoul Family Court, which did not retain and manage the information on retirement allowances of the Korea National Pension Service, and there was a reply that there is a provision of restriction on payment (Evidence No. 3) in the case of crimes or disciplinary action related to duties in the operation of the Korea National Pension Service in relation to the fact-finding of

In light of the above circumstances, it is reasonable to view that the Defendant has a reasonable probability to retain and manage information on “the use of the fund deducted from cash benefits every month” in paragraph (4) of the same list as “the retirement allowance of the two-friendly mutual aid association accumulated up to the present and the estimated retirement allowance of the two-friendly mutual aid association paid at the time of temporary retirement” as stated in paragraph (2) of the attached Table.

Nevertheless, the lower court dismissed this part of the lawsuit on the ground that there is no evidence to acknowledge that the Defendant retains and manages each of the above information. In so doing, the lower court erred by misapprehending the legal doctrine on the degree of proof as to the possession and management of information subject to disclosure request by public institutions, which affected the conclusion of the remaining judgment. The allegation in the grounds of appeal pointing this out has

C. We examine the information listed in the separate sheet No. 3

Upon examining the records in light of the above legal principles, it is insufficient to recognize that the National Intelligence Service has the money paid by the National Intelligence Service separate from the employee's retirement allowance and the Yang-friendly Mutual-Aid Association retirement allowance after his retirement. Therefore, it is justifiable to determine that there is no evidence to acknowledge that the court below held that there is no evidence to support that the defendant has and manages information on "amount of money paid every month by the National Intelligence Service after his retirement and the payment period" as stated in attached Table 3, and it is not erroneous in the misapprehension of legal principles as to the degree of proving that the information subject to disclosure request is held and managed by the public institution, as otherwise alleged in the ground of appeal. The ground of appeal

D. We examine the information listed in Attachment 5.

According to the records, it can be seen that the monthly salary bags (Evidence A No. 5) of the National Intelligence Service (the monthly allowance and the payment for life saving was made in cash. Thus, there is room to view that the defendant has proved that there is a considerable probability to keep and manage the information on the payment items and the payment amount in the attached Table No. 5 of the attached Table, and therefore, the court below rejected this part of the lawsuit on the ground that there is no proof. In so doing, the court below erred by misapprehending the legal principles on the degree of proof as to the public institution's possession and management of the information subject to disclosure claim.

However, since the National Intelligence Service’s duty of disclosure paid to its employees constitutes part of the details of the budget execution of the National Intelligence Service, the information listed in the attached list No. 5 should also be deemed to constitute information subject to non-disclosure under Article 12 of the National Intelligence Service Act, which constitutes information subject to non-disclosure under Article 9(1)1 of the Information Disclosure Act. Therefore, the Defendant’s refusal of disclosure is justifiable.

Therefore, the court below should have dismissed this part of the lawsuit, not the plaintiff's claim. However, in this case where only the plaintiff appealed, the court below cannot dismiss the claim against the plaintiff under the principle of prohibition of disadvantageous change. Thus, this part of the judgment of the court below is justified. Ultimately, this part of the ground for appeal cannot be accepted

3. Conclusion

Therefore, the part of the judgment of the court below regarding each information listed in the separate sheet Nos. 2 and 4 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 Kim Nung-hwan (Presiding Justice)