(영문) 서울행정법원 2017.6.1.선고 2016구합84979 판결

1. The Defendant’s non-disclosure disposition against the Plaintiff on October 18, 2016 against the information listed in paragraph 1 of the attached Table, and revocation of the non-disclosure disposition on the information listed in paragraph 2 of the attached Table as of December 12, 2016, respectively.

2. The costs of the lawsuit are assessed against the defendant.

Purport of claim

The same shall apply to the order.

Reasons

1. Details of the disposition;

A. From 2003 to 7 billion won, the Seoul Special Metropolitan City conducted the purification work of groundwater in the surrounding areas of the Yongsan Military Base, however, the Ministry of Environment continued to detect total hydrocarbons (TPH) above the permissible level of groundwater in the vicinity of the Yongsan Military Base. However, on June 17, 2013, the Ministry of Environment decided to organize a working-level consultative body (EWG) in which the environmental experts participate in the case of pollution adjacent to the Yongsan Military Base (EWG), and the above working-level consultative body (EWG) has decided to conduct an internal investigation of the Ministry of Environment on the 20th anniversary of the 2015, May 26, 2015 and the 2016th day from May 29, 2015 to the 16th day from the 2016th day from the 206th day from the 2016th day from the 2016th day from the 2016th day from the 206th day from the 206th day from the 2015.

E. The Plaintiff filed a revocation lawsuit against the preceding disposition (hereinafter referred to as “prior action lawsuit”) with this court. On June 16, 2015, this court rendered a judgment revoking the preceding disposition (hereinafter referred to as “prior judgment”) and the Seoul High Court dismissed the appeal on December 14, 2016 (2016Nu53410), but the Defendant appealed, but the Supreme Court dismissed the appeal on April 13, 2017 (2017Du31422), and the preceding judgment became final and conclusive as it is.

F. On October 6, 2016, the Plaintiff filed a claim with the Defendant for disclosure of the information listed in attached Table 1 (hereinafter referred to as “third investigation information”). On October 18, 2016, the Defendant notified the Plaintiff of the non-disclosure decision on the ground that the information constitutes information subject to non-disclosure under Article 9(1)2 (matters concerning national defense, unification, diplomatic relations, etc.) and 5 (matters in the process of decision-making or internal review) of the Information Disclosure Act (hereinafter referred to as “the first disposition”).

G. On November 29, 2016, the Plaintiff filed a claim with the Defendant for disclosure of the information listed in Paragraph 2 of the attached Table on the second investigation (hereinafter referred to as "the second investigation information", and when combined with the second investigation information and the third investigation information, "each of the instant information" was referred to as "each of the instant information"). On December 12, 2016, the Defendant notified the Plaintiff of the non-disclosure decision on the ground that the information constitutes non-disclosure information under Article 9(1)2 (matters concerning national defense, unification, diplomatic relations, etc.) and 5 (matters in the process of decision-making or internal review) of the Information Disclosure Act (hereinafter referred to as "Article 9(1)2 (matters concerning national defense, unification, etc.), and when combined with the first and second dispositions, "each of the instant dispositions" is referred to as "each of the instant dispositions").

[Ground of recognition] Facts without dispute, Gap evidence 2 through 4 (including paper numbers), Eul evidence 1 and 9, the purport of the whole pleadings

2. Whether each of the dispositions of this case is legitimate

A. The plaintiff's assertion

1) Each of the instant information pertaining to the degree of contamination of oil in and around the Yongsan Military Base, and around the Green Franche, and does not constitute matters relating to national security, national defense, unification, diplomatic relations, etc., and even if so, it cannot be deemed that the disclosure of each of the instant information could seriously undermine national interest by disclosing each of the instant information, and thus does not constitute information subject to non-disclosure under Article 9(1)2 of the Information Disclosure Act

2) Each of the instant information is merely an objective index that enables verification of the degree of oil pollution in the inside the Yongsan Military Base in Seoul Yongsan Military and around the Green Franchi, and does not fall under any of the matters related to audit, supervision, inspection, test, regulation, bidding contract, tendering contract, technology development, personnel management, decision-making process, or internal review process, and even if so, it does not constitute such information as disclosure of each of the instant information, thereby significantly hindering the fair performance of duties. Thus, it does not constitute information subject to non-disclosure under Article 9(1)5 of the Information Disclosure Act.

(b) Fact of recognition;

1) According to the “SOFA Joint Committee on Environmental Decentralizations”, the official agreements and other documents of the Environmental Subcommittee shall be considered as the official documents of the two countries of Korea and America, and the relevant information shall not be disclosed at will by the Environmental Subcommittee and its members, and the agreement between the two countries of Korea and the United States is necessary for the disclosure of the relevant information.

2) On November 10, 2017, the U.S. military headquarters in Korea sent a letter to the Ministry of Environment, that "Any information on the survey of the U.S. military base environment in Korea, which, if disclosed, is likely to deteriorate the relationship between the Korea and the U.S.A.A.A., if disclosed, there is a possibility of misunderstanding and misunderstanding if disclosed." On November 3, 2016, since all the investigation procedures have not been completed at the joint practitioners' level, disclosure of some results is due to public misunderstanding and unfair public opinion, and is likely to have a serious adverse effect on future efforts, and affect the Korea-U.S.A.A.," the draft survey report submitted by Korea on November 10, 2017, the additional survey should be conducted to determine whether the initial report on the pollution inside the U.S. military base and the causes of melting the melting groundwater is necessary to determine the same, the additional survey on each of the instant data model, etc., and the subsequent survey on both sides and groundwater model.

[Ground of recognition] Facts without dispute, Gap evidence 2, Eul evidence 2, Eul evidence 2, 3, 5, 7, 8 (including additional number), the purport of the whole pleadings

C. Determination

1) Determination as to whether information is subject to non-disclosure under Article 9(1)2 of the Information Disclosure Act

A) Relevant legal principles

Article 3 of the Information Disclosure Act stipulates that information held and managed by public institutions should be disclosed in principle in order to guarantee citizens' right to know, but Article 9 exceptionally lists information subject to non-disclosure, and one of them refers to "information concerning diplomatic relations, etc., which is acknowledged to significantly harm the national interest if disclosed." For the foregoing reason, the benefits protected by non-disclosure should exceed the general right to know included in the citizen's right to know, and the specific benefits of the citizen with respect to the disclosure of documents should also be increased to the extent that the public should sacrifice the contents of the information, the reasons for disclosure, the specific interests of the person entitled to request disclosure, the influence of diplomatic relations, etc. related to the grounds for refusal of disclosure by administrative agencies, and the degree of substantial damage to the national interest (see Seoul Administrative Court Decision 2015Gu72610, Jun. 16, 2016).

B) In the instant case:

As seen earlier, each information of this case is related to the result of consultation that the working-level consultative body organized by the two countries of the Republic of Korea and the United States intends to investigate the U.S. military base environment. Thus, it can be said that it is included in the "matters concerning diplomatic relations" under Article 9(1)2 of the Information Disclosure Act.

However, in full view of the following circumstances that can be seen in addition to the purport of the entire pleadings, it is difficult to deem that the disclosure of each of the instant information would seriously undermine the national interest.

(1) Each of the instant information is merely an objective indicator that measured the degree of oil pollution in the inside of the Yongsan Military Base and around the Green Franchising Station, but does not contain any possibility of value judgment or distortion.

(2) From 2003 to 2003, a total hydrocarbon of petroleum was detected in the underground water around the Yongsan Military Base, and even after Seoul Special Metropolitan City brought about the costs of 7 billion won around the surrounding underground water purification work, the total hydrocarbon of the petroleum industry was continuously detected in excess of the permissible standard level and is suspected of being the source of pollution. Therefore, it is highly necessary to guarantee the citizen's right to know each of the instant information.

(3) It is difficult to view that the disclosure of each of the instant information by the U.S. forces in Korea would be prejudicial to the trust relationship between the Republic of Korea and the U.S. between the two countries. Rather, if the disclosure of each of the instant information is not possible, the disclosure of such information would lead to the risk of causing the reliance on the U.S. forces in Korea, which may result in unnecessary diplomatic conflicts between

(4) In the event that the first investigation information was already disclosed or is scheduled to be disclosed based on a final and conclusive prior judgment, each of the instant information, which is the second investigation information and the third investigation information, does not seem to have worse the relationship between Korea and America, or have a serious adverse impact on consultation on the return of the Yongsan Military Base. Rather, by disclosing the results of the three-dimensional environmental investigation, it would make it possible for the public to provide more accurate and comprehensive information on the degree of oil pollution in the vicinity of the Yongsan Military Base and contribute to drawing a productive conclusion that is practically helpful for the national interest through a process in which the problems of oil pollution in the vicinity of the Yongsan Military Base can be discussed in the public sphere.

2) Determination as to whether information is subject to non-disclosure under Article 9(1)5 of the Information Disclosure Act

A) Relevant legal principles

Article 9(1)5 of the Information Disclosure Act provides that one of the information subject to non-disclosure shall be "audit, supervision, inspection, testing, regulation contract, tendering contract, technology development, personnel management, or information which has considerable grounds to believe that if disclosed, substantially hinder the fair performance of duties or the fair performance of duties if disclosed." In this context, "where there is a reasonable ground to believe that the fair performance of duties would substantially interfere with the fair performance of duties" means cases where there is a high probability that fair performance of duties would substantially interfere with the objective of disclosure 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, and the issue of whether such information constitutes such cases shall be determined carefully in accordance with specific matters by comparing and comparing the interests protected by the non-disclosure such as fairness in the performance of duties protected by the disclosure and the interests of the people such as securing the people's participation in national affairs and securing the transparency of national administration (see Supreme Court Decision 2010Du4268, Feb. 9, 2012).

B) In the instant case:

In full view of the following circumstances revealed in the facts seen earlier, it is difficult to view that each of the instant information constitutes “matters, etc. in the process of decision-making or internal review” under Article 9(1)5 of the Information Disclosure Act, or it is highly probable that the Defendant would objectively interfere with the fair performance of environmental investigations on the U.S. military bases on the ground that each of the instant information is disclosed.

(1) Each of the instant information is merely an objective indicator that can verify the degree of oil pollution in the Yongsan Military Base inside the Yongsan Military Station and the areas surrounding the Green Gemulles as a result of the second investigation and the third investigation.

(2) In the process of the preceding lawsuit, the Defendant expressed his/her intent to disclose the results of the environmental investigation through consultation between the Republic of Korea and the United States after the completion of the environmental investigation of the Yongsan Military Base.

(3) After the issue of oil pollution in the vicinity of the Yongsan Military Base was raised, the Ministry of Environment and the usfk headquarters have waited for the completion of the three-time environmental investigations, which had been initially consulted, and considerable time has passed. The environmental investigations conducted by the Ministry of Environment and the usfk in Korea on three-times already consulted by the Ministry of Environment and the usfk in Korea are deemed completed after the third investigation was completed.

(4) The issues were whether the primary investigation information and the secondary investigation information are different in the process of a prior suit, and the primary investigation information is appropriate to be disclosed. Ultimately, as the primary investigation information is already disclosed or is scheduled to be disclosed based on the final prior ruling, it would be more helpful to the Defendant’s fair performance of the Defendant’s environmental investigation-related work to disclose the secondary investigation information together with the secondary investigation information that may consider both the impact of limited primary investigation information on the timing, location, etc., and the degree of oil contamination outside the Yongsan Military Base, rather than allowing only the primary investigation information to be disclosed.

D. Sub-committee

As a result, each of the instant information does not constitute information subject to non-disclosure under Article 9(1)2 and 5 of the Information Disclosure Act, and thus, each of the instant dispositions issued by the Defendant on a different premise should be revoked in an unlawful manner.

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is decided as per Disposition.