(영문) 서울행정법원 2018.3.8.선고 2017구합3397 판결

The disposition taken by the Defendant against the Plaintiff on May 10, 2017 for non-disclosure of the information listed in the separate sheet shall be revoked.

Reasons

1. Details of the disposition;

A. The Bupyeong-si Military Base (limited to camping and BupyeongDRO site, hereinafter referred to as the “Song-si Base”) is located in the Bupyeong-gu Incheon Metropolitan City Busan Metropolitan City, and the secondary park is immediately adjacent to the area and the apartment complex is concentrated around the surrounding area.

B. Part of Pyeongtaek Military Base Site (228,793m) was determined to be returned in accordance with the Korea-U.S. Union Land Management Plan (LP) and the procedure for its return was in progress. ① Decision on the commencement of the procedure for the return of the unmilitary site (JEAP): ① Decision on the commencement of the procedure for the return of the unmilitary site (SOFA Joint Committee); ② Request for environmental assessment and consultation related to the return (SOFA Facility Area ? SOFA Environment Sub-Committee); ③ Delivery of basic environmental information on the unmilitary base (the U.S. side visits); ④ Joint on-site visits; 6) Environmental Survey and Risk Assessment (in cases of returning the unmilitary site, the EOFA environment sub-committee; 7) final environmental assessment and assessment (the results were found to be 1.6) and 20 U.S. Environmental Standards sub-committee ; 7) final environmental assessment and assessment process (the 2000 U.S. Environmental Standards sub-committee 3).

D. On April 8, 2017, the Plaintiff filed a claim with the Defendant for disclosure of the information listed in the attached list (hereinafter “information of this case”). On May 10, 2017, the Defendant notified the Plaintiff of the decision of non-disclosure on the ground that the information constitutes information subject to non-disclosure under Article 9(1)2 of the Official Information Disclosure Act (hereinafter “Information Disclosure Act”) (where disclosed, information pertaining to national defense, unification, diplomatic relations, etc., which is likely to substantially undermine the State’s interest).

2. Whether the disposition of this case is lawful

A. The plaintiff's assertion

The instant information is a report on the assessment of pollution and risk assessment of the Bupyeong Military Base, and it does not constitute matters related to national defense, unification, and foreign intersection relations, and even if so, it cannot be deemed that the instant information may seriously harm national interests by disclosing the instant information. Therefore, it does not constitute information subject to non-disclosure under Article 9(1)2 of the Information Disclosure Act.

(b) Fact of recognition;

(a) Matters concerning the past environmental pollution in the Bupyeong Military Base and its surrounding areas;

A) The report of the Military Service of the United States of America, drafted in 1991, states that the PCB (Trrratler) 448D for three years from 1987 to 1989, and the number of persistent organic pollutants is treated as 10 tons of wastes (Mercury Pests) and asbestos 2,580 tons, etc.

B) In the environmental survey in 2012, the Bupyeong-gu and the Ministry of National Defense verified that the land of the Bupyeong-gu Park was contaminated by petroleum gas (TPH) and heavy metals. The total pollutant load was 31,202 square meters, 25,830 square meters of oil pollution soil among them, and 2,252 square meters of heavy metals pollution. The total pollutant load was 31,202 square meters, and 2,252 square meters of heavy metals pollution. Thereafter, the budget was 4.7 billion won for the site of the land of the Bupyeong-gu Park contamination, and the environmental purification work was conducted from March 2015 to July.

2) Relevant SFA regulations and the position of USCOM in Korea

A) According to the 'SOFA Joint Committee' for the establishment of the Environmental Division, 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 America is necessary for the disclosure of relevant information.

B) On July 11, 2017, the U.S. military headquarters in Korea will not give consent and support to the disclosure of the matters currently in consultation in the camp market as a result of the environmental investigation conducted in accordance with the authority and agreement of the Joint Committee under the SOFA Agreement to the Ministry of Environment. In particular, unilateral disclosure of the results of the environmental investigation and analysis will adversely affect the efforts of the two countries. If the trust and conviction in compliance with the procedures of the SOFA Joint Committee that have been maintained for a long time is violated, the U.S. Armed Forces will not share any information on the inside the military base currently in use with us. The U.S. United States Armed Forces sent a letter to the effect that the Korean government would require us to take measures to prevent unilateral disclosure of information and documents related to the activities of the SOFA Joint Committee, and expressed its opinion against the disclosure of the information of this case.

3) According to the Korea-U.S. Agreement on 10, 27.10, 2017, the Ministry of Environment, among the instant information, disclosed the result of the analysis of groundwater samples (A~ multi-house news) through the news report data, etc., of which part of the information was scheduled to be returned as a result of the environmental pollution investigation of the Bupyeong-U.S. base, as a result of the analysis of Daok news and soil samples, the result of the analysis of groundwater samples was found to have been disclosed through the news report data, etc.

4) On July 9, 2015, a democratic society-oriented attorney-at-law group of Seoul Yongsan Military Base Environment Investigation (A) filed a request for the disclosure of information on the result of collecting samples from May 26, 2015 to May 29, 2015 and the result of analyzing items related to oil pollution, which was conducted from May 26, 2015 to May 29, 2015 with the Defendant. On July 31, 2015, the Defendant filed a lawsuit seeking revocation against the said disposition with the lower court on the ground that the aforementioned organization falls under information subject to non-disclosure under Article 9(1)2 and 5 of the Information Disclosure Act. The lower court appealed on June 16, 2015 (2015Guhap72610), but the lower court dismissed the Defendant’s appeal on June 16, 2012 (2012.4.14).

B) On October 6, 2016, the aforementioned organization requested the Defendant to disclose information on the collection of groundwater/groundwater level measurement conducted from August 4, 2016 to August 25, 2016, around November 29, 2016, and the result of the analysis of items related to oil pollution, which was conducted around February 2016. On October 18, 2016 and December 12, 2016, the Defendant notified the aforementioned organization of non-disclosure of information on the ground that it constitutes non-disclosure information under Article 9(1)2 and 5 of the Information Disclosure Act. The above organization filed a revocation lawsuit against each of the above dispositions with this court, and the Seoul High Court rendered a final decision to revoke the aforementioned dispositions on June 29, 2017 (which became final and conclusive by the Defendant on June 18, 2017). However, each of the above dispositions became final and conclusive by the Seoul High Court (hereinafter referred to as the “Seoul High Court Decision 2007Da175716,717, Jul. 17, 207, 20197.

[Grounds for Recognition] Facts without dispute, significant facts in this court, Gap evidence Nos. 4, 8, Eul evidence Nos. 2 and 3 (including each number), the purport of the whole pleadings

C. Determination

1) 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 the people's right to know and enhance the transparency of state administration. However, Article 9 exceptionally lists information subject to non-disclosure, and Article 1 (2) provides that "information concerning diplomatic relations, etc. which, if disclosed, is deemed likely to seriously harm national interests."

2) Whether it constitutes a matter of diplomatic relations

As seen earlier, the instant information is related to the environmental investigation and risk assessment conducted as an intermediate procedure for returning part of the Bupyeong Military Base Site according to the agreement between the two countries of Korea and the United States, and thus, it can be deemed to include the "matters concerning diplomatic relations" under Article 9 (1) 2 of the Information Disclosure Act.

3) Whether disclosure is likely to seriously harm national interests or not is likely to cause serious harm to national interests) The instant information consists of the purpose and scope of the investigation, the method and result of the environmental pollution investigation, as a report that conducted an environmental pollution investigation and risk assessment on the Bupyeong Military Bases.

B) First, in full view of the following circumstances, it is difficult to view that the information of this case, other than the risk assessment part, could seriously harm the national interest by disclosing the information of this case to the public by taking account of the following circumstances that can be seen in light of the results of non-disclosure and examination of the facts and the above part of the information submitted by this court by the Defendant.

(1) Of the instant information, the part pertaining to the purpose and scope of the investigation is merely merely an explanation of the outline of the investigation, and the part pertaining to the investigation of environmental pollution is merely an explanation of the method of the environmental pollution investigation and the result of the measurement of the degree of pollution in the vicinity of the Bupyeong Military Base is merely an objective indicator, and does not have any room for dispute over value judgment or interpretation.

(2) According to the Han-U.S. agreement on October 27, 2017, the Ministry of Environment does not seem to have an adverse impact on the progress of negotiations related to the return of Bupyeong-gun Bases by additionally disclosing the part concerning the purpose and scope of the survey, the method of environmental pollution investigation, the part concerning other pollutants that are not included in the disclosure data as a result of the environmental pollution investigation, and the part concerning other pollutants that are not included in the disclosure data.

(3) In the case of the result of the environmental pollution investigation, it is nothing more than the objective indicator describing the degree of pollution as the result of the pollution measurement. It is not different from the information in the Seoul Yongsan Military Base Information Disclosure case and its form. As seen earlier, such information in the Seoul Yongsan Military Base Information Disclosure case has already been determined that the non-disclosure ground under Article 9(1)2 of the Information Disclosure Act is not recognized.

(4) The Bupyeong-gun District Base is a place where there is a Bupyeong-gun Park used by residents in the vicinity and apartment complex is concentrated around the surrounding area, and in fact, there was an environmental pollution problem in the Bupyeong-gun Base from the past, and in fact, there was a situation where the environment purification work was conducted by inserting considerable budget and time due to the soil pollution of the Bupyeong-gun Base adjacent to the Bupyeong-gun Base, and the Ministry of Environment did not solve the environmental pollution problem in the Bupyeong-gun Base on October 27, 2017, the data disclosed on October 27, 2017, the need to guarantee citizens' right to know about information on the investigation of environmental pollution in the Bupyeong-gun Base is great). Next, in full view of the following circumstances, it is recognized that if the above part of the information is disclosed, it would seriously harm the national interest.

(1) In light of the guidelines for the assessment of soil contaminants in accordance with the guidelines for the assessment of soil contaminants, the Plaintiff asserts that the assessment of soil contaminants may be limited to any value judgment or an objective value without any dispute over interpretation as well as the result of the assessment of soil contaminants. According to the guidelines for the assessment of soil contaminants (Notice of the Ministry of Environment), it is doubtful that the degree of excess cancer and the risk ratio of the substance subject to the assessment are calculated through a certain flood formula, and the total degree of excess cancer risk of the contaminated site is determined by combining the degree of excess cancer by the substance subject to assessment calculated by using the determination formula for each exposure route. The risk index of the contaminated site is determined by combining the risk ratio of each substance subject to assessment calculated by using the determination formula for non-explosion and the exposure route, and the permissible total excess cancer risk is determined by adding the total risk ratio of the substance subject to the assessment calculated by using the determination formula to the degree of excess cancer, which is more likely than the total permissible excess cancer risk, and it seems that there is no objective risk index than the Plaintiff’s 1 and non-disclosure risk index.

(2) However, the exposure route, which is the premise for the assessment of risk under the above guidelines for the assessment of risk of soil contaminants, is to be determined by assuming the future usage of the site as one of four pages (see Chapter 3(2) exposure assessment part). As seen above, it can be seen that the permissible total excess cancer risk is not specified in one numerical value, and it is also required within the permissible range of 10 to 10-5-106 as of the base of 10-5, and it is not in violation of any Act and subordinate statute, but is not against the law, but the scope of the purification object when it is based on 10-5 and 10-1). The assessment result under the above guidelines is not entirely reflected in the value judgment, and it does not necessarily lead to only a single numerical or result.

(3) In addition, according to the non-disclosure inspection and review of this part of this Court's information, this part of the information is acknowledged to include not only the objective index of the pollution level of Bupyeong-gun Base, such as the result of environmental pollution investigation, but also the content of the analysis or interpretation based on the value necessary for the purification of contamination, including the contents of value judgment, etc. based on the value as a result of the investigation necessary for the purification of contamination. In addition, it is recognized that the information whose principles and methods are not determined depending on how to divide the number of cases after considering certain circumstances concerning the calculation of

(4) Information, the content of which has not been determined considerably, appears to be able to give various options to the parties using such information within the scope permitted by law, depending on the situation where the parties using such information negotiates. Since the current situation where negotiations on the return of the Bupyeong Military Base are under way between the two governments of the Republic of Korea and the United States, the Government of the Republic of Korea can utilize the above part of information that has not been determined in the course of negotiations on the return of the Bupyeong Military Base in accordance with the future purification goal, healing plan, etc.

(5) However, if the above part of the information is disclosed, it appears that the government of the Republic of Korea would lose room for utilizing the above part of the information in various strategies and methods in the process of negotiating the return of the Bupyeong Military Base with the United States Armed Forces. As a result, it seems reasonable for the Republic of Korea to act against the Republic of Korea in the negotiation process of the return of the Bupyeong Military Base, and in the long term, in the general context of the return of the US Military Base.

(6) The Ministry of Environment, prior to the pronouncement of this judgment, disclosed a considerable portion of the results of the environmental pollution investigation pursuant to the Korea-U.S. agreement on 10, 27.10 and 27. On the other hand, the part concerning the risk assessment is likely to adversely affect the progress of negotiations related to the return of the Bupyeong-U.S. military base for the foregoing reasons.

(7) The information and this part of the information in the Seoul Yongsan Military Base Information Disclosure case, which was a problem of only objective values, such as the result of the collection of samples, is insufficient to be invoked as it is in this case, depending on its form and character.

D. Sub-committee

Ultimately, the part of the instant information, excluding risk assessment, does not constitute information subject to non-disclosure under Article 9(1)2 of the Information Disclosure Act, and thus, the Defendant’s non-disclosure of the said part of the information is unlawful. However, in the case of risk assessment among the instant information, since it constitutes information subject to non-disclosure under Article 9(1)2 of the Information Disclosure Act and thus, the Defendant’

On the other hand, when the court examines whether a disposition rejecting the disclosure of information by an administrative agency was illegal or not, and it can be recognized that the non-disclosure part is mixed with the non-disclosure part, and that the two parts can be separated within the extent that does not violate the purpose of the request for disclosure, the court may order the partial revocation of the non-disclosure part (see, e.g., Supreme Court Decision 2009Du12785, Dec. 10, 2009). According to the result of the court’s non-disclosure inspection and examination, the above non-disclosure part of the information of this case and the remaining information that is not recognized as non-disclosure can be described separately from the evaluation report, and thus, it constitutes a case where the non-disclosure part can be excluded or deleted and the remaining information can be disclosed only, and thus the revocation of the part that is not recognized as non-disclosure part of the disposition of this case shall be ordered

3. Conclusion

Therefore, the plaintiff's claim is justified within the above scope of recognition, and the remaining claims are dismissed as it is without merit. It is so decided as per Disposition.