[1] The case holding that the restriction of perusal and copying under Article 22 (1) 2 of the Rules on the Affairs for the Preservation of Prosecution does not constitute "information provided as confidential matters by other Acts or orders delegated by other Acts" under Article 9 (1) 1 of the Official Information Disclosure Act

[2] In a case where the prosecutor's office rejected the disclosure of information on the witness's statement and suspect interrogation protocol, etc. among the investigation records of the non-prosecution case, on the ground that the prosecutor's office's office's disposition rejecting the disclosure of information constitutes information subject to non-disclosure, the case holding that the part which refused the disclosure of information on the personal information of the chief and incumbent chief officers of the Chungcheong Korea Electric Power Corporation's office

[1] The case holding that Article 22 (1) 2 of the Rules on the Affairs for the Preservation of Prosecutors, which limits the reading and copying of the records of non-prosecutions, does not constitute "information provided for in non-disclosure by other Acts or orders delegated by other Acts" under Article 4 (1) 1 of the Official Information Disclosure Act or "information provided for in non-disclosure by other Acts" under Article 9 (1) 1 of the same Act, because it is merely an administrative rule within the administrative agency without grounds for delegation.

[2] The case holding that in case where the prosecutor's office rejected the disclosure of information on the witness's statement and the suspect's interrogation protocol in the investigation records of the non-prosecution case on the ground that the prosecutor's office rejected the disclosure of information on the grounds that the prosecutor's office's office's office's request for the disclosure of information on the witness's statement and the suspect's interrogation protocol constitutes non-disclosure information, since the former and incumbent Korea Electric Power Corporation's head's personal information stated in the witness's statement in the above refusal disposition is not directly related to the accusation case and it cannot be deemed that the interests in privacy protected by the disclosure of personal information are smaller than those of the complainant's right to remedy by the disclosure of information, and the non-disclosure information constitutes non-disclosure information under Article 9 (1) 6 of the Official Information Disclosure Act, the part refusing the disclosure of information is legitimate, but the other information constitutes the non-disclosure information's statement in the process of investigating the accusation case, and it constitutes a part which may affect the civil dispute between the complainant and the suspect.

[1] Article 22(1)2 of the Rules on the Preservation of Prosecutors' Offices; Articles 4(1) and 9(1)1 of the Official Information Disclosure Act / [2] Article 9(1)1 of the Official Information Disclosure Act

Plaintiff

Chief Prosecutor of the District Prosecutors' Office

April 29, 2010

1. The defendant's refusal to disclose information to the plaintiff on October 19, 2009, on the part other than the information (name, resident registration number, age, telephone number, etc.) on the former and present Korea Electric Power Corporation's personal information entered in the witness statement of non-party 1 among the dispositions rejecting disclosure of information on each information listed in the list of information requests for disclosure in the separate sheet of the attached sheet against the plaintiff.

2. The plaintiff's remaining claims are dismissed.

3. One-half of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

A disposition rejecting information disclosure made by the Defendant against the Plaintiff on October 19, 2009 shall be revoked.

1. Details of the disposition;

A. The Plaintiff: (a) while running an entertainment drinking house by leasing the second floor of the building in the Cheongju-si, Jeonju-dong (hereinafter omitted); (b) the said building was awarded a successful bid to Nonparty 2; and (c) Nonparty 2 received the Plaintiff’s share of possession around February 2004 from the end of the lawsuit against the Plaintiff. However, the Plaintiff asserted that “after the Plaintiff conspired with Nonparty 2, the Korea Electric Power Corporation laid down the electricity supplied to the Plaintiff’s place of business on May 3, 2003, the Plaintiff obstructed the Plaintiff’s business by linking Nonparty 2’s place of business from May 3, 2003 to September of the same year; and (d) Nonparty 2 and Korea Electric Power Corporation filed a lawsuit against Nonparty 2 and Korea Electric Power Corporation under the charge of electrical theft (hereinafter “the case of complaint”); (e) the Plaintiff was also subject to a non-prosecution disposition lawsuit against the Plaintiff.

B. After filing an appeal (Cheongju District Court 2008Na833, 2009) in the above lawsuit for damages, the Plaintiff applied for the commission of sending documents concerning the investigation records of the accusation case under the custody of the Cheongju District Prosecutors' Office on February 2, 2009, and the above appellate court accepted the Plaintiff's application and entrusted the Plaintiff with sending documents to the Cheongju District Prosecutors' Office. On February 13, 2009, the Plaintiff: (a) inspected investigation records to the Cheongju District Prosecutors' Office on February 13, 2009; and (b) designated a certified copy on the ground that the protocol containing Nonparty 2 and 1's statement was rejected on the ground that "the disclosure could infringe upon the honor, privacy, etc. of the person concerned". On August 14, 2009, the Plaintiff lost the above appellate court on September 5, 2009.

C. On September 24, 2009, Cheongju District Court 2009Na36, the Plaintiff filed a request for a retrial regarding the claim for damages, but was dismissed on November 20, 2009, and subsequently, on January 5, 2010, the Plaintiff filed an application for an additional judgment, but was sentenced to a declaration declaring the termination of the lawsuit on January 5, 2010, and thereafter, the Plaintiff appealed to Supreme Court Decision 2010Da10627 Decided February 3, 2010 but was dismissed on May 13, 2010.

D. On October 14, 2009, when the above review lawsuit was pending, Nonparty 3, his father, requested the Defendant to disclose each information listed in the separate sheet of information requested disclosure among the investigation records of the case on behalf of the Plaintiff (hereinafter “instant information”).

E. On October 19, 2009, the Defendant issued a disposition rejecting disclosure of information on the ground that “the instant information constitutes a case in which it is likely to infringe on the privacy or freedom of individuals” (hereinafter “instant refusal disposition”).

F. On October 22, 2009, the Plaintiff filed an objection against the instant disposition against the Defendant, but was dismissed on October 26, 2009.

[Reasons for Recognition] Unsatisfy, Gap evidence 1 to 3 (including virtual number), Eul evidence 2, the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The parties' assertion

(1) The plaintiff's assertion

Since the instant information does not constitute information subject to non-disclosure under Article 9 of the Official Information Disclosure Act (hereinafter “Act”), the Defendant’s disposition is unlawful.

(2) The defendant's assertion

① The instant information is a document stating the statement made by Nonparty 2 and Nonparty 1, and in particular, the statement made by Nonparty 1 contains the personal information of the president of the Chungcheongbuk branch of the Korea Electric Power Corporation prior to and incumbent Korea Electric Power Corporation. Thus, the disclosure of the instant information constitutes information subject to non-disclosure under Article 9(1)6 of the Act because it could infringe on the individual’s privacy or freedom if disclosed. ② Since Nonparty 1 appeared and testified as a witness in a lawsuit brought by the Plaintiff for damages, and the said lawsuit became final and conclusive against the Plaintiff, the disclosure of the instant information is not necessary for the remedy of the Plaintiff’s rights. ③ The instant information constitutes grounds for restrictions on perusal and copying of the records of non-prosecution cases as prescribed in Article 22(1)2 of the Rules on the Military Prosecutor’s Duties.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

(1) Whether the rejection disposition under the Rules on the Affairs of Preservation of Prosecution is legitimate

The Rules on the Affairs for the Preservation of Prosecutors are governed by the Ordinance of the Ministry of Justice, but the part that limits the reading and copying of the records of non-prosecutions, etc. among them is merely administrative rules within administrative agencies without any grounds for delegation, and therefore, the restriction of reading and copying under the above Rules shall not be deemed to constitute “where there are special provisions in other Acts concerning the disclosure of information” under Article 4(1) of the Act or “information provided as confidential matters by other Acts or orders delegated by other Acts” under Article 9(1)1 of the Act. Therefore, the grounds for restriction on reading and copying under the Rules on the Affairs for the Preservation of Prosecutors cannot be the legal basis for the instant refusal disposition.

(2) Whether the rejection disposition under Article 9(1)6 of the Act is legitimate

(A) Article 9(1)6 of the Act provides that “information pertaining to an individual, such as name, resident registration number, etc. included in the pertinent information, which, if disclosed, is likely to infringe on the privacy or freedom of an individual, is excluded from information subject to non-disclosure.” As a matter of proviso (c) of the same Article, “information that is prepared or acquired by a public institution and deemed necessary for the public interest or the protection of an individual’s rights.” Here, whether disclosure constitutes “information that is deemed necessary for the protection of an individual’s rights” should be determined on an individual basis by comparing and comparing the interests of an individual’s privacy protected by non-disclosure and the interests of an individual

(B) Among the instant information, the information on the personal information of the head of the Chungcheong and present Korea Electric Power Corporation (such as name, resident registration number, age, telephone number, etc., and 85 pages of investigation records) recorded in the witness statement against Nonparty 1 among the instant information is likely to infringe on the Plaintiff’s privacy or freedom, as well as the personal information pertaining to the individual, which is not directly related to the Plaintiff’s accusation case, and if disclosed, it is likely to infringe on the Plaintiff’s privacy. Therefore, the benefits of privacy protected by non-disclosure of his personal information cannot be said to be less than the benefits of the Plaintiff’s right to remedy infringement. Thus, this constitutes information subject to non-disclosure under Article 9(1)

(C) In light of the following circumstances acknowledged by the aforementioned evidence and facts, the remainder of the instant information, excluding the personal information of the former and the former president of the Chungcheong branch of the Korea Electric Power Corporation, cannot be deemed to constitute information subject to non-disclosure under Article 9(1)6 of the Act.

① The Plaintiff is the complainant of the accusation case and the instant information refers to the statement made by the relevant persons in the course of investigating the accusation case, and is a major issue that may affect civil disputes between the Plaintiff and Nonparty 2. ② At the time, Nonparty 3 was an agent Nonparty 2 and Nonparty 1 as the Plaintiff, and thus, most of the information the Plaintiff seeks to disclose is already known to the Plaintiff. ③ Since the Plaintiff is seeking disclosure of only the remaining parts excluding all personal information of Nonparty 2 and Nonparty 1 from the beginning, there is no particular issue of protecting his/her privacy. ④ The method of protecting the Plaintiff’s right is not always limited to civil litigation, but should be understood to include a general method widely used in society.

(3) Scope of revocation of the disposition

(A) As a result of an administrative agency’s review on the illegality of a disposition rejecting the disclosure of information, when the information refused to disclose is mixed with the information subject to non-disclosure and the two parts can be separated within the scope not contrary to the purport of a request for disclosure, only the part of the above information subject to non-disclosure should be specified and the part of the disposition rejecting the disclosure of information among the administrative agency’s refusal disposition should be revoked (see Supreme Court Decisions 2001Du6425, Mar. 11, 2003; 2003Du12707, Dec. 9, 2004, etc.).

(B) Of the instant refusal disposition, the part that rejected disclosure of information on the personal information of the president of the former and the former president of the Korea Electric Power Corporation is justifiable, but the part that rejected disclosure of information other than this is unlawful and thus, is to be revoked.

3. Conclusion

The plaintiff's claim partially accepted.

[Attachment 1] Information on Requests for Disclosure: omitted

[Attachment 2] Relevant Statutes: omitted

Judges Yellow Sung-ju (Presiding Judge)