[1] The meaning of "where there are reasonable grounds to believe that disclosure would substantially obstruct the fair performance of duties" under Article 9 (1) 5 of the Official Information Disclosure Act, and the method of determining whether the disclosure constitutes information corresponding thereto

[2] In a case where Gap applied for a prize of a person of distinguished services to the national independence to his relative Eul, but requested the Minister of Patriots and Veterans Affairs to disclose "the process of deliberation and resolution and the minutes stating the details thereof" to the person of distinguished services to the national independence who was notified of the result of the examination of the meritorious deeds of the person of distinguished services to the national independence, which was not included in the award, and the Minister of Patriots and Veterans Affairs notified that the minutes cannot be disclosed, the case holding that the above minutes constitute "information that has considerable reasons to believe that the disclosure would seriously impede the fair performance of duties if disclosed" under Article 9 (1) 5

[1] In light of the purpose of the information disclosure system under Article 1 of the Official Information Disclosure Act and the legislative purport of the information subject to non-disclosure under Article 9(1)5 of the same Act, “where there is a considerable reason to believe that the fair performance of duties would substantially interfere with the fair performance of duties if disclosed” as stipulated in Article 9(1)5 of the same Act means the case where there is a high probability that fair performance of duties would interfere with the fair performance of duties objectively and significantly. Whether such act constitutes the case should 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 and the interests protected by the disclosure such as guaranteeing citizens’ right to know, guaranteeing citizens’ participation in government affairs, and securing transparency in government administration

[2] In a case where Gap applied for a reward to a person of distinguished services to the national independence, who was notified of the result of an examination of merit of the person of distinguished services to the national independence after having received an application for a reward to the person of distinguished services to the national independence, and requested the Minister of Patriots and Veterans Affairs to disclose the minutes containing the process of deliberation and resolution and the contents thereof, and the Minister of Patriots and Veterans Affairs notified that the minutes cannot be disclosed pursuant to Article 9 (1) 5 of the Official Information Disclosure Act (hereinafter “Information Disclosure Act”), the case holding that the judgment below erred in the misapprehension of legal principles as to the information disclosure under Article 9 (1) 1 of the Information Disclosure Act, on the grounds that the right to know of the person of distinguished services to the national independence to the national independence to the national independence to the applicant for the registration should be subject to an inevitable restriction, and the measures are prepared to eliminate the degree of restriction or restriction in the relevant laws and regulations, and that the examination of the public service examination committee has no choice but to intervene in the considerable part of the examination.

[1] Articles 1 and 9(1)5 of the Official Information Disclosure Act / [2] Articles 1 and 9(1)5 of the Official Information Disclosure Act

[1] Supreme Court Decision 2002Du12946 Decided August 22, 2003 (2003Ha, 1958) Supreme Court Decision 2010Du2913 Decided June 10, 201 (Gong2010Ha, 1378) Supreme Court Decision 2009Du19021 Decided November 24, 201 (Gong2012Sang, 49)

Plaintiff

The Minister of Patriots and Veterans Affairs

Seoul High Court Decision 2013Nu11286 decided September 4, 2013

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Seoul High Court.

The grounds of appeal are examined.

1. Article 9(1)5 of the Official Information Disclosure Act (hereinafter “Information Disclosure Act”) provides that “where disclosed, there is a reasonable ground to believe that the fair performance of duties would substantially interfere with the fair performance of duties.” In light of the purpose of the information disclosure system under Article 1 of the same Act and the legislative intent of the information subject to non-disclosure under Article 9(1)5 of the same Act, “where disclosed, there is a high probability that fair performance of duties would substantially interfere with the fair performance of duties if disclosed.” The issue of whether the disclosure constitutes such cases shall be determined carefully in accordance with specific matters by comparing and comparing the interests protected by non-disclosure such as fairness in the performance of duties and the interests of guaranteeing citizens’ right to know, securing citizens’ participation in government affairs, and securing transparency in government administration (see, e.g., Supreme Court Decisions 2002Du12946, Aug. 22, 2003; 2010Du2913, Jun. 10, 2010).

2. According to the reasoning of the judgment of the court below and the judgment of the court of first instance as cited by the court below, with respect to the minutes of this case, which are the process and contents of the deliberation and resolution by the committee for the evaluation of merit of the deceased who applied for the registration of the persons of distinguished services to national independence (hereinafter referred to as the "committee for the evaluation of merit"), the court below determined that the disclosure of the minutes of this case is highly difficult to view that the disclosure of the minutes of this case is likely to seriously affect the fairness of their duties due to the disclosure of the minutes of this case, and that the disclosure of the minutes of this case is necessary to effectively guarantee the applicant's right to know, which has a significant interest in the process of public recognition of the independence movement by disclosing the minutes of this case, and that the contents of the examination by the public evaluation committee are only confirmation of objective and historical facts, and it is difficult to see that the disclosure of the minutes of this case is likely to interfere with the free disclosure of the minutes of this case's statements of this case, and that it does not interfere with the disclosure of the contents of the list.

3. However, it is difficult to accept the above determination by the court below for the following reasons.

A. Comprehensively taking account of the aforementioned legal principles and the purport and procedure of the decision on the registration of persons of distinguished services to national independence, the following circumstances are recognized.

(1) The examination of the Achievement Evaluation Committee is only one of the procedures for the defendant to decide whether to grant a prior recommendation (see, e.g., Supreme Court Decision 2001Du4764, Oct. 23, 2001). The right to know of the applicant party is limited to a certain portion. Meanwhile, the defendant who received an application for registration of the persons of distinguished services to the national independence after examining whether he/she is a person of distinguished services to the national independence and notifying the applicant party of the examination by specifying the specific reasons for the examination (see, e.g., Article 4(2) of the Enforcement Decree of the Act on the Honorable Treatment of Persons of Distinguished Services to the national independence). Thus, the right to know of the applicant party to the registration of the persons of distinguished services to

(2) In addition, considering that the fact that there was a protest against the deprivation of national sovereignty in Korea and abroad or for an independence movement from the seizure of national sovereignty, which is the requirement for the registration of the persons of distinguished services to national independence, to August 14, 1945, is a long past fact, and it is difficult to confirm the objective fact, and it was made hard to confirm the objective fact for a long time, and as such, Japan’s deprivation of national sovereignty was conducted entirely for a long time, the problem of value judgment on how to evaluate the objective fact during the above period remains inevitable (see Constitutional Court en banc Decision 2009Hun-Ba11, Jun. 24, 2010). Furthermore, considering that the fact that the independence movement after the person subject to the registration of the person of distinguished services to national independence and the time of death is subject to evaluation, the examination of the Public Service Review Committee is bound to intervene in a considerable part of the professional and subjective judgment of the examiners. In light of the nature of the review, it is highly probable through more active and fair answers and answers.

(3) On the other hand, considering the wide range of review contents and nature of review by the public review committee, if the instant minutes include contents that differ in terms of conflicting opinions of examiners or final review results, the disclosure would lead to a high risk of causing unnecessary controversy as well as the applicant party, socially unfair pressure, or a new dispute, and it would be subject to restrictions on voluntary and free exchange of opinions due to psychological burden when disclosed as examiners. In addition, this is not a matter to be resolved by means of anonymous treatment of the instant minutes.

B. As seen above, when comparing and comparing the guarantee of the right to know protected by the disclosure of the minutes of this case and the interests such as fairness in the performance of duties protected by the non-disclosure, the minutes of this case shall be deemed to constitute “information which has considerable reasons to recognize that disclosure would seriously interfere with the fair performance of duties if disclosed” under Article 9(1)5 of the Information Disclosure Act.

C. Nevertheless, the court below determined that the minutes of this case did not constitute information subject to non-disclosure under Article 9(1)5 of the Information Disclosure Act solely on the grounds stated in its reasoning. In this regard, the court below erred by misapprehending the legal principles on information subject to non-disclosure under Article 9(1)5 of the Information Disclosure Act, which affected the conclusion of the judgment. The ground of appeal assigning this error

4. Therefore, the part of the judgment below against the defendant is reversed, and that part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Chang-soo (Presiding Justice)