(영문) 서울행정법원 2021.6.10. 선고 2019구합74096 판결

1. Of the instant lawsuit, each corresponding part of the information as stated in the [Attachment 1] List of Information Disclosure” shall be dismissed.

2. The disposition rejecting the disclosure of information on each corresponding information as stated in the [Attachment 1] List of Information Disclosure that the Defendant rendered to the Plaintiff on April 17, 2019 is revoked.

3. Of the costs of lawsuit, the supplementary participation shall be borne by the Intervenor, 10% of the remainder shall be borne by the Plaintiff, and 90% of the remainder shall be borne by the Defendant, respectively.

Purport of claim

A disposition rejecting the disclosure of each information described in the [Attachment 1] List of Information Disclosure by the Defendant to the Plaintiff on April 17, 2019 shall be revoked.

Reasons

1. Details of the disposition;

가. 피고는 2019. 4. 17. 원고에게 별지1 정보공개 목록 '청구정보'란 기재 각 정보에 관하여 아래와 같이 공공기관의 정보공개에 관한 법률(다음부터는 '정보공개법'이라 한다)에 따른 처분사유로 정보공개거부처분(다음부터는 '이 사건 처분'이라 한다)을 하였다(피고보조참가인은 '◆◆ A26-1 건설공사'의 수급인이다).

A person shall be appointed.

B. On April 22, 2019, the Plaintiff served the instant disposition and filed an objection against the Defendant.

C. On May 2, 2019, the Defendant rendered a decision to dismiss the objection to the Plaintiff, and served the Plaintiff at that time. The Plaintiff filed the instant lawsuit on July 26, 2019.

[Reasons for Recognition] Uncontentious Facts, Gap evidence 1 to 3, Eul evidence 1, the purport of the whole pleadings

2. Whether the lawsuit of this case is lawful

A. Article 18(1) of the Information Disclosure Act provides that when the applicant is dissatisfied with the decision of non-disclosure of the public institution related to the information disclosure, the applicant may file an objection in writing with the public institution within 30 days from the date of receipt of notification of the decision of whether to disclose the information disclosure. Article 18(4) of the same Act provides that the public institution may file an administrative appeal or administrative litigation if the applicant makes a decision of rejection or dismissal of the objection, the public institution shall notify the applicant of the fact that the applicant may file an administrative appeal or administrative litigation, and Article 20(1) of the Administrative Litigation Act provides that the revocation lawsuit shall be filed within 90 days from the date of receipt of notification of the decision, and the period from the date of receipt of the certified copy of the written decision at the time of receiving the request for administrative appeal. In full view of the above provisions, it is reasonable to view that the applicant may file an appeal against the non-disclosure decision within 90 days from the date of receipt of the decision of the public institution. On May 2, 2019>

B. The applicant for the disclosure of information is responsible for proving that there is a considerable probability that the public institution will hold and manage the information for which disclosure is sought, and there is no evidence to prove that a subcontract has been conducted in relation to each of the pertinent information stated in the attached Table 1's statement of subcontracting and that the defendant has a considerable probability to hold and manage the original subcontract comparison table. Thus, each of the relevant information stated in the "no corresponding to the above" in the lawsuit of this case is unlawful as there is no legal interest (see Supreme Court Decision 2003Du9459, Jan. 13, 2006) (from the next day, the remaining part excluding the above mentioned part among the information stated in the attached Table 1'written claim "no corresponding to the above" is referred to as the "information of this case").

C. The Defendant asserts that the pertinent information in the separate sheet of information disclosure of [Attachment 1] 】 “Defendant’s assertion” does not retain and manage all the pertinent information in entirety, and part of the pertinent information in the “△△” indicated, due to the lapse of the preservation period, etc., the Defendant asserts that the pertinent information in the instant lawsuit is unlawful.

If a public institution holds and manages information that is sought disclosure at once, but thereafter no longer exists after the destruction of the documents containing such information, the public institution bears the burden of proving that it does not retain and manage such information (see Supreme Court Decision 2003Du12707, Dec. 9, 2004). Where a public institution intends to destroy archives, it must undergo examination by experts and deliberation by the Deliberation Committee on the Evaluation of Records (Article 27 of the Public Records Management Act). In the instant case where the Defendant also acknowledges that it owned and managed each of the above information “x” and “△△△△” portion, each of the above information stated in the evidence Nos. 6 and 7 is insufficient to prove that the Defendant created and managed the preservation period of each of the above information or destroyed it on account of the lapse of the preservation period, etc., and there is no other evidence.

We cannot accept this part of the defendant's defense.

3. Whether the instant disposition regarding the instant information is lawful

A. The Defendant asserts that Article 9(1)5 of the Information Disclosure Act is added to the respective complexes listed in Article 2, 3, and 6 through 11 (1) (the part corresponding to the Gyeonggi Housing Business 1 and the Jeju Housing Welfare Department in January A). However, the content of the instant disposition is clearly distinguishable by the target complex and response department, and the reason subject to non-disclosure under Article 9(1)5 of the Information Disclosure Act is difficult to view that the Defendant’s disposition is identical to that of a specific reason subject to non-disclosure under Article 9(1)7 of the Information Disclosure Act. Thus, it is not allowed to claim as a reason subject to non-disclosure under Article 9(1)5 of the Information Disclosure Act as to the above complex (However, since the design and construction cost specifications, etc. for which the Plaintiff seeks disclosure regarding the above complex are identical to the design and construction cost specifications, etc. for the remaining complex, the Defendant’s assertion is not allowed as a reason subject to non-disclosure under Article 9(1)5 of the Information Disclosure Act.

B. According to the following facts and circumstances, if the information of this case is disclosed as matters concerning audit, supervision, inspection, and tendering contracts, the information of this case does not constitute information subject to non-disclosure under Article 9(1)5 of the Information Disclosure Act. Thus, the information of this case does not constitute information subject to non-disclosure under Article 9(1)5 of the Information Disclosure Act.

1) The purpose of the Defendant is to contribute to the development of the national economy by promoting the improvement of national housing life and the efficient utilization of land through the acquisition, development, reservation, and supply of land, urban development, and maintenance, and the construction, supply, and management of housing (Article 1 of the Korea Land and Housing Corporation Act). The Defendant, a public institution, has special status and authority different from that of a general company for the achievement of its purpose, and thus, need to be operated transparently.

2) The Plaintiff seeks the disclosure of the construction cost statement to the Defendant without seeking the disclosure of the design documents, such as construction specifications and design drawings. The design construction cost statement is to be prepared by the Defendant as a basic data for construction cost to determine the estimated price in advance in order to make the Defendant a criterion for determining the contract amount, etc. Accordingly, the details on which the contractor entered the unit cost (name, size, quantity, unit price, etc.) for each process by the supplier and supplier, and the details on which the subcontract statement also includes a certain amount of profit from the cost required by the subcontractor who actually takes charge of the construction work, and the comparison table on the original subcontract is to be easily arranged by comparing and comparing the details of the contract and the contents of the subcontract statement.

3) It is difficult to deem that the audit, supervision, and examination of a construction contract generally conducted in accordance with various specifications and design drawings, and even if the details of the design construction cost, which is the basic data for construction cost, the construction cost cost, and the contract statement, etc., which describe the construction cost unit cost by work process calculated by the original and subcontractor are disclosed,

4) The relevant construction work of the instant information completed the occupancy process from July 2009 to October 2018. The instant information cannot be deemed to have been in the process of a tendering contract.

5) The Defendant (Seoul Administrative Court Decision 2016Guhap******) made public the details of design construction cost of apartment construction works pursuant to the judgment (Seoul Administrative Court Decision 2016Guhap*****). Gyeonggi-do Si Corporation has made public through its website the cost accounting statement, general accounts statement, details, etc. of apartment construction works. The State Railroad Corporation, Daejeon Regional Land Management Office, Busan Regional Land Management Office, Busan Regional Land Management Office, Hanju Regional National Land Management Office, Hansan Regional Land Management Office, and the Korea Highway Corporation also made public the contract statement, etc. upon request for information disclosure. There is no evidence to deem that such information disclosure causes significant impediment to the fair performance of duties of public institutions.

6) Considering the legislative purpose and purport of the Information Disclosure Act by guaranteeing the citizen’s right to know, ensuring the citizen’s participation in state affairs and transparency in state administration, the disclosure of the instant information can be an opportunity to secure transparency in the calculation process, such as construction cost, if disclosed, and further enhance the trust in public institutions’ housing policies by working as effective means to prevent harm caused by the abuse of administrative convenience and authority by public institutions.

C. According to the following facts and circumstances, the aforementioned facts and evidence, and evidence Nos. 2 and 3 as a whole and the purport of the entire pleadings, it is difficult to view that the instant information constitutes a business or trade secret of a supplier, etc., or may seriously harm the legitimate interests of the supplier, etc. due to the disclosure of the instant information. In addition to the above aspects, the instant information does not constitute information subject to non-disclosure under Article 9(1)7 of the Information Disclosure Act in light of the Defendant’s special position and authority as a public institution, and the guarantee of the citizen’s right to know through the disclosure

1) It is difficult to understand confidential matters, such as design information, solely on the design cost statement containing the construction cost statement and the lower table (see, e.g., Supreme Court Decision 2017Du64293, Feb. 27, 2020). It is difficult to view that the management and business secrets of the subcontractor, etc. can be identified solely on the basis of the details of the construction cost statement, the construction cost cost, etc. calculated by the original and lower subcontractor, or the details of the comparative contract statement, subcontract statement, and the comparison table

2) Construction works are characterized by integrating civil engineering works, construction works, various mechanical works, etc. based on design documents (such as construction specifications, design drawings, etc.) prepared by a designer for each type of work by reflecting subjective judgments on construction methods, construction works, etc. according to various field conditions. The instant information is difficult to be included in information as to which cost competitiveness can be displayed by the original and sub-contractor under the variable site conditions, which are limited to the instant construction works.

3) There is no evidence to deem that the disclosure of the Defendant’s design construction cost disclosure and the contract statement of Gyeonggi-do trial construction works, etc., as seen in the above B-5, resulted in disclosure or considerable harm to the legitimate interest of the contracting parties, etc.

4. Conclusion

Among the lawsuits in this case, the part of each of the relevant information stated in the separate sheet No. 1 of the information disclosure is unlawful and dismissed, and the remainder of the plaintiff's claim is justified.