(영문) 서울행정법원 2020.3.5. 선고 2019구합65252 판결

1. On August 27, 2019, the part concerning the defendant's disposition of non-disclosure of the information listed in the list (attached Form 1) against the plaintiff on August 27, 2019 concerning "whether the perpetrator is separated," "whether the perpetrator is released from position," and "the details and result of the request for disciplinary action by the Office of Education" (However, the part concerning the name of each literacy teacher is

2. The plaintiff's remaining claims are dismissed.

3. The costs of lawsuit shall be borne by each person;

Purport of claim

The disposition taken by the defendant against the plaintiff on August 27, 2019 by the non-disclosure of the information listed in the list (attached Form 1) shall be revoked.

Reasons

1. Details of the disposition;

A. On March 14, 2019, the Plaintiff requested the Defendant to disclose information with the following contents as to the schools indicated in [Attachment 1] List I. Sh School Port in the Defendant’s accusation school.

1. summary. .- When the name of a school occurs- the number of teachers to be classified by school - the number of victim students by school - the number of victim victims by school (the details of the case) 2. Processing and progress-of-Office of Education - Whether the perpetrator is separated from the perpetrator of the victim - whether a special audit is carried out or not, and the audit and inspection report (original) - whether a secondary prevention education, healing programs, gender equality education, etc. is conducted or not - whether a school or a perpetrator is dead or not - other measures to prevent recurrence conducted by himself/herself, such as whether a police report or criminal punishment is filed or not, and the status of civil litigation and progress;

C. On August 27, 2019, the Defendant disclosed information on the name of the school, the time of the occurrence of the event, the case of damage, and whether the special audit was carried out to the Plaintiff. On the other hand, the Defendant rejected the disclosure of information pursuant to Article 9(1)5 and 6 of the Official Information Disclosure Act (hereinafter referred to as the “Information Disclosure Act”) with respect to the information described in [Attachment 1] List II. Information requested to be disclosed (hereinafter referred to as the “information of this case”), and on the other hand, rejected the disclosure of information on the ground that the relevant information is nonexistent. (1)

[Reasons for Recognition] Facts without dispute, entry of Gap evidence No. 1, purport of whole pleadings

2. Whether the instant disposition is lawful

A. Summary of the parties' arguments

1) Defendant

The instant information contains decisions on personnel management, and if disclosed, it is highly likely that the employees in charge of the affairs, such as the principal, etc., may not make a fair and reasonable decision-making process with psychological pressure.

In addition, the instant information includes personal information about personnel measures and disadvantage disposition, and it is possible to identify the relevant misconducts if it is disclosed through the media news, etc., and it constitutes information that is likely to infringe on the privacy or freedom of individuals. Therefore, the instant disposition that made a non-disclosure decision on the instant information is lawful.

2) Plaintiff

As part of citizen's right to know and monitoring activities of civil society organizations, the Plaintiff is demanding the disclosure of information of this case, etc. to know how the national educational institution processes sexual assault accusation case (Sk School Plus Case) in order to protect female human rights and child rights. In order to protect the high level of legal interests and interests of the student's life and body, it is essential to confirm the progress of handling sexual assault cases in the school, and in particular, it is necessary to know which teachers have taken any follow-up measures as they have taken sex offenses in any school.

Since the grounds presented by the Defendant for non-disclosure are groundless, the disposition of this case in violation of the Information Disclosure Act shall be revoked.

B. Relevant statutes

[Attachment 2] The entry is as follows.

C. Determination

1) Whether the information constitutes information subject to non-disclosure under Article 9(1)5 of the Information Disclosure Act

A) Relevant legal principles

In light of the purpose of the information disclosure system under Article 1 of the Information Disclosure Act and the legislative purport of the information subject to non-disclosure under Article 9(1)5 of the Information Disclosure Act, “information that has considerable grounds to recognize that the fair performance of duties would significantly interfere with the fair performance of duties” refers to a case where a high probability exists that the fair performance of duties would substantially interfere with the objective of the disclosure of information. Whether the information constitutes such a case ought to be carefully determined by comparing and comparing the interests of fairness, etc. of duties protected by non-disclosure with the interests of citizens, such as guaranteeing the right to know, guaranteeing the people’s right to know, and securing the transparency of government affairs, etc., which are protected by disclosure of information, with the interests of ensuring the people’s participation in national affairs, and securing the transparency of government affairs (see, e.g., Supreme Court Decision 2017Du6989

B) The remainder of the instant information excluding audit reports

In light of the following circumstances, the facts acknowledged earlier and the result of the court’s non-disclosure and examination of the instant information, and the purport of the entire pleadings, it is difficult to view the remainder of the instant information except for the audit report (hereinafter “the remainder of the instant information”) as the information subject to non-disclosure under Article 9(1)5 of the Information Disclosure Act.

① The remaining information of this case contains objective facts as the investigation and follow-up measures for sexual assault cases, whether the victim and the perpetrator are separated (to be 2 nonpublic data, Korean file size per page), whether the perpetrator is released from position, and the result of disciplinary action (to be 3 nonpublic data and x-cell file size per page). It does not include descriptions or detailed methods of performing duties that specify the actual business operator. Thus, it is difficult to deem that such disclosure is highly probable that fair performance of personnel management affairs, including the Defendant’s audit duties, would considerably interfere with objective performance.

② As recognized by the Defendant, the part known to the general public in-house sexual violence cases related to the instant information through media reports or SNS, etc. is also considerable. The disclosure of the remaining information of this case, which is only a subsequent processing result, is unlikely to cause any further trouble to the Defendant’s business.

③ The Defendant already disclosed to the Plaintiff information about the name of school, the time when the event occurred, the case of damage, and whether the special audit was carried out. The disclosure of the result of the Defendant’s special audit through the remaining information in the instant case would be an opportunity to ensure fairness and transparency in the process of the accusation and processing of sexual assault cases in the future. The notification of the result of the investigation of sexual assault cases committed in the educational institution and the result of disciplinary action resulting therefrom is very important concern for the general public including parents. Accordingly, it is highly necessary to include the remaining information in the scope of protection of right to know under the Constitution or the right to information disclosure under the Information Disclosure Act and disclose it.

C) Part of the audit report among the instant information

In light of the following circumstances, it is reasonable to view that the part of the audit report (it shall be up to 4-1 copies of non-disclosure data, up to 4-7; hereinafter referred to as the "information of this case") among the information of this case, which is an audit report prepared by an auditor belonging to the Seoul Metropolitan Office of Education in connection with the sexual assault case under the jurisdiction of the defendant, falls under the case where there is considerable reason to recognize that the disclosure would seriously interfere with the fair performance of duties, and therefore, it is lawful for the defendant to refuse the plaintiff's request for information disclosure concerning the information of this case on the ground of Article 9 (1) 5 of the Information Disclosure Act, on the ground that the defendant's refusal of the plaintiff's request for information disclosure concerning the information of this case is legitimate.

① The instant report contains not only the content of the interview with the opportunity where the sexual violence case in the school became known or with the victim’s result of audit, but also all the material describing the specific form of sexual assault against the victim’s result. If the Defendant disclosed the instant report prepared and submitted by the Inspector General of the Seoul Metropolitan Office of Education in the course of audit as they are, it appears that a person subject to investigation in the future would be able to actively make statements or cooperation in the remaining investigation that would have a burden on disclosure, and may significantly interfere with the Defendant’s audit’s performance of duties. In addition, the victim’s interview recorded in the instant report appears to have been on the premise that most of the victim’s internal sexual violence case was carried out under the premise that the content contains specific places and time, and disclosure is likely to seriously infringe the victim’s privacy or freedom, and further, it cannot be said that there is no possibility of secondary damage to the victim.3)

② Although the audit activities of an auditor who prepared the instant report information are deemed to have been completed on February 2, 2019, it is difficult to view that the procedures and criminal trials for certain sexual assault cases and public educational officials have been ongoing until now. Meanwhile, most of the information on the instant report are criminal facts constituting sexual assault and are likely to have been submitted or to be submitted as evidence in the criminal trial process against the relevant public educational officials. However, according to Article 59-2 of the Criminal Procedure Act, the third party can apply to the public prosecutor’s office for perusal or copying of the records of the case for the purpose of “the purpose of remedy, academic research or public interest” after the final judgment on the relevant case becomes final and conclusive.

③ Of the remaining information of this case, whether the result of disciplinary action is dismissed from one’s position and the result of disciplinary action is arranged together with the brief contents of the misconduct. This seems to be sufficient to ensure fairness and transparency in dealing with sexual assault cases in the Republic of Korea. On the other hand, if the part of the report of this case containing the statement of damage or the data supporting the damage is disclosed, the victim’s personal information may be disclosed or privacy may be excessively infringed, and the results of investigation, which are matters to determine a disciplinary action or a disciplinary action, are prepared for the defendant’s business purpose for request for disciplinary action, etc., and thus, it is difficult to view that the part of the report of this case is directly related to the citizen’s right to know.

④ Furthermore, it is necessary to ensure that the internal officer who participated in the decision process is not disclosed his/her opinion, even after the decision of his/her opinion on review, such as request for disciplinary action, is completed, in order to guarantee a free and active internal review in determining the final decision, since the review and the content prepared in the process of determining whether the act constitutes a misconduct or disciplinary action is disclosed to the public, it is likely that the relevant person in charge of the relevant work could not freely express his/her opinion or be consistent with his/her passive business attitude due to his/her burden on disclosure.

2) Whether the information constitutes information subject to non-disclosure under Article 9(1)6 of the Information Disclosure Act

Information subject to non-disclosure pursuant to the main sentence of Article 9(1)6 of the Information Disclosure Act includes not only personally identifiable information that determines whether information constitutes information subject to non-disclosure based on the form or type of information, such as name, resident registration number, etc., but also personal information disclosure by examining the details of information in detail. As a result, the disclosure of personal information leads to the disclosure of confidential information, such as personal and mental life, or information that is likely to interfere with free privacy (see, e.g., Supreme Court en banc Decision 2011Du2361, Jun. 18, 2012). Furthermore, when a court examines whether a disposition rejecting the disclosure of information by an administrative agency was unlawful, and where it can be recognized that two parts can be separated within the scope that does not violate the purport of the request for disclosure, partial revocation may be ordered, limited to the information that can be disclosed. Where such disclosure is permitted, disclosure of information refers to information that can be excluded from the relevant information disclosure method and procedure, and disclosure of the remaining part is 2010.

In full view of the results of the court’s perusal and examination of the instant information by non-disclosure and the purport of the entire pleadings, the remaining information of this case is acknowledged as information about an individual and including the name of a literacy teacher. Of the instant information, the part of the name of a literacy teacher is likely to infringe on the privacy or freedom of an individual if disclosed, and it is difficult to view that disclosure is necessarily necessary for the plaintiff’s right to know. Thus, it constitutes information subject to non-disclosure under Article 9(1)6 of the Information Disclosure Act. However, it is difficult to view that other parts are likely to infringe on the privacy or freedom of an individual due to disclosure.

3) Sub-determination

Therefore, the disposition on the part other than the part on the instant report information among the disposition of this case is unlawful, and thus the disposition on the part other than the part on the instant report information is revoked. However, the part on the instant report information and the remaining part on the name of the perpetrator of the instant information are legitimate.

3. Conclusion

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

Judges

Judge Park Jong-yang

Judges Park Jong-hwan and overseas training, whose name and seal are impossible;

Promotional Notes for Judges

Note tin

1) At the time of filing the instant lawsuit, the Plaintiff filed a claim for revocation of a disposition rejecting the disclosure of information with respect to the part that the Defendant rejected the disclosure of information on the grounds of non-existence, but the revocation of the disposition rejecting this part on the third date for pleading was not sought.

2) Article 5 subparag. 24 and subparag. 25 of the Regulations on the Management of Personnel Records and Personnel Affairs of Public Educational Officials provide that the documents concerning dismissal from position and reinstatement, the register of disciplinary persons, and documents concerning disciplinary actions shall be those concerning personnel management. Among the instant information, a report on audit and inspection may also be deemed information on personnel management.

3) Considering these circumstances, there is considerable room to view that the part including the statement of victim students and the detailed contents of the crime of sexual assault among the information on the instant report constitutes information subject to non-disclosure under Article 9(1)6 of the Information Disclosure Act.