(영문) 대구고등법원 2013.5.3. 선고 2012누2796 판결

The judgment of the first instance shall be revoked. The defendant's refusal to disclose information against the plaintiff on December 12, 2008 shall be revoked.

Reasons

1. Details of the disposition;

A. On August 2008, the Plaintiff filed a complaint with police officers B, C, D, and E (hereinafter “relevant police officers”) with the following contents (hereinafter “the instant complaint case”).

(1) On January 2, 2007, police officers B, C, and D belonging to the F District of the G District in the G District in the G District in the G District in the G District in the G District in the G District in the G District in the G District in the G District in the G District in the G District in the G Group in the G Group in the G Group in the G Group in the G Group in the G Group in the G Group in the G Group in the Dong, upon receipt of the plaintiff's report that she stolen the fire fighter stored in the opposite to the plaintiff's food, the inspection of ingredients of food by the relevant inspection institution shall be requested, and active investigation shall be conducted to arrest the stolen suspect. However, despite the fact that the relevant pesticide dealer requested the inspection of ingredients of food in the food, it is confirmed that there is any remaining pesticide odor in food, and the fire fighter theft is judged to have been natural erosion and has been dissolved for a long time, and without any justifiable reason, has been abandoned the evidence of the criminal case in the case of the plaintiff.

(2) On May 31, 2007, the police officer E, who belongs to the Seongbuk Police Station, received a written petition related to the contents of the above Paragraph (1) from the plaintiff at the investigation station of the Seongbuk Police Station and the office of the intelligence criminal investigation team, shall conduct a fair investigation, despite the fact that the plaintiff is treated as a mentally ill person and the plaintiff is dependent on the statement of H and the person who is suspected as a suspect as the neighboring resident of the plaintiff, and neglected his duties without good cause, such as closing internal investigation.

B. The Defendant, while conducting internal inspection and investigation of the relevant police officers regarding the instant accusation case, submitted a report on the instant accusation case (hereinafter “the instant report”) from the relevant police officers.

C. On December 11, 2008, the Plaintiff requested the Defendant to disclose the information on the instant explanatory note. On December 12, 2008, the Defendant issued a notice of non-disclosure decision (hereinafter “instant disposition”) to the Plaintiff for the following reasons.

(1) Non-disclosure in accordance with the criteria for non-disclosure by function of the National Police Agency (hereinafter “instant ground for non-disclosure”)

(2) Pursuant to Article 9 (1) 5 of the Official Information Disclosure Act (hereinafter “Information subject to Non-Disclosure”) (hereinafter “Information Subject to Non-Disclosure”) of the Official Information Disclosure Act (hereinafter “Information Subject to Disposition 2”).

Article 5 of the Guidelines for Inspection and Copying of Case Records (No. 381 of the Regulations of the Prosecutors' Office) (hereinafter referred to as the "Guidelines for Disposition No. 3")

(4) Pursuant to Article 21(1) of the Information Disclosure Act (hereinafter referred to as "the ground for non-disclosure")

(v)in accordance with the results of inquiries by the Director General of the National Police Agency (the Inspector General) on the person in charge of the disclosure of information (I) (hereinafter referred to as "grounds for Disposition 5");

D. On December 23, 2008, the gender branch office of the Daegu District Public Prosecutor's Office rendered a disposition of non-prosecution on the charges of all the accusation cases of this case under Articles 2008-298 and 2998 (Evidence of Evidence). Accordingly, on July 17, 2009, the Plaintiff filed an application for adjudication on the disposition of non-prosecution on the ground that the above disposition of non-prosecution is justifiable (Seoul High Court Decision 2009Hu128) and filed a reappeal against the decision of dismissal on the ground that the above disposition of non-prosecution is justifiable, and the Supreme Court dismissed the Plaintiff's reappeal on September 3, 2009 (Supreme Court Decision 2009Mo954).

E. Meanwhile, during the instant lawsuit, the Defendant added Article 9(1)6 of the Information Disclosure Act as one of the grounds for the instant disposition.

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, 3, Eul evidence 4, Eul evidence 5-1 to 5, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) Article 9(1)5 of the Information Disclosure Act provides that the disclosure is subject to disclosure of information that has considerable grounds to believe that a significant obstacle to the fair performance of duties or research and development of business affairs is significantly impeded. The relevant police officers’ disposal of odors, which is a critical evidence for mixing of agrochemicals in the Plaintiff’s food, has obstructed the Plaintiff’s remedy for infringement of rights, and the relevant police officers’ inspection has been completed. Thus, the instant report is not confidential information as stated in the foregoing provision. Therefore, the instant disposition ground for second disposition cannot be a legitimate ground for the instant disposition.

Article 21(1) of the Rotterdam Information Disclosure Act is merely a provision of the procedure to be followed by a public institution in determining whether to disclose the information, if the information held and managed by the public institution is related to a third party. The relevant police officers are not the third party as referred to in the above provision. Therefore, the ground for Disposition 4 cannot be a legitimate ground for Disposition 4 of the instant disposition.

(3) The National Police Agency’s detailed guidelines for non-disclosure by function and the guidelines for the inspection and copying of case records are merely guidelines for internal handling of administrative agencies, and thus cannot be a ground for rejection of information disclosure. Therefore, the grounds for dispositions Nos. 1 and 3 cannot be a legitimate ground for disposition of the instant disposition.

And the opinion of the officer in charge of the inspection of the National Police Agency's office is merely an independent opinion within the administrative agency and thus cannot serve as the basis for the refusal of information disclosure. Therefore, the grounds for the disposition No. 5 cannot be a legitimate ground for the disposition of this case.

(b) Related statutes;

Attachment 'Related Acts and subordinate statutes' shall be as shown.

C. Determination

First, the ground for the second disposition is legitimate as the ground for the instant disposition.

(1) According to Articles 2, 3, and 4(1) of the Information Disclosure Act, information refers to information recorded in documents, etc. prepared, acquired, and managed by a public institution in the course of performing its duties, and information held and managed by a public institution is disclosed in accordance with this Act unless otherwise specifically provided for in other Acts. However, according to the proviso of Article 9(1)5 of the same Act, "information which has considerable grounds for recognizing that if disclosed, it may seriously interfere with fair performance of duties or research and development" is one of the information subject to non-disclosure.

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 substantially interfere with the fair performance of duties if disclosed, such as audit, supervision, inspection, examination, regulation, tendering contracts, technology development, personnel management, decision-making process, or internal review process, etc." under the proviso to Article 9 (1) 5 of the Information Disclosure Act means information where it is highly probable that fair performance of duties would substantially interfere with the fair performance of duties if disclosed. Accordingly, the determination should be made carefully in accordance with specific matters by comparing and comparing the interests protected by non-disclosure such as the fairness of duties, etc., the right to know, the participation of the people in government affairs, and the transparency of government affairs (see, e.g., Supreme Court Decisions 2002Du12946, Aug. 22, 2003; 2009Du1921, Nov. 24, 201).

(2) According to the aforementioned evidence and evidence Nos. 6-1, 2, 3, and 7-1 through 8 of evidence Nos. 6-1, 7-7 and the purport of the entire pleadings, the defendant did not submit the instant explanatory report from the relevant police officers in the course of direct investigation of the instant case, but submitted it in the internal audit process. When an internal audit is conducted, the defendant requested the relevant police officers to be polled in advance in order to avoid psychological burden and pressure to be polleds. The plaintiff filed a complaint against the relevant police officers on July 19, 2008, and requested them to re-examine the investigation team of the relevant police officers on September 5, 2008, and on November 17, 2008, the Anti-Corruption and Civil Rights Commission submitted a petition to the Anti-Corruption and Civil Rights Commission.

In addition, according to the result of the inspection and examination of the statement of this case by the court of the first instance and the court of the first instance, the statement of this case contains the following purport: (a) the defendant submitted from relevant police officers in the course of the internal inspection and investigation of the complaint case against the plaintiff's relevant police officers; and (b) the statement of this case contains the following purport: (c) the police officers in question investigate the details reported by the plaintiff around January 2, 2007 (the combination of agrochemicals is made on food and plant and the fire reduction is no longer possible); and (d) the process leading to the judgment by searching the surrounding areas and investigating the surrounding areas, and the police officers concerned

(3) In light of the above legal principles, we examine whether the report of this case constitutes information subject to non-disclosure under the proviso of Article 9 (1) 5 of the Information Disclosure Act, and the following circumstances, i.e., the defendant submitted the report of this case from the police officers concerned in the process of direct investigation of the plaintiff's complaint case, not from the relevant police officers, but from the internal inspection process of the complaint case. The report of this case is merely an internal part of the investigation for internal understanding of the contents of the complaint before commencement of the inspection and investigation, it may cause concerns about evasion of inspection and investigation and substantial difficulty in the inspection. ② The plaintiff already filed a complaint against the relevant police officers, objection, re-investigation, and civil rights and civil rights and rights disclosure report of this case. Accordingly, the relevant police officers had considerable mental distress before and after the disclosure of the report of this case, it is hard to acknowledge that the plaintiff's disclosure of the information of this case would have considerable difficulty in performing the audit and inspection work of this case within 20 times prior to the inspection and inspection process.

(4) Therefore, the instant disposition is lawful without having to consider whether the grounds for the remaining disposition except the grounds for the second disposition are legitimate.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.