2014Guhap1026 Revocation of Disposition Rejecting Information Disclosure

A

The head of Daejeon District Prosecutors' Office

August 21, 2014

September 4, 2014

1. The Defendant’s decision to disclose information to the Plaintiff as of January 7, 2014, excluding the name of the person who made the statement, shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

The defendant's decision to disclose information to the plaintiff on January 7, 2014 is revoked.

1. Details of the disposition;

The following facts may be acknowledged if there is no dispute between the parties, or if Gap's evidence No. 1 contains the whole purport of the pleadings.

A. Plaintiff’s request for information disclosure

On January 6, 2014, the Plaintiff filed a request with the Defendant to disclose the list of the case (Investigation) records No. 2013-Type 2009, No. 2012-type 4699 (Investigation Records) (hereinafter referred to as the “instant list”) to the public.

B. Defendant’s refusal to disclose information

On January 7, 2014, the defendant notified the plaintiff that the records of this case should not be disclosed because the records of this case fall under non-disclosure information provided by the Official Information Disclosure Act (hereinafter referred to as the "Information Disclosure Act") (hereinafter referred to as the "disposition of this case") as follows:

① The recording list of this case constitutes “information related to the ongoing trial as provided by Article 9(1)4 of the Information Disclosure Act, and information pertaining to the prevention and investigation of crimes, institution and maintenance of public prosecution, execution and correction of punishment, and security disposition, which, if disclosed, has considerable reasons to believe that it is significantly difficult to perform duties.”

(2) The name, the person who has made the statement and the date of preparation of the documents listed in the records of this case constitute "information that could infringe on the privacy or freedom of privacy if disclosed, such as the name, resident registration number, etc. included in the relevant information" under Article 9(1)6 of the Information Disclosure Act.

C. Relevant statutes

Attached Form 3 is as specified in the relevant Acts and subordinate statutes.

2. Whether the rejection disposition of this case is legitimate

A. The plaintiff's right to disclose information

(1) The right to know under the Constitution includes the right to receive and collect information without being disturbed (the freedom of information and prohibition of interference with the receipt of information) and the right to request the disclosure of information (the right to request the Information Disclosure Agency). Such right to request the disclosure of information includes not only “individual right to request the disclosure of information for which a certain extent of interested persons can request the disclosure of the information in question, but also “general right to request the disclosure of all information held by the general public regardless of their interests” (see, e.g., Supreme Court Decisions 97Nu5114, Sept. 21, 199; 90Hun-Ma133, May 13, 1991).

(2) Meanwhile, Articles 1, 3, and 5 of the Information Disclosure Act, which embodys the right to information disclosure, provides that all citizens shall disclose information held and managed by public institutions in order to guarantee citizens' right to know and secure citizens' participation in state affairs and transparency in state administration. Therefore, a public institution requested to disclose information held and managed by the citizens must comply with such request unless it falls under the grounds for non-disclosure provided for in each subparagraph of Article 9(1) of the Information Disclosure Act. Even if a public institution refuses to disclose information, it shall specifically confirm and examine the contents of the information subject to disclosure and prove that a part of the information conflicts with any legal interests or fundamental rights, thereby falling under the grounds for non-disclosure provided for in Article 9(1) Item (e) of the Act. It is necessary to determine whether information disclosure falls under the grounds for non-disclosure (see, e.g., Supreme Court Decisions 2006Du20587, Jun. 1, 2007; 2006Du4899, Feb. 8, 2007).

(3) Therefore, unless there is a special circumstance (referring to the circumstance that the case constitutes non-disclosure information under the Information Disclosure Act that will be seen as follows), the defendant has a duty to disclose the records of this case claimed by the plaintiff against the plaintiff.

[Attachment Appellants, the Plaintiff’s right to request the disclosure of information on the Plaintiff’s records of this case or the Defendant’s obligation to disclose the records of this case to the Plaintiff does not directly relate to whether the Plaintiff has a certain legal interest in the information, that is, the Plaintiff’s disclosure of the records of this case. During the pleadings of this case, the Plaintiff asserted that the Plaintiff has a certain legal interest in the matters that could be searched through the records of this case. While the Defendant asserts that it has no practical benefit in the remedy of the Plaintiff’s rights, as seen above, as long as not only the Plaintiff’s individual right to request the disclosure of information but also the general right to request the disclosure of information is granted, the conclusion of the judgment does not vary depending on which it conforms to the facts of the parties as to the above point. However, even though there is no benefit to the Plaintiff, the issue of abuse of rights may be caused depending on the case where the Plaintiff claims the disclosure of information for the purpose of bullying or public official in charge, the Defendant’s explicit objection to this case may not be seen as a case ex officio.

B. Judgment on the defendant's assertion

(1) Summary and scope of determination of the Defendant’s assertion

As already pointed out, the Information Disclosure Act declares the principle of information disclosure and lists exceptional reasons for non-disclosure in each subparagraph of Article 9(1). As such, a public institution requested by the public to disclose information shall disclose it unless it falls under the grounds for non-disclosure as provided by each subparagraph of Article 9(1) of the Information Disclosure Act. Even if the public institution refuses to disclose information, it shall specifically review the content of the information subject to disclosure and clarify the specific scope of each subparagraph.

In the instant case, the grounds for non-disclosure for which the Defendant had taken the instant refusal disposition were two subparagraphs 4 and 6 of the said Article. If the records of this case or the records of this case fall under any one of them, the Defendant’s refusal disposition of this case, notwithstanding the Plaintiff’s right to disclose information, shall be deemed legitimate. Thus, in this context, whether the records of this case (or the records thereof) are likely to fall under the aforementioned non-disclosure information should be examined. The following paragraphs (2) and (3) should be seen.

On the other hand, the defendant argues that the rejection disposition of this case is legitimate and reasonable by adding additional arguments to the facts revealed as the grounds for the above disposition during the pleadings of this case. The decision on this part of Paragraph (4) below is to be made.

(2) Part on the ground that the information is non-disclosure information under Article 9(1)4 of the Information Disclosure Act

(A) The defendant asserts that the matters recorded in the record list of this case are information pertaining to the pending trial, the prevention and investigation of crimes, the institution and maintenance of public prosecution, the execution and correction of punishment, and security disposition, which are information pertaining to the pending trial, which can be recognized as significantly difficult to perform duties or infringing on the right of the criminal defendant to fair trial.

(B) Article 9(1)4 of the Information Disclosure Act provides as one of the information subject to non-disclosure, the disclosure of which is reasonably reasonable to recognize that the performance of duties would significantly be difficult if disclosed. The purport of this Act is to prevent the disclosure of methods, procedures, etc. of an investigation. As such, a written opinion, reporting document, camera, legal review, internal investigation data, etc. in the investigation records constitutes the same (see, e.g., Supreme Court Decision 2002Du1342, Dec. 26, 2003).

Unlike the above written opinion, and the investigation report, the records of this case for which the plaintiff seeks disclosure in this case only include the names of individual documents bound in the investigation records, the binding pages, and the makers or persons who have made statements of the relevant documents (documents) and thus it cannot be deemed that the methods or procedures of investigation may be disclosed even if they are disclosed. The fact that there is a possibility of a dispute over the investigator later cannot be said to significantly make it difficult for the investigative agency to perform its duties.

Therefore, the defendant's argument that the record list of this case constitutes non-disclosure information under subparagraph 4 of the above Article cannot be accepted.

(3) Part on the ground that the information is non-disclosure information under Article 9(1)6 of the Information Disclosure Act

(A) The defendant asserts that the matters recorded in the record list of this case constitute “personal information, such as names, resident registration numbers, etc. included in the pertinent information, which, if disclosed, could infringe on the privacy or freedom of privacy.”

(B) As seen above, Article 9(1)6 of the Information Disclosure Act provides that personal information shall be subject to non-disclosure as one of the above, and the disclosure of information prepared or acquired by a public institution under the proviso (c) of the same subparagraph shall be excluded from "information deemed necessary for the public interest or for the protection of rights of individuals." The legislative intent of the main text of the above provision is to prevent infringement of the people's right to know, etc. on the part of a third party who has been held an opportunity for the public institution to perform its duties, and to prevent the infringement of privacy or freedom that may be caused by the disclosure without limitation, and whether the disclosure of information referred to in the proviso constitutes "information deemed necessary for the public interest" should be carefully determined by comparing and comparing the public interest protected by the non-disclosure such as the protection of privacy and the protection of rights of individuals and the transparency of government administration (see, e.g., Supreme Court Decision 2009Du1424, Oct. 29, 2009).

Meanwhile, Article 14 of the Information Disclosure Act provides that, in a case where the information requested for disclosure contains information subject to non-disclosure and information that can be disclosed, the part falling under the subject-matter of non-disclosure and the part that can be disclosed should be separated to the extent not inconsistent with the purport of the request for disclosure. This does not mean the case where the two parts are physically distinguishable, but it is possible to exclude or delete the technology, etc. related to the information subject to non-disclosure in light of the method and procedure for disclosure of the relevant information, and to disclose only the remaining information, and the remaining part alone means the case where the information is worth disclosure (see Supreme Court Decision 2003Du12707, Dec. 9, 2004)

(C) Personal information pertaining to an individual identified in the list of investigation records includes the name of the person concerned. In this case, considering the fact that the Plaintiff’s name was not specified, the name of the person who made the statement in this case may infringe on an individual’s privacy or freedom if disclosed to the public as an individual’s personal information, and as such, the interests gained by the Plaintiff due to disclosure of the name of the person who made the statement do not appear to be more than the interests infringed upon by the Plaintiff, the name of the person who made the statement cannot be deemed to be information that requires disclosure for the purpose of protecting the Plaintiff’s rights. Accordingly, this part of information constitutes information subject to non-disclosure under Article 9(1)6 of the Information Disclosure Act, and the Defendant’

However, in the records list of this case, it is possible to disclose the remainder, excluding the part corresponding to the above information subject to non-disclosure, and the remainder of the information alone is worth disclosure. Thus, the Defendant’s refusal to disclose information on the remainder, except the name of the person who made the statement, on the ground that it constitutes information subject to non-disclosure under Article 9(1)6

(4) As to the lack of explanation of the requirements for perusal and copy of the final and conclusive trial records under the Criminal Procedure Act

(A) The defendant argues that Article 59-2 (1) of the Criminal Procedure Act provides that "any person may apply for perusal or reproduction of the trial records at the prosecutor's office where the records of the case for which judgment became final and conclusive for the purpose of scientific research or public interest are preserved." The plaintiff did not clearly explain such grounds at the time of the application for copy of the records of this case, and rather, the records of this case for which the plaintiff requested disclosure fall under the case where the grounds for restriction on perusal provided by Article 59-2 (2) of the same Act.

(B) On the other hand, the plaintiff filed a request for the disclosure of the records of this case and filed a claim for the inspection and copy of the records of this case under the Criminal Procedure Act (this circumstance remains in force until now). Accordingly, the defendant did not present such a ground for rejection until the time the defendant made the disposition of this case at least, which was presented (as seen above, the defendant deemed that the matters recorded in the records of this case fall under one of the non-disclosure information prescribed in the Information Disclosure Act, and thus, the prosecutor's non-disclosure decision was made in accordance with Article 20-2 of the Information Disclosure Act, Article 3(1) of the Business Rule for Inspection and copy of the records of this case, Article 7(1) of the Detailed Guidelines for Information Disclosure.

However, in an appeal litigation seeking the revocation of an administrative disposition, the agency can add other grounds for disposition only to the extent that the grounds for the initial disposition are identical to the factual basis (see, e.g., Supreme Court Decisions 2009Du19021, Nov. 24, 201; 2007Du1798, Oct. 23, 2008). The grounds for allowing perusal of records under the Criminal Procedure Act at the time of the request for disclosure of information that was added to the grounds for disposition during the proceedings of the instant case, which were stated in the Criminal Procedure Act, are not clearly explained and proven, and the grounds for refusing to disclose records under the Criminal Procedure Act are not identical to the social factual basis, which is the grounds for disposition, and thus, it is reasonable to deem that it is not allowed to add them to the grounds for disposition. Accordingly, the Defendant’s above assertion is not justifiable without any need to further examine.

C. Sub-committee

Therefore, the defendant's defense as to the information of this case, i.e., the information of this case, other than the name of the person who made the statement, constitutes non-disclosure information as provided by the Information Disclosure Act, or there are other grounds and regulations, and the rejection disposition of this case (excluding the part concerning the name of the person who made the statement, as a matter of course, for the same reasons as indicated in the above), which is based on different premise, cannot be deemed unlawful.

3. Conclusion

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

The presiding judge, the original judge, and the defendant.

Judges fixed-type

Judges Secretary-General;

A person shall be appointed.