[1] The meaning of "where disclosure has a reasonable ground to believe that disclosure may substantially interfere with the fair performance of duties" under Article 9 (1) 5 of the former Official Information Disclosure Act, and the method of determining whether such disclosure constitutes such case

[2] Whether meeting-related data provided in the decision-making process or minutes recorded in the decision-making process may be included in the information subject to non-disclosure under Article 9(1)5 of the former Official Information Disclosure Act (affirmative)

[3] In a case where Gap filed a request for disclosure of the minutes of the Committee for Deliberation on Burial of the Ministry of Patriots and Veterans, which decided to exclude his father from the eligibility for laying to rest in the National Cemetery, but the Minister of Patriots and Veterans Affairs rejected such request, the case holding that the court below erred by misapprehending the legal principle on the ground that the minutes constitute "information which is reasonably deemed to significantly impede the fair performance of duties if disclosed," as provided by Article 9 (1) 5 of the former Official Information Disclosure Act, and

[1] Article 9(1)5 of the former Official Information Disclosure Act (Amended by Act No. 11991, Aug. 6, 2013) / [2] Article 9(1)5 of the former Official Information Disclosure Act (Amended by Act No. 11991, Aug. 6, 2013) / [3] Article 9(1)5 of the former Official Information Disclosure Act (Amended by Act No. 11991, Aug. 6, 2013)

[1] Supreme Court Decision 2010Du2913 Decided June 10, 2010 (Gong2010Ha, 1378), Supreme Court Decision 2013Du20301 Decided July 24, 2014 (Gong2014Ha, 1743) / [2] Supreme Court Decision 2002Du12946 Decided August 22, 2003 (Gong2003Ha, 1958)

Plaintiff (KON Law Firm, Attorneys Kang Han-seok et al., Counsel for the plaintiff-appellant)

The Minister of Patriots and Veterans Affairs

Seoul High Court Decision 2014Nu41376 decided September 26, 2014

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. The phrase “where there is a reasonable ground to believe that such disclosure would substantially interfere with the fair performance of duties” under Article 9(1)5 of the former Official Information Disclosure Act (amended by Act No. 11991, Aug. 6, 2013; hereinafter “Information Disclosure Act”) means where there is a high probability that fair performance of duties would substantially interfere with the objective of the information disclosure system under Article 1 of the same Act and the legislative intent of Article 9(1)5 of the same Act. In light of the purpose of the information disclosure system under Article 9(1)5 of the same Act, the issue of whether the disclosure constitutes such information shall be determined carefully depending on specific matters (see, e.g., Supreme Court Decisions 2010Du2913, Jun. 10, 2010; 2013Du29813, Jun. 10, 2014).

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, the court below held that each of the above minutes of this case does not constitute the part of the members' names, participants, members of the Information Disclosure Committee and the rest of the remaining portion of the minutes of this case, except for the names of the members of the National Assembly and the members of the Army Chief of Staff, since the contents of each of the minutes of this case are more likely to interfere with the fair performance of duties of the members of the National Cemetery, considering the following facts: (a) when the Deliberative Committee on the Burial of Patriots and Veterans Affairs (hereinafter referred to as the "Deliberative Committee") reviews and makes decisions as to whether the deceased non-party 1 and the deceased non-party 2 will be buried in the National Cemetery; and (b) when the contents of each of the minutes of this case are disclosed in view of the process and contents of the meeting; (c) when the members' list and the speaker are anonymous, the disclosure of the minutes of each of the above minutes of this case would have a significant impact on the members's right to know.

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

A. According to Articles 5 and 10(1) of the Act on the Establishment and Management of National Cemeteries, and Article 13 of the Enforcement Decree of the Act on the Establishment and Management of National Cemeteries, where a person who filed an application for laying to rest at the National Cemetery falls under a specific ground and the defendant et al. requested deliberation by the Deliberation Committee, the Deliberation Committee shall deliberate whether the person’s national cemetery would impair the honor of national cemeteries and notify the defendant or the Minister of National Defense of the result of deliberation. The defendant or the Minister of National Defense so notified shall decide whether to lay to rest and notify the result thereof to the bereaved family members who filed the application for laying to rest. According to the purport and content of the relevant provision, the deliberation by the Deliberation Committee is only one procedure for determining whether the defendant et al. filed an application for laying to rest at the National Cemetery, and thus, it can be included in the non-disclosure information corresponding to the matters in the decision-making process

B. In order to deliberate on whether a national cemetery of a person filed for laying to rest would damage the honor of the national cemetery, the person’s life-long meritorious deeds, i.e., what the person committed, and how the person committed the crime, and how the person was unable to provide any meritorious services until his/her death, and whether the person’s meritorious services were sufficiently high to be laid to rest in the national cemetery should be comprehensively deliberated upon in light of the above crime. As such, the deliberation by the deliberative committee is bound to intervene in considerable portion of the professional and subjective value judgment of the review committee members, and it is highly probable that the deliberation would result in objective and fair deliberation through answers and discussions more freely and actively, even if the deliberation did not take into account in light of the nature of the deliberation.

C. Even if the content of each of the minutes of this case is disclosed, even if it does not include any content that will hinder the fair performance of duties of the review committee members, the review committee members are bound to be subject to restrictions on prudent and free opinion exchange by recognizing that the minutes of this case are likely to be disclosed. In particular, with respect to statements made by one of the review committee members during the evaluation process of one's daily life, there is a high possibility that bereaved family members would have a very sensitive response. Therefore, the review committee members will be able to make the overall difficulty in performing their fair deliberation duties by pointing out the awareness of and scarcityd opinion exchange, and such problems are difficult to be sufficiently resolved even if each of the minutes of this case is treated anonymous.

D. When comparing and comparing the guarantee of the right to know protected by the disclosure of each of the minutes of this case and the interests such as fairness in the performance of duties protected by non-disclosure as above, each of the minutes of this case shall be deemed to constitute "information which has considerable grounds to recognize that disclosure would seriously interfere with the fair performance of duties if disclosed."

E. Nevertheless, solely based on its reasoning, the lower court determined that each of the instant minutes did not constitute information subject to non-disclosure under Article 9(1)5 of the Information Disclosure Act. In so doing, the lower court erred by misapprehending the legal doctrine on information subject to non-disclosure under Article 9(1)5 of the Information Disclosure Act, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal

4. Therefore, without further proceeding to decide on the remaining grounds of appeal, the part against the defendant among the judgment below is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee In-bok (Presiding Justice)