[1] The meaning and scope of “personal information, such as name, resident registration number, etc. included in the pertinent information, which, if disclosed, could infringe on an individual’s privacy or freedom of privacy” under the main text of Article 9(1)6 of the Official Information Disclosure Act

[2] In a case where the complainant filed a request for the disclosure of information except personal information, such as the suspect, etc., among the suspect interrogation protocol and the written statement of the case which was non-prosecution disposition after the complaint, but the chief prosecutor of the prosecutor's office made a non-disclosure decision on the ground that it constitutes Article 9 (1) 6 of the Official Information Disclosure Act, the case affirming the judgment below holding that the part of the

[1] In light of the legislative history, content, and purport of the Official Information Disclosure Act (hereinafter “Information Disclosure Act”), the content and freedom of privacy guaranteed by the Constitution should be included not only in the information subject to non-disclosure pursuant to the main text of Article 9(1)6 of the Information Disclosure Act, but also in the case where the disclosure of personal information constitutes non-disclosure based on the name, resident registration number, etc. or type of information under the former Information Disclosure Act (wholly amended by Act No. 7127, Jan. 29, 2004; hereinafter the same), such as the name, resident registration number, etc., of the former Information Disclosure Act, but also in other detail, it includes not only “personal identification information” to determine whether the information constitutes non-disclosure but also “information that may cause harm to the individual’s life or interfere with the free privacy of the individual.” Therefore, among the records of non-prosecution disposition, the statement of the suspect, etc., other than the suspect interrogation protocol, etc., constitutes the main text of Article 9(1)6 of the Information Disclosure Act.

[Concurring Opinion by Justice Jeon Soo-ahn, Justice Lee In-bok, Justice Lee Sang-hoon, and Justice Park Poe-young] The meaning and scope of “personal information, such as name, resident registration number, etc. included in the pertinent information, which, if disclosed, is likely to infringe on an individual’s privacy or freedom of privacy” under the main text of Article 9(1)6 of the Information Disclosure Act is not different from “personal information, such as name, resident registration number, etc., by which a specific person can be identified” under the main text of Article 7(1)6 of the former Information Disclosure Act, not only the language and text of the Information Disclosure Act, but also the background and purport of the amendment, the previous opinion of the Supreme Court precedents, and the opinion of the relevant statutes, and a reasonable interpretation that strongly

[2] In a case where the complainant filed a request for the disclosure of personal information except the identity of the suspect, etc. among the suspect interrogation protocol and the written statement of the case which was non-prosecution disposition after the complaint, but the chief prosecutor of the relevant prosecutor's office made a non-disclosure decision on the ground that the information falls under Article 9 (1) 6 of the Official Information Disclosure Act, the case affirming the judgment below that the personal information, excluding the names of the persons concerned, such as resident registration numbers, occupation, address (residential or workplace address), permanent domicile, criminal records and prosecutor's office disposition, awards and decorations, military service, education, career, family, property, monthly income, religion, membership of political party or social organization, health status, and contact information, should be disclosed, and as a result, it constitutes information that may interfere with personal and mental life or be unable to freely engage in private life, and thus constitutes information subject to non-disclosure.

[1] Article 7(1)6 of the former Act on the Disclosure of Information by Public Institutions (wholly amended by Act No. 7127 of Jan. 29, 2004) (see current Article 9(1)6 of the Official Information Disclosure Act); Article 9(1)6 of the Official Information Disclosure Act / [2] Article 7(1)6 of the former Act on the Disclosure of Information by Public Institutions (wholly amended by Act No. 7127 of Jan. 29, 2004) (see current Article 9(1)6 of the Official Information Disclosure Act); Article 9(1)6 of the Public Institutions Information Disclosure Act

Plaintiff

The Seoul Western District Prosecutor

Seoul High Court Decision 2010Nu21954 decided December 24, 2010

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

A. The main text of Article 7(1)6 of the former Information Disclosure Act (wholly amended by Act No. 7127 of Jan. 29, 2004; hereinafter “former Information Disclosure Act”) stipulated that one of the information subject to non-disclosure is “personal information that may identify a specific person by name, resident registration number, etc. included in the relevant information,” but Article 9(1)6 of the former Information Disclosure Act (wholly amended by Act No. 7127 of Jan. 29, 2004; hereinafter “Information Disclosure Act”) amended the aforementioned information subject to non-disclosure to “personal information, such as name, resident registration number, etc. included in the relevant information, which is likely to infringe on the privacy or freedom of personal life, if disclosed.”

In general, privacy is a fundamental right that provides the State or a third party with protection to bring in or disclose a private life sphere. Freedom of privacy refers to the protection that the State or a third party interferes with or prohibits the free formation of private life (see, e.g., Constitutional Court Order 2002Hun-Ma518, Oct. 30, 2003).

In light of the constitutional history, content, and purport of the Information Disclosure Act’s amendment, etc., the contents of the privacy and freedom guaranteed by the Constitution should be seen as including not only “personal personally identifiable information” which determines whether the information subject to non-disclosure pursuant to the main sentence of Article 9(1)6 of the Information Disclosure Act constitutes information subject to non-disclosure based on the type or type of information, such as name and resident registration number, etc. under the former Information Disclosure Act, but also “personally confidential information is disclosed due to disclosure of personal information, etc., and as a result, the disclosure of personal information is likely to interfere with personal and mental life or make it difficult to freely engage in private life.” Therefore, in a non-prosecution disposition record, the content of the statement other than the personal information of the suspect, etc. indicated in the suspect interrogation protocol, etc. among non-prosecution disposition records, constitutes non-disclosure subject to the main sentence of Article 9(1)6 of the Information Disclosure Act.

B. Meanwhile, Article 9(1)6 proviso (c) of the Information Disclosure Act provides that “information prepared or acquired by a public institution, which is deemed necessary to be disclosed to the public interest or to protect an individual’s rights, shall be excluded from the information subject to non-disclosure.” Here, whether disclosure constitutes “information that is deemed necessary to protect an individual’s rights” should be determined carefully in accordance with specific cases by comparing and comparing the interests protected by non-disclosure such as the privacy of an individual and the interests protected by the disclosure of an individual’s rights, such as infringement of an individual’s rights, etc. (see Supreme Court Decisions 2002Du1342, Dec. 26, 2003; 2009Du1424, Oct. 29, 2009, etc.).

C. The court below accepted the judgment of the court of first instance, and accepted the judgment below's determination that the information pertaining to an individual, excluding the name of the persons concerned, such as resident registration number, occupation, address (residential or workplace address), permanent domicile, previous record and prosecution disposition, awards and decorations, military service, education, career, family, property, monthly income, religion, membership of political party and social organization, health status, contact information, and telephone, etc., with the exception of the name of the persons concerned among the information determined non-disclosure, should be disclosed, and as a result, the confidential information of an individual is likely to interfere with personal and mental internal life or be unable to freely engage in private life, and the remaining information except the above information is not subject to non-disclosure. However, it is just in accordance with the above legal principles. The court below did not err in the misapprehension of legal principles as to the information subject to non-disclosure under Article 9 (1) 6 of the Information Disclosure Act, as otherwise alleged in the ground for appeal.

2. Regarding ground of appeal No. 2

Article 9(1)3 of the Information Disclosure Act provides that “Information subject to non-disclosure, if disclosed, may seriously undermine the protection of people’s lives, bodies, and property,” as one of the information, and such information constitutes such information. The Defendant, the disposition authority, must prove that the information constitutes information.

However, even according to the record, it is clear that the defendant's assertion that the information of this case, which the court below decided to disclose, should not be disclosed pursuant to the above provision, should be rejected. Thus, even if the court below erred in not explicitly rejecting the defendant's assertion on this point, the error does not affect the conclusion of the judgment. The ground of appeal pointing this out cannot be accepted.

3. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating judges, except for a separate opinion by Justice Jeon Soo-ahn, Justice Lee In-bok, Justice Lee Sang-hoon, and Justice Park Poe-young as to the first ground for appeal (whether matters concerning an individual include information other than information about an individual who can identify the specific person). There is a supplementary opinion by Justice Ahn Dai-hee as to the Majority.

4. Separate opinion by Justice Jeon Soo-ahn, Justice Lee In-bok, Justice Lee Sang-hoon, and Justice Park Poe-young is as follows.

A. In light of the main text of Article 9(1)6 of the Information Disclosure Act not only “personal identification information” but also the details of other information under the former Information Disclosure Act, the Majority Opinion deems that the disclosure of personal information leads to the disclosure of any confidential information of an individual, etc., and as a result, information that interferes with personal and mental internal life or is likely to interfere with free privacy, is included in the information subject to non-disclosure. As such, the content of the statement other than the personal information of the suspect, etc. recorded in the interrogation protocol, etc. of a non-prosecution disposition record constitutes a non-disclosure subject under the main sentence of Article 9(1)6 of the Information Disclosure Act where it is deemed that the disclosure of personal information

However, we cannot agree with the majority opinion for the following reasons.

(1) First, we examine the language and text interpretation of Article 9(1)6 of the Information Disclosure Act.

Article 7(1)6 of the former Information Disclosure Act (amended by Act No. 7127 of Jan. 29, 2004), which is one of the information subject to non-disclosure, is changed to “personal information, such as name, resident registration number, etc.,” but Article 9(1)6 of the Information Disclosure Act still sets the same as “personal information, such as name, resident registration number, etc.,” in light of the fact that Article 9(1)6 of the Information Disclosure Act still sets the information identifying a specific person as an example of “personal information,” and the phrase “personal information” under the Information Disclosure Act differs only from the expression, and it is natural to interpret that the same is substantially the same.

As seen above, the majority opinion states that “the contents of statements other than personal information of the suspect, etc. recorded in the suspect interrogation protocol, etc. among the non-prosecution records are subject to non-disclosure under the main sentence of Article 9(1)6 of the Information Disclosure Act in cases where it is likely to infringe on the privacy or freedom of an individual.” The scope of statements other than personal information is ambiguous. More than anything else, it is necessary to determine whether the contents of statements other than personal information are subject to non-disclosure subject to dispute in the instant case, which should be the premise that they are “personal matters.” It is doubtful whether the majority opinion understood as such. For example, the contents of the suspect’s statement recorded in the suspect interrogation protocol in the suspect interrogation protocol should be regarded as a “personal matters,” and if it is necessary to consider as a “personal matters,” it will be extended without limiting the “matters concerning an individual” if it is not a “personal matters.” The same applies to the majority opinion, and thus, it is likely that all ideas and ideas are deemed as whole.

(2) Next, we examine the details and purport of the amendment of the Information Disclosure Act and the opinion of the previous Supreme Court precedents.

Even if examining legislative data, etc. to verify the grounds for the amendment of the Information Disclosure Act, there is no ground to acknowledge that the amendment was made with the purport of expanding the scope of the information subject to non-disclosure. Rather, with respect to Article 9(1)6 of the Information Disclosure Act, the same content is also written in the same manner as the “information that could infringe on the privacy or freedom of individuals,” which is the previous information subject to non-disclosure.” On December 23, 2003, at the plenary session of the National Assembly at the plenary session of December 24, 2003, provides an explanation to the effect that the above provision was more strengthened than the previous one, and the same content is also written in the Official Gazette No. 15606, Jan. 29, 2004.

Meanwhile, as mentioned in the Majority Opinion, Article 7(1)6 of the former Information Disclosure Act provides that “information pertaining to an individual who can identify a specific person based on the name, resident registration number, etc. included in the relevant information” as one of the information subject to non-disclosure, and Article 7(1)6 of the same Act provides that “information prepared or acquired by a public institution is excluded from “information deemed necessary for the public interest or for the protection of an individual’s rights.” Here, whether disclosure constitutes “information that is deemed necessary for the public interest” should be determined on an individual basis by comparing and comparing public interests, such as the protection of an individual’s privacy and the right to know, the guarantee of citizen’s right to know, the transparency of government administration, etc., which are protected by non-disclosure, and the relevant provisions of the former Information Disclosure Act should be determined on an individual basis.” (see Supreme Court Decisions 201Du6425, Mar. 11, 2003; 202Du1342, Dec. 26, 2003).

In full view of the developments leading up to the amendment of the Information Disclosure Act and the opinions of the previous Supreme Court precedents, as seen earlier, the amendment of the Information Disclosure Act is clearly prescribed based on the determination criteria as to whether an individual’s privacy or freedom is likely to be infringed upon by reflecting the intent of the previous Supreme Court precedents as it is, and whether such act constitutes information subject to non-disclosure. The main text of Article 7(1)6 of the former Information Disclosure Act should not be deemed to have expanded the scope of information subject to non-disclosure by changing the phrase “personal information, such as name, resident registration number, etc., by changing the phrase “personal information” to “personal information, such as name, resident registration number, etc.,” under the main text

(3) Furthermore, we examine the harmonious interpretation of the relevant laws and regulations regarding personal information.

Article 2 Subparag. 2 of the former Act on the Protection of Personal Information of Public Institutions (repealed by Article 2 of the Addenda to the Personal Information Protection Act, Act No. 10465, Mar. 29, 201) which defines the meaning of personal information provides that "personal information" means information about an individual who is alive and refers to information that can identify such individual by means of the name, resident registration number, image, etc. included in the relevant information (including information that can easily identify such individual even if the information alone cannot identify a specific individual, combined with other information). Article 2 Subparag. 1 of the Personal Information Protection Act provides that "Personal Information refers to information about a living person, which can identify such individual through name, resident registration number, image, etc. (including information that can identify such individual if it is easily combined with other information)."

Notwithstanding the amendment of the main sentence of Article 7(1)6 of the former Information Disclosure Act, it is unreasonable to interpret that the scope of personal information subject to non-disclosure has been expanded by the amendment of the main sentence of Article 7(1)6 of the former Information Disclosure Act, unless there is any change in the meaning of personal information under the Personal Information Protection Act.

B. Comprehensively taking account of such various circumstances, the meaning and scope of “information pertaining to individuals, such as names, resident registration numbers, etc. included in the pertinent information, which, if disclosed, could infringe on the privacy or freedom of individuals” under the main text of Article 9(1)6 of the Information Disclosure Act is not different from “information pertaining to individuals, such as names, resident registration numbers, etc., by which a specific person can be identified” under the main text of Article 7(1)6 of the former Information Disclosure Act not only the language and text of the Information Disclosure Act, but also the background and purport of the amendment, the previous Supreme Court precedents, the opinions of the previous Supreme Court precedents, and the harmonious interpretation of the relevant statutes, thereby protecting citizens’ right to know strongly.

C. Ultimately, we agree with the Majority’s conclusion that the Defendant’s disposition of non-disclosure of the information listed in the separate sheet No. 1 and No. 2 of the lower judgment is unlawful, and therefore, we agree with the Majority’s conclusion that the appeal should be dismissed. However, in a case where the contents of statements other than the suspect’s personal information recorded in the suspect interrogation protocol, etc. among the records of non-prosecution disposition, are likely to infringe on the individual’s privacy or freedom, I agree with the Majority’s understanding and logic that it constitutes a non-disclosure

5. Concurrence with the Majority Opinion by Justice Ahn Dai-hee

(a) Details and purport of the amendment of the Information Disclosure Act;

Article 7(1)6 of the former Information Disclosure Act provides that “personal information that may identify a specific person” as one of the information subject to non-disclosure. However, the main text of Article 9(1)6 of the Information Disclosure Act completely differs from the content and structure by deleting the phrase “information that may infringe on an individual’s privacy or freedom if disclosed,” and amending the phrase “information that could infringe on an individual’s privacy.” In light of the amendment of the Information Disclosure Act, the standard for determining whether to disclose information based on the type and type of each information, such as the name, resident registration number, residence, contact address, occupation, and age, etc. of an individual, may be deemed to have been modified in the way of determining whether to disclose information based on the actual sexual elements according to the actual content of the information that may infringe on an individual’s privacy or freedom, such as the name, resident registration number, address, contact address, occupation, and age.

In light of the language, purport, etc. of the main sentence of Article 9(1)6 of the Information Disclosure Act, it is reasonable to interpret that the information subject to non-disclosure under the main sentence of Article 9(1)6 of the Information Disclosure Act includes not only the “personal identification information” but also the information in question, if disclosed, the information is likely to infringe on the privacy or freedom of an individual.

Therefore, if a statement other than personal information, such as name, resident registration number, residence, contact address, occupation, age, etc., of a suspect or a witness (hereinafter “suspect, etc.”) falls under the scope of personal information, among the contents of the suspect interrogation protocol or statement, it shall be deemed that such information constitutes information subject to non-disclosure under the main sentence of Article 9(1)6 of the Information Disclosure Act in a case where it is deemed that such information

B. Protection of the constitutional rights of suspects, etc.

Information subject to non-disclosure under the main sentence of Article 9(1)6 of the Information Disclosure Act is closely related to general personality rights, personal information self-determination rights, and privacy protection guaranteed by the Constitution and functions as a means to guarantee the constitutional rights of suspects, etc.

(1) In order to realize an individual’s free character development through social activities, the right to make a decision on various information and data that can be a critical person in forming his/her own image, i.e., the right to self-determination on social character, should be faithfully guaranteed. However, in the event that an interrogation protocol, statement of statement, etc. is disclosed without any restriction, the overall personality, including the positive aspect of the investigated individual, is not described, but the individual’s negative aspect is more likely to seriously increase, and as a result, it infringes on the honor and personality rights of the suspect. In the case of the suspect, there is a risk of social criticism, such as the criminal suspect, if disclosed and only some relevant evidence are removed.

(2) Since the right to self-determination of personal information has the nature of the right to freedom, it shall not be infringed upon not only by the State but also by a private person. In active respect, the suspect, etc. may make a statement favorable to himself/herself or make a statement to discover substantive truth in the pertinent case, and at a passive point, he/she does not want to disclose his/her statement regardless of his/her intention, which is included in the content of the right to self-determination of personal information. It is highly likely to deem that disclosing a statement in the investigation process without a clear confirmation of the relevant statement’s explicit intent in the relevant litigation as to whether it is good to disclose it.

(3) The privacy guaranteed under the Constitution generally refers to the defense and protection of the State or a third party’s private life to bring in or disclose his/her private life. The freedom of private life refers to the right of individuals to claim his/her life only and to freely form his/her private life, which does not interfere with or interfere with the State or any other person. However, the content of the suspect’s statement includes not only the statement about the suspected fact itself, but also the motive and background of the crime, the right of private life prevention, the personal desire and appraisal of others, and the personal life situation, which have been maintained as confidential for himself/herself, and thus is directly related to the protection of an individual’s privacy.

(4) Meanwhile, Article 27(4) of the Constitution declares the principle of presumption of innocence by stipulating that “The criminal defendant shall be presumed innocent until the judgment of conviction becomes final and conclusive.” Such presumption of innocence is not limited to the evidence law, but is a guiding principle governing the whole process of criminal proceedings until the criminal proceedings are held in the criminal proceedings (see, e.g., Constitutional Court Order 2007HunBa25, Jun. 25, 2009). The same applies to a series of processes in which a criminal suspect is investigated by an investigative agency and is subject to non-prosecution disposition. Therefore, if the investigation records are disclosed without restriction even if the suspect was subject to a disposition of non-guilty suspicion, the criminal facts of the finalized criminal charges may be leaked, and this result in violation of the above presumption of innocence.

(c) Characteristics of suspect interrogation protocol;

The protocol of interrogation or statement of a suspect mainly consists of the fact of the suspect in question and the statement of the suspect in question by the investigative agency about the facts of the offense. Among them, if the investigation agency discloses the records of non-prosecution disposition without restrictions on the non-prosecution disposition, the fact that some of the suspect's statements related to the offense have been revealed in the investigation records, and the final judgment of conviction has not been made but has not been made final and conclusive, causing negative impacts on the occurrence of unnecessary suspicions. Furthermore, in our society, the atmosphere of emphasizing the body, reputation, reputation, credit, etc. is general, and the relevant investigation records are disclosed even when the non-prosecution disposition was issued, and the fact that some of the suspect's statements related to the offense have been made under investigation by the investigative agency as the suspect of the offense is known to the neighboring person, his/her counterpart, etc., may result in infringement of self-determination on the social personality

(d) Means of remedy by a claimant for information disclosure;

Even if the suspect interrogation protocol, etc. is not disclosed to the public, if necessary, the person entitled to request the disclosure of information can always confirm the contents of the statement through the examination of the suspect or the party examination in the related litigation procedures, such as civil cases that he/she files a lawsuit. In addition, in cases where a prosecutor makes a non-prosecution disposition, he/she can sufficiently be informed to the complainant by notification of the reasons for non-prosecution. Thus, even if the disclosure of the suspect interrogation protocol, etc. is not disclosed, it is possible to remedy the right of infringement through appeal, reappeal,

E. Therefore, the reasoning of the court below is partly inappropriate, but the court below's decision on whether the information constitutes information subject to non-disclosure under the main sentence of Article 9 (1) 6 of the Information Disclosure Act by taking into account the above various circumstances is ultimately justifiable.

Justices Yang Sung-tae (Presiding Justice)