2014Guhap10251 Revocation of Disposition Rejecting Information Disclosure

A

Chief Prosecutor of Jeju District Prosecutors' Office

August 20, 2014

September 24, 2014

1. A disposition rejecting information disclosure made by the Defendant against the Plaintiff on July 5, 2013 shall be revoked.

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

The same shall apply to the order.

1. Details of the disposition;

A. On July 4, 2013, the Plaintiff filed a petition against the Defendant with the Jeju District Prosecutors’ Office No. 2013 (hereinafter “instant information”). On July 4, 2013, the Plaintiff filed a petition against the Defendant for information disclosure on the case list No. 2013 Petition52 of the Jeju District Prosecutors’ Office (hereinafter “instant information”).

B. On July 5, 2013, the Defendant rendered a non-disclosure decision to the Plaintiff on the ground that the instant information constitutes internal documents of an investigative agency pursuant to Article 9(1)4 of the former Official Information Disclosure Act (amended by Act No. 11991, Aug. 6, 2013; hereinafter “Information Disclosure Act”). (hereinafter “instant disposition”).

[Ground of recognition] A without dispute, entry of evidence No. 1, purport of the whole pleadings

2. Whether the lawsuit in this case is lawful

A. Defendant’s defense prior to the merits

From 207 to January 21, 2014, the Plaintiff filed a lawsuit seeking the revocation of a disposition rejecting the disclosure of information throughout the country accounts for 11.8% of the total 1,304 lawsuits filed nationwide during the same period, and the Plaintiff shows the winning rate of 86.8% of the above lawsuits, but there are many cases where the Plaintiff does not receive the disclosed information after the winning of the lawsuit, and the Plaintiff has received the litigation costs for the winning case, and there are cases where the Plaintiff claims litigation costs falsely and excessively. Thus, the purpose of the Plaintiff’s lawsuit is to recover the litigation costs, and the Plaintiff’s legal knowledge and experience in the information disclosure lawsuit is deemed to exist, and the Plaintiff’s appointment of the attorney and received the attorney’s fees as the litigation costs, in light of all the circumstances, such as the Plaintiff’s lawsuit constitutes an abuse of the right of lawsuit.

B. Determination

In light of the following circumstances, although evidence No. 7 is written as evidence consistent with the Defendant’s assertion, the Plaintiff’s assertion that the Plaintiff did not have made a statement as stated in the evidence No. 7, and that it is difficult to immediately believe it. Even if the Plaintiff believed it, it is difficult to view that the Plaintiff’s statement No. 7 merely stated in the evidence No. 7 was the only purpose of recovering litigation costs, and there is no other evidence to prove it otherwise.

(1) All citizens shall have the right to request the disclosure of information, and the information held and managed by the public institutions shall be disclosed in accordance with the Information Disclosure Act, and there is no special limitation on the purpose and frequency of the request.

② Although the Plaintiff filed a lawsuit claiming similar information disclosure, the Plaintiff’s claim is accepted as a considerable part.

(3) The recovery of litigation costs in a winning case is limited to the exercise of the right by the winning party, and the cost of lawsuit is excessive. Even if a false claim is filed, only the legitimate amount of litigation costs shall be recognized through the final decision of the court

④ It cannot be readily concluded that the assistance of the attorney is unnecessary due to having abundant legal knowledge and experience in the Plaintiff’s lawsuit seeking information disclosure, and it is unreasonable to recover the attorney’s fees from the litigation costs within the scope of the attorney’s fees prescribed by the Act.

⑤ It is true that the administrative power of the employees of the correctional institution is required to attend the trial date of the Plaintiff’s lawsuit demanding information disclosure, but the Plaintiff’s failure to avoid the labor is only a result of granting all citizens the right to request information disclosure and the right to file a lawsuit against the rejection disposition, and the right to know and the exercise of the right to claim information cannot be prevented due to the side effects, such as the Defendant’s assertion.

Therefore, it cannot be readily concluded that the instant lawsuit was abuse of power, and the Defendant’s above assertion cannot be accepted.

3. Whether the instant disposition is lawful

A. The parties' assertion

1) The Plaintiff asserts that the instant information is irrelevant to investigation methods and procedures, and that it does not constitute information that has considerable grounds to recognize that it would significantly be difficult to perform its duties if it is disclosed to the public as a matter of investigation under Article 9(1)4 of the Information Disclosure Act.

2) In regard to this, the Defendant asserts that the instant claim constitutes abuse of rights for the purpose of inducing the Defendant, regardless of the purport of the Information Disclosure Act that guarantees citizens’ right to know and secure transparency in state administration, considering the following: (a) the content and frequency of the Plaintiff’s request for information disclosure; (b) the Plaintiff did not pay fees without receiving the information subject to disclosure; and (c) the Plaintiff’s repetitive request for information disclosure is waste of administrative power of the Defendant and administrative agencies.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

1) Whether the instant information constitutes information subject to non-disclosure under Article 9(1)4 of the Information Disclosure Act

Article 9(1)4 of the Information Disclosure Act provides that “information pertaining to an investigation, which, if disclosed, has considerable grounds to believe that it would significantly impede the performance of duties, is one of the information subject to non-disclosure.” The purport of this Act is to prevent disclosure of methods, procedures, etc. for investigation, from causing significant difficulties to the performance of duties by an investigation agency.” Although an investigation record’s written opinion, reporting documents, cameras, legal review, and internal investigation data, etc. (hereinafter “written opinion, etc.”) can be deemed to fall under this (see, e.g., Supreme Court Decision 2002Du1342, Dec. 26, 2003). However, since the information subject to the disclosure agency’s written opinion, etc. does not immediately fall under the information subject to non-disclosure as provided by Article 9(1)4 of the former Information Disclosure Act, it is reasonable to deem the information subject to non-disclosure only when there are reasonable grounds to recognize that the disclosure of investigation methods, procedures, etc. is considerably difficult to perform duties by the investigation agency.

In light of the above legal principles, the information of this case is a list of genuine cases against the defendant, and unlike the above written opinion and the investigation report, the name of each document and the number of pages bound in the investigation records, and the author or the person who made a statement of the relevant document (documents) are recorded, and it is difficult to view that the content and collection channel, etc. are exposed to affect the prevention of crime, collection of information, investigation activities, etc. in the future. Thus, it does not constitute a "information which has considerable reason to recognize that the disclosure of the information of this case is significantly difficult to perform his/her duties when it is made public."

Therefore, the instant disposition rejecting the Plaintiff’s claim for information disclosure on the ground that the instant information constitutes Article 9(1)4 of the Information Disclosure Act is unlawful.

2) Whether the instant request for information disclosure constitutes abuse of rights

Article 1 of the Information Disclosure Act provides that "the purpose of this Act is to guarantee citizens' right to know and secure citizens' participation in state affairs and transparency in state affairs by providing for matters necessary for the citizen's request for disclosure of information held and managed by public institutions and the duty of public institutions to disclose such information." In light of the purpose, content and purport of the Information Disclosure Act, barring special circumstances, such as where the disclosure of information is sought for the purpose of inducing the defendant, barring special circumstances, such as where the purpose of the Information Disclosure Act is not limited to the purpose of the request for information disclosure, the request for information disclosure does not constitute abuse of rights (see Supreme Court Decision 2003Du1370, Sept. 23,

It is not sufficient to recognize that the information disclosure of this case is seeking solely for the purpose of bullying the defendant with only the descriptions of the evidence Nos. 1 through 7, and there is no other evidence to acknowledge it.

In addition, in an appeal litigation seeking the revocation of an administrative disposition, the agency may add or alter other grounds only to the extent that the grounds for the initial disposition are recognized as identical to the basic factual relations. The identity of the basic factual relations here is determined based on whether the underlying social factual relations are identical in the basic point of view by taking advantage of the specific facts prior to the legal evaluation of the grounds for disposition (see, e.g., Supreme Court Decision 2009Du19021, Nov. 24, 201). However, the above abuse of rights claim cannot be deemed identical to the original grounds for disposition under Article 9(1)4 of the Information Disclosure Act, which is the initial grounds for disposition. Therefore, the addition of the above grounds for disposition is not allowed.

Therefore, the defendant's above assertion is not accepted.

4. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is so decided as per Disposition.

The presiding judge, the senior judge;

Judges Lee Dong-young

Judges Kang Young-young

A person shall be appointed.