[1] Where a public institution fails to retain and manage the pertinent information, whether the disclosure of information can be sought (negative), and the degree of proof as to the management of the pertinent information by the public institution

[2] Where a public institution holds, holds, and manages individual information in a computer device, unlike the case where it holds information in the form of a material form, such as a document, whether the disclosure of information can be refused on the ground that it does not keep the relevant information because it does not formally calculate the result of using individual information data (negative)

[3] Whether the information about the data subject to the examination of university admission capability from 2002 to 2005 constitutes the information subject to non-disclosure or restriction on access under Article 9(1)5 of the Official Information Disclosure Act and Article 13 subparag. 1(c) of the Act on the Protection of Personal Information of Public Institutions (negative)

[4] Whether information on the analysis data for researchers at the national level in 2002 and 2003 constitutes information subject to non-disclosure or restriction on access under Article 9(1)1 and 5 of the Official Information Disclosure Act and Article 13 subparag. 1(b) and (c) of the Act on the Protection of Personal Information of Public Institutions (affirmative)

[1] In light of the fact that the information disclosure system is a system that discloses information held and managed by a public institution in its status, where a public institution does not hold the relevant information, or where a public institution does not hold and manage the relevant information due to disuse of the information after a disposition rejecting a request for information disclosure, etc., barring special circumstances, it shall not be allowed to seek information disclosure, however, where a public institution does not hold and manage the relevant information, a person who requests information disclosure does not have information on the specific possession of the information and cannot confirm or investigate it, and it is not necessary to prove it by direct evidence with regard to the fact that the public institution manages the relevant information, and where it proves that there is a considerable probability that the public institution is holding and managing such information, the public institution obliged to prove the legality of the refusal

[2] Unlike the case where a public institution holds, possesses, and manages individual information in a computer device, unlike the case where it holds information in the form of a material form such as a document, etc., a public institution holding individual information can easily compile, edit, search, and delete new information using a separate program for statistics, analysis, etc., if only the individual information is given in the form of a computer device. As such, if the information subject to disclosure is the result of classifying individual information in the form of a data, it is not prepared and kept in its own data form, but can easily collect and calculate the individual basic information data, and if it is possible to easily create and use the program without time or big economic burden, a public institution holding individual information can easily prepare and confirm the result of disclosure using individual information already held in the form of a computer device, and thus, it is true that the public institution virtually holds the relevant information subject to disclosure. Therefore, if it is not possible to easily calculate the results of disclosure without any cost or economic burden of individual information, it is not possible to use the relevant information as an information subject to disclosure.

[3] Information about the data about the source of the college entrance examination from 2002 to 2005 is not information related to the affairs related to the selection of the examination problem, the execution of the examination, and marking of the examination, but information recording the results of the examination by marking the answer sheet of the examination students who already conducted the examination, and it is not likely that the above information would undermine or interfere with the fairness of the examination, and thus, it does not cause a serious obstacle to the evaluation or judgment of the examination. Thus, it cannot be deemed that the information about the source of the examination for the college entrance examination from 202 to 2005 constitutes the information subject to non-disclosure or restriction on access under Article 9(1)5 of the Official Information Disclosure Act and Article 13 subparag. 1(c) of the Act on the Protection of Personal Information of Public Institutions

[4] Information on the analysis data for researchers at the national level in 2002 and 2003 includes not only the sexual information on examinees, but also the response details of parents, principals, and teachers. Thus, if disclosed, personal information is likely to be leaked contrary to the purport of the Act on the Protection of Personal Information by Public Institutions. Since it is highly probable that subsequent data collection is impossible and subsequent data collection is likely to seriously obstruct the performance of national academic achievement evaluation duties, it constitutes information subject to non-disclosure or restriction on access under Article 9(1)1 and 5 of the Official Information Disclosure Act and Article 13 subparag. 1 (b) and (c) of the Act on the Protection of Personal Information by Public Institutions.

[1] Articles 3, 5, and 9 of the Official Information Disclosure Act, Article 26 of the Administrative Litigation Act / [2] Articles 3, 5, and 9 of the Official Information Disclosure Act, Article 10 of the Act on the Protection of Personal Information of Public Institutions / [3] Article 9 (1) 5 of the Official Information Disclosure Act, Article 13 subparagraph 1 (c) of the Act on the Protection of Personal Information of Public Institutions / [4] Article 9 (1) 1 and 5 of the Official Information Disclosure Act, Article 13 subparagraph 1 (b) and (c) of the Act on the Protection of Personal Information of Public Institutions

[1] Supreme Court Decision 2000Du7087 delivered on April 25, 2003, Supreme Court Decision 2003Du9459 Delivered on January 13, 2006 (Gong2006Sang, 247)

Cho Jong-ge et al. (Attorney Lee Jong-ho, Counsel for the plaintiff-appellant)

Minister of Education and Human Resources Development (Law Firm Korea, Attorneys Kim Jong-soo, Counsel for defendant-appellant)

August 23, 2006

1. The defendant's refusal to disclose information described in the attached Table 1 against the plaintiffs on May 25, 2005 shall be revoked.

2. Each of the plaintiffs' remaining claims is dismissed.

3. The costs of lawsuit are divided into two parts, one of which is borne by the Plaintiffs, and the remainder by the Defendant respectively.

The decision as referred to in Paragraph (1) of this Article and the decision of the defendant against the plaintiffs on May 21, 2005 that the defendant rejected disclosure of the information listed in Attached Table 2 as to the plaintiffs.

1. Details of the disposition;

A. Plaintiff Cho Jae-hee is a professor of Incheon University economics and the Plaintiff Lee Jae-hee is an official university’s college of education and an assistant professor. Plaintiff Shin Jae-hee is a corporation New Technologycom’s representative director. On May 12, 2005, the Plaintiffs requested the Defendant to disclose each information listed in the separate sheet for the purpose of studying the actual state of education in Korea.

B. On May 21, 2005, the Defendant rejected all the Plaintiffs’ claims on the grounds that “the information listed in the separate sheet 2, on the ground that “the data for the admission screening of universities or colleges is conducted under the premise that individuals, schools, and Cities/Dos Offices of Education are not to be calculated, and the commitment at the time of implementation is neglected, and the school records participating in the table are disclosed, it will interfere with the evaluation of the level of study achievement conducted with the cooperation of the future schools and City/Do Offices of Education,” and that “the information listed in the separate sheet 1, on May 25, 2005, shall be calculated only as data for the admission screening of universities or colleges, and it is not kept due to the calculation of the data by the Office of Education of each Office of Education of each City/Do” (hereinafter “each of the instant dispositions”).

[Grounds for recognition] The items in Gap evidence 4-1, 2, Eul evidence 3, and the purport of the whole pleadings

2. Whether each of the dispositions of this case is legitimate

A. The parties' assertion

(1) The plaintiffs

The purpose of requesting the disclosure of information on each data listed in the attached list is to conduct academic research on the educational reality of Korea using the most reliable data that can grasp the current status of education in Korea, and it is illegal that the defendant does not disclose it due to educational side effects, etc.

(2) Defendant

The data requested by the plaintiffs are likely to cause an educational side effect, such as excessive competition due to rupture across the country, the promotion of private education, interference with normal operation of curriculum, etc. in the case of comparison between individuals, schools, and City/Do offices of education or disclosure of heating information, etc.

For the same reason, data on evaluation of the level of national achievement are also conducted on the premise that data between individuals, schools, and City/Do Offices of Education are not calculated, and if the results of schools participating in the table are neglected to ignore the above policies (Promises) and disclosed the results of schools participating in the table, the national level of achievement evaluation conducted in cooperation with the Office of Education of the next City/Do. Therefore, each of the instant information is prohibited from being disclosed.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination as to the information listed in the separate sheet 1

(1) As to the assertion that the information was not held

In light of the fact that the information disclosure system is a system that discloses information held and managed by a public institution in its state, if a public institution does not hold the relevant information, or if a public institution does not hold and manage the information due to the destruction of the relevant information after the rejection of a request for information disclosure, etc. (see Supreme Court Decision 2000Du7087, Apr. 25, 2003), barring special circumstances, it is not necessary to prove it by direct evidence in relation to the fact that a person who requests information disclosure does not have information about the possession of specific information by a public institution and cannot confirm or investigate it because it is not possible for the public institution to confirm or investigate it, and if it proves that there is considerable probability that the public institution is holding and managing such information, it is necessary to prove that the public institution that should prove the legality of the refusal disposition of information disclosure is not keeping and managing the relevant information.

In addition, unlike the case where a public institution holds information in the form of a material such as a document, in a case where individual information is easily input, retained, and managed in a computer device like each of the instant information, a public institution holding individual information can easily compile, edit, search, and delete new information using a separate program for statistics and analysis, if only individual information is given in the nature of the computer device, using a separate program for statistics and analysis. As such, in a case where the information subject to disclosure is a result of classifying individual information, even if it is not prepared and kept in its own data form, the individual basic information data that can be created is input, even if it is not prepared and kept in the computer device, and it is possible to search and calculate the result of the statistical data or tin, etc. using the information, if it is already prepared and confirmed at any time using the individual information already possessed by the computer device, or if it is possible to use the program easily without considerable time and economic burden, the public institution holding the individual information can finally prepare and confirm the result of the disclosure.

Therefore, if it is possible for a public institution to easily create necessary information by using individual information data held and managed as above without time and economic burden, it is reasonable to not refuse the disclosure of information on the ground that it did not own the information in question because it did not formally calculate the result of using individual information data. If it is possible to refuse the disclosure of information on the ground that the public institution does not hold the information at the time of receiving a request for disclosure of information even in such a case, the public institution may de facto monopoly the information by creating and using the information subject to disclosure if necessary at any time, and immediately eliminating the information without keeping it in the computer system. Furthermore, according to Article 10(1) and (2) of the Act on the Protection of Personal Information of Public Institutions (hereinafter “Personal Information Protection Act”), the head of the institution in possession of information may use the information in question in order to perform other competent duties or provide it in a specific form, such as collecting statistics and academic research, in light of the fact that the public institution can use or provide it in a more dangerous manner.

Therefore, according to the following facts, the information listed in the attached list 1 is examined as to whether it corresponds to the information not held by the defendant in light of the above point, and Eul evidence 7-1 and 2-2, the Korean Institute of Curriculum Evaluation and Planning under the defendant's control of the defendant shall prepare a grade list for the pertinent school year in which the examination number, name, resident registration number, and test score for each subject are written, and the examination number, name, resident registration number, report of withdrawal (the year of half or graduation), and each subject's test score are written in order to notify the examinee, the fact that the examination number, examination number, resident registration number, report of withdrawal (the year of half or graduation), and each subject's test score is written can be recognized.

However, in light of the fact that the information listed in the attached list 1 that the plaintiffs requested disclosure is reasonable to deem that the above information is in fact owned, and that the defendant's assertion on the ground that the above information is not retained is not acceptable, since it is reasonable to see that it is reasonable to see that the above information is in fact owned, and that the defendant's assertion on the ground that it does not hold it is not acceptable to accept the defendant's assertion on the ground that the above information is not retained.

(2) As to the assertion that the information subject to non-disclosure constitutes information

The right to know in the modern society is a content of the right to request a public institution to disclose information under the control and possession of the general public. The active right to request a public institution to disclose information under the Constitution of the Republic of Korea, which takes the principle of national sovereignty, is the fundamental right to claim directly based on the Constitution (see, e.g., Constitutional Court Decisions 90Hun-Ma133, May 13, 1991; 88Nu9312, Oct. 24, 1989). Article 2 subparag. 1 of the Official Information Disclosure Act (hereinafter referred to as the “Information Disclosure Act”) provides for “information” as a document (including electronic documents; hereinafter the same shall apply) prepared or acquired by a public institution in the course of performing its duties, and all other information acquired and held by a public institution should be disclosed to the public in principle, and the disclosure of information shall be deemed to be the fundamental right to claim public information under Article 5(1) of the Information Disclosure Act, barring special circumstances.”

However, Article 9(1)5 of the Information Disclosure Act provides that any information in the process of audit, supervision, inspection, test, regulation, tendering contract, technology development, personnel management, decision-making, or internal review, etc., which, if disclosed, has considerable grounds for remarkably obstructing the fair performance of duties or research and development, may not be disclosed. Article 13 Subparag. 1(c) of the Personal Information Protection Act provides that the inspection of managed information may not be restricted in cases where the performance of duties, such as the examination of academic background, functions and employment, qualification examination, compensation or payment calculation, is seriously hindered. Accordingly, the information listed in the attached list 1, which the plaintiffs requested disclosure, falls under the subject of non-disclosure or restriction on perusal. The information is not related to the affairs related to the fair performance of the examination, such as the selection, implementation of the examination, marking of the examination, etc., but is not related to the affairs related to the fair performance of the examination, and thus, it does not interfere with the fairness or fairness of the examination under Article 13 Subparag. 1(c) of the Information Protection Act.

The Defendant asserts that the results of the hydro-examination may cause educational side effects, such as excessive competition due to national heating, encouragement of private education, interference with the normal operation of curriculum, etc. However, such reasons do not constitute grounds for non-disclosure under Article 9(1) of the Information Disclosure Act. However, if it is necessary to prevent confusions that may occur when the Plaintiffs disclose them to the press, etc., or when the data are leaked from outside and mistakenly cited, unlike the original purpose of the disclosure request, the Defendant does not allow any duplication of the original data, and only granting the Plaintiffs access right to the original data using the computer system under the Defendant’s management (which does not allow any duplication of the entire original data, and only granting access right to the original data using the computer system under the Defendant’s management). In addition, it is not possible to refuse such information disclosure without restricting the Plaintiffs’ damage compensation or refusing the disclosure of the same data after the occurrence of data intentionally or by negligence.

Therefore, the defendant's disposition that refused to disclose the information listed in the attached list 1 is unlawful.

D. Determination as to the information listed in the separate sheet 2

(1) Whether the subject of disclosure is specified

According to the statement No. 6-1 and No. 2 of the evidence No. 6-2, the evaluation data on achievement of study at the national level can be acknowledged that it consists of personal identification information and sexual records with the records of each item, student questionnaires, school principal questionnaires, and school teacher questionnaires. The plaintiffs request the disclosure of all information except the student identification number, ② student identification number, ③ name number, ③ name three. The defendant is seeking the disclosure of the analysis data on achievement of study at the national level in 202 and 2003, so long as the plaintiffs do not know accurately the contents and form of the information held by the administrative agency, it is sufficient to apply for the disclosure to the above purport, and the defendant is obligated to order the plaintiffs to disclose the information of this case through comparison between the purport of the plaintiffs' application and the information held by the defendant, so long as the plaintiffs do not know accurately, the defendant is obligated to order the plaintiffs to disclose the information of this case to the effect that the plaintiffs is most specific in the purport of the request of the disclosure of information of this case.

(2) As to the assertion that the information subject to non-disclosure constitutes information

The information listed in the attached list 2 also falls under the information prescribed in the Information Disclosure Act, and the plaintiffs may request the defendant to disclose the above information unless there are special circumstances that justify the refusal of the disclosure of information.

Article 9(1)1 of the Information Disclosure Act provides that “Any information prescribed as confidential or confidential by other Acts or subordinate statutes (limited to regulations of the National Assembly, the Supreme Court Regulations, the Constitutional Court Regulations, the National Election Commission Regulations, Presidential Decree, and municipal ordinances)” (Article 9(1)5 provides that if such information is disclosed in the process of audit, supervision, examination, regulation, tendering, personnel management, decision-making, or internal review, it may not be disclosed.” Article 13(1) of the Personal Information Protection Act provides that “The information pertaining to the evaluation of the number of students or the selection of new students at various schools under the Education Act is more likely to seriously interfere with the fair performance of duties or research and development of the school” (Article 13(2) provides that the information pertaining to the examination of academic achievement, functions, and employment, examination of qualifications, compensation and benefits, which may not be disclosed to the public, is more likely to interfere with the public performance of the relevant duties, among the information pertaining to the public disclosure of the school's school's school's school's entrance and research curricula, etc.

Therefore, the defendant's disposition that refused to disclose the information listed in the attached list 2 is legitimate.

3. Conclusion

Therefore, the plaintiffs' claim seeking revocation of the disposition rejecting information disclosure as to the information listed in the attached list 1 is justified, and it is dismissed as the remaining claims of the plaintiffs are without merit. It is so decided as per Disposition.

Judges Lee Young-young (Presiding Judge)