[1] The method of determining whether disclosure constitutes “information that is deemed necessary to protect an individual’s rights” under the proviso of Article 9(1)6(c) of the Official Information Disclosure Act

[2] The case holding that the informant's name and address constitutes information subject to disclosure in a case where a company subject to search and seizure upon the information that a certain company's trade secret was leaked to a competitor requested the National Intelligence Service to disclose the information on the identity of the informant

[1] Article 9(1)6 proviso of the Official Information Disclosure Act provides that “information pertaining to an individual, 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” and prevents a third party’s infringement of legal interests, such as an individual’s privacy and freedom, which may arise from the disclosure of information. Provided, That the proviso (c) of Article 9(1) proviso of the Official Information Disclosure Act provides that “information prepared or acquired by a public institution and deemed necessary for the protection of individual’s rights” excludes “information that is deemed necessary for the protection of individual’s privacy or for the protection of individual’s rights,” and whether disclosure constitutes “information that is deemed necessary for the protection of individual’s rights” ought to be determined individually on a case-by-case basis by comparing

[2] In a case where a company that received search and seizure of a certain company's trade secret upon the information disclosed to a competitor requests the National Intelligence Service to disclose the information on the identity of the informant, the case holding that the information disclosure constitutes information subject to disclosure, on the ground that it is more necessary to disclose the right of the informant than the degree of infringement on the informant's privacy

[1] Article 9(1)6(c) of the Official Information Disclosure Act / [2] Article 4(3) and Article 9(1)3 and 6 of the Official Information Disclosure Act

[1] Supreme Court Decision 2002Du1342 Delivered on December 26, 2003

Plaintiff Co., Ltd. (Attorney Shin Hun-hwan, Counsel for plaintiff-appellant)

Director of the National Intelligence Service (Attorney Lee Jong-il, Counsel for defendant-appellant)

September 1, 2008

1. On May 13, 2008, the part of the decision that the defendant made against the plaintiff on May 13, 2008, excluding the part concerning the contact information of the provider of information.

2. The plaintiff's remaining claims are dismissed.

3. The costs of lawsuit shall be borne by the defendant.

The defendant's decision to disclose information to the plaintiff on May 13, 2008 is revoked.

1. Facts of recognition;

A. A. Around August 2005, the National Intelligence Service received information (hereinafter “instant information”) from the Plaintiff that “eight persons, including Nonparty 2, 3, 4, 5, 6, 7, and 8, working for the digital broadcasting measuring instruments development and sales company Nonparty 1, working for the said company, are developing and selling products similar to the products of Nonparty 1 using the source code, etc. known to Nonparty 1 while working for the said company (hereinafter “instant information”), and transferred it to the Gyeonggi Provincial Police Agency around September of the same year.

B. On December 8, 2005, the Gyeonggi Provincial Police Agency conducted internal investigation with respect to the instant information, and seized the Plaintiff on December 8, 2005. The Gyeonggi Provincial Police Agency requested a comparative analysis with respect to the production technology of TS analysisers and monitors for digital broadcasting of Nonparty 1 and the Plaintiff’s production technology for digital broadcasting obtained as the result of the above search and seizure, and notified the Program Deliberation and Regulatory Committee of the appraisal result that the two codes are not the same, and terminated the internal investigation with respect to the instant information.

C. On May 2, 2008, the Plaintiff filed a claim with the Defendant for the disclosure of information on the name, address, and contact information of the person who provided the instant information (hereinafter “the instant informant”).

D. On May 13, 2008, the Defendant rendered a non-disclosure decision on the ground that the instant information is not subject to the Official Information Disclosure Act pursuant to Article 4(3) of the Official Information Disclosure Act (hereinafter “Information Disclosure Act”); and that it constitutes non-disclosure information under the proviso of Article 9(1)3 and 6 of the Information Disclosure Act (hereinafter “instant disposition”).

[Ground of recognition] Unsatisfy, entry of Gap evidence 1, purport of whole pleadings

2. Whether the instant disposition is lawful

A. The defendant's assertion

(1) The instant information pertains to industrial technology outflow cases, which are information related to national security, and thus, the instant information is collected or prepared for the purpose of analyzing information related to national security, and is not subject to the Information Disclosure Act pursuant to Article 4(3) of the Information Disclosure Act.

(2) Where the instant information is disclosed, it would pose a threat to the life, etc. of the informant or interfere with his peace and normal life. Thus, the instant information constitutes “information that, if disclosed, is likely to seriously interfere with the protection of the lives, bodies, and property of the people” under Article 9(1)3 proviso of the Information Disclosure Act.

(3) In addition, where the instant information is disclosed, it is likely to infringe on the privacy or freedom of individuals of the instant informant. Thus, the instant information constitutes “personal information, such as name, resident registration number, etc. included in the relevant information, which, if disclosed, is likely to infringe on the privacy or freedom of individuals” under Article 9(1)6 proviso of the Information Disclosure Act.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

(c) Markets:

(1) Whether the instant information constitutes information under Article 4(3) of the Information Disclosure Act

Article 4(3) of the Information Disclosure Act provides that this Act shall not apply to any information collected or prepared by agencies in charge of information related to national security and security affairs for the purpose of analyzing information related to national security. The concept of national security includes the existence of the State, the maintenance of the fundamental order of the Constitution, and the independence of the State, the preservation of territory, the functions of the Constitution and laws, and the maintenance of state agencies established by the Constitution (see Constitutional Court Order 89Hun-Ga104, Feb. 25, 199).

However, there is no evidence to acknowledge that the instant information constitutes information related to national security, since the content of the instant information is merely merely merely that the trade secret of a specific company was leaked to a competitor, it is difficult to view that the instant information constitutes information under Article 4(3) of the Information Disclosure Act and is not subject to the Information Disclosure Act.

(2) Whether the instant information constitutes non-disclosure information under the proviso of Article 9(1)3 of the Information Disclosure Act

The proviso of Article 9(1)3 of the Information Disclosure Act provides for “information which, if disclosed, is deemed likely to seriously undermine the protection of people’s lives, bodies, and property,” as information subject to non-disclosure, and the Defendant, who is a public institution, should prove that the “information is likely to seriously interfere with the realization thereof” (see Supreme Court Decision 2001Du3358, May 28, 2004, etc.).

However, it is difficult to conclude that even if the Plaintiff filed a criminal charge or civil damages claim based on the disclosure of the instant information containing the identity information of the informant, it may seriously hinder the protection of the informant’s life, body, and property. Moreover, there is no other evidence to acknowledge that the Plaintiff may cause harm to the provider’s personal life, body, and property, as well as to promote the aforementioned legitimate means. Thus, it is difficult to deem that the instant information constitutes non-disclosure information under Article 9(1)3 proviso of the Information Disclosure Act.

(3) Whether the instant information constitutes non-disclosure information under the proviso of Article 9(1)6 of the Information Disclosure Act

Article 9(1) proviso proviso of Article 9(1)6 of the Information Disclosure Act prevents infringement of legal interests of third parties, such as the right to privacy and the right to control one’s own information, which may arise from the disclosure of information, by stipulating “personal matters, such as name, resident registration number, etc. included in the relevant information, which, if disclosed, could infringe on the individual’s privacy or the freedom of privacy.” However, the proviso (c) of the same provision excludes “information that is prepared or acquired by a public institution and deemed necessary for protecting the public interest or an individual’s rights” from “information that is deemed necessary for protecting the individual’s rights” and whether disclosure constitutes “information that is necessary for protecting the individual’s rights” should be determined individually by comparing and comparing the interests of the individual’s privacy, etc. protected by the non-disclosure, and the interests of the individual’s rights protection protected by the disclosure, etc. (see Supreme Court Decision 2002Du1

In light of the above, the information of this case consists of the name, address, and contact number of the informant of this case and it is deemed personal information that can identify a specific person by itself. However, as seen earlier, the plaintiff was subject to search and seizure pursuant to the information of this case, but it is found that it was not true, and the plaintiff was given an opportunity to take legal measures against the informant of this case to obtain the information of this case, etc., the disclosure of identity information of this case is more necessary to disclose information for the protection of plaintiff's rights than to the extent that the disclosure of identity information of this case infringes on the privacy. Thus, it is difficult to view that the name and address of the informant of this case constitutes non-disclosure information of Article 9(1)6 of the Information Disclosure Act.

However, the plaintiff's purpose of remedy for infringement of rights is to achieve sufficient disclosure of the part concerning the name and address of the informant of this case among the information of this case. Thus, it is reasonable to view that the part concerning contact information of the informant of this case among the information of this case constitutes non-disclosure information under Article 9 (1) proviso 6 of the Information Disclosure Act.

3. Conclusion

Therefore, the decision made by the defendant on the name and address of the informant of the case among the dispositions of this case shall be revoked illegally. Thus, the plaintiff's claim of this case shall be accepted within the scope of the above recognition, and the remaining claims shall be dismissed as it is without merit. It is so decided as per Disposition by the application of Article 8 (2) of the Administrative Litigation Act and the proviso of Article 98 and Article 101 of the Civil Procedure Act to the burden of litigation costs.

Judges Sung-sung(Presiding Judge)(Presiding Judge)