[1] Whether a claimant who received a disposition rejecting the disclosure of information from a public agency has a legal interest in seeking the revocation of the disposition by an administrative litigation (affirmative), and where information subject to a request for disclosure is already widely known to others by being disclosed to others or can easily be easily known through Internet search, etc., whether there can be no legal interest in the lawsuit or justification for the non-disclosure decision (negative)

[2] The standard for determining whether a case constitutes a “special corporation established under the Special Act” under Article 2 subparag. 3 of the Official Information Disclosure Act, which is obligated to disclose information

[3] The meaning of “a trade secret in management and business operation of a corporation, etc.” under Article 9(1)7 of the Official Information Disclosure Act and the method of determining whether there exists “justifiable profit” that may refuse to disclose

[4] Whether there is a legitimate interest in refusing disclosure as a "matters concerning business management and trade secrets of corporations, etc." under Article 9(1)7 of the Official Information Disclosure Act, with respect to information on the results or processes secured through news gathering activities by a broadcasting company, or on planning, programming, production, etc. of broadcast programs (affirmative with qualification)

[1] Article 12 of the Administrative Litigation Act, Articles 5(1) and 9(1) of the Official Information Disclosure Act / [2] Article 2 subparag. 3 of the Official Information Disclosure Act, Article 2 subparag. 4 of the Enforcement Decree of the Official Information Disclosure Act / [3] Article 9(1)7 of the Official Information Disclosure Act / [4] Article 9(1)7 of the Official Information Disclosure Act

[1] Supreme Court Decision 2005Du8733 Decided July 13, 2007, Supreme Court Decision 2005Du15694 Decided November 27, 2008 / [2] Supreme Court Decision 2008Du5643 Decided April 29, 2010 (Gong2010Sang, 1022) / [3] Supreme Court Decision 2007Du1798 Decided October 23, 2008

Plaintiff

Korean Broadcasting System (Attorney Go Chang-hun, Counsel for defendant-appellant)

Seoul High Court Decision 2007Nu29637 decided July 2, 2008

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. Whether to benefit from a lawsuit;

Since the citizen's right to information disclosure is legally protected specific rights, the claimant who filed a request for information disclosure with respect to a public institution and received a disposition rejecting the disclosure of information through administrative litigation has a legal interest in seeking revocation of the disposition rejecting the disclosure of information, and the fact that information subject to the request for disclosure is already disclosed to others and widely known or can easily be easily known through Internet search, etc. through Internet cannot be justified (see Supreme Court Decisions 2005Du8733, Jul. 13, 2007; 2005Du15694, Nov. 27, 2008).

According to the reasoning of the judgment below, the court below rejected the defendant's defense that the lawsuit of this case seeking the cancellation of the disposition of disclosure of information of this case, which was made by the defendant's producer, by processing ice and caption on the virtual editing tape for the broadcast of this case, was unlawful as there is no legal interest in the lawsuit. However, although there is no little lack in the court below's reasoning, the conclusion that the plaintiff has a legal interest in seeking the cancellation of the disposition of refusal of disclosure of this case's information of this case is just, and there is no error of law such as the nature

2. Whether the right to request information disclosure has been abused;

In light of the purpose, contents, and purport of the Official Information Disclosure Act (hereinafter “Information Disclosure Act”), a request for information disclosure cannot be deemed to constitute an abuse of rights unless there exist special circumstances such as seeking information disclosure for the purpose of inducing the defendant (see, e.g., Supreme Court Decisions 2003Du1370, Sept. 23, 2004; 2004Du2783, Aug. 24, 2006).

In light of the above legal principles, even if multiple persons, including the plaintiff, filed a request for information disclosure of the same content, such circumstance alone alone cannot be deemed to have filed a request for information disclosure of this case solely for the purpose of inducing the defendant, and otherwise, the court below's decision that the plaintiff's request for information disclosure cannot be deemed to constitute abuse of rights is acceptable, and there is no error of law such as misunderstanding of

3. Whether an institution is subject to request for information disclosure;

Whether a corporation constitutes a “special corporation established by the Special Act” under Article 2 subparag. 3 of the Information Disclosure Act and Article 2 subparag. 4 of the Enforcement Decree of the same Act, based on the legislative purpose of the above Act, which intends to guarantee citizens’ right to know and secure citizens’ participation in state affairs and transparency in state administration, and on whether the profit derived from performing duties is not limited to the internal interest of the relevant corporation, but has the public interest character corresponding to the overall interest of the community, although the duties assigned to the relevant corporation are not a national administrative affairs or not. However, the purpose of the Act which is the basis for the establishment of the relevant corporation differently from the general corporation established by the Civil Act or the Commercial Act, such as administrative management and supervision of the organization and activities of the corporation, etc., the existence and degree of financial support and subsidization to the relevant corporation, and whether it is necessary to seek a direct request for information disclosure against the relevant corporation separately from the request for information disclosure with respect to the public affairs of the relevant corporation (see Supreme Court Decision 2008Du5643, Apr. 29, 2010).

In light of the above legal principles, the court below is just in holding that the defendant, a special corporation established and operated by a special law called the Broadcasting Act, constitutes a public institution with the duty to disclose information under Article 2 subparagraph 4 of the Enforcement Decree of the Information Disclosure Act, and there is no error in the misapprehension of legal principles as to "public institution" under Article 2 subparagraph 3 of the Information Disclosure Act, as otherwise alleged in the ground of appeal.

4. Whether information constitutes information subject to non-disclosure under Article 9 (1) 7 of the Information Disclosure Act;

A. Article 9(1)7 of the Information Disclosure Act provides that “Any information that is deemed likely to seriously undermine legitimate interests of corporations, etc. if disclosed as confidential business or business secrets of corporations, organizations, or individuals, is subject to non-disclosure” under Article 9(1)7 of the Information Disclosure Act, with the intention of guaranteeing citizens’ right to know and ensuring citizens’ participation in business activities and transparency in state affairs, and protecting legitimate interests by prescribing necessary matters concerning the duty to disclose information held and managed by public institutions. Considering the legislative purpose of the Information Disclosure Act, the term “business secrets of corporations, etc.” under Article 9(1)7 refers to all information on business activities that are favorable to the disclosure of others, or all confidential matters on business activities that are held and managed by public institutions, and whether to disclose such information should be determined depending on whether there is a legitimate interest to refuse such disclosure, and whether there is a legitimate interest should be more passively determined by the Information Disclosure Act than the legislative intent of the Information Disclosure Act.

On the other hand, broadcasting has a direct impact on people's lives while performing public functions, such as forming democratic public opinion, providing living information, and improving national culture. In light of the public nature of broadcasting, most countries that have public broadcasting systems for the improvement of public interest and cultural development have established and run a public broadcasting business. In addition, the freedom of speech and publication guaranteed under Article 21 (1) of the Constitution include the freedom of broadcasting, and the freedom of broadcasting has the characteristics of subjective freedom as well as the characteristics of broadcasting, which contribute to the substantial guarantee of freedom of speech, which serves as the basis for the existence and development of democracy, by enabling the exchange of diverse information and opinions, and the freedom of broadcasting is also guaranteed to the defendant who is a public broadcasting company.

As such, in order for the defendant to properly enjoy freedom of broadcasting as the subject of freedom of the press while carrying out the public functions as a public broadcasting company, the existence and activities of the broadcasting company as the subject of freedom of the press must not only be independent from interference with the state power, but also from the various powers of society infringing on freedom of broadcasting. Article 1 of the Broadcasting Act also provides that "the purpose of this Act is to protect the rights and interests of viewers, promote democratic formation of public opinion and enhance national culture, and contribute to the development of broadcasting and the promotion of public welfare by guaranteeing the freedom and independence of broadcasting and raising the public responsibility of broadcasting." In addition, Article 4 provides that "the freedom and independence of broadcast programming shall be guaranteed" (Article 1), and "no person may regulate or interfere with broadcast programming unless otherwise prescribed by this Act or other Acts (Article 2)."

Meanwhile, information on the planning, programming, production, etc. of a broadcast program or information on the result of a broadcast program secured through a news gathering activity by a broadcast company may be deemed to fall under “all information on business activities which are favorable to others not known to others,” in terms of the justification for protecting the relationship with other broadcast companies in competition, relationship with viewers, and objectivity, fairness, and neutrality of a broadcast program. In a situation where the evaluation of a broadcast program is considerably different depending on the values or interests of individuals or groups, compelling the Defendant to disclose all of the broadcast programs without restriction on the planning, programming, and production, etc. of the broadcast program possessed by the Defendant by means of a request for information disclosure under the Information Disclosure Act is exposed to any kind of criticism or attack that may arise as a result of the information disclosure, thereby undermining the Defendant’s business and business interests, and undermining the freedom and independence of the broadcast program.

Therefore, the Defendant’s non-disclosure of information on planning, programming, production, etc. of broadcast programs constitutes “matters concerning management and business secrets of corporations, etc.” under Article 9(1)7 of the Information Disclosure Act, except for information necessary to be disclosed in order to protect people’s life, body, or health from danger and injury caused by business activities, or information necessary to be disclosed in order to protect people’s property or life from illegal or unjust business activities, and there is a legitimate interest to refuse such disclosure.

B. According to the reasoning of the judgment below, Nonparty 1, a producer of the Seoul National University, was ordered by Nonparty 2, a producer for tracking 60 minutes around December 2005 to produce a program on the thesis operation case by Nonparty 2, a professor of Nonparty 3 of the Seoul National University, and then the professor of Gerald Schatch at the U.S. S. S. University, applied for patent by misappropriation of Nonparty 3’s teaching skills, and the NT-1 (the stem cell of the thesis in 2004, which served as the basis for patent application of Nonparty 3 teaching team) published by the Seoul National University Investigation Committee (hereinafter “the program in this case”), to produce a program on the authenticity of the film production, etc. of 60 minutes, and the Defendant did not arbitrarily interview domestic and foreign patent or biotechnology experts, and expressed its opinions about the content of the program in this case’s name as 60 minutes after collecting information on Apr. 2, 2006 and expressed its objectivity and objectivity.

Examining the above facts in light of the legal principles as seen earlier, the instant information constitutes “information on the management and trade secrets of corporations, etc., which are prescribed as information subject to non-disclosure” under Article 9(1)7 of the Information Disclosure Act, and where disclosed, it does not change on the ground that the Defendant decided not to broadcast the instant program, or Nonparty 1 arbitrarily included the part of processing ice and caption in the instant information.

Nevertheless, solely on the grounds indicated in its reasoning, the lower court determined that the instant information is not related to the Defendant’s management and trade secrets, but is likely to seriously undermine the Defendant’s legitimate interests if disclosed. In so determining, the lower court erred by misapprehending the legal doctrine on the information subject to non-disclosure under Article 9(1)7 of the Information Disclosure Act, thereby adversely affecting the conclusion of the judgment. The grounds of appeal assigning this error are with merit.

5. Conclusion

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 Ahn Dai-hee (Presiding Justice)