Plaintiff 1 and two others (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)

on March 30, 2007

Seoul Administrative Court Decision 2005Guhap20825 decided September 6, 2006

1.The judgment of the first instance shall be modified as follows:

2. The defendant's decision against the plaintiffs

(a) The part concerning the original material excluding the student identification number, (2) student identification number, (3) student identification number, and name, and (4) the part concerning the original material in the disposition of refusal to disclose information listed in annexed Form 1 as of May 21, 2005; and

B. Disposition rejecting disclosure of information listed in Attachment No. 2 dated May 25, 2005

Each cancellation shall be revoked.

3. The plaintiffs' remaining claims are dismissed.

4. All costs of the lawsuit shall be borne by the defendant.

1. Purport of claim

The defendant's rejection of disclosure of the information stated in the annexed sheet 1, which was written by the defendant against the plaintiffs on May 21, 2005 (it is obvious that the plaintiff is a clerical error) and the rejection of disclosure of the information stated in the annexed sheet 2, which was written by the defendant on May 21, 2005 (the "date 25, 2005" of the purport of the claim and the cause of the claim, as stated in the annexed sheet 2, is revoked.

2. Purport of appeal

A. The plaintiffs: The part against the plaintiffs in the judgment of the court of first instance shall be revoked. The defendant's refusal to disclose information in attached Form 1 against the plaintiffs on May 21, 2005 shall be revoked.

B. Defendant: The part against the Defendant in the judgment of the first instance is revoked, and the Plaintiffs’ claim corresponding to the revoked part is dismissed.

1. Details of the disposition;

A. Plaintiff 1 is the professor and the economics of ○ University. Plaintiff 2 is the history education and assistant professor of the college of education in △ University, and Plaintiff 3 is the representative director of the non-party 1 corporation. The Plaintiffs filed a claim against the Defendant for disclosure of each information recorded in the separate sheet for the purpose of studying the actual state of education in Korea on May 12, 2005.

B. On May 21, 2005, the Defendant refused to disclose the information listed in Appendix 1 as to May 25, 2005, and each of the information listed in Appendix 2 as to May 25, 2005 (hereinafter “each of the instant dispositions”). The reasons for non-disclosure are as follows.

(1) Information listed in Appendix 1

(1) The evaluation of academic achievement at national level is implemented on the premise that data by individual, school, and City/Do office of education is not calculated (the evaluation plan of academic achievement: the policy and the approval of the Minister of Education and Human Resources Development).

(2) If the comparison between individuals, between schools, between the Offices of Education of Cities/Dos, or between heating information, etc. is disclosed, it is likely to cause an educational side effect, such as excessive competition due to national heating, private education assistance, normal operation of curriculum, etc.

3. It is determined that the performance of the duty of evaluation of academic achievement of a national level, which is implemented in cooperation with the National Office of Education of schools and Cities/Dos in the future, will also be hindered in the next implementation of the duty of evaluation of academic achievement of a national level, in the event of disregarding the policy at the time of such enforcement

(4) It is difficult to disclose research data for researchers requested by the plaintiffs including information about such individuals, schools and the Office of Education of Cities/Dos.

(2) Attached 2 information

① The data on the College Ability Test requested by the Plaintiffs are not owned by the Defendant.

(2) The Collegetic Ability Test shall calculate only data for each individual as data for admission screening to universities or colleges, and shall not calculate data for each school and each City/Do Office of Education.

(3) If the comparison between individuals, between schools, between the Offices of Education of Cities/Dos, or between heating information, etc. is disclosed, it is likely to cause an educational side effect, such as excessive competition due to national heating, private education assistance, normal operation of curriculum, etc.

④ It is difficult to disclose the data requested by the Plaintiffs including information on such individuals, schools, and the Offices of Education of Cities/Dos.

[Reasons for Recognition] 1, 2, and 3 of Evidence A No. 4-1, 3

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

(a) Related Acts and subordinate statutes;

It is as shown in the attached Form.

B. Whether the special disposition of each of the instant dispositions is legitimate

(1) Whether the information listed in Attachment 1 is subject to disclosure

(A) The Defendant asserts that the information listed in the attached Table 1, which the Plaintiffs demanded disclosure, is an original material for researchers, and that if it is not clear whether it is an analysis material for researchers, it is not subject to disclosure.

(B) According to the evidence Nos. 3 and 3, even though the plaintiffs are found to have stated "the evaluation data of academic achievement at the national level of 2002 and 2003 (the analysis data for researchers)" as the subject of disclosure at the time of the plaintiffs' request for disclosure of information listed in the attached Form No. 1, if the plaintiffs who are not accurately aware of the contents and form of the information held by the administrative agency requested the above disclosure, the defendant holding the information has a duty to either correct the contents and form of the information to specify the subject of the plaintiffs' request for disclosure or disclose the information that is deemed consistent with the most purport of the claim. Furthermore, the plaintiffs confirmed the information No. 6-1 and 2 as stated in the attached Form No. 1 (the evidence No. 6-1 and 6-2) and specify the subject of disclosure as "the student identification number, the student identification number, the number of students, and the name No. 3. 3. 1, 2006."

(2) The grounds for the disposition of the information listed in Appendix 2

(A) 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, a public institution shall not seek information disclosure unless it holds the relevant information, or where a public institution fails to hold and manage the relevant information due to destruction of the relevant information after a disposition rejecting a request for information disclosure is made (see Supreme Court Decision 2000Du7087, Apr. 25, 2003). However, a person who requests information disclosure is not required to prove it by direct evidence in relation to the fact that the public institution manages the relevant information because it does not have information about the specific possession of the information and it is not possible to confirm or investigate it, and if it is proved that there is a considerable probability that the public institution retains and manages such information, the public institution that must prove the legality of the disposition of refusal of information disclosure shall prove that it does not hold and manage 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 entered, retained, and managed in a computer or other computer system like each of the instant information, a public institution holding individual information can compile, edit, search, and delete new information by using a separate program for statistics and analysis, if only individual information is given in the nature of the computer system, using the aforementioned classified result. Thus, in the 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, there are all basic information that can be created, even if it is not prepared and kept in the computer system, and if it is possible to use the program with a program that can search and calculate statistical data or stone using the information, etc., or easily create and use the program without considerable time and economic burden, a public institution holding individual information can prepare and confirm the result of disclosure using individual information already held in the form of a computer system at any time. Thus, it is identical with the actual possession of the information subject to disclosure.

Therefore, in a case where a public institution can 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 retain the relevant information 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 de facto de facto de facto monopoly the right of people to know by creating the information subject to disclosure and removing the information without keeping it in the computer device, if necessary at any time by using the computer device.

(B) Therefore, in light of the above point of view, according to the statement in the separate sheet Nos. 7-1 and 2 as to whether the information listed in the separate sheet No. 2 is equivalent to the information that the defendant does not hold, the Korean Institute of Curriculum Evaluation and Planning under the defendant's control of the defendant shall prepare a test number, name, resident registration number, and the test score for each subject (hereinafter referred to as the "pass-up test") for the pertinent school year in which the test score for each subject is written, and may recognize the fact that the examination number, name, resident registration number, and the test score for each subject are written in order to notify the subjects of the examination to the individuals.

However, in light of the fact that the information listed in the attached Form 2 for which the plaintiffs requested disclosure is reasonable to see that the above information is in fact owned, and that the defendant is not in fact owned, and the reason for disposition that the above information is not held is unlawful, in light of the fact that it is reasonable to see that the defendant is in fact owned all of the above information, and that there is no need to develop a new program in order to prepare or compute such information, since it is a material that can easily complete only when the withdrawal notification is added, excluding personal identification data, such as examination numbers, names, resident registration numbers, etc., and that both personal information and sexual data are included in the computer system of the defendant or the Korean Institute of Curriculum Evaluation and Planning.

C. Determination on the grounds for common disposition of each of the instant dispositions

(1) Grounds for disposition of the information listed in Appendix 1 (1), (2), (3) and the information listed in Appendix 2 (3)

(A) A public institution requested to disclose information, even if it refuses to do so, shall specifically verify and examine the contents of the information in question, which part conflicts with any legal interests or fundamental rights, and shall assert and prove that it constitutes a reason for non-disclosure as stipulated in Article 9(1) Item (a) of the Official Information Disclosure Act (hereinafter “Information Disclosure Act”), and shall not refuse to disclose information for the following reasons (see Supreme Court Decision 2001Du8827, Dec. 11, 2003). In this case, the Defendant did not specifically indicate that the grounds for disposition as stated in attached Form 1 are ①, ②, ③ the grounds for disposition as to the information as stated in attached Form 2, ③ the grounds for disposition as to the information as stated in attached Form 1, and Article 9(1) Item (e) of the Information Disclosure Act, but a party member is deemed to have applied Article 9(1)5 of the Information Disclosure Act, which appears most closely connected with the contents of the information disclosure.

(B) In light of the purpose of the information disclosure system under Article 1 of the Information Disclosure Act and the legislative intent of the information subject to non-disclosure under Article 9 (1) 5 of the same Act, "where there is a high probability that fair performance of duties would substantially interfere with the fair performance of duties when disclosed" under Article 9 (1) 5 of the Information Disclosure Act. The issue of whether it is a case shall be determined carefully in accordance with specific cases by comparing and comparing the interests protected by the non-disclosure such as fairness of duties and the interests protected by the disclosure such as guaranteeing citizens' right to know, guaranteeing citizens' participation in government affairs, and securing transparency in government affairs (see Supreme Court Decision 2002Du12946, Aug. 22, 2003).

In light of the overall purport of arguments in the testimony of Non-Party 2 and Non-Party 3 as to this case, the information listed in the separate sheet No. 9-1, No. 9-1, No. 6-7, and No. 7, and the testimony of Non-Party 2 and Non-Party 3 are as follows: (a) the Korean Institute of Education under the jurisdiction of the defendant is 1% of the total academic achievement of the subjects of Korean language, English, academic, social, and scientific science; (b) the content includes the score, scale, and achievement level of the subjects of the study; (c) the study achievement evaluation is to a certain degree to which extent the educational objective of the curriculum is achieved at the national level or at the local office of education; (d) how the school education activities affect the educational achievement evaluation of the students; and (e) how the educational achievement evaluation of the students can ultimately be conducted in a broad manner, and (e) how the educational achievement analysis and development of the curriculum can be conducted by the students from the viewpoint of the national level or the quality of the educational achievement examination data.

With respect to the assertion that the defendant's disclosure of the information listed in the attached Form 1 will impede the performance of his/her duties because it is difficult to obtain cooperation from schools and City/Do offices of education in the future, the right to evaluate the achievement of his/her academic achievement is not acceptable as long as the defendant can exercise this right. Next, in disclosing the information listed in the attached Forms 1 and 2, there is no evidence to support the argument that there is concerns about the side effects of education, such as excessive competition due to the national heating, private education promotion, normal operation of curriculum, etc. In addition, in order to normalize our educational reality by improving the current situation, such as excessive competition, public education strike, and private education dependence, the country that already has the constitutional obligation to provide equal education according to the ability of the people (Article 31 (1) of the Constitution) needs to be disclosed to the people and experts based on the accurate data of current educational situation.

Therefore, the information listed in the Attachment 1 and 2 is more beneficial than the interests of the Defendant’s fairness in performing their duties protected by non-disclosure, such as guaranteeing the right to know and securing the people’s participation in educational policies and securing the transparency of educational policies. Therefore, the Defendant’s non-disclosure on the ground of Article 9(1)5 of the Information Disclosure Act is unlawful.

(2) Each disposition of the information listed in Appendix 1 and 2

(A) Although the Defendant did not specifically indicate the grounds for each disposition regarding the information listed in the separate sheet 1 and 2, it appears to the purport that the personal information is not disclosed because it includes the individual's assertion during the lawsuit. Meanwhile, as to the protection of personal information processed by a public institution's computer as stated in the separate sheet 1 and 2, it should be governed by the Act on the Protection of Personal Information of Public Institutions (hereinafter "Personal Information Protection Act"), except as otherwise provided in other Acts, (Article 3(1) of the Personal Information Protection Act, and as to personal information processed by a public institution's computer, it should be determined not by the Personal Information Protection Act but by the Personal Information Protection Act), and the party member should be determined that Article 10(1) of the Personal Information Protection Act is applied to the Defendant (the Defendant alleged as the grounds for refusing disclosure under Article 13 subparag. 1(b) of the Personal Information Protection Act, Article 13 of the Personal Information Protection Act, which is the subject of information, is not applicable to the Plaintiffs' claim for restriction on access to the personal information.

(B) On the other hand, Article 10(2) of the Personal Information Protection Act lists cases where managed information may be used or provided to other agencies for purposes other than the purpose of possession of private information files, and provides it in a form that does not identify a specific person in the case of statistical compilation, academic research, etc.," as stated in subparagraph 4. In the plaintiffs' request for disclosure of information listed in attached Forms 1 and 2, the plaintiffs clearly state that "personal identification data" should be excluded from disclosure, and the plaintiffs' request for disclosure is for academic research on the current state of education in Korea. Thus, the plaintiffs' request for disclosure of information listed in attached Forms 1 and 2 constitutes an exception, and the defendant's rejection of disclosure on the ground of Article 10(1) of the same Act is illegal.

(C) In regard to the information listed in the separate sheet No. 2, the Defendant asserts that the personal information can be leaked since the name of the school can be verified by comparing the student's name by half and number of each of the graduates even if there is no individual identification data, and that there is no way to limit the case where the plaintiffs do not use the information listed in the separate sheet No. 1 and No. 2 for the purpose of research.

In light of the fact that all graduates of high schools do not apply for a water-related examination, it is difficult to view that the records of each individual can not be confirmed compared to the graduates from the information listed in the attached Table 2 without personal identification data, and there is no other evidence to acknowledge it. Furthermore, Article 10(3) of the Personal Information Protection Act provides that "(Article 10(2)4) of the Personal Information Protection Act (Article 10(3) provides personal information to a recipient of managed information, the head of the institution in possession shall restrict the purpose and method of use or other necessary matters, or request the recipient to take necessary measures to ensure the safety of managed information." Thus, if the defendant discloses the information listed in the attached Tables 1 and 2, the defendant grants the right and duty to restrict the use of personal information to the plaintiffs. Thus

3. Conclusion

If so, the defendant's refusal to disclose the information listed in the attached Form 1 against the plaintiffs, the part concerning ① student identification number, ② student identification number, ③ original data other than the name, and the part concerning the claim for disclosure of information listed in the attached Table 2 are illegal. Thus, the plaintiffs' claim of this case is justified within the scope of the above recognition, and the remaining claims shall be accepted and dismissed as it is without merit. The judgment of the court of first instance is unfair as it receives part of the plaintiffs' appeal and the defendant's appeal is rejected. Thus, the judgment of the court of first instance shall be modified as above.

[Attachment of List]

Judges Kim Jong-sik (Presiding Judge)