2011Guhap1222 Revocation of revocation of administrative information non-disclosure decision

1. 88 13 complex council of lessees; and

Incheon Southern Dong-gu

President of the Representative Kim US

2. Residents;

Incheon Southern Dong-gu

3. This;

Incheon Southern Dong-gu

[Defendant-Appellant] Plaintiff 1 et al.

KoreaO000 Corporation

Sungnam-si, Sungnam-si 00

The Representative's Second Second Director

[Defendant-Appellee] Plaintiff 1 and 2 others

June 9, 2011

July 7, 2011

1. Of the instant lawsuit, the part that seeks to file a lawsuit seeking the denial of information disclosure regarding the information listed in 3-18, 3-20 of the attached list shall be dismissed.

2. On January 7, 2011, the Defendant revoked a disposition rejecting the disclosure of information on the information listed in paragraph 2, 4-1, 4-2, 5-1, 5-2, 6-2, 6-7 of the attached Table 2, 4-1, 5-1, 5-2, 6-7, and 6-17 of the attached Table 1, 3-17, 3-1 of the attached Table 3-1, 3-19, 6-1 through 6-6 of the disposition rejecting the disclosure of information on the information listed in paragraphs 1, 3-1 of the attached Table, and revoke the part on the remaining information except for the personal name, contact address, resident registration number, account number, and domicile.

3. The plaintiffs' remaining claims are dismissed.

4. 30% of the costs of lawsuit shall be borne by the plaintiffs, and the remainder by the defendant.

On January 7, 2011, the part that the Defendant decided not to disclose each information listed in the separate sheet to the Plaintiffs is revoked.

1. Details of the disposition;

A. The council of lessees' representatives of the plaintiff 8813 complex is an organization composed of lessees of the Incheon 00-Gu 00 Dong 8813 apartment complex (hereinafter referred to as "the apartment of this case"). The plaintiff Lee Dong-gu, this is the lessee who resides in the above Amart, and the defendant is the rental business operator of the apartment of this case.

B. The instant apartment is scheduled to be converted to sale in lots around August 201.

C. The Plaintiffs are based on the calculation of pre-sale conversion price to the Defendant on December 29, 2010, to refer to the determination of the intention on whether to conclude a pre-sale contract prior to the pre-sale conversion of the instant apartment.

A request was made for disclosure of the information listed in the attached list, which is the data.

D. On January 7, 2011, the Defendant made public perusal of some of the information listed in the separate sheet to the Plaintiffs on July 1, 2010 through July 31 of the same month, and issued a disposition rejecting disclosure on the ground that “the information constitutes information subject to non-disclosure under Article 9(1)6 and 7 of the Official Information Disclosure Act (hereinafter referred to as “Information Disclosure Act”) is the remaining information not subject to non-disclosure.”

[Ground of recognition] Unsatisfy, Gap evidence Nos. 1 and 2, the purport of the whole pleadings

2. Determination on this safety defense

A. The defendant's main defense

The Defendant asserts that the instant lawsuit is unlawful on the following grounds, since the Defendant does not retain each information set forth in the separate sheet Nos. 3-18, 3-20, 4, 5, and 6 of the separate sheet Nos. 3-18, 3-20, 5, and 6.

In other words, the information listed in Section 3-18, 3-20 of the attached list (information on sales expenses and general management expenses) does not hold the information listed in paragraphs 4 and 5 of the attached list (information on sales expenses and general management expenses) because there is no cost related to the sales expenses and general management expenses separately appropriated in the Apt cost of this case, and the information listed in paragraphs 4 and 5 of the attached list (information on daily price table and volume records by construction, design drawings and specifications) is not held because it was abolished or transferred to the management office for the preservation period to the Do in accordance with the Defendant’s document regulations implementing the document regulations, and the information listed in paragraph 6 of the attached list (information on the specifications, etc. of each item related to the cost of housing site) is not held because it was designated in 197 as a housing site development project district in 197, and compensation work was made in 201 and has already been over a large period of time.

B. Determination

1) In general, in light of the fact that the information disclosure system is a system that opens the information held and managed by a public institution according to its status, a person who seeks information disclosure is responsible for proving that there is a considerable probability that the other party holds and manages the information to be disclosed. Where the other party does not hold and manage the information, there is no legal interest to seek revocation of the information disclosure refusal disposition, barring any special circumstance (Supreme Court Decision 2003Du9459 Decided January 13, 2006).

2) First, unlike the Defendant’s assertion, it is insufficient to recognize that there is a considerable probability for the Defendant to hold and manage each of the above beams, as otherwise alleged in the foregoing, on the information listed in attached Table 3-18, 3-20 of the attached Table 3-18, 3-3, and 6-1 through 3, and 7-1 through 15 of the evidence No. 7, and there is no other evidence to determine the same differently. Therefore, the part seeking revocation of the disposition rejecting the disclosure of each of the information in the instant lawsuit is unlawful because there is no legal interest.

3) Next, we examine the information set forth in [Attachment 4, 5, and 6] of the Schedule.

In principle, the applicant for disclosure should bear the burden of proof against the fact that there is a considerable probability that the public institution holds and manages, but if the public institution held and manages the information that is sought disclosure, but no longer exists after the document containing the information was destroyed, the burden of proving that the information is no longer held and managed (see Supreme Court Decision 2004Du12707 delivered on December 9, 200), the public institution bears the burden of proving that the information is not held and managed (see Supreme Court Decision 2003Du12707 delivered on December 9, 200);

Since the defendant himself/herself acknowledges that he/she was in possession and management of each of the above information, if the documents, etc. containing each of the above information have been destroyed and no longer existed after the expiration of the preservation period, the defendant has the burden of proving that he/she did not retain and manage such information. However, it is sufficient to recognize the defendant's assertion that the documents, etc. containing each of the above information have been destroyed as the preservation period expired, and there is no other evidence to acknowledge it. Thus, this part of the defendant's defense of this part of this information is without merit.

3. Judgment on the merits

A. The parties’ assertion

The plaintiffs asserts that the disposition of this case which the plaintiffs refused to do so should be disclosed to the plaintiff pursuant to Article 3 of the Information Disclosure Act, because it infringes on the people's right to know and thus is unlawful. The plaintiffs asserted that the information of this case, other than the information mentioned in Articles 3-18, 3-20, which the defendant did not own as above, should be disclosed to the plaintiff pursuant to Article 3 of the Information Disclosure Act.

As suggested at the time of the disposition of this case, the defendant asserts that the information held by this case constitutes a non-disclosure subject under Article 9 (1) 6 and 7 of the Information Disclosure Act, and further asserts that the information constitutes a non-disclosure subject under Article 9 (1) 5 of the same Act after the filing of the lawsuit of this case.

(b) Related statutes;

It is as shown in the attached Table related Acts and subordinate statutes.

C. Determination

1) Whether it falls under Article 9(1)6 of the Information Disclosure Act

Article 9 (1) 6 of the Information Disclosure Act is a personal information that may not be disclosed by a public institution, such as name, resident registration number, etc. included in the information, if disclosed.

information that is likely to infringe on the privacy or freedom of private life of a person is defined in the Act.

The legislative intent of the above provision is to prevent infringement of privacy or privacy that may be caused by disclosure of personal information of a third party who is held by public institutions in an opportunity to perform their duties without limitation on the grounds of citizens' right to know.

Meanwhile, Article 14 of the Information Disclosure Act provides that, in a case where information requested for disclosure contains a mixture of information subject to non-disclosure and information which can be disclosed, the part falling under non-disclosure and the part which can be disclosed shall be separated within the scope not contrary to the purport of the request for disclosure, and the part which does not mean the case where the two parts can be physically separated, it shall not mean the case where the information in question does not mean the case where the information in question refers to the case where it is possible to exclude or delete the crys, etc. related to the information in question and only disclose the remaining information in light of the method and procedure for disclosure of the information in question, and it shall also be interpreted that the information in question has the value of disclosure only with the information on the part of the money (Supreme Court Decision 2003Du12707

However, there is no evidence to acknowledge that the information in [Attachment List Nos. 2, 4-1, 4-2, 5-1, 5-2, 6-7 through 6-17 contains any information that, if disclosed, could infringe on the privacy or freedom of individuals. On the contrary, the information in [Attachment List Nos. 1, 3-1 through 3-17, 3-19, 6-1 through 6-6] is included in the personal name, contact address, resident registration number, account number, address, etc. (hereinafter referred to as “name, etc.”) and it is hard to recognize that the information in this case contains any information that could infringe on the privacy or freedom of individuals if disclosed, and that the remaining part of the information in this case’s name, etc., other than the information subject to non-disclosure, can be disclosed from the information under Article 9(1)6 of the Information Disclosure Act.

Therefore, the Defendant’s refusal to disclose information to the public under Article 9(1)6 of the Information Disclosure Act is unlawful for the reason that the Defendant’s possession of the instant information, excluding the part corresponding to the information subject to non-disclosure, as seen above, constitutes information subject to non-disclosure.

2) Whether it falls under Article 9(1)7 of the Information Disclosure Act

In light of the legislative purpose and purport of the Information Disclosure Act that guarantees citizens' right to know and secure citizens' participation in state affairs and transparency in state affairs, it is necessary to strictly interpret the information held by the public institution. ② The defendant is a corporation established pursuant to special Acts for the purpose of contributing to the stabilization of people's lives and the promotion of public welfare by improving defective housing units, and has special status and authority different from the general company for the purpose of the implementation of the above purpose; ③ there is no other evidence to deem that the information held by the public institution included matters concerning the defendant's management and confidential information in the management of the apartment of this case, ③ if the construction cost of the apartment of this case was calculated normally, it is not likely to seriously undermine the defendant's legitimate interest by disclosing the information of this case to the public institution, ④ it is difficult to comprehensively determine that the defendant's information of this case is subject to the disclosure of the information of this case and the cost of the housing policy of this case, including the disclosure of the information of this case to the public institution under the Information Disclosure Act.

Therefore, the Defendant’s refusal to disclose the instant information on the grounds that it constitutes information subject to non-disclosure under Article 9(1)7 of the Information Disclosure Act is also illegal.

3) Determination on the assertion falling under Article 9(1)5 of the Information Disclosure Act

In an appeal litigation seeking the revocation of an administrative disposition, the agency may add or change other grounds only to the extent that it is deemed identical to the original grounds for the disposition and the basic factual relations. The identity of the basic factual relations here is determined depending on whether the relevant basic social factual relations are identical in that it is basic in terms of the specific facts prior to legal evaluation of the grounds for the disposition.

Meanwhile, the reason for interpreting that it is not allowed to claim as a ground for disposition on the ground of a separate fact that is not identical to the basic fact is that the purpose of the provision is to realize substantial rule of law by guaranteeing the other party’s right of defense and protect the trust of the other party to the administrative disposition. Thus, it cannot be said that the additional or modified ground was identical to the original ground for disposition on the ground that the added or modified ground did not state the reason at the time of the original disposition, and the parties knew that it had already existed at the time of the disposition, and that it was identical to the original ground for disposition (Supreme Court Decision 2004Du12629 Decided January 13, 206).

However, considering that Article 9(1)6 and 7 of the Information Disclosure Act and Article 9(1)5 of the same Act include not only the grounds for and purpose of legislation with each other’s information subject to non-disclosure, but also the contents, scope and requirements of the information disclosure Act, Article 9(1)5 of the Information Disclosure Act added by the defendant as the grounds for disposition cannot be said to be the same factual basis as the grounds for disposition, and thus, additional grounds for disposition are not allowed. In addition, the defendant’s additional assertion is made by the defendant for family affairs.

The above ground of subparagraph 5 is based on the facts that existed at the time of the instant disposition, and it does not change even if it was based on the facts that existed at the time of the instant disposition. Therefore, the defendant's above ground of appeal is without merit.

4. Conclusion

Therefore, the part of the lawsuit of this case seeking revocation of the disposition rejecting the disclosure of information against the remaining information except for the information held in the separate sheet is dismissed as it is unlawful. As seen earlier, among the information held in this case, the disposition rejecting the disclosure of information on the remaining information except for the part corresponding to the non-disclosure information under Article 9 (1) 6 of the Information Disclosure Act shall be revoked under the above law. Thus, the plaintiffs' claim except the above dismissed part shall be accepted within the above recognized crime, and the remaining claim shall be dismissed as it is without merit. It is so decided as per the text of the state.

Judge Yang Sung-tae

Lee Young-Nam

Freeboard

List

A person shall be appointed.

-10-

A person shall be appointed.

Related Acts and subordinate statutes

Information Disclosure Act of Public Institutions

Article 3 (Principles for Disclosure of Information)

Information held and managed by a public institution shall be disclosed as prescribed by this Act.

Article 9 (Information Subject to Non-Disclosure)

(1) Information held and managed by public institutions shall be subject to disclosure: Provided, That information falling under any of the following subparagraphs shall be disclosed:

institution may not disclose to the public the records.

5. Matters in the course of developing technology for tendering contracts, making decisions on personnel management, or internal review of instructors, supervisors, inspections, and regulatory tendering procedures;

disclosure, such as disclosure, may seriously interfere with the fair performance of duties or research and development;

Information with substantial grounds

6. Personal life or death of an individual, if disclosed, including the name, resident registration number, etc. included in the relevant information;

Information that is deemed likely to infringe on the vision or freedom of activity, provided that the information with respect to an individual referred to below:

(excluding the omission of proviso)

7. Management of a corporation, organization or individual (hereinafter referred to as "corporation, etc.") - Where disclosed, matters concerning trade secrets;

information which might seriously prejudice the legitimate interests of persons, etc., except as listed below:

Article 3 (Omission of proviso)

Article 14 (Partial Disclosure)

In a case where the information requested for disclosure is mixed with the information falling under any subparagraph of Article 9 (1) and the part that can be disclosed, and where it is possible to separate two parts within the scope not contrary to the purport of the request for disclosure, the information shall be disclosed except for the part falling under any subparagraph of Article 9 (1).