(영문) 서울행정법원 2014.6.13. 선고 2013구합60781 판결

1. Of the instant lawsuit, the part that disclosed information rejected by disclosure and the part that rejected the disclosure of information in the separate sheet No. 2 shall be dismissed.

2. The disposition by the Defendant against the Plaintiff on July 19, 2013 that the information disclosure right pertaining to the information listed in the attached Form 1, which was made by the Plaintiff, is revoked.

3. The plaintiff's remaining claims are dismissed.

4. One-third of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

Purport of claim

On July 19, 2013, the Defendant revoked a disposition rejecting the disclosure of information as to the information listed in attached Tables 1, 2, and 3, against the Plaintiff, and disclosed the information rejected.

Reasons

1. Details of the disposition;

A. On May 15, 2013, the Plaintiff filed a complaint with the Defendant on the grounds of violation of the Labor Standards Act against B’s representative C, and was expelled by the police officer dispatched by the Plaintiff, who visited the labor inspector in charge, to request perusal of documents, investigation records, etc. submitted by the Plaintiff, around 17:25 minutes to 18:45 minutes in the course of requesting a labor inspector in charge by visiting the labor improvement guidance1 department of the Seoul Employment and Labor Agency.

B. On May 15, 2013, at around 23:00, the Plaintiff sought to steal the documents related to the above accusation by the police officer dispatched. Around May 20, 2013, the Plaintiff invaded with the Labor Improvement Guidance 1 of the Seoul Regional Employment and Labor Agency, but was forced to leave. Around 18:30 on May 20, 2013, the Plaintiff damaged the lock-up device by exposing the lock-up device with the lock-up lock-up device with the Seoul Regional Employment and Labor Agency Labor Improvement Guidance 1.

D. Although the Plaintiff was indicted for summary facts constituting the above A, B, and C, obstruction of the performance of official duties, damage to public goods, and non-compliance with the removal, the Plaintiff’s criminal procedure continues to exist as of the Seoul Central District Court 2013 fixed 4394, upon filing an application for formal trial.

E. On May 27, 2013, the Plaintiff filed a request with the Defendant on May 15, 2013 under the Official Information Disclosure Act (hereinafter “Information Disclosure Act”) for the disclosure of the CCTV images, including ① the entire CCTV images, corridors, entrances, labor improvement1, etc. (hereinafter “Defendant buildings”) from May 15, 2013 to September 16, 2013 (hereinafter “the CCTV images from May 17, 2013 to May 16, 2013”), but the Defendant rendered a request on June 7, 2013 pursuant to the Information Disclosure Act (hereinafter “Information Disclosure Act”), on the grounds that the aforementioned CCTV images constitute information disclosure, including ① the disclosure of information on government buildings, buildings, etc., ② the disclosure of personal information related to the adjudication, including the disclosure of information, ③ the disclosure of personal information related to Article 9(1)3 of the Information Disclosure Act, ③ the disclosure of personal information related to the adjudication and response, etc. (hereinafter “Information Disclosure Act”).

F. On July 5, 2010, the Plaintiff filed an administrative appeal seeking revocation of the instant disposition with the Information Disclosure Deliberation Committee of the Seoul Regional Employment and Labor Agency, but was dismissed on August 24, 2010.

G. Meanwhile, CCTV of the Defendant building is taking the hallways, offices, etc. of each floor including the end of each 6th floor. The video recordings of this case, in addition to public officials working for the Seoul Regional Employment and Labor Agency, all or part of the body, including the face of civil petitioners, are taken and video recorded.

[Ground of recognition] Facts without dispute, Gap 1, 2 evidence, Eul 1 to 5 evidence, the purport of the whole pleadings

2. The plaintiff's assertion

Since CCTV images requested by the Plaintiff to disclose information do not constitute information subject to non-disclosure under each subparagraph of Article 9(1) of the Official Information Disclosure Act, the instant disposition is unlawful as it does not exist any grounds for disposition.

3. Relevant statutes;

Attached Form 4 is as shown in the relevant statutes.

4. Determination on the legitimacy of a lawsuit

A. First, as to the part of the lawsuit in this case’s claim to disclose the information rejected to the public, it is not allowed under the current Administrative Litigation Act, which is the form of lawsuit seeking to erase the obligation of the administrative agency to make such administrative disposition against the court (see, e.g., Supreme Court Decision 91Nu4126, Feb. 11, 1992). This part is unlawful. (B) The part seeking revocation of the disposition on the Attached List No. 2 is unlawful. Next, in light of the fact that the information disclosure system is a system to disclose the information held and managed by the public agency, it is sufficient to prove that the applicant for information disclosure proves that there is a considerable probability of holding and managing the information to claim the disclosure, but if the public agency does not retain and manage the information, there is no legal interest to seek revocation of the disposition to refuse the disclosure of information disclosure (see, e.g., Supreme Court Decision 2003Du9459, Jan. 13, 2006).

In full view of the purport of the evidence duly admitted as above, the Defendant stated that the part in the list No. 2 was deleted in the instant argument that the Defendant did not hold and manage the Defendant, and the CCTV of the Defendant’s building should be deleted after a certain period expires. The Defendant stored only toxic cargo from May 15, 2013 to May 16, 2013 for submission of the Plaintiff’s criminal case evidence; and the Defendant’s receipt of CCTV data from an investigative agency was on June 25, 2013 when the month following the occurrence of the instant case. In light of the above, the evidence submitted by the Plaintiff alone is insufficient to recognize that the Defendant was holding and managing this part of the video product, and there is no legal interest to seek revocation of the disposition on the part in the annexed list No. 2 as to the Plaintiff.

5. Determination on the legitimacy of the instant disposition

(a) Whether the information is subject to disclosure;

1) In light of the legislative purpose and purport of the Information Disclosure Act by guaranteeing the citizen’s right to know and ensuring the citizen’s participation in state affairs and the transparency of state administration, a public institution is in principle required to disclose the information it holds and manages when requested by the citizen, unless it falls under the grounds for non-disclosure provided for in the proviso of Article 9(1) of the Information Disclosure Act. It is necessary to strictly interpret whether the information falls under the grounds for non-disclosure as an exception to information disclosure (see, e.g., Supreme Court Decision 2006Du20587, Jun. 1, 2007). In addition, even in a case where a public institution refuses information disclosure on the grounds of non-disclosure, it is obligated to specifically confirm and examine the contents of the information subject to disclosure in conflict with any legal interest and to specifically claim and prove that the part constitutes the grounds for non-disclosure provided for in each subparagraph of

2) The video recordings of this case, where the Plaintiff is seeking disclosure, are information by which the Plaintiff could verify whether the Plaintiff was assaulted as claimed by the Plaintiff and constitutes criminal evidence of the Plaintiff, and the disclosure of the video recordings of this case may require disclosure in order to guarantee the Plaintiff’s right to know and to resolve the Plaintiff’s suspicion, and at the same time, it is necessary to disclose them in principle.

(b) Whether it falls under Article 9(1)3, 4, and 6 of the Information Disclosure Act (i) and Article 9(1)3

A) Article 9(1)3 of the Information Disclosure Act provides that “information, if disclosed, likely to seriously undermine the protection of people’s lives, bodies, and property, shall be one of the information subject to non-disclosure.” Accordingly, attached Table 2 of Article 9 subparag. 3 of the Information Disclosure Regulations of the Ministry of Employment and Labor stipulates matters concerning the security and security of office buildings, buildings, etc. As an exception to information disclosure, the strict interpretation of whether the information falls under the grounds for non-disclosure under each subparagraph of Article 9(1) of the Information Disclosure Act is limited to the limited list, and therefore, the “matters concerning the security and security of office buildings, etc.” and “matters concerning the security and security of office buildings, etc.” of the defendant’s above instruction should be interpreted to be limited to the case where the disclosure of information related thereto seriously interferes with

B) Comprehensively considering the aforementioned evidence, the Seoul Southern Police Station requested the Defendant to provide the CCTV recording data installed inside the sixth floor of the officer building in Jung-gu Seoul, Seoul, from around 17:00 on May 15, 2013 to 09:00 on the 16th day of the same month. The Defendant submitted the instant video recording data to an investigation agency. The Defendant submitted it to the investigation agency as evidence of the Seoul Central District Court 2013 High Court 2013 High-Ma4394 against the Plaintiff. The confirmation of the instant video recording material alone is difficult to confirm the exact location of CCTV. In light of the above facts, the Plaintiff’s confirmation of the CCTV recording material submitted as evidence among the video recording material of this case can be confirmed in the above criminal case, it is insufficient to recognize that the instant video recording material would seriously hinder the protection of the people’s life, body and property if disclosed.

2) Whether it falls under Article 9(1)4

A) Article 9(1)4 of the Information Disclosure Act provides that information pertaining to a trial in progress and the prevention of a crime, investigation, institution and maintenance of a public prosecution, institution and maintenance of a public prosecution, execution of a sentence, correction, and security disposition shall be subject to disclosure of information which has considerable grounds to believe that the performance of duties is significantly difficult or that a criminal defendant’s right to a fair trial is infringed. In this case, the disclosure of information pertaining to investigation, which has considerable grounds for non-disclosure, should make it considerably difficult to perform duties if disclosed. The purport of Article 9(1)4 of the Information Disclosure Act, which stipulates information pertaining to investigation, as one of the information subject to non-disclosure, is to prevent the disclosure of methods and procedures of investigation, from causing significant difficulties in performing duties by an investigative agency (see, e.g., Constitutional Court Decisions 94Hun-Ma60, Nov. 27, 1997; 2002Du1342, Dec. 26, 2003).

On the other hand, Article 27 (1) of the Constitution provides that "All citizens shall have the right to a trial by law by a judge as provided by the Constitution and laws," and "judicial proceedings by law" in this context means the legality of the principle of no punishment without law and the procedure, at least the basic principles of criminal trials

In addition, it is governed by substantive law and procedural law that do not violate the principle of due process that guarantees the appropriateness of the procedure (see Constitutional Court Order 90HunBa35, Jul. 29, 1993; 90HunBa35, Jul. 29, 199).

B) In light of such legal principles, only the circumstance that the Plaintiff is currently proceeding with a criminal trial, and the video recording of this case was submitted as evidence, it is difficult to view that there is a risk that the video recording of this case may specifically affect the examination or the result of the trial in the process of the trial, or that the Plaintiff may destroy evidence (In conclusion, the video recording of this case is already submitted to an investigation agency and a court, and the Plaintiff has the right to confirm it). In the event that the video recording of this case is disclosed, it is difficult to view that it would significantly impede the work of the court, an investigation agency, etc. conducting the trial, or infringe the right

3) Whether it falls under Article 9(1)6

A) As one of the information subject to non-disclosure, Article 9(1)6 of the Information Disclosure Act provides that "personal information, such as name, resident registration number, etc. included in the information concerned, which, if disclosed, could infringe on the privacy or freedom of an individual." Of the information recorded in the video recording in this case, the faces of civil petitioners of the Seoul Regional Employment and Labor Agency, if disclosed, may infringe on the privacy or freedom of an individual." In addition, Article 10 of the Constitution provides that "all citizens shall have the right to secure dignity and value as human beings and to pursue happiness." Article 17 provides that "All citizens shall not be infringed on the privacy and freedom of personal life." In light of the above provisions, all citizens shall have the right of portrait and other physical features that enable them to be aware of the specific person in terms of social norms, such right shall not be disclosed or reproduced for profit-making purposes (the right to refuse to make a photograph) and the right not to be disclosed or reproduced for profit-making purposes (the right not to be disclosed or reproduced for profit-making purposes) from 1010 to 5010 portrait.

4) Meanwhile, according to Article 14 of the Information Disclosure Act, where information requested to be disclosed is mixed with the part falling under any of the subparagraphs of Article 9(1) and the part that can be disclosed to the public, and where two parts can be separated within the extent not contrary to the purport of the request for disclosure, the part falling under any of the subparagraphs of Article 9(1) shall be excluded. In other words, as a result of a court’s examination as to whether the information refused to be disclosed is unlawful, where the part falling under the information refused to be disclosed to the public is combined with the part that can be disclosed to the public and where two parts can be separated within the extent not contrary to the purport of the request for disclosure, part of the part concerning the information which can be disclosed can be revoked even if there is no change in the purport of the request for disclosure. It does not mean that the two parts can be physically separated from the part concerning the information subject to disclosure which falls under the relevant request for disclosure to the public in light of the method and procedure for disclosure of the relevant information, and that the remaining part can be disclosed only by means of editing and management of the relevant information.

With respect to the instant case, a health room and a scenario’s equipment are recorded in a storage device (HD) with images of a camera No. 1. In light of the following: (a) the original image is not stored as it is; (b) the video player and the video file is stored in a combined state in the compression of the original image; and (c) the stored data can be carried out through the inner player; (d) the editing function is not provided for the prevention of forgery and alteration; (b) inasmuch as the compilation function is not provided for the prevention of forgery and alteration, it is difficult to regard the instant video as a case where the part of the video is not disclosed and the part that can be disclosed can be separated from the information, and there is no other evidence to acknowledge it otherwise.

Therefore, the Defendant’s refusal to disclose information to the remainder of the video records of this case, citing the grounds that the video records of this case constituted information subject to non-disclosure under Article 9(1)6 of the Information Disclosure Act, is unlawful.

6. Conclusion

Therefore, the part of the lawsuit of this case to disclose the information and the part to seek revocation of the disposition rejecting the disclosure of information in the attached Form 2 that the defendant did not possess and manage is unlawful. Thus, among the information recorded in the video recording of this case, the part of the attached Table 1, which is the remaining part of the time zone with which the petitioner's face, etc. can be identified, should be revoked. Thus, the plaintiff's name is justified within the above recognition scope, and the remaining claim is dismissed as it is so decided as per Disposition.