[1] The scope of the burden of proof of a person who seeks to disclose information, which is held and managed by a public institution, and whether there is a legal interest in seeking revocation of the disposition rejecting the disclosure of information, where the public institution does not hold and manage the information seeking disclosure (negative in principle)

[2] The case holding that the list of persons present at the Council of History Experts, which was organized to review the proposal for revision of the Korean history textbook, constitutes information subject to non-disclosure under Article 9 (1) 6 of the Official Information Disclosure Act, and the disclosure of information under Article 9 (1) 3 (c) of the same Act does not constitute "information deemed necessary for the public interest"

[3] The method of determining whether disclosure constitutes “information deemed necessary for the public interest” under Article 9(1)6(c) of the Official Information Disclosure Act

[4] In a case where information, which was rejected by an administrative agency’s refusal of disclosure of information, is mixed with the information subject to non-disclosure and the information that could be disclosed, whether partial revocation can be ordered for the information that could not be disclosed (affirmative in principle), and the meaning of “the information subject to non-disclosure can be separated from the information subject to non-disclosure within the scope that does not go against the purport of the request for disclosure and the part that could be disclosed,” as a requirement for ordering partial revocation of the information

[5] The case holding that the disclosure of only the date, time, place, etc. of the council meeting except for the list of participants falling under the information subject to non-disclosure under Article 9 (1) 6 of the Official Information Disclosure Act is not particularly recognized, and therefore, it is not necessary to order the partial disclosure of information even if each part of the information is physically distinguishable

[1] 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, it is sufficient to prove that a person seeking the information disclosure has a considerable probability of holding and managing the information that the public institution holds and manages. However, in the event that the public institution fails to retain and manage the information, there is no legal interest to seek the revocation of the disposition rejecting the

[2] The case holding that since the list of the participants of the Council of History Experts, which was organized to review the proposal for revision of the Korean history textbook, is information by which certain persons can be identified and disclosed to the public, it constitutes information subject to non-disclosure as provided by Article 9(1)6 of the Official Information Disclosure Act, and it is difficult to conclude that the disclosure does not constitute "information that is deemed necessary for the public interest" as provided by Article 9(1) Item (c) of the Official Information Disclosure Act, and the interests protected by disclosure are superior to the interests protected by the non-disclosure of information.

[3] Whether disclosure constitutes “information that is deemed necessary for the public interest” under the proviso of Article 9(1)6(c) of the Official Information Disclosure Act ought to be determined carefully in accordance with specific matters by comparing and comparing public interests, such as the protection of privacy of individuals protected by non-disclosure and the securing of transparency in state administration protected by disclosure, etc.

[4] In a case where a court, upon examining whether a disposition rejecting the disclosure of information by an administrative agency was unlawful, combines the information that constitutes the information subject to non-disclosure and that can be disclosed with the part that does not go against the purport of the request for disclosure, and where it can be recognized that the two parts can be separated from the information that did not go against the purport of the request for disclosure, the court may order the partial revocation of the part that could be disclosed, even if there is no modification to the purport of the request for disclosure. However, “the part that constitutes the information subject to non-disclosure and the part that could be disclosed can be separated within the extent that does not go against the purport of the request for disclosure” does not mean the case where the two parts can be physically separated, not the case where the information in question does not mean

[5] In light of the purpose of the disclosure of information, the case holding that the disclosure of only the date, time, place, etc. of the council meeting except the list of participants who participated in the council meeting subject to non-disclosure under Article 9(1)6 of the Official Information Disclosure Act does not have the value of disclosure, even if each part of the information can be physically separated, it does not need to order partial disclosure

[1] Article 12 of the Administrative Litigation Act / [2] Article 9 (1) 6 of the Official Information Disclosure Act / [3] Article 9 (1) 6 (c) of the Official Information Disclosure Act / [4] Article 9 (1) 6 of the Official Information Disclosure Act / [5] Article 9 (1) 6 of the Official Information Disclosure Act

[1] Supreme Court Decision 2003Du9459 Decided January 13, 2006 (Gong2006Sang, 247) / [3] Supreme Court Decision 2001Du6425 Decided March 11, 2003 (Gong2003Sang, 997) Supreme Court Decision 2005Du241 Decided December 7, 2006 (Gong2007Sang, 146) Supreme Court Decision 2005Du1317 Decided December 13, 2007 (Gong2008Sang, 50)

Lawyers' meetings for a democratic society (Attorney Kim Jong-hwan, Counsel for the defendant-appellant)

The Minister of Education, Science and Technology (Attorney Sung-hwan, Counsel for defendant-appellant)

June 24, 2009

1. Of the instant lawsuit, the part of the claim for revocation of information disclosure refusal as to the information listed in paragraph 3 of the attached list shall be dismissed.

2. The plaintiff's remaining claims are dismissed.

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

The defendant's refusal to disclose information to the plaintiff on November 14, 2008 shall be revoked.

1. Details of the disposition;

A. The Defendant, around October 2008, received a request for revision of 253 items from the government departments, such as the Ministry of National Defense, and related organizations, such as textbook for the textbook, with respect to the revision and supplementation of Korean history textbooks for the second and third years in high school, and formed a “Regulatory Expert Council” (hereinafter “the Council of this case”) as faculty members, etc. who majored in historical education to review them.

B. On October 30, 2008, the Defendant announced the recommendation for revision of the items on October 55, 2008 based on the result of the instant conference’s discussion on the above amendment request.

C. Accordingly, on November 4, 2008, the Plaintiff requested the Defendant to disclose each information listed in the separate sheet, but the Defendant rendered a disposition rejecting disclosure on November 14, 2008 on the ground that each of the above information constitutes a non-disclosure information under the proviso of Article 9(1)6 of the Official Information Disclosure Act (hereinafter “Information Disclosure Act”).

[Ground for Recognition: Facts without dispute, Gap evidence 2-1 and 2, testimony of the non-party witness, purport of whole pleadings]

2. Whether the part concerning the claim for revocation of information disclosure refusal on the information listed in paragraph (3) of the attached list among the lawsuit of this case is legitimate

We examine ex officio the legitimacy of this part of the lawsuit.

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, it is sufficient for a person who seeks information disclosure to prove that there is a considerable probability that the person who seeks information disclosure will possess and manage the information to be disclosed. However, in cases where a public institution does not retain and manage such information, there is no legal interest to seek cancellation of the disposition rejecting information disclosure (see Supreme Court Decision 2003Du9459, Jan. 13, 2006, etc.).

As to the instant case, there is no evidence to acknowledge that the Defendant’s information listed in Paragraph 3 of the Attached List (in light of the relationship with the information listed in Paragraph 2 of the Attached List, it is reasonable to see that the information listed in Paragraph 3 of the Attached List is simply the minutes stating the individual statement contents of the members of the instant council, not the date, time, place, and the list of participants of the meeting), and rather, in full view of the purport of the Non-Party’s testimony as a whole, the instant council prepared the foundation of the recommendation for correction via the two-day seminars called “central work,” but only it can be recognized that the separate minutes on the said seminars have not been prepared.

Therefore, this part of the lawsuit on the information in the attached list No. 3, which is not owned and managed by the defendant, is illegal because there is no legal interest to seek revocation of the disposition rejecting information disclosure.

3. Judgment on the remaining claims of the Plaintiff

A. Summary of the plaintiff's cause of claim

Each information listed in the attached list 1 and 2 falls under subparagraph 6 (c) through (e) of the proviso of Article 9(1) of the Information Disclosure Act and is not subject to non-disclosure.

B. Relevant statutes

The entries in the attached statutes are as follows.

C. Determination

1) As to the part of the list of participants among the information listed in Paragraph 1 of the attached list and the information listed in Paragraph 2 of the attached list

A) The proviso of Article 9(1)6 of the Information Disclosure Act provides that information held and managed by a public institution shall be subject to disclosure, but it may not be disclosed in the case of information that is deemed likely to infringe on an individual’s privacy or freedom if disclosed with respect to the name, resident registration number, etc. included in the information in question. Of the information listed in paragraph (1) of the attached Table and paragraph (2) of the attached Table, the list of participants among the information listed in paragraph (2) of the attached Table (hereinafter “instant information”), if disclosed, may infringe on the individual’s privacy or freedom, and thus, it may constitute information subject to non-disclosure.

B) Next, as to whether the instant information constitutes a public official’s name and position (the name and occupation of a public official who performed duties) or (e) (the name and occupation of a person entrusted or commissioned by the State or a local government in accordance with laws and regulations as necessary for the public interest) of Article 9(1)6 (d) of the Information Disclosure Act, the instant council is not an organization directly based on the Elementary and Secondary Education Act, but an organization established under Article 29(2) of the Elementary and Secondary Education Act, Article 55 of the Enforcement Decree of the same Act, and Article 26(1) of the same Act, and Article 26(1) of the same Act, which consists of teachers, researchers, etc. who temporarily majored in historical education to assist in the exercise of the Defendant’s political right, etc. In light of the above facts, it cannot be deemed that the instant council members were partially entrusted with the Defendant’s duties under the statutes, and even if some of the above members of the council constitute public educational officials, it is difficult to view them as part of the history and supplement of the textbook’s.

C) Furthermore, we examine as to whether the instant information constitutes an information that is prepared or acquired by a public institution and deemed necessary for the public interest or for the remedy of an individual’s rights.

The issue of whether disclosure constitutes “information that is deemed necessary for the public interest” under the proviso of Article 9(1)6(c) of the Information Disclosure Act ought to be determined carefully according to specific cases by comparing and comparing public interests such as the protection of privacy of individuals protected by non-disclosure and the securing of transparency in state administration, which are protected by disclosure (see Supreme Court Decision 2005Du13117, Dec. 13, 2007, etc.).

Based on the above legal principles, it is recognized that there is a need to secure transparency, public nature, and legitimacy of the process of consultation because there is no legal provision regarding the establishment, composition, and operation of the council of this case, which provides the foundation of the defendant's correction recommendation. On the other hand, members of the council of this case may freely participate in the council and present their opinions on the premise that personal information, such as the list, should not be disclosed, and such trust needs to be protected. ② The provisions on books for the Elementary and Secondary Education Act and its ordinances do not provide that the defendant granted the right to examine books which are written by private persons, but the defendant's right to authorization of private information is not entirely regulated on the standards for its exercise, so it is not reasonable that the council of this case is not only to control the defendant's right to authorization, but also to temporarily and temporarily establish the public opinion for the purpose of supporting the defendant's implementation of the right to disclosure recommendation of private information, but also to disclose the above contents of the textbook to the public.

2) As to the information listed in attached Form No. 2, excluding the list of participants

The plaintiff's information seeking disclosure is stated only as "the details of the meeting of the Council of Experts to History that has been progress until the defendant announced the recommendations for correction," and its detailed contents are unclear, but it is determined that the plaintiff is seeking the disclosure of the list of participants, the date and place of the meeting in relation to the information specified in paragraph 3 of the attached Table.

In light of the purport of the request for disclosure, if a court examines whether a disposition rejecting the disclosure of information by an administrative agency was unlawful, the part falling under the information subject to non-disclosure and the part that can be disclosed can be separated within the scope that does not violate the purport of the request for disclosure, and the part that can be disclosed can be partially revoked. However, if the part that constitutes the information subject to non-disclosure and the part that can be disclosed can be separated within the extent that does not go against the purport of the request for disclosure, the part that does not fall under the information subject to non-disclosure and the part that does not go against the purport of the request for disclosure can be disclosed can be separated, it should be interpreted that the information in question does not mean the case where the information in question does not mean the case where physical separation, but the information in question

The purport of the Plaintiff’s request for disclosure of each information listed in the separate sheet is to verify whether the Defendant’s recommendation for correction was prepared in accordance with a fair and authoritative review and research by acquiring information on the establishment, composition, and operation of the council of this case, and in light of the Plaintiff’s purport of the Plaintiff’s request for disclosure of information, as long as the list of participants falls under the information subject to non-disclosure under Article 9(1) proviso 6 of the Information Disclosure Act, as seen above, disclosure of only the date, time, place, etc. of the meeting excluding the information subject to non-disclosure under Article 9(1) proviso 6 of the Information Disclosure Act shall not be deemed particularly recognized (the Plaintiff has no meaning to disclose the contents, etc. of the meeting when the list of participants was held in the proceedings of this case). Thus, even if each of the above parts is physically distinguishable, it shall be deemed that there is no need to order partial disclosure.

4. Conclusion

Therefore, among the lawsuits in this case, the part on the revocation of the disposition rejecting the disclosure of information as stated in Paragraph (3) of the attached list is unlawful and dismissed, and the remaining claims of the plaintiff are dismissed as it is without merit. It is so decided as per Disposition.

Judges Tae Tae-tae (Presiding Judge)