(영문) 서울행정법원 2010.11.19. 선고 2010구합37032 판결

1. Of the instant lawsuit, the part concerning (1) the address or origin of the recipient of the Order of Civil Merit (excluding resident registration numbers), name, date of birth (including resident registration numbers), official (including photographs), and (2) the part concerning the claim for revocation of the non-disclosure decision regarding the photograph of the recipient of the Order of Civil Merit (hereinafter referred to as the “Order of Civil Merit”); (3) the part concerning the claim for performance of the Information Disclosure Procedure; and (4) the part concerning the claim for non-performance of the non-disclosure decision.

2. The plaintiff's remaining claims are dismissed.

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

Purport of claim

Since the establishment of the government on September 6, 2010 by the Defendant against the Plaintiff on September 6, 2010, the Defendant revoked the decision to disclose non-disclosure of the information pertaining to the name, date of birth (excluding resident registration numbers), and the official photograph (including the Plaintiff’s above information) awarded by the Government (hereinafter referred to as “information of this case”) of the Order of National Merit awarded by the Government to the Plaintiff until now, after the establishment of the government on September 6, 2010. The Defendant shall implement the procedures for disclosure of the above information to the Plaintiff, and shall pay to the Plaintiff the amount equivalent to KRW 3,00,000 per day if the Defendant fails to perform the above obligations even after seven days have passed since the decision became final and conclusive.

Reasons

1. Details of the disposition;

A. On September 3, 2010, the Plaintiff requested the Defendant to disclose “after the establishment of the Government in 1948, the name, address, date of birth, and its official (including photographs) of the Order of Military Merit awarded by the Government until now:

B. On September 6, 2010, the Defendant rendered a decision of non-disclosure in accordance with Article 9(1)6 of the Official Information Disclosure Act (hereinafter “Information Disclosure Act”) and notified the Plaintiff of the decision of non-disclosure on the ground that the information the disclosure of which was requested by the Plaintiff was likely to infringe on an individual’s privacy or freedom.

[Reasons for Recognition] Each entry in Gap evidence 1 and 2

2. Whether the lawsuit is lawful;

A. Determination on this safety defense

(1) The Plaintiff asserted that the instant information does not constitute non-disclosure subject to the revocation of the instant non-disclosure disposition, along with the revocation of the implementation of the information disclosure procedure and the payment of non-performance penalty in proportion to KRW 3,00,000 per day in the event the Defendant did not perform his/her duty after the judgment became final and conclusive. The Defendant asserted that among the instant lawsuit, the Defendant’s claim for revocation of the decision of non-disclosure of information pertaining to the address, name, etc. of the recipients of the Order of Civil Merit (Dong Bag, Baung, Baung), which was not claimed to the Defendant, and the part of the claim for non-

(2) A lawsuit seeking revocation of a disposition rejecting the disclosure of information is subject to the information of the relevant documents, etc., for which the initial applicant for the disclosure of information requested by the public agency and the disclosure of which is rejected by the public agency. Thus, if the information different from the information for which the initial applicant for the disclosure of information was requested by the public agency is included in the revocation lawsuit, the revocation lawsuit falling under the part cannot be deemed to be unlawful since it itself cannot be said that there was a disposition rejecting the disclosure of information of the public agency. However, among the information of this case, it is obvious that the Plaintiff did not request the disclosure of information to the original Defendant, as to the address

(3) Since a claim seeking the performance of administrative disposition, etc. against an administrative agency cannot be subject to administrative litigation, among the lawsuits in this case, the part seeking the performance of the information disclosure procedure to the defendant is not subject to administrative litigation and is not allowed.

(4) A claim for non-performance penalty is allowed only when an enforcement title exists, such as a judgment ordering the obligor to act in the military unit, and the nature of the duty of commission ordered in the enforcement title can be ordered by indirect compulsory performance. Of the instant lawsuit, the part of the claim for non-performance penalty in the instant lawsuit does not exist, such as a judgment ordering the performance of the duty of commission against the Defendant, and it is not permitted that such enforcement title cannot exist as seen in the foregoing paragraph (3).

B. Ex officio determination

With respect to the claim for revocation of the disposition rejecting the disclosure of information pertaining to the photographs of the recipients of the Order of Civil Service Merit (In the lawsuit of this case, the Health Center and the Information Disclosure System are to disclose the information held and managed by public institutions in their original state, and it is sufficient to prove that the applicant for the disclosure of information has a considerable probability of holding and managing the information to be disclosed by administrative agencies. However, if the public institutions do not retain and manage such information, there is no legal interest to seek revocation of the disposition rejecting the disclosure of information (see, e.g., Supreme Court Decision 2003Du9459, Jan. 13, 2006). However, there is no evidence to prove that the defendant has a considerable probability of holding the pictures of the recipients of the Order of Civil Service Merit among the information of this case, and there is no legal interest to seek revocation of the disposition rejecting the disclosure of information among the lawsuit of this case, the part seeking revocation of the above disposition seeking the revocation of the disclosure of information is unlawful.

3. Judgment on the merits

A. The plaintiff's assertion

The instant information, even if disclosed, is not likely to infringe on an individual’s reputation, privacy, safety of life and body, or peace of life, and is not a subject of non-disclosure under Article 9 of the Information Disclosure Act because it constitutes a case necessary for the public interest. Therefore, the instant non-disclosure disposition rejecting the disclosure of the instant information is unlawful and should be revoked.

(b) Related statutes;

Information held and managed by public institutions under Article 9 (Information Subject to Non-Disclosure) of the Official Information Disclosure Act shall be subject to disclosure: Provided, That the information falling under any of the following subparagraphs may not be disclosed:

6. Personal information, such as names and resident registration numbers included in the relevant information, which, if disclosed, is deemed likely to infringe on the privacy or freedom of an individual: Provided, That the following personal information shall be excluded herefrom:

(c) Information prepared or acquired by a public institution and deemed necessary for the public interest or the relief of rights of individuals; the disclosure of information to the public is necessary for the pledge, the name and occupation of an individual entrusted or commissioned by the State or a local government under statutes;

C. Determination

(1) Article 9(1)6 of the Information Disclosure Act provides that one of the information subject to non-disclosure is "personal information by which a specific person can be identified based on the name, resident registration number, etc. included in the information in question." The information in this case (excluding the above part of the part where seeking revocation of non-disclosure is inappropriate as the aforementioned lawsuit; hereinafter the same shall apply) consists of the address, name, date of life (excluding resident registration number), and public information pertaining to the recipient of the Order of Civil Merit, and all of which are related to individuals, and thus, is likely to infringe on the privacy or freedom of individuals if disclosed.

(2) However, the proviso (c) and (e) of the above provision stipulate that "information prepared or acquired by a public institution and deemed necessary for the public interest or for the protection of rights of individuals shall be excluded from non-disclosure." Here, whether disclosure constitutes "information deemed necessary for the public interest or for the protection of rights of individuals" should be determined individually on a case-by-case basis by comparing and comparing the interests of individuals protected by non-disclosure such as privacy and the interests of individuals such as securing transparency in the management of national affairs and the interests of protecting rights of individuals (see, e.g., Supreme Court Decision 2005Du13117, Dec. 13, 2007). The majority of the persons awarded the Order of Civil Merit, as retirement teachers with long-term continued service, it is difficult to simply compare them with the deceased veterans, veterans, the Order of Civil Merit, etc., which should be subject to the interest and respect of all people. Even if the identity and merit of the recipients of the Order of Civil Merit are not disclosed, it may be likely that they have rendered distinguished services or services.

In light of the fact that the information in this case is deemed necessary for the public interest or the remedy of an individual’s rights, and the information that should be disclosed pursuant to the proviso of Article 9(1)6 of the Information Disclosure Act, such as information that is deemed necessary for the public interest or the remedy of the individual’s rights, etc., may considerably infringe on the privacy and interest if the information in this case is disclosed to the public

(3) Therefore, the plaintiff's assertion is without merit.

4. Conclusion

Therefore, among the instant lawsuit, the part of the claim for the cancellation of the non-disclosure decision regarding the Order of Civil Merit (1), the address or origin of the recipient of the Order of Civil Merit (2), the name, etc. of the recipient of the Order of Civil Merit (2) and the part of the claim for the cancellation of the non-disclosure decision regarding the photo of the recipient of the Order of Civil Merit (3) the part of the claim for the performance of the information disclosure procedure, and the part of the claim for non-performance penalty in advance