(영문) 서울행정법원 2020.2.6. 선고 2019구합5557 판결

1. The Defendant’s refusal to disclose information to the Plaintiff on July 5, 2019 is revoked as to the information listed in attached Form 1 (excluding the information listed in attached Form 2) in the disposition rejecting the disclosure of information made against the Plaintiff.

2. The plaintiff's remaining claims are dismissed.

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

Purport of claim

The defendant's refusal to disclose information to the plaintiff on July 5, 2019 is revoked as stated in attached Form 1.

Reasons

1. Details of the disposition;

A. On June 10, 2019, the Plaintiff filed a claim with the Defendant for disclosure of the total of eight items, including the information listed in attached Table 1 in relation to the audit of the school foundation B and C University (hereinafter referred to as “the audit of the instant university”) from December 19, 2018 to December 21, 2018 (However, the Plaintiff did not request disclosure of the name, resident registration number, and the last four categories of contact information among its names).

B. On July 5, 2019, the Defendant disclosed one item of information to the Plaintiff, made a non-disclosure disposition on the ground of non-existence of the non-existence of the information on the four items, and on the information listed in attached Table 1, Article 9(1)7 of the Official Information Disclosure Act (hereinafter “Information Disclosure Act”) of the public institution’s information pertaining to management and trade secrets on the part of the university of this case, which, if disclosed, is likely to seriously undermine the legitimate interests of the university of this case (hereinafter “instant disposition”). (hereinafter “the instant disposition”), the Defendant made a non-disclosure disposition on the ground that the information listed in attached Form 1 constitutes the “information pertaining to management and trade secrets on the part of the university of this case” (hereinafter “the instant disposition”).

C. On the other hand, on July 22, 2019, the Plaintiff requested the Defendant to disclose the list of information listed in attached Form 1, and the Defendant disclosed the list on August 5, 2019 as follows, and thereafter, submitted the information listed in attached Form 1, attached to the above list to the public.

(1) Private university policy-D (No. 12, 13, 2018) The Submission of Data for Investigation of Civil Petitions by Educational Department ② Private University Policy-E (No. 22, 2019) the Submission of Data for Investigation of Civil Petitions; ③ the Submission of the results of the measures following the disposition of the Civil Petitions Investigation Results; ③ the addition of the results of the measures following the disposition of the Civil Petitions Investigation Results; ④ the addition of the measures following the private university policy-F (no. 4, 29; 13, 2019) the Nongovernmental University Policy-G (No. 13, 2019); and ④ the submission of additional data related to the implementation of the disposition of the Civil Petitions Investigation Results and the modification and submission of additional data related thereto.

[Reasons for Recognition] Uncontentious Facts, Gap evidence No. 1, Eul evidence No. 2, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

According to the Private School Act, a private school corporation should operate a private university in a transparent manner. Thus, the defendant's disposition of this case is unlawful since it is not likely to seriously harm the legitimate interests of the university of this case because the university of this case disclosed it without any business and trade secrets that are not open to the general public.

B. Relevant statutes

Attached Form 3. The entry in the relevant statutes is as follows.

C. Determination

1) “Management and trade secrets of a corporation, etc.” under Article 9(1)7 of the Information Disclosure Act refer to all information on business activities that are advantageous to the disclosure of others, or all confidential information on business activities, which are advantageous to the disclosure of which by others, and whether to disclose such information shall be determined depending on whether there is a legitimate interest to refuse disclosure. The existence of such legitimate interest shall be determined strictly in light of the legislative intent of the Information Disclosure Act (see Supreme Court Decision 2009Du19021, Nov. 24, 201).

2) In full view of the facts acknowledged prior to the information other than the information listed in Attached 2. Of the information listed in Attached 1., the evidence mentioned above, the result of the court’s perusal and examination of the information of this case by non-disclosure, and the following circumstances that can be known by the purport of the entire pleadings, the information of this case concerning the management and business secrets of the university of this case is deemed to be likely to seriously harm legitimate interests of the university of this case, and thus, the disposition of non-disclosure of the information of this case among the disposition of this case is unlawful. Accordingly, the plaintiff’s allegation in this part is with merit.

① The instant information consists of “written confirmations received by the Defendant from the university of this case in the course of the instant audit and inspection” and “measures regarding the disposition of the audit results.”

② First, “certificate” consists of improper evidence that the university of this case contains the management of fundamental property for education (I, the lecture party, and the general minister). The result of the measure consists of a request from the defendant for disposition that the university of this case received from the defendant according to the audit results of this case (the management of basic property, the management of the basic property, the restriction on subsidization of research expenses, the restriction on improper personnel support), and the measures taken by the university of this case. In other words, since all of the information of this case consists of improper activities and measures taken by the university of this case revealed according to the audit results of this case, it cannot be deemed that the confidential information about the university of this case is included in this case. In addition, in light of the special characteristics of private schools, it cannot be deemed that the purpose of the Private School Act (Article 1 of the Private School Act) is to promote the sound development of private schools by promoting the public nature. It is also likely to seriously harm legitimate interests of the university of this case.

③ As to this, the Defendant’s disclosure of the instant information pertaining to the “audit” under Article 9(1)5 of the Information Disclosure Act would seriously interfere with the fair performance of duties if disclosed.

However, this part of the defendant's assertion is an addition of the grounds for disposition that cannot be permitted, because the grounds for disposition in this case fall under "information with considerable reasons to recognize." Thus, this part of the defendant's assertion is without merit.

④ In addition, the Defendant asserts that in the audit process of the instant audit, only keep the instant information from the university side of the instant case, the Plaintiff opposed to the disclosure of the instant information, and that the Plaintiff may request the Plaintiff to disclose the instant information against the university side of the instant case. However, as long as the Defendant retains the instant information, regardless of the process of acquisition, the Plaintiff has the right to request the disclosure of the instant information against the Defendant, and the Plaintiff cannot be deemed to have terminated the right to request the disclosure of information on the ground that the Plaintiff has the right to request the disclosure of the instant information against the university side of the instant university, which is the producer of the instant information, and that the said right to request the disclosure of information against the Defendant cannot be deemed to have been extinguished. In addition, Article 11(3) of the Information Disclosure Act only provides that if a public institution deems that all or part of the information requested to be disclosed is related to a third party, it may hear the opinions of the third party. Therefore, this part of the Defendant’s assertion is not reasonable.

3) Comprehensively taking account of the facts acknowledged prior to the information stated in Attached 2. The aforementioned evidence, the result of this court’s perusal and examination of the information listed in Attached 2. Along with the following circumstances, it is recognized that the information listed in Attached 2 is likely to seriously harm legitimate interests of the university of this case if disclosed as matters concerning the management and business secrets of the university of this case, and thus, the disposition of non-disclosure of the information listed in Attached 2. out of the instant disposition is lawful. Accordingly, the Plaintiff’s assertion on this part is without merit.

① The information set forth in attached Form 2. Paragraph 1 is comprised of the current status of use of fundamental property for education on the part of the university of this case. Since the part related to the audit of this case is beyond the part related to the audit of this case and the whole users, period of use, usage fees, etc. of fundamental property for education operated and managed by the university of this case are specifically stated, it may be deemed that

② As the minutes of the board of directors of the university of this case, the information set forth in attached Form 2. 3 is mainly about the business activities of the university of this case, such as budget and appointment, rather than the part related to the audit of this case, and thus, it also constitutes all the information on the business activities that are advantageous to the other party

③ The information set forth in [Attachment 2] 2 and 4 is related to the instant audit. However, considering the fact that the pertinent university’s market price is related to the pertinent audit, such as the appraised value of the general minister, and is planned to sell a third party’s general minister, the market price of the general minister itself constitutes all the information on business activities that are advantageous to the buyer or any other third party, and that is not known.

④ As above, the information in attached Form 2 is composed of information about improper activities and the result of the measures taken by the instant audit, rather than information about the internal business activities on the instant university. If such information is disclosed, it would be likely to undermine legitimate interests by disclosing business and trade secrets on the instant university.

(5) Although the Plaintiff asserts that there is no business and trade secrets to a private school or a private university, the Plaintiff may engage in a business with the property necessary for the management of the necessary facilities, equipment, and schools pursuant to the relevant Acts and subordinate statutes, such as the Private School Act (Articles 5 and 6 of the Private School Act). As such, there may be business and trade secrets related to such business, and the relevant information may be kept confidential if it satisfies the requirements under Article 9(1)7 of the Information Disclosure Act.

Therefore, this part of the plaintiff's assertion is without merit.

4) Sub-determination

Therefore, the instant information (excluding the information stated in attached Form 2 among the information stated in attached Form 1.) does not fall under the information subject to non-disclosure under Article 9(1)7 of the Information Disclosure Act. Thus, the part concerning the instant information in the instant disposition should be revoked illegally, and the Plaintiff’s assertion on this part is reasonable. However, the information stated in attached Form 2 falls under the information subject to non-disclosure under Article 9(1)7 of the Information Disclosure Act, and the part concerning the information stated in attached Form 2 among the instant disposition is lawful, and the Plaintiff’s assertion on this part is without merit

3. Conclusion

Therefore, the plaintiff's claim is justified within the scope of the above recognition, and the remaining claims are dismissed as it is without merit. It is so decided as per Disposition.