(former note)The revocation of revocation of the disclosure of information

A

The Chief of the Dosan Police Station

Jeonju District Court Decision 2013Guhap434 Decided January 8, 2014

Gwangju High Court ( Jeonju) Decision 2014Nu95 Decided March 31, 2014

Supreme Court Decision 2014Du36358 Decided February 2, 2015

June 8, 2015

July 6, 2015

1. Revocation of a judgment of the first instance;

2. The instant lawsuit shall be dismissed.

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

1. Purport of claim

A disposition rejecting information disclosure made by the Defendant against the Plaintiff on January 25, 2013 shall be revoked.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Facts of recognition;

A. The Plaintiff was sentenced to imprisonment with prison labor for violating the Narcotics Control Act in the Seoul Central District Court for three years and six months, and served in the Ansan Prison, Daejeon Prison, etc.

B. The Plaintiff repeated a series of requests for disclosure of information against many administrative agencies including the chief prosecutor, branch chief of the National Prosecutors' Office or branch office, the Minister of Foreign Affairs and Trade, the Minister of Security and Public Administration, the head of a detention house, the head of a prison, the chief of a police station, etc. during the recent years, including administrative litigation, civil litigation decisions, notice of decision to disclose information in the application for disclosure during the recent several years, investigation records on consular or detention house employees filed by the Plaintiff due to abandonment of his/her duties, manual for the duties of a consul or detention house, and details

C. As above, the Plaintiff filed a claim for the disclosure of information corresponding to a single case on several occasions without any special reasons. After the administrative agency rendered a disposition of disclosure of information, it did not receive most of the information subject to disclosure but filed a lawsuit seeking revocation of the disposition of refusal of disclosure of information with each court nationwide.

D. The Plaintiff, while proceeding at the same time during the period of multiple administrative litigation, was present in the court nationwide over about 90 times for the pleading of the lawsuit, and did not pay a considerable portion of the expenses incurred in the appearance in the court.

E. The Plaintiff, including the instant case, appointed a specific attorney-at-law as an attorney in the majority of the administrative litigation instituted by the Plaintiff. In consultation with the prison staff, the Plaintiff made a statement to the effect that he/she would receive the attorney’s fees through the process of confirmation of litigation costs after winning the lawsuit in the information disclosure claim.

F. On January 24, 2013, the Plaintiff filed a request with the Defendant for disclosure of a notice of decision (attached Form 7 and excluding personal information) on all claims received at the Dosan Police Station from January 1, 2012 to December 31, 2012 (hereinafter “instant information”).

G. On January 25, 2013, the Defendant rendered a disposition rejecting the Plaintiff’s claim for information disclosure (hereinafter “instant disposition”) based on Article 9(1)6 of the former Official Information Disclosure Act (amended by Act No. 11991, Aug. 6, 2013; hereinafter “former Information Disclosure Act”).

[Ground of recognition] Facts without dispute, Gap 1 through 10 evidence (including branch numbers in case of additional number), Eul 1 evidence, the purport of the whole pleadings

2. The parties' assertion;

A. The Plaintiff asserts that the instant information does not constitute information subject to non-disclosure under Article 9 of the former Information Disclosure Act, and thus, the instant disposition is unlawful.

B. Accordingly, the defendant asserts that the plaintiff's claim for disclosure of information constitutes an abuse of rights, and that the information of this case constitutes non-disclosure information under Article 9 (1) 6 of the former Information Disclosure Act and the disposition of this case is lawful.

3. Determination

A. Whether the lawsuit of this case is lawful

ex officio, the following are examined to determine the legitimacy of the instant lawsuit.

1) Relevant legal principles

Article 3 of the Official Information Disclosure Act (hereinafter “Information Disclosure Act”) declares the principle of information disclosure that information held and managed by public institutions should be actively disclosed under the conditions as prescribed by this Act. Article 5(1) provides that all citizens shall have the right to request information disclosure. Article 6 of the same Act provides that public institutions shall enforce this Act, modify relevant Acts and subordinate statutes, and improve information management systems so that the people’s rights to request information disclosure can be respected. Considering the legislative purpose and content of the Information Disclosure Act, the citizens’ request for information disclosure should be widely permitted unless it falls under information subject to non-disclosure under Article 9 of the Information Disclosure Act, in principle.

On the other hand, since all rights shall be exercised in good faith and sincerity, such rights shall not be exercised if they are abused against the good faith principle. This also applies to requests for disclosure of information. Therefore, in a case where: (a) in fact, the right to request disclosure of information may not be readily concluded solely on the ground that the claimant’s purpose or reason for the request for disclosure of information is unclear, where it is evident that the relevant information constitutes abuse of the right, such as obtaining unjust benefits which cannot be accepted by social norms by using the information disclosure system without any intent to acquire or utilize the relevant information; or (b) filing a request for disclosure for the purpose of inducing public officials in charge of the public institution or repeating such claims; or (c) where the Information Disclosure Act does not limit the importance of the right to know and the purpose and reason for the request

2) Determination

In light of the following circumstances acknowledged by the above facts, the plaintiff filed a claim against the administrative agency for the disclosure of information, and then the relevant administrative agency filed a lawsuit seeking the revocation of the disclosure of information, but did not receive the information decided to be disclosed. In light of this, it is difficult to deem that the plaintiff actually filed the lawsuit in this case with the intent to acquire or utilize the information in this case, the contents of counseling with the correctional officer, the number of lawsuits filed by the plaintiff, etc., the plaintiff's winning the lawsuit in this case is more likely to receive litigation costs than the actual litigation costs paid by the defendant under the pretext of paying attorney's fees, etc., or to induce the public official in charge of the public agency. In full view of the following facts, the plaintiff's lawsuit in this case is unlawful. Accordingly, the lawsuit in this case is unlawful.

B. Whether the instant disposition is lawful (family judgment)

In full view of the fact that the Plaintiff filed a claim for information disclosure with the intent as seen in the above paragraph (a) or filed a claim for information disclosure with the intent to attract public officials in charge of the Defendant’s information disclosure, etc., it is reasonable to view that the Plaintiff’s claim for information disclosure constitutes an abuse of right and the Defendant’s refusal of such claim constitutes lawful disposition (see, e.g., Supreme Court Decisions 2014Du9349, Dec. 24, 2014; 2014Du4318, Feb. 26, 2015).

Therefore, even if the lawsuit of this case is lawful, the plaintiff's claim of this case is without merit.

4. Conclusion

Therefore, the lawsuit of this case shall be dismissed in an unlawful manner. The judgment of the court of first instance is unfair with different conclusions, and thus it is so revoked and it is so decided as per Disposition by the court below to dismiss the lawsuit of this case.

The presiding judge, judge, police officer and police officer

Judge Go-ju

Judges Kim Gin-han