(영문) 서울고등법원 2015.11.18. 선고 2015누39639 판결

A. On June 30, 2014, the part concerning the remaining documents, excluding the part corresponding to the information not disclosed in attached Form 2, among the disposition of non-permission for perusal and copy of the documents listed in attached Table 1 against the Plaintiff, shall be revoked.

B. The plaintiff's remaining claims are dismissed.

2. 1/5 of the total litigation costs is assessed against the Plaintiff, and the remainder is assessed against the Defendant, respectively.

Purport of claim and appeal

1. Purport of claim

On June 30, 2014, the Defendant’s disposition of non-permission for perusal and copy of the documents listed in the attached Table 1 against the Plaintiff shall be revoked.

2. Purport of appeal

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

Reasons

1. Details of the disposition;

A. On January 28, 2010, the Plaintiff complained against B and C in fraud, etc. However, on May 24, 2010, B et al. was subject to a non-prosecution disposition by a public prosecutor G prosecutor of the Seoul Northern District Public Prosecutor’s Office. The Plaintiff filed an appeal with the Seoul High Public Prosecutor’s Office, but the appeal was dismissed, and the application filed with the Seoul High Public Prosecutor’s Office was also dismissed.

B. On June 27, 2014, pursuant to Article 20-2 of the Rules on the Affairs for the Preservation of Prosecutors’ Offices, the Plaintiff filed a claim with the Defendant for perusal and copying of the case records No. 2010-type 22804 (hereinafter “instant records”).

C. On June 30, 2014, the Defendant permitted perusal and copying of the copy of the judgment and the copy of the sampling of the Plaintiff’s preparation. However, on the remaining records, the Defendant’s statement made by a person other than the Plaintiff is likely to seriously harm the honor or privacy of the person concerned, the safety of life and body, or the peace of life due to the disclosure of the records, pursuant to Article 22(1)2 of the Rules on the Affairs of the Prosecution Preservation (the Homes that are likely to cause serious harm to the reputation or privacy of the person concerned, or to the safety of life and body, or to the internal documents of the investigative agency, pursuant to Article 2(1)4 of the Rules on the Affairs of the Prosecution Preservation (the “Disposition” in this case). Of the records of this case, the Defendant rejected perusal and copying pursuant to Article 22(1)4 of the Rules on the Affairs of the Prosecutor’s Office (the “Information”).

D. In the instant lawsuit, the Defendant added Article 9(1)4 of the Official Information Disclosure Act (hereinafter “Information Disclosure Act”) as a ground for non-disclosure of the instant information to the instant case, and Article 9(1)6 of the same Act (if disclosed, there is considerable reason to believe that it is significantly difficult for the Defendant to perform his/her duties, such as the name and resident registration number included in the relevant information) to the appellate court, and the specific details are as stated in the “reasons No. 1 List”.

[Ground of recognition] Unsatisfy, entry of Gap evidence Nos. 10 to 13 (including branch numbers, if any) and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Rules on Affairs for the Preservation of Prosecutors, which are mere administrative rules, cannot be the basis for the instant disposition, and the instant information does not constitute information subject to non-disclosure under the subparagraphs of the proviso of Article 9(1) of the Information Disclosure Act, and thus, the instant disposition against it is unlawful.

B. Relevant statutes

Attached Form 3 shall be as listed in attached Table 3.

C. Determination

1) Whether the instant disposition based on the Rules on Prosecution Preservation Affairs is legitimate

The proviso of Article 9(1)1 of the Information Disclosure Act limits the above order to the National Assembly Regulations, the Supreme Court Regulations, the Constitutional Court Regulations, the National Election Commission Regulations, and municipal ordinances of the National Assembly while it may not disclose the information specified as confidential or confidential matters by the order delegated by the Act. However, Article 22(1)2 and 4 of the Rules on the Affairs of the Prosecutors' Office, which is the basis of the original disposition of this case, is not prescribed by Ordinance of the Ministry of Justice, and even if it is a delegation order based on Article 11 of the Public Prosecutor's Office Act, it does not constitute a "order delegated by the Act" under the above provision. Therefore, the defendant may not

2) Whether the instant disposition is legitimate on the grounds of additional disposition

A) Whether additional grounds for disposition are permitted

In an appeal litigation seeking the revocation of an administrative disposition, a disposition agency may add or modify other reasons only to the extent that the original reason and basic factual relations are recognized to be identical to those of the original disposition. The existence of basic factual relations in this context is determined based on whether the basic social factual relations are identical in terms of the same specific facts before the legal evaluation of the grounds for disposition is legally assessed, and the reason for interpreting that it is not allowed to assert a ground for disposition on the grounds that it is not recognized as identical to the basic factual relations lies in ensuring the other party’s right to defense of the administrative disposition, thereby realizing the rule of law and protecting the other party’s trust in the administrative disposition (see Supreme Court Decision 2001Du8827, Dec. 11, 2003).

In this case, as seen earlier, the Defendant added only Article 22 subparag. 2 and No. 4 of the Rules on the Business of the Prosecutor’s Preservation at the time of the instant disposition, but added the grounds for disposition to the effect that it constitutes information subject to non-disclosure under Article 9(1)4 and 6 of the Information Disclosure Act in the instant lawsuit.

Article 22(1)2 of the Rules on the Business of the Prosecutor’s Preservation, which provides that “Where disclosure of records is likely to seriously undermine the reputation, privacy, safety of life and body, or peace of life of the person concerned of the case, due to the disclosure of records,” the Defendant appears to have the same factual basis as “information, such as name, resident registration number, etc. included in the relevant information, which, if disclosed, could infringe on an individual’s privacy or freedom if disclosed.” In addition, Article 22(1)4 of the Rules on the Business of the Prosecutor’s Preservation, “where the disclosure of records is likely to cause any divulgence or unnecessary dispute, etc., of the investigative method to be kept confidential due to disclosure of records” of Article 22(1)4 of the Rules on the Business of the Prosecutor’s Preservation, it is reasonable to view that the Defendant’s basic factual basis should coincide with the above facts. Furthermore, even if each of the above grounds is added, it does not seem that there is any infringement on the Plaintiff’s right of defense.

Therefore, the defendant's addition of Article 9 (1) 4 and 6 of the Information Disclosure Act to the grounds for the disposition of this case is allowed.

B) Whether the instant information constitutes Article 9(1)4 of the Information Disclosure Act

Article 9(1)4 of the Information Disclosure Act provides as one of the information subject to non-disclosure the disclosure of information that has considerable reasons to recognize that the disclosure of information constitutes an investigation, which may significantly impede the performance of duties. The purport of this Act is to prevent disclosure of methods, procedures, etc. of an investigation from causing significant difficulties to the performance of duties by an investigation agency. As such, an investigation record’s written opinion, reporting documents, mail, legal review, and internal investigation data, etc. (hereinafter “written opinion, etc.”) may be deemed as such (see, e.g., Constitutional Court en banc Decision 94Hun-Ma60, Nov. 27, 1997; Constitutional Court Decision 2002Du1342, Dec. 26, 2003); however, it is reasonable to deem that the information subject to a request for disclosure does not constitute information subject to non-disclosure under Article 9(1)4 of the Information Disclosure Act, and that the method and procedure of the investigation agency’s disclosure of information should be clearly difficult.

On the other hand, among the information in this case, it is deemed that the information in this case, which the defendant made as the ground for disposition under Article 9 (1) 4 of the Information Disclosure Act, includes matters concerning investigation. However, the above information is a flag with the title of " various investigation reports, the necessity of providing communication data, reply to cooperation in investigation, request for cooperation in investigation, statement of opinion, written opinion, confirmation of investigation process, report of investigation direction, proposal of investigation direction, and statement of legal career investigation", so long as the investigation was completed after the disposition of non-prosecution against B and C was made, and the plaintiff's appeal and request for adjudication are all dismissed, it cannot be deemed that it is significantly difficult to perform duties concerning investigation on the ground that the above information is disclosed. Thus, it cannot be deemed as information falling under Article 9 (1) 4 of the Information Disclosure Act

Therefore, the defendant cannot allow the perusal and copy of the above information pursuant to Article 9 (1) 4 of the Information Disclosure Act.

C) Whether the instant information constitutes Article 9(1)6 of the Information Disclosure Act

Information subject to non-disclosure pursuant to the main sentence of Article 9(1)6 of the Information Disclosure Act includes not only personal identification information that determines whether information constitutes information subject to non-disclosure based on the form or type of information, such as name and resident registration number, etc. under the Information Disclosure Act, but also information pertaining to an individual is disclosed due to the disclosure of personal information, and as a result, information that is likely to interfere with personal and mental life or make it difficult to freely engage in private life. Therefore, in cases where the content of the statement other than personal information of the suspect, etc. recorded in the interrogation protocol, etc. of a non-prosecution disposition record is likely to infringe on the privacy or freedom of an individual, it constitutes non-disclosure subject to Article 9(1)6 main sentence of Article 9(1)6 of the Information Disclosure Act. Meanwhile, the information that the public agency prepared or acquired and deemed necessary to protect the public interest or the rights of an individual, and whether disclosure in this context constitutes information necessary to protect the rights of an individual, referring to the information that is protected by 1201, etc.

Furthermore, in a case where a court examines whether a disposition rejecting the disclosure of information by an administrative agency is illegal, and where it recognizes that the information refused to disclose is mixed with the information subject to non-disclosure, and that the two parts can be separated within the scope not contrary to the purport of the request for disclosure, the court may order the partial revocation of only the part concerning the information subject to non-disclosure, even if there is no modification to the purport of the request for disclosure. In addition, it should be interpreted that the two parts can be separated from the information subject to non-disclosure within the scope not contrary to the purport of the request for disclosure. In addition, it does not mean the case where the two parts can be physically separated, but it does not mean the case where the information in question exclude or delete the technology, etc. related to the information subject to non-disclosure, and only the remaining parts can be disclosed, and only the other parts can be disclosed, and it means the case where the disclosure of the information is worth disclosure (see

According to the result of the court’s non-disclosure and examination of the records of this case submitted by the defendant, the information of this case can be acknowledged as including personal information, such as the name, resident registration number, address, domicile, reference domicile, telephone number, occupation, family relation, religion, educational background, immigration status, and criminal record of third parties, including the suspect and witness. Among them, the name of the suspect, etc. should be disclosed from the perspective of necessity or usefulness for disclosing the investigation records, and remedy of rights of the individual. However, it is reasonable to view the remaining personal information as being confidential because it does not seem to exceed the profit gained by the plaintiff due to the above information’s contribution.

3. Conclusion

Therefore, the judgment of the court of first instance is to be modified as the decision of the court of first instance, since the plaintiff's claim of this case contains no grounds for rejection, and the judgment of the court of first instance is to be dismissed as it is unfair.