Plaintiff (Law Firm Self- Training, Attorneys Park Jin-jin et al., Counsel for the plaintiff-appellant)

The Seoul Central District Prosecutors' Office

October 31, 2013

1. On August 31, 2012, the Defendant’s non-disclosure decision as to the remainder other than the information recorded in the separate sheet is revoked among the 13-37 pages, 43-48 pages (each protocol of examination of not prosecution against the Plaintiff, No. 2011-No. 51958) of the Seoul Central District Prosecutor’s Office, which rendered against the Plaintiff on August 31, 2012.

2. The plaintiff's remaining claims are dismissed.

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

Of the investigation records of non-prosecutions against the Plaintiff (No. 2011 type No. 51958), the Defendant’s non-disclosure decision on August 31, 2012 as to the number of pages 13 to 37, 43 to 48 (each of the interrogation records against the Plaintiff) of Seoul Central District Prosecutors’ Office (No. 201 type No. 51958) is revoked.

1. Details of the disposition;

A. On March 4, 2010, the public prosecutor of the Incheon District Public Prosecutor’s Office imposed a disposition suspending prosecution on the Plaintiff’s violation of the Act on the Control of Narcotics, Etc. (fence) on the grounds that the whereabouts of the suspect are unknown. The records of the case are accompanied by each protocol of examination of the Nonparty, prepared by the judicial police officer, among the records of the Non-Party’s violation of the Act on the Control of Narcotics, etc. (fence), each of the records of the Non-Party’s violation of the Act on the Control of Narcotics, etc. (Seoul District Court 2010dan

B. After that, the Plaintiff’s location was identified and the case was re-established, and then sent to the Seoul Central District Prosecutors’ Office on June 1, 201, and the prosecutor of the Seoul Central District Prosecutors’ Office rendered a disposition of non-prosecution on October 12 of the same year to the Plaintiff (Seoul Central District Prosecutors’ Office 201 type No. 51958).

C. On August 24, 2012, the Plaintiff filed a request with the Defendant for disclosure of 13 to 37 pages, 43 to 48 pages (each protocol of interrogation of the Nonparty’s personal information; hereinafter “instant information”). On the 31st of the same month, the Defendant rendered a non-disclosure decision on the ground that the instant information fell under the scope of non-disclosure subject information under Article 9(1)1, 4, and 6 of the Official Information Disclosure Act (hereinafter “Information Disclosure Act”), Articles 20-2, and 22 of the Rules on the Business of the Prosecutor’s Preservation, and Article 3(1) of the Guidelines on Inspection of the Records, etc. of the instant case (see, e.g., evidence A; hereinafter “instant disposition”).

[Reasons for Recognition] Facts without dispute, Gap evidence 1, Gap evidence 2-1, Gap evidence 3-1 to 5, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The instant information does not constitute information subject to non-disclosure under the Information Disclosure Act as follows, and thus, the instant disposition made on a different premise is unlawful.

1) The rules on prosecutorial preservation affairs, which the Defendant initially based on the instant disposition, are merely administrative rules within administrative agencies, and thus, cannot be denied disclosure of the instant information on the grounds of the said rules.

2) “Matters pertaining to an individual” under the main sentence of Article 9(1)6 of the Information Disclosure Act refers to only the expression “personal information that may identify a specific person” under the main sentence of Article 7(1)6 of the former Official Information Disclosure Act (amended by Act No. 7127, Jan. 29, 2004) and the expression “personal information that may identify a specific person.” However, the instant information refers to only the statement contents of a suspect other than the personal information of a suspect. Thus, the information pertaining to an individual under Article 9(1)6 of the Information Disclosure Act does not constitute cases where disclosure of information is deemed likely to infringe on an individual’s privacy or freedom.

B. Relevant statutes

- Prosecution Preservation Affairs Regulations

Article 22 (Restriction on Inspection and Copying of Case Records not Instituted)

(1) With respect to an application for inspection or copying of records of non-prosecution cases, etc. under Article 20-2, a prosecutor may restrict the inspection or copying of records in any of the following cases:

1. Where the disclosure of records is likely to seriously harm national security, public morals, maintenance of public order or public welfare;

2. Where the disclosure of records is likely to seriously harm the honor or privacy of a person involved in a case, the safety of life and body, or the peace of life;

3. Where the disclosure of records is likely to facilitate the destruction of evidence or escape of a person who is an accomplice or to cause serious hindrance to the investigation or trial of the relevant case;

4. Where the disclosure of records is feared to divulge confidential information in the investigative method that should be kept confidential or to cause unnecessary new disputes; and

5. Where the disclosure of records is deemed inappropriate on other grounds.

(2) A copy of a special media record shall not fall under any of the subparagraphs of paragraph (1) and may be made only if it is not likely to cause harm to the person’s reputation, privacy, safety of life and body, or peace in life.

director Information Disclosure Act (wholly amended by Act No. 7127 of Jan. 29, 2004)

Article 7 (Information Subject to Non-Disclosure)

(1) A public institution may choose not to disclose information falling under any of the following subparagraphs:

6. Personal information that may identify a specific person by the name, resident registration number, etc. included in the relevant information: Provided, That the following personal information shall be excluded:

(a) Information that is accessible to the public under statutes;

(b) Information prepared or acquired by public institutions, the purpose of which is to announce;

(c) Information prepared or acquired by a public institution, which is deemed necessary to protect the public interest or individual rights;

【Information Disclosure Act of Public Institutions

Article 9 (Information Subject to Non-Disclosure)

(1) Information held and managed by a public institution shall be subject to disclosure: Provided, That the following information may not be disclosed:

1. Information prescribed as confidential or confidential by other Acts or orders delegated by other Acts (limited to the National Assembly Regulations, Supreme Court Regulations, Constitutional Court Regulations, National Election Commission Regulations, Presidential Decree, and municipal ordinances);

4. Information pertaining to a trial in progress, the prevention and investigation of crimes, the institution and maintenance of a public prosecution, the execution and correction of a sentence, and security disposition, which, if disclosed, has considerable grounds for remarkably obstructing the performance of duties or infringing on the right of a criminal defendant to a fair trial;

6. Personal information, such as names, resident registration numbers, etc. 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:

(a) Information which is available for inspection as prescribed by Acts and subordinate statutes;

(b) Information prepared or acquired by a public institution for the purpose of publication, which does not unfairly infringe on the privacy and freedom of individuals;

(c) Information prepared or acquired by a public institution, which is deemed necessary to protect the public interest or individual rights;

(d) Names and positions of public officials who perform duties;

(e) The name and occupation of an individual who has been partially entrusted or commissioned by the State or a local government under Acts and subordinate statutes as necessary for the public interest;

C. Determination

1) Determination as to the allegation No. 1 of this case

Although the Rules for the Preservation Affairs of the Prosecutors' Office were enacted by the Ordinance of the Ministry of Justice pursuant to Article 11 of the Public Prosecutor's Office Act, all the provisions within the same Rule alone do not have legal effect. Article 22 of the same Rule, which provides for the restriction on the perusal and copying of records, merely provides for the administrative rules within the administrative agency as the administrative rules for the sake of administrative affairs without any legal ground. Thus, the restriction on the perusal and copying of records under the above Rules cannot be deemed to constitute "cases provided for non-disclosure by other Acts or orders under other Acts" under Article 9 (1) 1 of the Official Information Disclosure Act (see Supreme Court Decision 2006Du3049, May 25, 2006, etc.).

Therefore, the defendant cannot refuse the plaintiff's request for disclosure of information under the Rules on the Business of Preservation by Prosecution. Thus, the plaintiff's ground of appeal 1 is justified.

2) Determination as to the second argument of this case

A) Information subject to non-disclosure pursuant to the main sentence of Article 9(1)6 of the Information Disclosure Act shall include not only “personal identification information” which determines whether the information constitutes information subject to non-disclosure based on the type or type of information, such as name and resident registration number, as provided by Article 7(1)6 of the former Information Disclosure Act (wholly amended by Act No. 7127 of Jan. 29, 2004), but also “personal identification information, etc., whose disclosure of personal information would lead to the disclosure of confidential information, and which could interfere with personal and mental internal life or make it difficult to freely engage in private life” (see, e.g., Supreme Court en banc Decision 200Da161000 decided Jun. 18, 2012). Thus, it should be determined that the disclosure of personal information, other than the personal information of a suspect, etc. recorded in a non-prosecution disposition record, constitutes “information subject to non-disclosure” under the proviso of Article 9(1)6 of the Information Disclosure Act (see, 200Da1619, etc.

B) Based on the above legal principles, the following circumstances are examined: ① the Nonparty was sentenced to 10 months of imprisonment for the crime of violating the Act on the Control of Narcotics, Etc. (Seoul District Court 2010No1165) and the appeal (Supreme Court 2010Do8959) were all dismissed; ② the Nonparty’s investigation of the violation of the Act on the Control of Narcotics, etc. against the Plaintiff by informing the Nonparty of the Plaintiff’s writing medication during the investigation process of the instant case, and ③ the Plaintiff sought disclosure of the part other than the Nonparty’s personal information; ④ the Nonparty’s statement contents are likely to infringe on the Plaintiff’s right to privacy, and thus, it is difficult to view the Nonparty’s right to privacy as being disclosed or protected by Article 6 subparag. 16 of the Act on the Protection of Information Disclosure.

C) However, it is reasonable to view that personal identification information, such as the Nonparty’s resident registration number, facts about criminal charges and criminal records, pictures of narcotics manufacturers in the narcotics image system, and the Nonparty’s signature and seal are included in information subject to non-disclosure as stipulated in the main sentence of Article 9(1)6 of the Information Disclosure Act.

3) Therefore, the part of the instant disposition rejecting the disclosure of personal identification information, such as the resident registration number of the person abroad, criminal charges and criminal records, pictures of narcotics prior to narcotics in the narcotics image system, and Nonparty’s signature and seal as indicated in the separate sheet is lawful, and the remainder is unlawful.

3. Conclusion

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

[Attachment]

Judges Jin Chang-ho (Presiding Judge)