(영문) 서울행정법원 2014.7.24. 선고 2013구합27395 판결

Among all applications for disclosure of information received from the Plaintiff on September 23, 2013 from January 1, 2011 to December 31, 2011, the Defendant’s refusal to disclose information made with respect to “a notice of decision on disclosure and decision on disclosure (attached Form 7, excluding personal information)” shall be revoked.

Reasons

1. Details of the disposition;

A. On September 13, 2013, the Plaintiff filed a claim for information disclosure with the Defendant stating that the details of the claim are not the information disclosure processing register, among all applications filed with the Seoul Southern District Prosecutors’ Office from January 1, 2011 to December 31, 2011 (attached Form 7, excluding personal information), among all applications filed with the Seoul Southern District Prosecutors’ Office, a notice of decision on the claim determined for disclosure and partial disclosure (attached Form 7, excluding personal information), and information filed by the claimant

B. On September 23, 2013, the Defendant notified the Plaintiff that “the notice of notice of disclosure and partial disclosure received in our Ministry in 201” is confidential information under Article 9(1)1 of the former Act on the Disclosure of Information by Public Institutions (amended by Act No. 11991, Aug. 6, 2013; hereinafter “Information Disclosure Act”). Article 26 of the Civil Petitions Treatment Act provides that “The head of an administrative agency shall not infringe upon the rights and interests of the civil petitioners by divulging the contents of the civil petition known to him/her in connection with the processing of civil petitions and personal information of the civil petitioners” (hereinafter “instant disposition”).

[Ground of recognition] A without dispute, entry of evidence No. 1, purport of the whole pleadings

2. Determination on the defense prior to the merits

A. The defendant's assertion

The defendant asserts that the plaintiff's filing of the lawsuit in this case should be dismissed as abuse of right of action.

B. Determination

The right to know, in particular, the right to access to national information is recognized in relation to the freedom of expression, which is a fundamental right under the Constitution of the Republic of Korea, and the content of such right includes the so-called general right to request information disclosure that anyone of the general public holds and manages with respect to the State (see Supreme Court Decision 97Nu5114, Sept. 21, 199). The law in which the general right to information disclosure recognized under the Constitution is embodied is the Information Disclosure Act. In addition, since the right to request information disclosure based on the Information Disclosure Act is a specific right protected under the law, the right of the public to request information disclosure

(2) The court below held that the plaintiff's claim for disclosure of information constitutes an abuse of individual legal interest, not an identical lawsuit against the same rejection disposition against the same information disclosure claim, but an administrative lawsuit seeking the revocation of the rejection disposition against each public agency. Thus, the plaintiff's claim for disclosure of information from 2007 to January 2014 and filed a revocation lawsuit against the public agency's rejection disposition constitutes infringement of individual legal interest. Thus, the plaintiff's claim for disclosure of information from 2007 to 2014 and filed a revocation lawsuit against the public agency's rejection disposition cannot be said to be an abuse of right to file the lawsuit of this case (However, a certain claim for disclosure of information can be individually limited to an abuse of right).

3. Determination on the legitimacy of the instant disposition

A. The plaintiff's assertion

The Plaintiff claims information disclosure, excluding personal information, and thus, the information other than personal information and the details of calculating fees, in particular, out of the notice of decision, should be disclosed. The instant disposition is unlawful.

(b) Fact of recognition;

1) On December 16, 2011, the Plaintiff was sentenced to imprisonment with prison labor for three years and six months (the Seoul Central District Court 201Gohap482) and appeal (Seoul High Court 2012No103, March 30, 2012) but the judgment of the first instance became final and conclusive after being sentenced to the dismissal of appeal on March 30, 201, and is currently being admitted to Daejeon Prison.

2) A notice of decision to disclose information (attached Form 1.) consists of (1) the personal information of the claimant, (2) the date of receipt and receipt number, (3) the content of the claim, (4) the date and time and place of disclosure, (6) the public disclosure, (6) the method of receipt, (7) the receipt method, (8) the amount to be paid (fee fee, mailing fee, the amount of

3) The plaintiff received a request from the chief prosecutor of the Seoul Central District Prosecutors' Office, the head of the Busan District Prosecutors' Office, the head of the Daegu District Prosecutors' Office, the head of the Daegu District Prosecutors' Office, the head of the Daegu District Prosecutors' Office, the head of the Incheon Southern Police Agency, the head of the Incheon Southern Police Agency, the Commissioner of the Gyeongnam Police Agency, the head of the Busan Police Agency, the head of the Busan District Police Agency, the head of the Busan Police Agency, the head of the branch office, the head of the Changwon Police Agency, the head of the Daegu Police Agency, the head of the Daegu Police Agency, the head of the Daegu Police Agency, the head of the Daegu Police Agency, the head of the Daegu Branch Police Agency, the head of the Daegu Police Agency, the head of the Namnam Police Agency, the head of the Daegu Branch Police Agency, the head of the Daegu District Prosecutors' Office, the head of the Daegu Branch Police Agency, the head of the Incheon District Police Agency, the head of the Busan Southern Police Agency, the head of the Busan Police Agency, and the head of the Busan Police Agency or the Busan Police Agency.

For example, on January 4, 2013, the head of the Seoul Central District Prosecutors' Office shall make the Plaintiff disclose a copy of the notice of decision to delete the details of non-disclosure. The content claimed by the Plaintiff constitutes 119 items 273. After individual output, the work process is required to delete the non-disclosure part that includes personal information, etc., which is a case where a copy may be delivered by dividing it for a certain period of time because the excessive amount of information subject to disclosure pursuant to Article 13(2) of the Information Disclosure Act and Article 12(2) of the Enforcement Decree of the same Act is likely to seriously interfere with the normal performance of duties, which is the case where the copy may be delivered by dividing it for a certain period of time.

A person shall be appointed.

4) The Plaintiff filed a request for the disclosure of information with respect to all requests received from each of the above correctional institutions in 2012 regarding "the notice of decision on disclosure and partial disclosure of information (excluding personal information)" against the head of Gangseo-gu prison and 17 other correctional institutions (the head of Jeonju prison, Gwangju prison, the head of Gwangju District Correctional Headquarters, the head of Daegu Regional Correctional Headquarters, the head of Seoul Southern District Correctional Headquarters, the head of Seongdong-gu Seoul Southern District Correctional Headquarters, the head of Seongdong-gu, the head of Seongdong-gu, the head of the Ulsan Prison, the head of the Incheon Prison, the head of the Incheon Prison, the head of the Jeju Prison, the head of the astronomical Prison, the head of the astronomical Prison, the head of the Cheongan Prison, the head of the Cheongan Prison Prison, the head of the Cheongan Prison Prison, the head of the Cheongan Prison Prison, the head of the Incheon Prison Prison, the head of the Cheongan Prison, the head

5) The Plaintiff was admitted to the Seoul detention center from January 201 to July 2013, and appeared in court 47 times on the grounds of administrative litigation related to the disclosure of information. The amount of the expenses for appearance in court outside the Seoul detention center is KRW 2,754,700, and the expenses for appearance in court outside the Seoul detention center are KRW 771,524, and the remainder of the expenses for non-payment, excluding the exempted expenses, are KRW 1,637,476. At the time of appearance in court, the Plaintiff shall have the custody of two to four employees at the time of appearance in court, and claim only the expenses for the use of the vehicle without separately claiming the travel expenses of the safe guard staff

6) The Plaintiff filed an application for the confirmation of litigation costs in relation to the administrative litigation already terminated, and filed an application for confirmation of litigation costs, including clerk fees, submission expenses, attendance expenses, expenses incurred in attendance at the expense of the Plaintiff, and expenses incurred in attendance at the court. Some of the expenses incurred in attendance were transferred.

7) From January 1, 2011 to December 31, 2011, a claim for disclosure of information filed against the Defendant is 1,038 items, total disclosure is 425 items, total disclosure is 58 items, non-disclosure 101 items, withdrawal, etc.

[Ground of recognition] The evidence Nos. 2 through 21, Eul evidence Nos. 1 (including branch numbers), and the purport of the whole pleadings

C. Determination

1) The plaintiff stated that the purpose of the claim for information disclosure of this case is to identify the actual condition of calculating fees for information disclosure, not to seek the disclosure of the content of the claim and the content of the calculation of fees out of the amount of payment, rather than seeking the disclosure of the contents of the notice.

Article 8(1) of the Act provides that a person who requests disclosure of information shall state "the content of the information to be requested for disclosure" in a written request for disclosure of information. In stating information subject to a request, it should be specified to the extent that it can determine the contents and scope of the information subject to a request from a general public (see Supreme Court Decision 2000Du9212, Mar. 28, 2003). The Plaintiff's request for disclosure of information is "the details of the notice of request for disclosure and partial disclosure of information (excluding attached Form 7, personal information)" among all requests for disclosure of information received to the Do government during the period from Jan. 1, 2013 to Oct. 31, 2013, the Plaintiff did not state "the calculation of fees for disclosure of information" among requests for disclosure of information, and it can be interpreted that "the details of the notice of request for disclosure" and "the details of the request for disclosure of information can not be interpreted as "the details of the request for disclosure" and "the details of the request for disclosure of information."

Therefore, the plaintiff sought disclosure of "the method of calculating fees" among the notice of decision, and the claim of this case based on the premise that the defendant rejected it, without any reason, is without examining further.

2) Article 1 of the Information Disclosure Act provides that "the purpose of this Act is to guarantee citizens' right to know and secure citizens' participation in state affairs and transparency in state affairs by providing for matters necessary for the citizen's request for disclosure of information held and managed by a public institution and the duty of public institution to disclose such information." In light of the purpose, contents and purport of the Information Disclosure Act, it cannot be deemed that the request for information disclosure is against the good faith principle or constitutes abuse of rights, unless there are special circumstances, such as where the defendant is seeking information disclosure for the purpose of inducing the defendant, etc. (see, e.g., Supreme Court Decision 2004Du2783, Aug. 24, 2006). In other words, if the purpose of exercising the right to information disclosure is to inflict harm on the other party and inflict damage on the other party regardless of the citizen's right to know as pursued by the Information Disclosure Act, the exercise of the right itself can not be allowed even if it is an abuse of rights.

Considering the following circumstances, seeking disclosure of the notice of decision indicating only the amount of payment (e.g., calculation of fees) to the Defendant constitutes abuse of rights solely for the purpose of inducing the Defendant, and thus constitutes abuse of rights. As a court may not order the Defendant to disclose a part of the information requested by the Plaintiff pursuant to Article 14 of the Information Disclosure Act by specifying the content of the information requested by the Plaintiff as above.

(1) Article 17(1) of the Enforcement Decree of the Information Disclosure Act provides for fees according to the method of disclosure, such as perusal and correction of the original, copy, and cargo of the original, by type of information subject to disclosure (such as document ledger, drawing card, etc.). The details of calculation of fees stated in a notice of notice are written in accordance with Article 17 of the Enforcement Decree of the Information Disclosure Act and Article 7 [Attachment Table] of the Enforcement Rule of the same Act. In other words, even if the contents of the notice of notice of notice of notice are not confirmed again, it is not necessary to verify the method of calculation of fees without fail.

② The Plaintiff asserts that the content of the notice of decision ought to be confirmed because there are many cases where a public institution calculates 500 won or more per case without any special criteria in calculating fees (see evidence No. 30). However, the Plaintiff’s certificate No. 30 (payment slip) submitted by the Plaintiff is a fee based on the “Rules on the Methods of Perusal and Copying of Records, and Fees, etc.” (Ordinance of the Ministry of Justice) rather than the Information Disclosure Act. The purpose of the above Rule is to provide for necessary matters concerning “the method of perusal and copying of records of a case, the issuance of certificates of matters concerning the records of a case, the certified copy and abstract of the court records or the records of a trial, and the method of authentication” in accordance with Article 59-2 of the Criminal Procedure Act, the scope of application is limited to the case records, etc. under investigation. In order to understand the contents of fees pursuant to other Acts and subordinate statutes, rather than fees under the Information Disclosure Act, it is not necessary to request disclosure of the notice of decision based on the Information Disclosure Act, and it cannot be known.

③ The Plaintiff received a decision to disclose or partially disclose information from each public institution during a certain period of “the Plaintiff’s request for disclosure of information received from each public institution for the disclosure of information,” but did not pay fees, or rejected and terminated by refusing to receive data. To provide non-use information, each public institution must delete and re-written the contents related to personal information of the details of the notice of decision. In this context, the Defendant is in charge of the duties related to the disclosure of information of each public institution, and it is not easy to re-written the notice, and it is also reasonable to bear the burden of duties. In other words, the Plaintiff is not to exercise a legitimate right to request disclosure of information, but only with the intent to cause only the burden of duties to the public institution.

4. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.