2011Nu1079 Revocation of Disposition rejecting a request for administrative information disclosure

A

elderly head of Gu

Law Firm 00 (Attorney in Charge, Law Firm 000)

Daegu District Court Decision 2010Guhap3833 Decided May 4, 2011

July 15, 201

August 26, 2011

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

The defendant's decision to disclose information to the plaintiff on October 15, 2010 is revoked.

2. Purport of appeal

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

1. Details of the disposition;

A. On October 11, 2010, the Plaintiff filed a request for disclosure of information with the Defendant to disclose the “data (hereinafter “instant data”) to the Gyeongbuk-do (hereinafter “instant data”) on the disposal of the illegal banking of the land located in 00,000,000,000,000 (hereinafter “each of the instant land”) located in Gyeongbuk-do (hereinafter “instant land”).

B. On October 15, 2010, the Defendant rendered a decision of non-disclosure on the ground that the document that the Plaintiff requested to be disclosed was not approved by signature, was not registered in the records ledger, and that the person in charge is kept as a reference material so long as the document is kept individually, it cannot be deemed as an official document, and thus, it cannot be deemed as an information under Article 2 subparagraph 1 of the Official Information Disclosure Act (hereinafter “Information Disclosure Act”). The Defendant notified the decision of non-disclosure (hereinafter “the instant disposition”).

[Reasons for Recognition] Facts without dispute, Gap evidence 1, Eul evidence 1, and the purport of whole pleadings

A. The parties' assertion

(1) The plaintiff's assertion

This case’s data constitutes “information” under Article 2 subparag. 1 of the Information Disclosure Act, since a public official of the aged group prepared and sent by e-mail to the Gyeongbuk-do. Therefore, this case’s disposal is unlawful on a different premise.

(2) The defendant's assertion

(A) The instant data does not constitute information under Article 2 subparag. 1 of the Information Disclosure Act, since it does not meet the requirements for approval by signature, etc. under Articles 3(1) and 8(1) of the Regulations on Administrative Affairs, as it does not fall under information under Article 2 subparag. 1 of the Information Disclosure Act.

(B) Even if the instant data constitutes official document, it is subject to non-disclosure under Article 9(1)5 of the Information Disclosure Act, since the content of the instant data constitutes an official document, which is in the process of supervision or internal review on farmland illegal diversion, and is disclosed to the public, results in a difficulty or significant impediment to the fair performance of duties according to the interested parties’ civil petition and truth-finding

(C) The Plaintiff’s claim for information disclosure of this case results in not only a significant obstacle to the public institution’s normal performance of duties, but also a result of causing waste of the public institution’s towing and time administrative power, and thus constitutes a violation of the good faith principle or an abuse of rights.

(b) Relevant statutes;

Attached Form 3 is as listed in the "relevant Acts and subordinate statutes".

C. Facts of recognition

(1) The Plaintiff filed a civil petition with the Defendant regarding the illegal banking of each of the instant lands. At that time, B public officials in charge of farmland-related affairs in senior military forces at the time stored and placed the instant data on their own computer for business purposes, which was prepared in the form of a part-time order in which the Plaintiff’s civil petition handling process was conducted.

(2) After that, the elderly police station inquireds about the opinions of the public official in charge of farmland management of the Gyeongbuk-do about the illegal banking of each of the instant lands in the Gyeongbuk-do. The public official in charge of farmland management asked the above B about the background of the illegal banking of each of the instant lands and the Plaintiff’s civil petition treatment, and the public official in charge of farmland management at present C found the instant data from the computer for business purposes he manages and sent it to the public official in charge of farmland management of Gyeongbuk-do through e-mail.

[Ground of recognition] Unsatisfy, entry of Gap evidence No. 3, purport of whole pleadings

D. Determination

(1) Whether the instant data is subject to disclosure claim under the Information Disclosure Act

In other words, the following circumstances revealed by the above facts, i.e., ① the instant data is a document stating the details of the Plaintiff’s civil petition handling in relation to his/her duties, and it is reasonable to view that the public official in charge of the affairs related to the farmland of senior military forces has been prepared in the course of performing his/her duties. ② The act of sending and sending the instant data to the public official in charge of the farmland management of senior military forces via e-mail appears to have been used in relation to the public official’s duties as an internal reporting act; ③ the instant data is stored in a computer for business managed by the official in charge of the farmland affairs at present, and is deemed to have been held and managed so that anyone can use the farmland for business purposes. ④ Whether it falls under the scope set forth in the Information Disclosure Act should be independently determined in accordance with the unique legal principles and purport of the Information Disclosure Act, and in full view of the above, it is not necessarily required to be deemed that it falls under the information set forth in Article 2 subparag. 1 of the Information Disclosure Act, and thus, the instant data constitutes information subject to disclosure under the proviso to Article 1 of Information Disclosure Act.

(2) Whether the information is subject to non-disclosure under Article 9(1)5 of the Information Disclosure Act

(A) In light of the purpose of the information disclosure system under Article 1 of the Information Disclosure Act and the legislative purport of the information subject to non-disclosure under Article 9(1)5 of the Information Disclosure Act, “where there is a reasonable ground to believe that the disclosure would seriously interfere with the performance of the official duties” under Article 9(1)5 of the Information Disclosure Act means the case where there is a high probability that the fair performance of duties would considerably interfere with the objective of the disclosure, if disclosed. The issue of whether the disclosure constitutes such a high probability shall be determined based on specific matters by comparing and comparing the interests protected by the non-disclosure such as fairness in the performance of duties and the interests protected by the disclosure, such as the guarantee of citizens’ right to know, the participation of citizens, and the transparency in government administration (see, e.g., Supreme Court Decision 2010Du2913, Jun. 10, 2010).

(B) According to the Defendant’s assertion, the disclosure of the instant materials has become considerably difficult for the Defendant to perform his/her duties according to the party’s civil petition and petition. The instant materials are prepared in one form in the order of time in which the Plaintiff’s civil petition treatment process was conducted, and there is no reasonable ground to recognize that the disclosure of the materials is considerably difficult for the Defendant to perform his/her duties even if it

(3) Whether the principle of good faith is violated or the right is abused

(A) Article 5(1) of the Information Disclosure Act provides that "All citizens shall have the right to request the disclosure of information." Meanwhile, in light of the purpose, contents and purport of the Information Disclosure Act, there is no special limitation to the purpose of requesting the disclosure. Thus, barring special circumstances, such as requesting the disclosure of information for the purpose of inducing the other party, it cannot be deemed that the request for disclosure is against the good faith principle or constitutes an abuse of rights (see, e.g., Supreme Court Decisions 2003Du1370, Sept. 23, 2004; 2004Du2783, Aug. 24, 2006; 2008Du8680, Sept. 25, 2008).

(B) In the instant case, there is no evidence suggesting that the Plaintiff solely requires the Defendant to furnish the instant materials for the purpose of coercing the Defendant.

(4) Therefore, the instant disposition rejecting disclosure of the instant materials must be revoked as unlawful.

3. Conclusion

The judgment of the court of first instance accepting the plaintiff's claim is justifiable, and the defendant's appeal is dismissed.

Kim Chang-soo (Presiding Judge)

Kim Gyeong-Gyeong

Free of Interest

Relevant statutes

【Information Disclosure Act of Public Institutions

Article 2 (Definitions)

The definitions of terms used in this Act shall be as follows:

1. The term "information" means matters recorded in documents (referring to the distribution of electronic documents; hereinafter the same shall apply), drawings, photographs, films, tapes, slides, other media corresponding thereto, etc. prepared or acquired and managed by public institutions in the course of performing their duties;

2. The term "disclosure" means that public institutions allow them to peruse information, deliver copies or reproductions of such information pursuant to the provisions of this Act, or provide information through the information and communications network under subparagraph 10 of Article 2 of the Electronic Government Act (hereinafter referred to as the "information and communications network");

3. The term "public institutions" means State agencies, local governments, government-invested institutions under the provisions of Article 2 of the Framework Act on the Management of Government-Invested Institutions and other institutions prescribed by Presidential Decree

Article 3 (Principles of Disclosure of Information)

Information held and managed by public institutions shall be disclosed, as prescribed by this Act. 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 beams need not be disclosed to the public:

5. An audit, supervision, inspection, test, regulation, tendering contract, technology development, personnel management, decision-making process, or internal review process, etc. are fair performance of duties, if disclosed. Information which has reasonable grounds to believe that a significant impact on research and development has been significantly caused.

Administrative Management Regulations

Article 1 (Purpose)

The purpose of this Decree is to prescribe matters concerning the management of affairs of administrative agencies, thereby enhancing the efficiency of administration based on the simplification, standardization, scientificization, and informatization of affairs.

Article 3 (Definitions)

The definitions of terms used in this Decree shall be as follows:

1. The term "official document" means any document (including any special media records, such as drawings, photographs, disks, tapes, films, slides, slides, electronic documents, etc.; hereinafter the same shall apply) prepared or carried out externally for official duties, and all documents received by administrative agencies;

8. The term "signing" means that a reporter, an examiner, a cooperative, a discretionary authority, or a sender of an official document (excluding electronic documents) shall write his/her name in Korean, in an official document (excluding electronic documents) in which another person can be identified;

Article 8 (Formation and Effectiveness of Documents)

(1) A document shall be formed with the consent of the document concerned by means of a signature (including a signature of a full-time adviser, a full-time image signature and an administrative digital signature; hereinafter the same shall apply). Finally, the document shall be completed