(영문) 서울고등법원 2010.10.20.선고 2009누26694 판결

1. In the judgment of the first instance court, the part concerning the revocation of the disposition of refusal to disclose information as to the information listed in paragraphs 1 and 2 of the attached list shall be revoked

2. The defendant's disposition rejecting the disclosure of information as to the information listed in paragraphs 1 and 2 of the attached Table Nos. 1 and 2 against the plaintiff on November 14, 2008 shall be revoked.

3. The plaintiff's remaining appeal is dismissed.

4. 30% of the total costs of litigation shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

Purport of claim and appeal

The judgment of the first instance shall be revoked. Each information listed in the separate sheet that the defendant made to the plaintiff on November 14, 2008 shall be revoked by the defendant.

The rejection disposition on disclosure of information shall be revoked.

Reasons

1. Details of disposition;

A. On July 2008, the Defendant received a request for revision of the items of Korean classical and modern history textbooks for high school 2, 2009 and 253 Korean classical and modern history textbooks from the government departments, such as the Ministry of National Defense, and related organizations, including the Textbook. The Defendant organized the “Council of History and Experts” (hereinafter referred to as the “Council of this case”) mainly for reviewing the proposal for revision on October 2008.

B. The defendant on October 30, 2008 based on the result of the discussion of the council of this case on the request for revision.

The 55th amendment recommendations on historical textbooks were published.

C. On November 4, 2008, the Plaintiff filed a claim with the Defendant for disclosure of each information listed in the separate sheet (hereinafter referred to as the “information of this case”). On November 14, 2008, the Defendant rendered the instant disposition rejecting disclosure on the ground that the information of this case constitutes a non-disclosure information stipulated in the main sentence of Article 9(1)6 of the Official Information Disclosure Act (hereinafter referred to as the “Information Disclosure Act”).

【Ground for Recognition: Facts without dispute, Gap evidence 2-1 and 2-2, testimony under Park Young-ho and the purport of whole pleadings】

2. Whether a request for revocation of a disposition rejecting information disclosure concerning information under paragraph (3) is legitimate;

In light of the fact that the information disclosure system is a system that discloses information held and managed by a public institution in its state, the party seeking the disclosure of information shall prove the probability that administrative agencies possess and manage the information seeking disclosure. Where a public institution does not hold and manage the information, there is no legal interest to seek the revocation of the disposition of refusal of the disclosure of information, barring special circumstances (see Supreme Court Decision 2003Du9459, Jan. 13, 2006).

There is no evidence to acknowledge the probability that the defendant has and manages the information in paragraph 3.

Rather, comprehensively taking account of the overall purport of the pleading in the testimony of Park Jong-○’s witness at the court of first instance, the members of the council of this case received data individually from the Defendant from October 10, 2008 to October 26, 2008, and carried out review work. During that period, the members of the council of this case attended two times in the debate of 2-2-day and 3-day called “central work,” and prepared the basis for recommendation for correction in a unanimous manner, but only it can be recognized that they did not prepare separate minutes in the above debate.

A lawsuit against revocation of rejection of disclosure of information under paragraph (3) is unlawful.

3. Determination on the claim for revocation of disposition rejecting information disclosure as to information under paragraph (1)

A. The plaintiff's assertion

The information referred to in paragraph (1) is information falling under Article 9(1)6(c) through (e) of the Information Disclosure Act, not information subject to non-disclosure.

(b) Related statutes;

The entry in the attached Form is as specified in the relevant statutes.

C. Determination

1) The main text of Article 9(1)6 of the Information Disclosure Act provides that any information held and managed by a public institution shall be subject to disclosure, but any information that is likely to infringe on the privacy or freedom of individuals may not be disclosed if it is disclosed in the name, resident registration number, etc. included in the information in question. The proviso to Article 9(1)6 of the Information Disclosure Act provides that any information prepared or acquired by a public institution may infringe on the privacy or freedom of individuals pursuant to the main sentence of Article 9(1)6 shall be disclosed to the public, which is deemed necessary for the protection of public interest or rights; the name and position of a public official who performs his/her duties; the "name and position of a public official (c)"; and the "disclosure of information falling under the name and occupation (e) of an individual entrusted or commissioned by the State or a local government, which is necessary for the public interest.

The list, affiliation, and status of the instant council, which is the information under Paragraph (1), are information capable of identifying a specific person present at the instant council meeting, and deemed likely to infringe on the privacy or freedom of private life in the event of disclosure prescribed in the main sentence of Article 9(1)6 of the Information Disclosure Act. Thus, the information under Paragraph (1) is disclosed only when it is subject to non-disclosure exclusion under the proviso of Article 9(1)6 of the Information Disclosure Act. Therefore, whether it falls under Article 9(1)6(c), (d), and (e) of the Information Disclosure Act is information.

2) In full view of the aforementioned evidence, Gap evidence, Eul evidence, Eul evidence Nos. 8, Eul evidence Nos. 4, 5, 6, and 8, and all the arguments and arguments, the following facts may be acknowledged. The Ministry of Education and Human Resources Development on October 6, 2004 alleged that some National Assembly members were seriously dynamics to the content of historical textbooks in the course of the inspection of the state administration, and that the correspondence of historical textbooks began to be socially controversial issues. As such, the Korea Chamber of Commerce and Industry, the Korea Chamber of Commerce, Industry, the Ministry of Unification, and the Ministry of National Defense, etc. submitted to the defendant a request for revision of historical textbooks.

B) On July 2008, the Defendant, in relation to the revision and supplementation of Korean class 2 and 3 Korean history textbooks for high school year 2009, added 253 bills submitted by the above organizations and government ministries, and requested the National Institute of Korean History to review them. The National Institute of Korean History on July 7, 2008.

21. A Study Committee on Korean History Text is organized by its researchers, and on August 1, 2008, the "Korea Institute of Textbooks Deliberation" composed of the academic scholars from the academic circles and reported the result of the review to the Defendant on October 15, 2008. However, the National Institute of Textbook did not individually decide on whether 253 items for which the Defendant requested the review are appropriate, and presented only general guidelines for the direction of Korean classical and modern textbooks (a summary 12 paragraphs and 37 sections for each group).

C) On October 208, 2008, the Defendant organized the instant council with 11 members recommended by the Office of Education of the City/Do (persons with major experience of ten or more years in history), and professors and researchers selected by the Vice Minister of Education of the Ministry of Education, Science and Technology, and requested the instant council to review the proposal for revision of 253 items. The Defendant reviewed the textbook contents at the instant council, and decided that not only academic opinions but also educational opinions should be reflected. In determining that eight of the members of the instant council should be designated from among educational public officials.

In the draft of the Council (No. 6) prepared by the Defendant, whether the Plaintiff had ‘professional knowledge about sound national consciousness and historical education’ among the doctorate holders related to history and historical education as the criteria for the selection of members of the Council of this case, and based on the establishment thereof, Article 26 of the Regulation on Textbooks was cited for the “Rules on Textbooks”, and KRW 24 million,00,000,000,000 in total, including allowances for centralized work meetings, KRW 7.2 million, data review meetings, and expenses for review meetings.

Of the members of the Council of this case, the procedures for selecting educational public officials were selected two times in Defendant School Policy Bureau by recommending candidates at the City/Do Office of Education, and finally selected by the Vice Minister of Education, Science and Technology. On the other hand, professors and researchers other than teachers were directly selected by the Ministry of Education, Science and Technology. On the other hand, the Council was planned to operate from October 2009 to March 201. The Council of this case was planned to prepare the final revision and supplementation plan for the revision of history textbooks, ② development of reference materials for the selection of history textbooks, ③ review of the draft of the standards for writing history textbooks according to the revised curriculum in 207, ④ final revision and supplementation of modern history education materials, and was planned as their duties.

D) In 207, the instant council reviewed the demands for revision based on constitutional spirit, referring to the “report proposal submitted by the National Institute of Korean History and the revised curriculum in 2007,” and “report proposal submitted by the National Institute of Korean History,” and referring to ① interference with the legitimacy of the Republic of Korea based on constitutional spirit, ② interference with the level of high school students, and 55 recommendations for revision based on the results of the foregoing 3 weeks discussions. The instant council held meetings to review the educational data prepared by the Defendant in addition to the review of the demands for revision.

E) On October 30, 2008, the Defendant made a recommendation for revision to the contents of each authorized textbook in accordance with the recommendation for revision on items 55 prepared by the Council of this case with respect to high school-class and modern textbook publishers including gold publishing companies through the Korea Authorized Textbook, an incorporated association. At the time, the content of the 55 recommended items published by the Defendant was the same as the 55 recommended items prepared by the Council of this case except for partial revision of the text.

F) On November 26, 2008, the Defendant issued a disposition of correction instruction regarding 41 items, such as items not reflected in the correction recommendation and items requiring correction and supplementation, to five publishing companies of history textbooks.

The history textbook subject to the disposition of revision instruction is a textbook that has completed the authorization in 2002 according to the authorization standard prepared by the defendant on June 2001.

G) On October 30, 2008 and December 18, 2008, the Defendant announced the press with respect to the result of the correction and supplementation of the textbook correction recommendation of Korean classical ambassador and the textbook 206 of Korean classical Korean classical and educational aspects, and issued news report materials (Evidence B No. 4 and 5) containing the content that the Defendant organized the instant council and deliberated on the proposal for revision for the purpose of the balanced revision and supplementation of the textbook that reflects the academic and educational aspects in a comprehensive manner. On January 12, 2010, the Defendant announced the press to disclose the list of authorized members present at the textbook authorization process in the future.

3) According to the above facts, the council of this case is not an organization directly based on the Elementary and Secondary Education Act and subordinate statutes, but an organization consisting of teachers, professors, researchers, etc. who majored in historical education to assist the defendant in exercising his/her political rights pursuant to Article 26(1) of the former Regulations on Textbooks (amended by Presidential Decree No. 21687, Aug. 18, 2009; hereinafter the same) enacted pursuant to Article 29(2) of the Elementary and Secondary Education Act and Article 55 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 21687, Aug. 18, 2009). Members of the council of this case cannot be deemed to have been partially entrusted or commissioned by the defendant pursuant to statutes. Paragraph 1 information cannot be deemed to have been deemed to have been information falling under Article 9(1)6 (e) of the Information Disclosure Act.

As seen earlier, the Defendant: (a) among the members of the instant Council, the public officials were selected by the Vice Minister of Education, the Ministry of Education, Science and Technology, upon the recommendation of the Office of Education of each City/Do to select teachers and educational specialists; and (b) the Minister of Education selected educational officials in view of the nature of the instant Council to review the textbook contents; (c) the term of operation of the instant Council was not less than six months; (d) the duties of the instant Council were in charge of the instant Council are not less than six months; (b) the preparation of the final correction and supplementation plan for the revision of history textbooks; (2) the selection of historical textbooks materials; (3) the review of the draft for the revision of history textbooks in 207; and (4) the final revision and supplementation of modern private educational materials; and (c) the relevant educational public officials were related to the historical education duties of the instant Council; and (d) the public officials attending the instant Council should be deemed to have been in charge of the Defendant’s work to assist in the exercise of the textbook authorization work.

5) Lastly, we examine whether the information of Paragraph 1 falls under "information that is deemed necessary for the public interest or for the remedy of rights of individuals" as the information prepared or acquired by a public institution.

According to the following circumstances revealed in the above facts of recognition, etc., Paragraph 1 information constitutes information deemed necessary for the public interest (see Supreme Court Decision 2005Du13117, Dec. 13, 2007).

① On November 26, 2008, the Defendant issued an order for revision to a textbook publishing company on the grounds that it violated the authorization standards. In light of the content of the order for revision, it constitutes a case where the Defendant issued an order for revision for the textbook for which the Defendant decided to pass through the deliberation of the Curriculum Deliberation Council on Textbooks on November 26, 2002. According to the provisions of Article 29(2) of the Elementary and Secondary Education Act and Article 29(2) of the former Textbooks, if the textbook is authorized as above, it shall undergo the deliberation procedure of the Curriculum Deliberation Council, and the Defendant prepared the correction recommendation through the instant Consultative Council without undergoing the above procedure, and then issued an order for revision based on the recommendation for revision.

In fact, the council of this case played a role in the Curriculum Deliberation Council, and the defendant issued an order of correction based on the recommendation of correction prepared by the council of this case as a unanimous book, and presented the report materials on the ground that the recommendation of correction was justifiable. In light of the duties performed by the council of this case, in order to make it possible for citizens to conduct basic surveillance and control, and to secure transparency, public nature and legitimacy of the consultation process, it is necessary to disclose whether the council of this case was present at the council of this case and whether it consists of experts with professional knowledge about sound national consciousness and historical education as scheduled by the defendant.

(2) Article 9 (1) 6 (e) of the Information Disclosure Act requires the State or a local government to disclose information pertaining to an individual who partially entrusted or commissioned the State or a local government’s name and occupation, even if the State or a local government is not a public official, it is intended to secure transparency and legitimacy in performing public duties by disclosing such information. If the State or a local government is unable to disclose information pertaining to an individual who is entrusted with duties pursuant to statutes, without being entrusted with duties pursuant to statutes, and is entrusted in a manner that is not governed by statutes, if the State or a local government is dependent on non-official advice, etc. which is not based on statutes, rather than entrustment of duties pursuant to statutes, it goes against the purpose of the Information Disclosure Act to

③ As alleged by the Defendant, most members of the instant council participated in the instant council on the premise that personal information is not known at the time of the formation of the instant council, the members of the instant council were in charge of official duties examining whether the content of the pertinent history textbook obstructs 'the unity of the Republic of Korea based on the constitutional spirit', and whether the contents of the pertinent history textbook meet the level of high school students. The instant council’s duties are low related to the private life of the members of the instant council, and in light of the purport, structure, process, and substance of the instant council’s organization, organization, and business, it is difficult to deem that the members of the instant council were well aware of the contents of the duties to be taken by the instant council at the time of the formation of the council. Therefore, it is difficult to deem that the disclosure of the instant information depends on each member’s will.

In particular, the information referred to in Paragraph 1 is limited to the list, affiliation and position to ascertain whether the council of this case is organized by experts in charge of its affairs, and it excludes information on the address, resident registration number, etc. of members of the council of this case which are relatively personal areas. The council of this case has a different nature with the committee in charge of deliberation on the remedy of rights to individuals who have a direct interest, such as various disciplinary committees, amnesty review committees, etc., so it is more public interest due to disclosure than the need for privacy protection.

④ The Defendant cited as one of the grounds for non-disclosure that if the list of members of the Council of this case is disclosed, it is difficult to organize the textbook authorization committee in the future. However, the Defendant himself/herself is also 2010.

1. It was decided to disclose the list of textbook authorization committee members to be organized in the future.

⑤ In light of the importance of the role at the Council of this case, it is necessary for the public interest to disclose the list of members so that the public may discuss the legitimacy of the composition thereof in the light of the importance of the role at the Council of this case, rather than disclosing the personal information of the members who participated in the revision work of history textbooks and play an important role in the formation of juvenile history centers.

4. Determination on revocation of rejection disposition of information disclosure concerning information under paragraph (2)

The Plaintiff stated in Paragraph 2 that the contents of the instant council, seeking disclosure, refer to the date and time of the meeting of the instant council. The date and time of the meeting of the instant council is held and managed by the Defendant, and does not constitute personal information under Article 9(1)6 of the Information Disclosure Act.

It is illegal to refuse the disclosure of information under Paragraph (2) by deeming that the information falls under the information subject to non-disclosure under Article 9(1)6 of the Information Disclosure Act.

5. Conclusion

In the judgment of the first instance court, the part concerning the request for revocation of the disposition of rejection of information disclosure concerning the information of paragraphs (1) and (2) shall be revoked, and the disposition of rejection of information disclosure concerning the information of paragraphs (1) and (2) shall