[1] The legislative intent of Article 9(1)1 of the Official Information Disclosure Act and the meaning of “order by law” (=order by law)

[2] The case holding that the meeting minutes of the Autonomous Committee on Countermeasures against School Violence constituted information subject to non-disclosure under Article 9(1)1 of the Official Information Disclosure Act

[3] The meaning of "where there are reasonable grounds to believe that disclosure may substantially obstruct the fair performance of duties" under Article 9 (1) 5 of the Official Information Disclosure Act and the criteria for its determination

[4] The case holding that "Minutes of the Autonomous Committee on Countermeasures against School Violence" falls under "information that has a reasonable ground to believe that such disclosure may substantially obstruct the fair performance of duties when it is made public" under Article 9 (1) 5 of the Official Information Disclosure Act

[1] The main text of Article 9(1) of the Official Information Disclosure Act provides that "Any information held and managed by a public institution shall be subject to disclosure," and subparagraph 1 of the proviso provides that "information provided as confidential or confidential matters by other Acts or subordinate statutes (limited to the National Assembly Regulations, Supreme Court Regulations, National Election Commission Regulations, National Election Commission Regulations, Presidential Decree, and municipal ordinances) shall not be disclosed." The legislative intent of the Act is to avoid any conflicts between laws by respecting the disclosure of information in cases where information is provided as confidential or confidential matters by other Acts, etc.

[2] The case holding that the minutes of the Committee on Countermeasures against School Violence constitute "information as confidential or non-public information under Article 9(1)1 of the Official Information Disclosure Act," in light of the contents of Article 21(1), (2), and (3) of the Act, and Article 17 of the Enforcement Decree of the Act on the Prevention of and Countermeasures against School Violence, the purpose and legislative purport of the Act on the Prevention of and Countermeasures against School Violence, especially Article 21(3) of the Act on the Prevention of and Countermeasures against School Violence, which prohibits the disclosure of meetings of the Committee

[3] "Where there is a reasonable ground to believe that such disclosure may seriously interfere with the fair performance of duties" under Article 9 (1) 5 of the Official Information Disclosure Act means cases where there is a high probability that fair performance of duties would be objectively and significantly hindered if disclosure is made in light of the purpose of the information disclosure system under Article 1 of the Official Information Disclosure Act and the legislative purport of the information subject to non-disclosure under Article 9 (1) 5 of the Official Information Disclosure Act. Whether such disclosure constitutes this should be determined carefully in accordance with specific matters by comparing and comparing the interests protected by non-disclosure such as fairness in performing duties and the interests protected by disclosure such as guaranteeing citizens' right to know, guaranteeing citizens' participation in government affairs, securing transparency in government administration, etc.

[4] The case holding that the minutes of the Committee on Countermeasures against School Violence are "information that has considerable reasons to recognize that the fair performance of duties would be significantly impeded if disclosed" under Article 9 (1) 5 of the Act on the Prevention of and Countermeasures against School Violence, and Article 21 (3) of the Act on the Prevention of and Countermeasures against School Violence explicitly provides that each member's statement shall not be disclosed to the public even after the completion of the Committee in order to ensure free and active deliberation and resolution at the Committee on Countermeasures against School Violence, and that the request for disclosure of meeting minutes and for transparency in the operation of the Committee on Countermeasures against School Violence would be somewhat avoided, even if the request for disclosure of meeting minutes is made, the meeting minutes of the Committee on Countermeasures against School Violence shall be deemed to be for ensuring the fairness in the performance of duties of the Committee on Countermeasures against School Violence, which deliberate on matters related to the prevention and countermeasures against school violence among students inside and outside of elementary schools, middle schools, high schools, and special schools

[1] Article 9(1)1 of the Official Information Disclosure Act / [2] Article 9(1)1 of the Official Information Disclosure Act, Article 21(1), (2), and (3) of the Act on the Prevention of and Countermeasures against School Violence / [3] Articles 1 and 9(1)5 of the Official Information Disclosure Act / [4] Article 9(1)5 of the Official Information Disclosure Act, Articles 12 and 21(3) of the Act on the Prevention of and Countermeasures against School Violence in Public Institutions

[1] Supreme Court Decision 2003Du8395 Decided December 11, 2003 (Gong2004Sang, 157) Supreme Court Decision 2007Du1798 Decided October 23, 2008 / [3] Supreme Court Decision 2002Du12946 Decided August 22, 2003 (Gong2003Ha, 1958)

Plaintiff

The head of Gyeonggi High School (Attorney Lee Jong-soo et al., Counsel for defendant-appellant)

Seoul High Court Decision 2009Nu22579 decided January 12, 2010

The judgment below is reversed and the case is remanded to Seoul High Court.

We examine the grounds of appeal.

1. On the first ground for appeal

A. citing the reasoning of the first instance judgment, the lower court determined that Article 21 of the Act on the Prevention of and Countermeasures against School Violence (hereinafter “School Violence Act”) prohibits a person who carries out or carried out affairs related to the prevention of and countermeasures against school violence from divulging confidential information or data related to victim students and aggressor students that he/she became aware of in the course of performing his/her duties, while prohibiting the disclosure of confidential information at a meeting of the Autonomous Committee on Countermeasures against School Violence (hereinafter “Autonomous Committee”), which does not constitute the purpose of prohibiting the disclosure of relevant data per se, and therefore, the said provision does not constitute “a case where the information disclosure is prohibited by other Acts or orders delegated by other Acts” under Article 9(1)1 of the Official Information Disclosure Act (hereinafter “Information Disclosure Act”).

B. However, we cannot accept the judgment of the court below for the following reasons.

The main text of Article 9(1) of the Information Disclosure Act provides that “Any information held and managed by a public institution shall be subject to disclosure,” and subparagraph 1 of the proviso provides that “Information provided as confidential or confidential matters by other Acts or subordinate statutes (limited to the National Assembly Regulations, Supreme Court Regulations, National Election Commission Regulations, National Election Commission Regulations, Presidential Decree, and municipal ordinances)” may not be disclosed. The legislative intent of the Act is to avoid conflicts between laws by respecting confidential or confidential matters in cases where information is provided for in other Acts, etc. (see Supreme Court Decision 2007Du1798, Oct. 23, 2008).” Here, “orders by Acts” shall be deemed to refer to the legislative order (Delegation order) enacted under the specific delegation of Acts with respect to the disclosure of information (see Supreme Court Decision 2003Du8395, Dec. 11, 2003).

Meanwhile, Article 21(1) and (2) of the School Violence Act stipulate that a person who performs or has performed affairs related to the prevention of and countermeasures against school violence shall not disclose confidential information or data related to a victim student or aggressor student that he/she becomes aware of in the course of performing his/her duties, and the specific scope of confidential information shall be prescribed by Presidential Decree. Accordingly, Article 17 of the Enforcement Decree of the School Violence Act stipulates that the scope of confidential information shall not be disclosed. Article 17 of the Enforcement Decree of the School Violence Act stipulates that "1. Matters concerning personal information, such as the name, resident registration number, and address of the aggressor student and the victim student or his/her family; 2. Matters related to personal statements related to the deliberation and resolution of the aggressor student and the victim student; 3. Other matters that are obviously likely to cause controversy among the parties to the dispute." Article 21(3) of the School Violence Act provides that a meeting of the autonomous committee related to measures to protect the victim student, measures against the aggressor student, measures against the aggressor student, mediation of the dispute related to school violence, etc.

Nevertheless, the court below determined that the minutes of the autonomous committee do not constitute information subject to non-disclosure under Article 9(1)1 of the Information Disclosure Act. Thus, the court below erred by misapprehending the legal principles under Article 9(1)1 of the Information Disclosure Act, which affected the conclusion of the judgment.

The ground of appeal pointing this out is with merit.

2. On the second ground for appeal

A. In citing the reasoning of the first instance judgment, the lower court determined that the minutes of the autonomous committee cannot be deemed to seriously impede the fairness of the duties of the autonomous committee, on the ground that the minutes of the meeting cannot be deemed to constitute “information with considerable grounds to believe that the disclosure of the minutes of the meeting of the autonomous committee may seriously impede the fairness of the duties of the autonomous committee,” under Article 9(1)5 of the Information Disclosure Act, on the following grounds: (a) the minutes of the meeting of the autonomous committee are recorded on the basis of data submitted by the school in determining the measures against the Nonparty who is an aggressor student; (b) there is a great need to include them in the scope of protection of the right to request disclosure in order to ascertain what reason the Nonparty caused conditional expulsion from the school; and (c) the principal having the school principal decided to take measures, such as expulsion from school through deliberation by the autonomous committee; and (d) there is a doubt that the disclosure of the minutes

B. However, we cannot accept the judgment of the court below for the following reasons.

In light of the purpose of the information disclosure system under Article 1 of the Information Disclosure Act and the legislative intent of the information subject to non-disclosure under Article 9(1)5 of the Information Disclosure Act, "where there is a high probability that the fair performance of duties would be objectively and significantly impeded if disclosed." Whether the disclosure constitutes such a high level of probability shall be determined carefully according to specific cases by comparing and comparing the interests protected by the non-disclosure such as the fairness in the performance of duties and the interests protected by the disclosure such as guaranteeing citizens' right to know, guaranteeing citizens' participation in government affairs, and securing transparency in government affairs (see Supreme Court Decision 2002Du12946, Aug. 22, 2003).

Article 12 of the School Violence Act provides that a school shall have an autonomous committee to deliberate on matters concerning the protection of victim students, guidance and disciplinary action against aggressor students, dispute mediation between victim students and aggressor students, etc. in order to deliberate on matters related to the prevention of and countermeasures against school violence. To ensure free and active deliberation and resolution by the autonomous committee, it should be thoroughly guaranteed that each member's statement in the process of deliberation and resolution is not disclosed to the outside even after the termination of the committee. If the minutes containing the contents of each member's statement are disclosed, it is impossible for the members to freely exchange their opinions with psychological pressure and even if they are unlikely to jointly speak with the parties or external intent, it may hinder the free deliberation crisis and interfere with the securing of fairness; Article 21(3) of the School Violence Act explicitly provides that the meeting of the autonomous committee shall not be disclosed; Article 21(3) of the Act on the Prevention of and Countermeasures against Violence in and outside of Elementary Schools, Middle Schools, and Special Schools; Article 15 of the Act on the Protection of Information and Measures against the Victims of School Violence should be recognized as a victim's Act.

Nevertheless, the court below determined that the minutes of the autonomous committee do not constitute information subject to non-disclosure under Article 9(1)5 of the Information Disclosure Act. Thus, the court below erred by misapprehending the legal principles under Article 9(1)5 of the Information Disclosure Act, which affected the conclusion of the judgment.

The ground of appeal assigning this error is with merit.

3. Conclusion

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Chang-soo (Presiding Justice)