2019Guhap91510 Revocation of Disposition Rejecting Information Disclosure

A

Chairman General

June 12, 2020

July 17, 2020

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

A disposition rejecting information disclosure made by the Defendant against the Plaintiff on July 30, 2019 shall be revoked.

1. Details of the disposition;

A. On April 23, 2018, the Plaintiff filed a civil petition with the Board of Audit and Inspection, and the staff C of the Seoul Metropolitan Government Office, which forced the Plaintiff to waive the intermediary remuneration for the Plaintiff’s purchaser.

On May 23, 2018, the Board of Audit and Inspection notified the Plaintiff that the pertinent employee cannot verify evidence proving the act of misconduct, such as proving that he/she properly treated the Plaintiff’s civil petition in order to adjust the Plaintiff’s civil petition, and that it is in the process of filing a lawsuit claiming a brokerage fee, so it does not fall under the subject of the audit request, and it shall be closed in accordance with the "Regulations on the Handling of Audit Request"

Accordingly, the Plaintiff filed a civil petition with the same purport with the Board of Audit and Inspection repeatedly on three occasions, including June 1, 2018, January 14, 2019, and May 29, 2019. The Board of Audit and Inspection sent reply to the Plaintiff that the said civil petition has been processed by the Plaintiff or that it is a repeated civil petition on three or more occasions (see, e.g., evidence A6).

B. On July 22, 2019, the Plaintiff filed a claim with the Defendant for the disclosure of information on a statement of vindication that the employee of the B-gu Office had claimed that he/she carried out his/her business by lawful business process (hereinafter referred to as “instant statement of vindication”).

On July 30, 2019, the defendant issued a disposition of refusal (hereinafter referred to as "disposition of non-disclosure") to the plaintiff on the ground that the statement of this case is subject to non-disclosure under the proviso to Article 9 (1) of the Official Information Disclosure Act (hereinafter referred to as "Information Disclosure Act"), subparagraph 5 of the same paragraph (hereinafter referred to as "grounds 5") and subparagraph 6 (hereinafter referred to as "grounds 6") 1 of the same paragraph.

C. On August 21, 2019, the Plaintiff filed an administrative appeal against the instant non-disclosure disposition. However, the Board of Audit and Inspection’s administrative appeals commission dismissed the Plaintiff’s appeal on October 1, 2019.

[Ground of recognition] Unsatisfy, entry of Gap evidence 1 to 6, purport of whole pleadings

2. The plaintiff's assertion

No grounds of subparagraphs 5 and 6 exist in relation to the written vindication of this case.

Although there is a benefit to ascertain whether the facts related to the civil petition case related to the Plaintiff and to ascertain whether the allegations by the other party employee who is the other party to the civil petition are true, the non-disclosure disposition of this case does not guarantee the Plaintiff's right to know, and there is a public interest in order to secure the transparency of state administration

3. Determination

(a) Whether the case constitutes non-disclosure information on grounds under subparagraph 6;

1) Examining the contents of the privacy and freedom guaranteed under the Constitution, such as the history, content, and purport of the amendment of the Information Disclosure Act, the 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 a non-disclosure subject matter based on the type or type of information, such as name and resident registration number, but also “information that may cause interference with personal and mental life or make it impossible to freely engage in private life” by examining the details of the information in detail (see Supreme Court en banc Decision 2011Du2361, Jun. 18, 2012).

2) According to the result of the court’s non-disclosure review, not only the statement of facts but also the statement of personal opinion of C, such as the relationship between the Plaintiff and C and the evaluation of C on the case giving rise to civil petition. If the Plaintiff becomes aware of such opinion, it is deemed that there is a risk that the Plaintiff may cause hindrance to C’s personal internal life and may not lead to free privacy due to the realization of unnecessary additional disputes. Accordingly, the part on the personal opinion of C among the statement of this case constitutes non-disclosure information pursuant to subparagraph 6.

On the other hand, it is difficult to view that the statement on the remaining facts except the above part of the opinion constitutes a non-disclosure information pursuant to subparagraph 6. However, as seen below, the whole statement of this case constitutes a non-disclosure information pursuant to subparagraph 5, and for such reasons, the part on non-disclosure disposition of this case cannot be deemed unlawful.

B. Whether the case constitutes non-disclosure information under subparagraph 5

1) 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, “information that has considerable grounds to recognize that, if disclosed, would significantly interfere with the fair performance of duties” means a high level of probability that, if disclosed, fair performance of duties would substantially interfere with the objective of the information subject to non-disclosure under Article 9(1)5 of the Information Disclosure Act. Whether the information constitutes such determination ought to be carefully determined depending on specific matters by comparing and comparing the interests protected by non-disclosure, such as fairness in the performance of duties, etc., the citizens’ right to know, the citizens’ right to participate in state affairs, and the interests such as securing transparency in government administration. In addition, the determination should take into account not only the content of the relevant information subject to the request for disclosure, but also the content of the relevant information that may seriously interfere with the fair performance of the same kind of duties in the future by disclosing it (see Supreme Court Decision 2010Du1875

2) Pursuant to the legal principles as seen earlier, ① the instant vindication was prepared by C himself in the course of investigating C in the audit process following the Plaintiff’s filing of a civil petition. In light of the nature of the auditor’s inspection, if the instant vindication, which is an important part of the investigation, is disclosed, it is difficult to ensure the fairness of the audit. ② According to the court’s non-disclosure review, the instant vindication contains the facts pertaining to the dispute between the Plaintiff and the purchaser over the brokerage commission and the process of conciliation, and the contents of the Plaintiff’s act at the time of the disclosure of the written vindication, which includes the contents of the Plaintiff’s statement, which is open to the public, there is concern that if the written vindication is disclosed, it is difficult for the parties involved in the instant audit to freely make their statements at the expense of disclosing the contents of the Plaintiff’s statement in the future. ③ In order to make the relevant persons’ free statement, it is necessary to ensure that the contents of the relevant persons’ statement are not disclosed even after the audit is closed, ④ In such case, it constitutes information subject to non-disclosure under Article 5 of the Fair Information Disclosure Act.

C. Sub-committee

Therefore, this case’s non-disclosure disposition is lawful. The Plaintiff’s assertion is without merit.

4. Conclusion

The plaintiff's claim is dismissed. It is so decided as per Disposition.

Judges Park Jong-young, Judge Park Jong-young

Judges Kim Jong-chul

Judges Lee E-Ba

(i) Article 9 (Information Subject to Non-Disclosure)

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

5. Information pertaining to audits, supervision, inspections, tests, regulations, tendering contracts, technology development, personnel management, or information in the decision-making process or internal review process, etc., which, if disclosed, has considerable grounds to believe that such disclosure may seriously interfere with the fair performance of duties or research and development: Provided, That where information is not disclosed due to decision-making process or internal review process, the applicant under Article 10 shall be notified of such decision-making process and internal review process when the decision-making process or internal review process is completed;

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 individuals: Provided, That the following personal information shall be excluded herefrom:

(a) Information that can be perused, as prescribed by statutes;

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

(c) Information prepared or acquired by a public institution and deemed necessary for the public interest or for the relief of rights of individuals;

(d)Name and position of the official performing the duties;

(e) Name and occupation of an individual entrusted or commissioned by the State or a local government pursuant to statutes, where disclosure is necessary for the public interest;