2016Nu448 Revocation of Disposition Rejecting Information Disclosure

A

1. The President General;

2. The Chief of National Security Office;

3. The Chief of Presidential Security Service;

Seoul Administrative Court Decision 2014Guhap69846 decided March 3, 2016

December 12, 2017

January 16, 2018

1. Revocation of a judgment of the first instance;

2. All of the instant lawsuits are dismissed. 3. All of the costs of litigation are assessed against each party.

Purport of claim

Each disposition rejecting the disclosure of each information listed in the attached Table 1 that the president of the Presidential Secretariat of the defendant would have against the plaintiff, and each disposition rejecting each information disclosure listed in the attached Table 2 that the president of the defendant Presidential Security Office rendered to the plaintiff shall be revoked. The omission by the chief of the defendant National Security Office with respect to each claim for information disclosure listed in the attached Table 3 that the plaintiff made to the chief of the defendant National Security Office, and omission by the chief of the defendant Presidential Security Office with respect to each claim for

Purport of appeal

The part against the Defendants in the judgment of the first instance is revoked, and the Plaintiff’s claim corresponding to the revocation part is dismissed in entirety.

Purport of Incidental Appeal

The part of the judgment of the first instance against the plaintiff shall be revoked, and the decision of the President of the Office of the President to refuse the disclosure of information in the attached Table 1 shall be revoked.

1. Basic facts

Evidence Gap 1 to 4 (including the relevant numbers, excluding Gap evidence 1-5) and the purport of the whole pleadings

A. On April 16, 2014 regarding the Sewol ferry accident, the Plaintiff requested the head of the Office of National Security to disclose a written report, and the Plaintiff’s non-disclosure and omission 1) on August 18, 2014.

2) On August 28, 2014, the Chief of the Defendant presidential Secretariat strictly protected the records related to the sinking of the Sewol ferry as Presidential records created between the President and the assisting agency of the President. Since the records pertaining to the pending trial or investigation, institution and maintenance of public prosecution during the non-disclosure information, there is a concern that the disclosure of the records may substantially impede the fair performance of duties if disclosed, and there is a concern that the fair performance of duties would be significantly impeded if disclosed, and that there is a concern that the disclosure of personal information would infringe on the privacy or freedom of privacy if disclosed.

3) The chief of the Defendant National Security Office did not decide whether to disclose information within 20 days after the Plaintiff’s request for disclosure of information.

B. On August 19, 2014, the Plaintiff filed a request for disclosure of the list of records created or received on April 16, 2014, and the Plaintiff’s request for non-disclosure and omission 1) on August 19, 2014, with the President of the Office of the President of the National Security, for the information listed in the attached Table 1 2 1 1 2 1 1, 2014.

2) On August 29, 2014, the Defendant and the President of the Presidential Secretariat rendered a non-disclosure decision based on Article 9(1)1, 2, and 5 of the Information Disclosure Act on the grounds that the disclosure of the information is likely to seriously undermine the national interest if it is made public, and that the disclosure of the information in the process of personnel management, decision-making, or internal review would significantly interfere with the fair performance of duties.

3) On September 18, 2014, the chief of the Defendant Presidential Security Office rendered a non-disclosure decision in accordance with Article 9(1) of the Information Disclosure Act on the grounds that the Defendant Presidential Security Office included internal information, decision-making process, or internal review process related to the activities of the Security Security (the chief of the Defendant Presidential Security Office specified the statutes based on the non-disclosure decision as Article 9(1)5 of the Information Disclosure Act by stating a written response at the first date for pleading on March 6, 2015).

4) The chief of the Defendant National Security Office did not decide whether to disclose information within 20 days after the Plaintiff’s request for disclosure of information.

(c) Requests for disclosure and non-disclosure of information on special activities and execution of overseas travel expenses;

1) On August 25, 2014, the Plaintiff filed a request with the Chief of the Defendant Presidential Secretariat for the disclosure of each information listed in the [Attachment 1] Nos. 3 and 4, and ② to the Chief of the Defendant Presidential Security Office for the disclosure of each information listed in the [Attachment 2] Nos. 2 and 3.

2) On September 4, 2014, the Chief Secretary of the Secretariat rendered a non-disclosure decision on the ground that the expenses for special activities of the President, which are executed in support of the President’s national administration, such as unification, foreign education, and security, may be disclosed to the public, and if disclosed, the situation of the activities of the President would be limited to a single one. The expenses for overseas travel of the Presidential Secretariat, which does not require any confidential information, is open to the public on the website of the overseas business trip training information system. (The Chief of the Defendant Secretariat stated a written reply at the first day of pleading of the first instance trial on March 6, 2015, and specified the Act and subordinate statutes based on the non-disclosure as Article 9(1)2 of the Information Disclosure Act.)

3) On September 4, 2014, the Chief of the Defendant Presidential Security Service rendered a non-disclosure decision based on Article 9(1)2 of the Information Disclosure Act, on the ground that “The special activity cost is not open to the public for the sake of the security and the completion of a perfect security mission, including the size and activity period of the security personnel, and the foreign travel expense includes the important information that contains a secret contents related to the security, such as the size and activity period of the security personnel, and it is likely to act as a dangerous element due to the disclosure of the information.”

(d) claims to disclose information on expenditure other than information lists, personnel expenses, and non-disclosure and omission;

1) On August 30, 2014, the Plaintiff filed a request with the Chief of the Defendant Presidential Secretariat to disclose each information listed in the [Attachment 1] Nos. 5 and 6, respectively, as to each information listed in the [Attachment 4] to the Chief of the Defendant Presidential Security Office.

2) On September 12, 2014, the Chief of the Defendant presidential Secretariat disclosed the information that “the amount executed by the Office of the President and the Office of National Security (excluding personnel expenses)” was KRW 3,533 million on July 12, 2014, and, if disclosed, there is a risk that significant national interests may be significantly harmed if disclosed, and that there is a concern that fair performance of duties may be significantly impeded if disclosed as a matter in the process of personnel management, decision-making, or internal review.” Based on Article 9(1)1, 2, and 5 of the Information Disclosure Act, the Chief of the Defendant presidential Secretariat made a non-disclosure decision pursuant to Article 9(1)1, 2, and 5 of the Information Disclosure Act (Article 9(1)2 of the Information Disclosure Act on March 6, 2015, by stating a written reply on the date of pleading at the first instance of the first instance trial on March 6, 2015.

3) The chief of the Defendant Presidential Security Office did not decide whether to disclose the information within 20 days from the date the Plaintiff requested the disclosure of information.

2. Determination on the defense prior to the merits

A. The defendants' defense prior to the merits

1) The Defendants merely do not constitute a public agency under Article 2 subparag. 3 of the Information Disclosure Act, which is not an assisting agency affiliated with the President.

2) Of the information for which the Plaintiff requested to disclose the information, there was no list of information listed in the [Attachment 4] No. 1 among the information list for which the Plaintiff requested to disclose the information (hereinafter referred to as the “information list of this case”), and the remaining information was transferred to the National Archives by the Presidential Records Management Act (hereinafter referred to as the “Presidential Records Act”). Therefore, the Defendants did not retain and manage the information for which the Plaintiff requested to disclose the information, and therefore, there is no legal interest in filing the instant lawsuit against the Defendants.

B. Determination

1) Whether the Defendants constitute a public institution under the Information Disclosure Act

Article 2 subparagraph 3 (a) of the Information Disclosure Act lists one of the public institutions subject to the Information Disclosure Act, "central administrative agencies (including agencies under the jurisdiction of the President and agencies under the jurisdiction of the Prime Minister)" and "State agencies under the jurisdiction of the President," Article 14 of the Government Organization Act provides that the Office of the President shall be established to assist the President in the duties of the President. The Office of the President shall have one Chief, who is a public official in political service, and Article 15 provides that the Office of National Security shall be established to assist the President in the duties of the President. The Office of National Security shall have one Chief, who shall be a public official in political service, and Article 16 (1) and (2) provides that Article 16 (1) and (2) of the Information Disclosure Act shall have one Chief, who shall be appointed from among the public institutions subject to the Information Disclosure Act. In addition, Article 2 subparagraph 1 (b) of the Presidential Records Act provides that "public officials shall be appointed in political service."

In full view of the above provisions, the information that the Plaintiff requested to disclose information is the Presidential records produced and held by the chief of the defendant secretary, the chief of the defendant secretary, the chief of the defendant secretary, the chief of the defendant secretary general, and the agencies that carry out the security duties of the President.

Considering that a public institution whose duty to disclose information is recognized under the Information Disclosure Act is in principle an institution holding and managing the relevant information, and that Presidential records are open to the public, it is reasonable to interpret that a public institution under the Information Disclosure Act includes an institution that provides assistance and guarding services for the President. The Defendants asserted that the Defendants are merely a presidential assistance agency, not a presidential agency, for the reason that Article 2 subparag. 3 and subparag. 5 of the General Rules on the Organization and Personnel of Administrative Agencies separately define the “affiliated agency” and “affiliated agency.” However, Article 2 subparag. 5 of the above General Rule provides that “affiliated agency” means an institution affiliated with a central administrative agency, which is a special local administrative agency and its affiliated agency, and thus, it can be included in “affiliated agency”. Thus, it is reasonable to deem that the Defendants are public institutions that assist the President in the duties of the President or escort the President, etc., and thus, are obligated to disclose information under the Information Disclosure Act.

2) Whether the Defendants retain and manage information requested by the disclosure of information

A) If the information disclosure system is a system that discloses information held and managed by a public institution in its own condition and the applicant does not possess and manage the information as specified in a public institution, there is no legal interest to seek revocation of the disposition rejecting the disclosure of the relevant information, barring any special circumstances. In this regard, the applicant for disclosure bears the burden of proving that there is a considerable probability that he/she is in possession and management of the public institution that seeks disclosure. However, the applicant for disclosure bears the burden of proving that the public institution does not retain and manage the information at the time, but does not retain and manage it later (see Supreme Court Decision 2003Du12707, Dec. 9, 2004).

B) Article 8(1) of the Information Disclosure Act provides that a public institution shall prepare and keep a list of information held and managed by it so that the people can easily understand such information, and shall disclose the list through the information disclosure system using the information and communications network. However, where information that may not be disclosed pursuant to Article 9(1) is included in the list of information, the relevant part may not be provided or disclosed.

In the instant case where the head of the Defendant Presidential Security Office asserted that the information to be entered in the instant information list falls under Article 9(1)2 of the Information Disclosure Act and the list itself was not created at the beginning pursuant to the proviso of Article 8(1) of the same Act, the evidence submitted by the Plaintiff alone is insufficient to acknowledge the fact that there is a considerable probability that the head of the Defendant Presidential Security Office will hold and manage the instant information list, and there is no other evidence to prove otherwise.

C) In addition, according to the results of the fact-finding inquiry conducted by the President on July 21, 2017 and September 5, 2017, the records of this Court were transferred to the President, ① records created and received on April 16, 2014 and lists (including i.e., Table 1 No. 1 No. 1 No. 1 of the attached Table and 3 of the attached Table), ② the disbursement related to special activity expenses from March 1, 2013 to July 31, 2014 (including the general table of the payment for staff expenses and the payment for each presidential management expenses, ③ the payment of some of the Presidential records transferred to the President from March 1, 2017 to September 5, 2017 to the Presidential Archives, ③ the payment records of which were transferred from March 1, 2013 to July 31, 2014, ② the payment records of overseas travel expenses (including the payment records of travel expenses for each overseas travel expenses, and evidence No. 214.7. i.7.

In full view of the above facts and the purport 1 of the whole pleadings, the remaining information except the list of the information of this case among the Presidential records listed in the attached Table, for which the plaintiff requested disclosure to the defendants, shall be transferred to the Presidential Archives affiliated with the National Archives, and the defendants currently hold such information.

· does not seem to have been managed.

D) Therefore, the Defendants did not retain and manage the information requested by the Plaintiff, so there is no legal interest in seeking the revocation of the disposition rejecting the disclosure of information in question against the Defendants or seeking confirmation of the illegality of the omission in the request for the disclosure of information. The Defendant’s defense prior to the merits is with merit.

3. Conclusion

Therefore, all of the lawsuit of this case against the defendants shall be dismissed as unlawful. Since the judgment of the court of first instance is unfair with different conclusions, the judgment of the court of first instance shall be revoked, and all of the lawsuit of this case shall be dismissed, and in consideration of the circumstances of this case, Article 8 (2) of the Administrative Litigation Act and the latter part of Article 99 of the Civil Procedure Act shall be applied to the bearing of the total cost of lawsuit

The presiding judge, assistant judge and assistant judge

Judge Park Jong-soo

Judges Lee Hyun-woo

1) According to the results of each fact-finding inquiry reply as seen earlier, the information list listed in the [Attachment 1] No. 5 and the Attached 2 No. 2

In the case of records related to special activity expenses, the general records transferred to the Presidential Archives shall not be verified, but the records shall not be verified;

This seems to be because it was designated as presidentially designated records. In this regard, the defendants were designated and transferred as presidentially designated records.

The remainder of the information except the list is argued to have been transferred to the Presidential Archives, and the plaintiff also argued to have been transferred to the Presidential Archives.

12. The 11.1. statement was made to the effect that this was recognized through the preparatory documents.