Where Party A requested the Minister of Foreign Affairs to disclose information, such as various conference data and minutes in relation to the Korea-Japan Military Information Protection Agreement and the Korea-Japan Mutual Gun Support Agreement, but the Minister of Foreign Affairs decided not to disclose information, the case affirming the judgment below holding that the above information constitutes information subject to non-disclosure under Article 9(1)2 and 5 of the former Information Disclosure Act, and it is impossible to easily separate the part that could be disclosed from the part that could not be disclosed and the part that could not be disclosed under Article 14 of the same Act.

Articles 9(1)2 and 5, and 14 of the former Official Information Disclosure Act (Amended by Act No. 11991, Aug. 6, 2013);

Plaintiff (Law Firm Lee & Lee, Attorneys Park Jin-kin et al., Counsel for the plaintiff-appellant)

(Court of Foreign Affairs, Attorney Exclusively et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2014Nu53829 decided June 11, 2015

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. Article 9(1)2 of the former Information Disclosure Act (amended by Act No. 11991, Aug. 6, 2013; hereinafter “former Information Disclosure Act”) provides that information pertaining to diplomatic relations and, if disclosed, likely to seriously undermine the national interest, if disclosed (Article 9(1)2) and information pertaining to process of decision-making or internal review, which, if disclosed, may significantly interfere with the fair performance of duties (Article 9(1)5). In cases where the information claimed to be disclosed is mixed with the information subject to non-disclosure and the part that constitutes information subject to non-disclosure and that can be disclosed is distinguishable to the extent that does not violate the purport of the request for disclosure, the information subject to non-disclosure shall be excluded (Article 14).

2. The lower court determined as follows.

(1) The Korea-Japan Military Information Protection Agreement and the Korea-Japan Mutual Gun Support Agreement (hereinafter referred to as the “instant Agreement”) aim at the provision of munitions and services and mutual sharing and guarantee of classified military information between the two countries.

② The key information of the instant case claimed by the Plaintiff includes the details of specific arguments and response raised between the two countries during the course of negotiations on the instant agreement, the details of consultations on each subject, the differences in views between the two countries, and the strategies for negotiations on such differences.

③ If the instant key information is disclosed, there is sufficient room for Korea’s response strategies related to the conclusion of the instant agreement or the position of the Japanese side to be used as the negotiation information in the future when Korea enters into a similar agreement. In light of the above, the instant key information constitutes information subject to non-disclosure under Article 9(1)2 of the former Information Disclosure Act, as well as that it can seriously compromise with the other country’s diplomatic trust.

④ At the time of the instant disposition, the Korea-Japan Military Information Protection Agreement was at the stage of initial signature, and the Korea-Japan Mutual Assistance Agreement was at the stage of not reaching an agreement. Accordingly, if the instant information is disclosed, there may be concerns that the text of the agreement would be modified differently from the original schedule due to various demands of interested parties, etc., or that the agreement itself would become nonexistent. If the content of the statement of working persons is disclosed outside the process, there is a high possibility that working persons who are engaged in negotiations may be invaded by persons or organizations, etc. who have different views. Accordingly, the instant information constitutes information subject to non-disclosure provided for in Article 9(1)5 of the former Information Disclosure Act, in view of the fact that the psychological pressure therefrom is likely to bring about a result contrary to national interests by making a speech to be consistent with a specific position or impliedly consistent with it.

⑤ Furthermore, as the instant information is organically combined with each other, it is impossible to easily separate the part that could be disclosed from the part that could not be disclosed. The instant information contains “the title of documents, date of production, and the table of the key information of this case,” and the subject of discussion and contents of discussion between the two countries, as well as the possibility of converging the Korean position and strategy thereof, may not be disclosed partially.

3. Examining the relevant statutes, legal principles, and records, the determination by the court below is just, and contrary to what is alleged in the grounds of appeal, there were no errors in the misapprehension of legal principles as to the partial disclosure of information under Article 9(1)2 and 5 of the former Information Disclosure Act and Article 14 of the same Act.

4. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kwon Soon-il (Presiding Justice)