2006Guhap6383 Revocation of Disposition Rejecting Information Disclosure

Maximum 000

Busan

Attorney Yu-soo et al., Counsel for the defendant

00 President of University 00

Law Firm 00

[Defendant-Appellee]

July 4, 2006

August 22, 2006

1. Of the instant lawsuit, the part concerning the revocation of a disposition rejecting the disclosure of information on the information listed in the separate sheet 1 and the part concerning the revocation of a disposition rejecting the disclosure of information on the marking table by point of issue among the information listed in the separate sheet 3 of the same list are dismissed.

2. The defendant's refusal disposition against the plaintiff on February 14, 2006 on the information listed in the Schedule 2, with the exception of the indication of marks in the Overall Bill, and the refusal disposition on the information disclosure on the remaining information listed in the Schedule 3, with the exception of the indication of marks in the Overall Schedule 2, and each disposition on the refusal of information disclosure on the marking marks by paragraph 3 of the same Table

3. The plaintiff's remaining claims are dismissed.

4. Of the litigation costs, 40% is borne by the Plaintiff, and the remainder is borne by the Defendant, respectively.

The defendant's refusal to disclose information to the plaintiff on February 14, 2006 is revoked, respectively.

1. Details of the disposition;

A. On January 24, 2006, the Plaintiff selected 00 students from 00 University 00 University 00 to 00 college departments as multiple major students, and applied for the pre-trial examination for the 2006 major course conducted by the Defendant on January 24, 2006, but was subject to the disposition of failure to pass the examination on January 27, 2006 after receiving the scores of less than 00 points out of 00 from the full scores of the essay-type general major course (hereinafter “the instant examination”).

B. Accordingly, on February 9, 2006, the Plaintiff provided an information disclosure office for each information listed in the separate sheet to the Defendant, and accordingly, the Defendant rendered the instant disposition that rejected all of the claims for information disclosure on each information listed in the separate sheet in the separate sheet in accordance with the purport of the Supreme Court Decision (Supreme Court Decision 2000Du6114 Decided March 14, 2003) holding that “if the result of grading results is perused by marking members, it shall be deemed that there is a significant obstacle in performing the evaluation of the essay-type examination, it would be remarkably impeded in performing the evaluation of the essay-type examination.”

【Ground for Recognition】 In without dispute, Gap evidence 2

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

In Article 9 (1) 5 of the Official Information Disclosure Act (hereinafter referred to as the "Act") the disclosure of information about the examination may seriously obstruct the fair performance of the duties if disclosed.

In the case, only "the grounds for non-disclosure" are prescribed as follows: ① since the total of 25 persons applied for the examination of this case and 20 persons passed the examination, the number of students requesting the disclosure of information is merely about 5 and so there is no risk of causing a big impediment to non-disclosure in the examination management business; ② the name of grading members may be disclosed in the next meeting when the protection of grading members is at issue; ② the name of grading members may be disclosed in the next meeting so that fairness in the next meeting may not be damaged; ③ in the case of the examination of this case which did not cross-grade, more need to disclose the grading standards and the rating details in order to enhance the objectivity and reliability of the evaluation; ④ the grading standards are open to the next meeting to the public, and ④ the examination of this case does not seriously affect the next meeting unless the same issue is reached or the examination of this case is not a problem bank type preparation method, and thus, each information recorded in the attached list does not constitute a non-disclosure information that could not seriously impede the fair performance of the affairs.

(b) Related statutes;

Article 2 (Definitions) The definitions of terms used in this Act shall be as follows:

1. The term "information" means matters recorded in documents (including electronic documents; hereinafter the same shall apply), drawings, photographs, films, tapes, slides, other media corresponding thereto, etc. prepared or acquired and managed by public institutions in the course of performing their duties;

2. The term "public disclosure" means that a public institution allows to peruse information or delivers copies or reproductions thereof pursuant to the provisions of this Act, or provides information through an information and communications network (hereinafter referred to as the "information and communications network") pursuant to the provisions of subparagraph 7 of Article 2 of the Act on Promotion of the Digitalization of Administrative Affairs, etc. for Creation of Electronic Government;

3. The term “public agency” means any State agency, local government, government-invested institution under the provisions of Article 2 of the Framework Act on the Management of Government-Invested Institutions, or other institution as prescribed by the Presidential Decree

Article 3 (Principles of Disclosure of Information) Any information held and managed by public institutions shall be opened as prescribed by this Act.

Article 5 (Applicants for Information Disclosure)

(1) All citizens shall have the right to request the disclosure of information.

Article 9 (Information Subject to Non-Disclosure)

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

5. Information in the process of personnel management, decision-making, or internal review of the development of technology for audit, supervision, inspection, testing, and regulatory tendering contracts, which, if disclosed, has a reasonable ground to believe that a significant impediment to fair performance of duties or to research and development has been significantly impeded.

Article 13 (Notice of Decision on Whether to Disclose Information)

(2) Where the excessive amount of information subject to disclosure is likely to seriously obstruct the normal performance of duties, a public institution may deliver copies or reproductions of the information for a certain period in installments or in parallel with the perusal.

Article 14 (Partial Disclosure) Where information requested for disclosure is mixed with the information falling under any subparagraph of Article 9 (1) and the part that can be disclosed, and where two parts can be separated within the scope not contrary to the purport of a request for disclosure, the part that falls under any subparagraph of Article 9 (1) shall be disclosed except for the part falling under any subparagraph of Article 9 (1).

Enforcement Decree of Act

The term "other institutions prescribed by Presidential Decree" in subparagraph 3 of Article 2 of the Official Information Disclosure Act (hereinafter referred to as the "Act") means the following institutions:

1. Schools of any level established under the Elementary and Secondary Education Act, the Higher Education Act, or other Acts;

(c) Facts of recognition;

(1) The Defendant selected and commissioned four professors working at 00 universities at free will to set up a total of four questions per professor respectively, and implemented the instant examination.

(2) Since then, the questions written by the examinees were divided by each paragraph, and the questions were compiled into four pages so that only the part of the answers can be seen as having whole the human resources of the examinees, and the questions were delivered to the professors. The examiners did not separately prepare the marking criteria and reported the answers of the examinees only for the matters paid by them, and then signed a confirmation on the " braille column" with the marking mark of the "in braille column of the second-class general subject, which is bound on the second-class page of the answer sheet, with the mark of the "in braille column, which is bound on the second-class page of the answer sheet."

(3) After that, the Defendant’s staff-in-charge signed the marking points written in the margin of the answer sheet on the second side of the answer sheet, which are bound on the second side of the second place of the answer sheet, to “the second day of the answer sheet” column.

[Grounds for recognition] The purpose of the whole legal theory as a result of the court's perusal and examination of the answer sheet of the instant case in private disclosure

D. Determination

(1) Whether there is a marking sheet by point of issue in the list 3, such as the grading criteria by door or issue of the management university listed in the attached list 1

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, it is sufficient to prove that there is a considerable probability that a person seeking the information disclosure will hold and manage the information that the person seeking the information disclosure holds and manages by the administrative officer.

However, there is no interest in a lawsuit seeking revocation of a disposition rejecting the disclosure of information, unless there is a special reason to the public institution that does not hold and manage the information (see Supreme Court Decision 2003Du9459, Jan. 13, 2006). As seen in the above facts, four professors who prepare and give the examination of this case externally and do not prepare the marking criteria for each text and issue points in the document, etc., and then give the relevant questions to them and enter them only in the general score, and accordingly, the Defendant’s officials in charge of this case set up the grading points only for the admission situation. Accordingly, the Plaintiff’s officials in charge of this case did not have any interest in the Plaintiff’s claim for revocation of the disclosure of information because the Plaintiff did not have any interest in the Plaintiff’s claim for revocation of the disposition of disclosure of information because it did not have any interest in the Plaintiff’s claim for revocation of the disposition.

(2) Whether a disposition rejecting the disclosure of information on a copy of the Plaintiff’s answer sheet (where the marking details are indicated, as indicated) listed in the attached Table 2 is legitimate

(A) As a content of the right to know in the modern society, the active right to information disclosure that can be requested by the general public to disclose information in its management and possession to the public institutions is the fundamental request of the Constitution that is based on the principle of sovereignty of the people that all the information acquired and seen by the government organized by the election of the people is a citizen and should be disclosed to the public in principle under the Constitution that takes the principle of sovereignty of the people, and is the Cheong-gu fundamental right directly based on the Constitution (see, e.g., Constitutional Court Order 8HunMa2, Sept. 4, 1989; Constitutional Court Order 90HunMa133, May 13, 1991).

In this regard, Article 2 subparagraph 1 of the Act provides that "information" means documents, drawings, photographs, films, tapes, slidess, and media, etc. that are prepared or acquired and managed by a public institution in the course of performing its duties, and Article 3 provides that "information held and managed by a public institution shall be disclosed as prescribed by this Act" under the title of "the principles of disclosure of information". Article 5 (1) provides that "all citizens shall have the right to request disclosure of information." Since it is apparent that "information prepared in the course of applying for the examination of this case for the execution of the defendant who belongs to a public institution is "the prescribed legal information prepared in the course of applying for the examination of this case by the public institution," the plaintiff may request the defendant to submit copies of the copy, unless there is any special reason to justify the defendant's refusal to disclose information.

(B) However, Article 9(1)5 of the Act provides that information pertaining to testing (hereinafter referred to as "testing information") which, if disclosed, has considerable grounds for remarkably obstructing the fair performance of the business shall not be disclosed. Here, the legislative intent of allowing that the fair performance of the business may not be disclosed when disclosed as a test notice, such as the nature and contents of the test and the review information, the nature and contents of the test, the increase in the business due to the disclosure of the contents and the disclosure thereof, and the ripple effect on the disclosure, etc. shall be determined individually (see Supreme Court Decision 200Du6114, Mar. 14, 2003, etc.).

In light of the fact that the plaintiff's request for delivery of a copy of the answer sheet of this case can be issued to the applicant, the court below's decision that held that the issuance of a copy of the answer sheet of this case can be somewhat hindered in the performance of the examination because of the difference between the applicant's answer sheet of this case and the person who failed to pass the examination or the person who failed to pass the examination due to the result of the examination of this case can not be deemed to have been rejected due to the result of the examination of this case's failure or the result of the examination of this case's refusal of delivery of a copy of the answer sheet of this case's refusal to pass the examination of this case's refusal to pass the examination of this case's refusal to pass the examination of this case's refusal to pass the examination of this case's refusal to pass the examination of this case's refusal to pass the examination of this case's refusal to pass the examination of this case's refusal to pass the examination of this case's refusal to pass the examination of this case's refusal to pass the examination of this case's refusal to pass.

(C) However, the Plaintiff is seeking to make a copy of the answer sheet and deliver it as indicated, but if it is not indicated in the Plaintiff’s answer sheet, it is highly likely that there is a side effect, such as identifying the number of professors who are employed professors through the body of the number recorded in the Plaintiff’s answer sheet, and finding out the scores and marks of professors who are ordinarily low, by finding out the number of professors who are employed professors through the body of the number indicated in the answer sheet, and thereby evading the preparation and marks of the problem, making it difficult for the Plaintiff to ask for the questions and marks as well as making it difficult for the examination at the time of frequent marking of the result:

The fair performance of the test is likely to undermine the fair performance of the test process by making a false payment of only the problems in the problem selection system, and giving an indemnite score. Therefore, the grading records of grading professors stated in the Plaintiff’s answer sheet are prohibited from being disclosed (the disadvantage of grading professors arising from the non-disclosure of grading results written in the Plaintiff’s answer sheet can be resolved by the disclosure of grading results as follows).

(D) Therefore, this part of the Plaintiff’s assertion is justified within the scope of the above recognition.

(3) Whether a disposition rejecting the disclosure of information on the marking table by the Plaintiff’s door indicated in the attached list 3 is legitimate or not

(A) As seen earlier, the examination of this case only included the points given by four professors directly on the margin of the answer paper while putting four questions in each of the four questions, and directly putting them in the answer paper, and there is no marking sheet by examinee prepared by grading professors because they did not cross-grade, etc. However, since the Defendant’s staff-in-charge has transferred the grading points on the margin of the answer paper prepared by grading professors for the entrance examination, it shall be deemed that there exists such time limit data, and the answer paper kept even without any survey history can be reported and arranged easily by the text. The Plaintiff’s request for the marking of the Plaintiff’s door to him by the instant lawsuit is based on the mark of the Plaintiff’s answer paper prepared by him, i.e., the Plaintiff’s request for the marking of the mark paper on him, and thus, the Plaintiff’s request for the marking of the Plaintiff’s explanation sheet to the effect that the Plaintiff’s public notice notice of the decision to reject the Plaintiff’s marking paper should be considered as the result of the examination of this case.

(B) However, since (i) marking marks by the door of the answer prepared by the Plaintiff fall under the matters related to the tests provided for in Article 9(1)5 of the Act, disclosure shall be permitted only to the extent that it does not seriously impede the fair performance of the work.

However, as seen earlier, if the mark of each type of examination is disclosed along with a copy of the answer sheet, on the one hand, it is possible for professors with psychological pressure to evade the examination, so that there is no concern that the results of the examination might be undermined, but the disclosure of the mark of each type of examination to a certain extent, together with a copy of the answer sheet, may enhance fairness and objectivity of grading examination, and ultimately prevent any dispute over the examination, the defendant may not only reduce the costs required for the examination as a whole, but also increase the credibility and authority of the examination before and after the examination because there is no possibility that the examination results of the examination might be conducted by 4 questions each paid by each professor, and because the examination of this case does not give an intersection mark, it is not likely that the result of the examination of this case might be conducted by 2nd class or 3 second class marks, such as the examination sheet.

(C) Therefore, this part of the Plaintiff’s assertion is with merit.

3. Conclusion

Therefore, the part of the claim for revocation of a disposition rejecting information disclosure on the marking table by point among the information listed in the separate sheet 1 among the instant lawsuit is unlawful and dismissed. The part of the claim for revocation of a disposition rejecting information disclosure on the marking table by point among the information listed in the separate sheet 3 of the same list as the claim for revocation of a disposition rejecting information disclosure on the information listed in the separate sheet 1 of the instant lawsuit of this case is dismissed, and the part of the claim for revocation of a disposition rejecting information disclosure on the marking table by door among the information listed in the separate sheet 2 of the same list 3 of the same list is justified, and the part of the claim for revocation of a disposition rejecting information disclosure on

Justices Kim Jong-hwan

Judges Park Chang-soo

Judges Park Sung-sung

List

Plaintiff (00 University No. 0000 - School No. 000000) applied on January 24, 2006 in relation to the pre-qualification examination for the implementation of 00 universities in 00 universities.

1. Criteria for grading by door or door of 00 university and by essay point;

2. A copy of the plaintiff's answer sheet (where the marking details are indicated, it shall be indicated);

3. The plaintiff's marking table by the plaintiff's door and by point of issue;

All copies and outputs of the documents, etc. shall be closed.