정보공개소송에서의 쟁점

Issues in Freedom of Information Act Litigation

As a general rule, the information maintained by a public agency shall be available to public. However, such disclosuremay be denied under certain circumstances. When an agency decides not to disclose the information that is not subject to any of the specific exceptions to the general rule, the general public’s right to know is infringed. Accordingly, there shall be remedial procedures for such refusals. Moreover, there can be instances where certain disclosures may interfere with a third-party’s interests as they can reveal his or her privacy or trade secrets. For such instances, a legal device should be developed so as for the third-party to prevent the disclosures, including an opportunity to be heard in the process of disclosure determinations. The main remedial procedures either to protest refusals to disclose or to obtain relief from disclosures are the protest filings, the administrative proceedings, and the judicial administrative actions, the judicial actions presumably being at the center. The judicialactions involving the determinations for disclosure or non-disclosure shall be more focused than general administrative actions on balancing the two conflicting interests－the interest of having the relevantinformation timely and the interest of protecting private information. For the interest for having the timely information, we should consider introducing: (1) litigation mechanism for enforcement, (2) jurisdiction based on the plaintiff’s residence, and (3) preliminary injunctions. A legislative supplementation, authorizing indirect enforcement even with no enforcement decree, is needed to deal with the cases where an agency has decided to disclose, yet does not carry out the decision. On the other hand, since there can be irreparableinjuries arising out the disclosed information, a judicial stay shall be introduced as a preliminary remedy. Also, there is need for the introduction of preemptive action for non-disclosure order as a core proceeding. Specifically, since the preliminary injunction system against non-disclosure determinations and the judicial stay of disclosure conflict with each other with competing interests, there should be sufficient consideration anddiscussions on the needs and the requirements in the legislative process.