정보공개에서 정보 부존재의 법적 쟁점

Abstract

The purpose of this article is to review various issues related to information and the non-existence of information, which are problematic in the practice of public administration and litigation of Official Information Disclosure Act. There has been a conventional situation in which information requested for disclosure is not kept and controlled by public institutions. Before and after the Enforcement Decree of the Official Information Disclosure Act in 2011, the direction of processing the non-existence of information changed. Previously, the non-existence of information was treated as a non-legal (out-of-law) reason for non-disclosure decisions and placed within the framework of the Official Information Disclosure Act. Since then, it has been able to treat as civil petition affairs. The Official Information Disclosure Act targets “information kept and controlled by public institutions”, and the term ‘information’ means matters recorded in documents (including electronic documents) and other media corresponding thereto that are made or acquired, and managed by public institutions for the performance of their duties. The non-existence of information refers to a state in which information requested to disclose by the claimant is not kept and controlled by a public institution. Regarding the practice of processing the non-existence of information, efforts are needed to clarify the meaning and scope of information collection and processing. In addition, an institutional means that can ensure compliance with the procedures required by the Official Information Disclosure Act (notification of the reason for the non-existence of information, transfer to information holding and managing agencies, etc.) should be supplemented. Fundamentally, legal and institutional efforts should be premised to solve the problem of absence of records due to loss, damage, neglect, unauthorized destruction, misclassification, and downward revision of the preservation period. If a public institution does not hold or manage information requested to disclose by the claimant, it is the established precedent of the our courts to dismiss the lawsuit because there is no legal interest in seeking cancellation of the disposition for refusal to disclose information, unless there are special circumstances. The notification of the non-existence of information is a disposition in substance that refuses to disclose information on the grounds of the non-existence of information, so the disposition thereof may be recognized. In light of the fact that the right to request information disclosure is a specific right protected by law, there is no problem in recognizing the claimant's eligibility for the plaintiff. The court's perception of the non-existence of information as a reason for dismissal from the perspective of the necessity of protecting rights, that is, the benefit of consultation, needs to be reviewed. As long as the general right to request information disclosure is recognized by all citizens under the Constitution and the Official Information Disclosure Act, the main hearing should naturally be allowed for all the judgment of public institutions on the request for information disclosure. In the information disclosure lawsuit, not only the judgment on whether to be subject to disclosure on the premise of the existence of information, but also the dispute over the existence and management of information as a premise. Issues should be reviewed, such as responsibility for proving the existence of information, specification of information through the ‘contents of information requested to disclosure’ stated by the claimant in the information disclosure request form, transforming the form of information and the scope of search and editing, related to the method of disclosure of information, obligation to hold and manage target information in accordance with a request for disclosure of information recorded in a medium that exists for a short period of time, and whether to recognize the obligation to create, restore, and process information to public institutions.