What Must a Public Institution Prove to Refuse Disclosure of Information: Specific Proof of Grounds for Non-Disclosure, Impairment of Fairness by Disclosure of Meeting Minutes, and the Manifest Nature of an Abuse of Rights

Question

In major cases, an information disclosure claim is one of the few avenues for obtaining evidence outside litigation. Whether investigative records, committee meeting minutes, and internal review documents are disclosed changes the evidentiary terrain of the ensuing criminal, administrative, and civil proceedings; accordingly, when a public institution refuses disclosure, the question of what grounds and what proof that refusal must rest upon becomes the issue that decides the outcome.

Article 3 of the current Official Information Disclosure Act (hereinafter the "Official Information Disclosure Act") provides that public institutions shall actively disclose information they hold and manage in accordance with what this Act prescribes, and Article 5 (1) grants every citizen the right to claim the disclosure of information. Article 9 (1) provides that information held and managed by a public institution is subject to disclosure, while providing that information falling under any subparagraph of the proviso may not be disclosed. The structure of principle and exception is thus already contained in the text.

This article asks three questions. First, to what extent must a public institution specifically assert and prove the grounds for non-disclosure? Second, by what standard does material that does not fit the text squarely, such as minutes from after a decision has been made, become subject to non-disclosure? Third, even where no grounds for non-disclosure exist, may a claim itself be refused on the ground that it is an abuse of rights; if so, where is that threshold?

The three judgments were rendered on the basis of statutes in force at different points in time. The two decisions of 2003 address former Article 7 (1), which corresponds to current Article 9 (1), while the 2014 decision addresses former Article 9 (1) as it stood before the amendment of August 6, 2013. This article reads the judgments on the basis of the statutes in force at the time of the conduct, and notes the correspondence with current Article 9 only to the extent that the texts can be compared.

Material to check

The first material to examine is the refusal disposition itself. Verify which subparagraphs of Article 9 (1) the public institution cited when notifying its decision not to disclose, how the reason for citing that subparagraph is connected to which part of the information, and whether the notice stopped at general phrases such as that an investigation is ongoing or that personal information is included. What Supreme Court Decision 2001Du8827 took issue with was precisely this generality; accordingly, the wording of the disposition is both the starting point of the lawsuit and the standard defining the scope of the grounds for the disposition.

Next, look at the disclosure claim and the degree to which the subject of the claim is specified. Whether the claimant sought which documents within which scope, and whether the claim was limited to portions excluding the personal information of others, connects to the subsequent determination of partial disclosure. Current Article 14 provides that where portions subject to non-disclosure and portions available for disclosure are mixed and the two can be separated to the extent not contrary to the purpose of the claim for disclosure, the portions subject to non-disclosure shall be excluded and the rest disclosed.

Third is the change in the assertions put forward by the public institution during the lawsuit. If the subparagraphs cited at the time of the disposition differ from those newly raised in the lawsuit, whether the two grounds are the same in their basic facts becomes a separate issue. It is necessary to organize chronologically how and when the grounds were added in the answer and the briefs.

Fourth is material showing the nature of the information itself. If it is minutes, look at whether the meeting was held for a certain decision-making purpose and whether that decision has already been made, and whether the content of statements and the personal details of speakers are recorded separately. If it is investigative records, verify whether the case has been concluded, whether it is after a decision not to indict, or whether trial is ongoing.

Fifth is the circumstances under which the claimant made the claim. Because a determination of abuse of rights concerns the claimant's purpose, objective circumstances such as whether the same claimant has repeated similar claims and lawsuits, and how the claimant used the procedure for fixing litigation costs after prevailing, serve as material. However, since this material is usually placed before the court only where the public institution asserts it, record together who submitted which material.

Finally, check the detailed standards for non-disclosure. Current Article 9 (3) requires a public institution to establish detailed standards for non-disclosure within the scope of each subparagraph of paragraph (1) and to disclose them through the information disclosure system and other means. Since the detailed standards are criteria set by the public institution itself, they must be read with a distinction as to whether they serve as grounds for broadening the statutory grounds for non-disclosure or merely as material for confirming the scope of each subparagraph of paragraph (1).

Possible readings

The first reading is one that places the burden of proof strictly on the public institution. The Summary of Decision in Supreme Court Decision 2001Du8827 states that the public institution must specifically examine and review the content of the information and assert and prove which portion conflicts with which legal interest or fundamental right; under this reading, if neither the disposition nor the litigation assertions connect grounds to each portion of the information, the refusal disposition is itself unlawful.

The second reading is one that views the degree of proof differently according to the nature of the information. As for information such as investigative records or decision-making materials whose content is difficult to lay bare in court as it stands, there is room to consider it sufficient for the public institution to specifically describe the type of information and the risks of disclosure. However, insofar as the Summary of Decision expressly stated that a refusal cannot rest on general grounds alone, this reading too must separately indicate where the line between general and specific explanation is drawn.

The third concerns the scope of subparagraph 5. Supreme Court Decision 2002Du12946 held that the enumeration in subparagraph 5 is illustrative and that, accordingly, minutes from after a decision has been made may also be included among information subject to non-disclosure as matters equivalent to matters in the decision-making process. Read broadly, this makes all internal material after a decision a candidate under subparagraph 5; read narrowly, only material that passes the high degree of probability and the balancing of interests required by the same decision becomes non-disclosable.

The fourth is the relationship with the proviso to current subparagraph 5. The proviso to current Article 9 (1) subparagraph 5 provides that where information is withheld on the ground of a decision-making process or internal review process, the stage and the scheduled date of completion shall be notified, and that the claimant shall be notified once the process is completed. Views may diverge between reading this proviso as a signal that disclosure is the principle after completion of the process, and the view that it merely adds a duty of notification while the legal principle of Supreme Court Decision 2002Du12946 regarding the possibility of withholding material after completion remains unchanged.

The fifth is the scope of adding or changing grounds for a disposition. Supreme Court Decision 2001Du8827 held that there was no identity in the basic facts between the original grounds under subparagraphs 4 and 6 and the newly added ground under subparagraph 5. There may be a view reading this as a standard that where the subparagraphs differ, identity is in principle absent; it is also possible to hold that where the same facts are shifted to a different legal characterization, identity may remain even if the subparagraphs differ. Because the Summary of Decision turns on whether the social facts are identical in their basic respects, the latter possibility is not closed by the text.

The sixth is the threshold for abuse of rights. Supreme Court Decision 2014Du9349, premised on broad allowance in principle, barred a claim only where the abuse is manifest, as in cases of seeking to obtain undue gains with no intention whatsoever of acquiring or utilizing the information, or seeking disclosure solely for the purpose of harassing the public official in charge. Read narrowly as an exception, it is insufficient that a different motive is mixed into part of the purpose of the claim; read broadly, where the circumstances of repeated claims and the use of the litigation cost procedure have accumulated, abuse may generally be inferred.

What the decisions held

Supreme Court Decision 2001Du8827, decided December 11, 2003, answered in the negative the question whether a public institution may refuse disclosure by citing only general grounds without asserting and proving the grounds for non-disclosure. The Summary of Decision stated that the public institution "must assert and prove, after specifically examining and reviewing the content of the information in question, which portion conflicts with which legal interest or fundamental right and thus falls under the grounds for non-disclosure prescribed in any subparagraph of Article 7 (1) of the Act," and that refusing disclosure on general grounds alone without reaching that point is not permitted. The same decision, as to the addition or change of grounds for a disposition, stated that "even where an added or changed ground existed at the time of the original disposition and the parties knew of that fact, the ground having merely not been stated at the time of the disposition, it cannot be said to be identical to the original grounds for the disposition," and held that the original grounds under subparagraphs 4 and 6 and the newly added ground under subparagraph 5 lacked identity in their basic facts. The disposition of the judgment was to reverse the judgment of the court below and remand the case to Seoul High Court.

Supreme Court Decision 2002Du12946, decided August 22, 2003, as to the enumeration in former Article 7 (1) subparagraph 5, held that "it is an illustrative enumeration of information subject to non-disclosure," and therefore that meeting-related materials or minutes provided in the decision-making process may, even after the decision has been made or executed, be included in information subject to non-disclosure as matters equivalent to matters in the decision-making process. As to what constitutes a case where there is a substantial reason to recognize that it would cause a significant impediment to the fair performance of duties, the decision stated that "it means a case where there exists a high degree of probability that, if disclosed, the fair performance of duties would be objectively and significantly impeded," and that whether this is the case "must be carefully determined on the facts of the specific case by comparing and weighing the interests protected by non-disclosure, such as the fairness of the performance of duties, against the interests protected by disclosure, such as the right to know, participation in state affairs, and transparency in the administration of state affairs." The decision held that the portions of the minutes of the School Environment and Hygiene Sanitation Committee containing the personal details of speakers fall within information subject to non-disclosure, and dismissed all final appeals.

Supreme Court Decision 2014Du9349, decided December 24, 2014, held that a citizen's claim for information disclosure "must in principle be broadly allowed, unless it falls under information subject to non-disclosure prescribed in Article 9 of the Official Information Disclosure Act," but that "where it is clear that the exercise constitutes an abuse of rights, as in cases of seeking to obtain undue gains with no intention whatsoever of acquiring or utilizing the information, or claiming solely for the purpose of harassing the public official in charge, it is right not to permit the exercise of the right to claim information disclosure." In a case where a claimant serving a prison sentence sought, from the investigative records of a case in which no indictment was filed, the portions excluding the personal information of others, the Summary of Decision treated the claim as an abuse of rights on grounds including that there is great room to consider that the claimant sought the claim not to gain access to information but for purposes such as monetary gains through the procedure for fixing litigation costs or the avoidance of forced labor through attendance at defense hearing dates. The disposition of the judgment was to reverse the judgment of the court below insofar as the defendant lost, and to remand the case to Seoul High Court.

Practical checklist

Is a subparagraph of Article 9 (1) specified in the refusal disposition? If so, is it explained in the disposition or in the litigation assertions how that subparagraph is connected to which portion of the information? If there are only expressions such as investigation ongoing, inclusion of personal information, or impediment to duties, with no connection by portion, then examine whether such expressions fall under the general grounds described in Supreme Court Decision 2001Du8827.

Are the grounds asserted by the public institution during the lawsuit the same as those at the time of the disposition? If a new ground has been added, distinguish whether the original ground and the new ground are basically the same in the social facts prior to legal characterization, or whether they are separate grounds resting on different facts. Confirm together that no identity arises merely from the fact that the ground already existed at the time of the disposition and the parties knew of it.

If it is minutes or internal review material, has the decision-making already been completed; if so, has it been specifically described that there is a high degree of probability that disclosure would objectively and significantly impede the fair performance of duties? If there are separable portions such as the content of statements and the personal details of speakers, also look at whether partial disclosure under current Article 14 has been considered.

If an assertion of abuse of rights is raised, is its basis objective circumstances concerning the claimant's purpose, or does it stop at indirect circumstances such as the frequency of claims or the claimant's status? What Supreme Court Decision 2014Du9349 requires is that the abuse be manifest; therefore, separately note what material supports the point that there is no intention whatsoever of acquiring the information.

Glossary

Information subject to non-disclosure: information falling under any subparagraph of the proviso to Article 9 (1) of the current Official Information Disclosure Act that a public institution may decline to disclose. The subparagraphs are divided into secrets under statutes or delegated orders, national security and the like, matters relating to trials and investigations, audit and decision-making processes and the like, personal information, business secrets of corporations and others, and information raising concerns of speculation.

Addition or change of grounds for a disposition: the asserting, in an action for revocation, of grounds not raised at the time of the disposition as the basis for the disposition during the lawsuit. Precedent permits this only to the extent that the original grounds are identical in their basic facts, and finds its rationale in guaranteeing the right of defense of the counterparty to the disposition and in protection of legitimate expectations.

Matters equivalent to those in the decision-making process: an expression used in the judgment referring to information that, although the decision has already been made or executed so that it is no longer itself a matter in the decision-making process, may by its nature be treated as equivalent thereto, such as materials provided to that process or minutes recording the process.

Manifestness of abuse of rights: where it is clear that the exercise of the right to claim information disclosure arises from an undue gain or a purpose of harassing public officials, unrelated to the acquisition or utilization of information. Supreme Court Decision 2014Du9349 placed this as an exception to the principle of broad allowance.

Sources and limitations

The statutory text was verified on October 16, 2026 against the original texts of Articles 1, 3, 5, 9, and 14 of the current Official Information Disclosure Act and Articles 19 and 26 of the Administrative Litigation Act on the National Law Information Center. Because the original text of the current Official Information Disclosure Act renders the middle dot as a different character, in this article it has been transcribed using the middle dot of the same meaning.

The judgments were addressed only within the scope of the Holdings, the Summary of Decision, and the disposition of the judgment in the original texts of the judgments on the National Law Information Center. Since the full text of the reasons for judgment, the judgments of the court below, and the detailed facts of the cases were not verified, no facts or party assertions absent from the Summaries of Decision have been recorded.

The original texts of former Article 7 (1), addressed by the two decisions of 2003, and of former Article 9 (1) as it stood before the amendment of August 6, 2013, addressed by the 2014 decision, were not separately collated in this article. The textual differences between the former provision and each subparagraph of current Article 9 can only be conjectured within the scope quoted in the Summaries of Decision; therefore, when applying them to a case, the original text of the statutes in force at the time of the conduct must be checked directly.

Points left open

Whether specific assertion and proof are possible only by revealing the content of the information to the court, or whether it is sufficient to describe the type and risks of the information, is not clear from the Summaries of Decision alone. Whether there exists a procedure by which the court inspects the information withheld from disclosure, and what effect that procedure has on the degree of proof, remains an issue of statutory text not verified in this article.

It remains an open question whether the legal principle of Supreme Court Decision 2002Du12946 concerning equivalent matters continues to be maintained at the same breadth even after the proviso to current subparagraph 5 came to require notification after the completion of the decision-making process. The duty of notification and the possibility of non-disclosure are logically compatible, but there is also room to read it as indicating that the legislature intended disclosure to be the principle after completion.

The abuse of rights legal principle of Supreme Court Decision 2014Du9349 arose in the context of repeated claims by a person serving a prison sentence. How far this legal principle extends to claims whose purpose is itself aligned with the acquisition of information, as where the press, civic organizations, or parties to a lawsuit claim in order to obtain evidence in other lawsuits, is not answered by the Summary of Decision.

It also remains open whether identity is always denied where the subparagraph changes in the addition or change of grounds for a disposition. Supreme Court Decision 2001Du8827 denied identity between subparagraphs 4 and 6 on the one hand and subparagraph 5 on the other only in a specific case; accordingly, the standard for cases of moving between adjacent subparagraphs, such as personal information and business secrets, over the same facts awaits a separate determination.

When to reconsider

If the wording of each subparagraph of Article 9 (1) of the Official Information Disclosure Act, especially subparagraphs 4 and 5, or Articles 9 (3) and (4) concerning detailed standards for non-disclosure, is amended, the interpretive branches of this article will be re-examined. The same applies where the provisions of the Administrative Litigation Act concerning grounds for a disposition or the provisions on examination by the authority of the court are changed.

If the Supreme Court renders new determinations concerning the scope of non-disclosure of material after the completion of decision-making, abuse of rights in claims for information disclosure, or identity in the addition or change of grounds for a disposition, what the court held will be added to that item within the scope of the Holdings and the Summaries of Decision, and the relationship with the existing three decisions will be recorded anew.

Statutes referred to

• 공공기관의 정보공개에 관한 법률 제1조, 제3조, 제5조, 제9조, 제14조
• 행정소송법 제19조, 제26조

Decisions referred to

• 대법원 2003. 12. 11. 선고 2001두8827 판결 · Decision ledger
• 대법원 2003. 8. 22. 선고 2002두12946 판결 · Decision ledger
• 대법원 2014. 12. 24. 선고 2014두9349 판결 · Decision ledger

Verification status

The cited provisions (Articles 1, 3, 5, 9 and 14 of the Official Information Disclosure Act and Articles 19 and 26 of the Administrative Litigation Act) were checked on 16 October 2026 against the current texts in the National Law Information Center. The cited judgments (Supreme Court Decision 2001Du8827 delivered 11 December 2003, Supreme Court Decision 2002Du12946 delivered 22 August 2003, and Supreme Court Decision 2014Du9349 delivered 24 December 2014) were checked against the holdings, summaries of judgment and operative parts of the original judgment texts in the National Law Information Center. The texts of the former provisions in force at the time of the judgments were not checked.