May a public agency withhold statements in an investigative record as information about personal matters? Supreme Court Decision 2011Du2361 (Full Bench) on 'the secrecy or freedom of private life'

Question

Article 9(1)(6) of the Public Agency Information Disclosure Act, as the decision quotes its wording, allowed a public agency to withhold 'information on personal matters included in the relevant record, such as name and resident registration number, which, if disclosed, is recognised as being likely to infringe the secrecy or freedom of an individual's private life', subject to listed exceptions, including information whose disclosure is recognised as necessary for the public interest or for the relief of an individual's rights. The question is how far that reaches beyond particulars that identify a person: whether the content of what a suspect or a witness said in an investigative record, once the personal details are removed, can itself be information of that kind.

Decision 2011Du2361 raises the question for a complainant who asked for disclosure of parts of the suspect interrogation records and statement records in a case he had reported and in which a decision not to prosecute was made, excluding the personal details of the suspect and others. The Chief Prosecutor of the Seoul Western District Prosecutors' Office refused disclosure under Article 9(1)(6). The Seoul High Court held that some of the withheld items were non-disclosable and the rest were not, and the Full Bench dismissed the prosecution's appeal.

Material to check

The statute is Article 9 of the Public Agency Information Disclosure Act. Its paragraph 1 provides that information a public agency holds and manages is subject to disclosure, but that information falling within each of the listed items need not be disclosed: item 3 covers information recognised as likely, if disclosed, to seriously hinder the protection of the life, body and property of citizens; item 6 covers information on personal matters such as name and resident registration number recognised as likely, if disclosed, to infringe the secrecy or freedom of private life, with exceptions in items (a) to (e), including item (c), information prepared or obtained by a public agency whose disclosure is recognised as necessary for the public interest or for the relief of an individual's rights. As read on 24 October 2026, item 6 is worded in terms of personal data within Article 2(1) of the Personal Information Protection Act, and the decision construed an earlier wording of the same item. The decision also cites Article 7(1)(6) of the Public Agency Information Disclosure Act in the version before its entire amendment by Act No. 7127 of 29 January 2004.

The decisions are the ones the judgment cites: Decision 2002Du1342 (26 December 2003) and Decision 2009Du14224 (29 October 2009), on deciding whether disclosure is necessary for an individual's relief of rights by weighing the private interest in non-disclosure against the interest in disclosure in the individual case; Decision 2001Du6425 (11 March 2003), Decision 2002Du1342 and Decision 2003Du8302 (20 August 2004), on the corresponding weighing where the public interest is relied on; Constitutional Court Order 2002Hun-Ma518 (30 October 2003), cited for the content of the constitutional secrecy and freedom of private life; and Constitutional Court Order 2007Hun-Ba25 (25 June 2009), cited for the presumption of innocence as a guiding principle of the whole criminal process.

Possible readings

The majority read Article 9(1)(6) in the light of the Act's amendment history, content and purpose together with the constitutionally guaranteed secrecy and freedom of private life. On that reading the provision covers not only the 'information identifying an individual', judged under the former Act by the format or type of the item such as name or resident registration number, but also, where the content of the information is examined concretely, information whose disclosure as a matter about a person would reveal intimate secrets and thereby risk causing difficulty to that person's inner life, personal and mental, or making a free private life impossible. Statements in a non-prosecution record other than the personal details of the suspect and others can therefore be non-disclosable where the concern under the provision is established.

Four Justices (Jeon Su-an, Lee In-bok, Lee Sang-hoon and Park Bo-young) took a different view in their separate opinion. In their reading the meaning and range of Article 9(1)(6) are no different from 'information on an individual which can identify a particular person by name, resident registration number or the like' under the former Article 7(1)(6). They reasoned that this fits the wording, the amendment's course and purpose, the view taken by earlier Supreme Court decisions, and harmony with related legislation, while protecting the public's right to know more fully. They agreed with the result in the case but not with the majority's reasoning.

Justice Ahn Dae-hee added a supplementary opinion to the majority. He assessed the amendment as a shift from deciding disclosure by the format and type of item, such as name, resident registration number, residence, contact details, occupation and age, to deciding it by the qualitative element of the substance of the information, that is, the risk to the secrecy or freedom of private life, and he explained the protection of the suspect's constitutional rights, the special character of interrogation and statement records, and the other means open to the person requesting disclosure. On a request under item (c) of the proviso to item 6, the decision repeats the earlier rule: the interest in protecting private life through non-disclosure and the interest in relieving an individual's rights through disclosure are weighed in the specific case.

What the decisions held

The Full Bench dismissed the appeal, with costs on the defendant. The majority held that Article 9(1)(6) covers, besides identifying particulars, information whose concrete content shows that disclosing a matter about a person would reveal intimate secrets and risk difficulty to that person's inner life or the loss of a free private life, and that statements in a non-prosecution record other than the personal details of the suspect and others fall within the provision where the concern to the secrecy or freedom of private life is recognised.

It then approved the ruling below, which the court below had adopted from the first-instance judgment. Among the items the defendant had refused to disclose, the resident registration number, occupation, address (residence or workplace address), domicile, criminal record and prosecutorial disposition, decorations and pensions, military service, education, career, family, property and monthly income, religion, membership of political parties and social organisations, state of health and contact details of the persons concerned, apart from their names, were matters about a person whose disclosure would reveal intimate secrets and thereby risk difficulty to their inner life or the loss of a free private life, and so were non-disclosable; the remaining personal information was not. The majority accepted that the court below's expression was in some respects inapt but held its conclusion right, and found no error in the law on non-disclosable information under Article 9(1)(6).

On the second ground of appeal, the majority held that whether information falls within Article 9(1)(3), that is, whether its disclosure is recognised as likely to seriously hinder the protection of the life, body and property of citizens, is for the deciding agency, here the defendant, to prove. The record contained no material showing that the information the court below ordered disclosed fell within that item, so the defendant's argument had to be rejected, and even if the court below erred in not expressly rejecting it, the error did not affect the result. The separate opinion agreed with dismissing the appeal but disagreed with the majority's reasoning; the reporting Justice was Ahn Dae-hee and the presiding Justice was Chief Justice Yang Sung-tae.

Points left open

The decision does not settle which contents of an investigative record count as 'matters about a person' at all. The separate opinion pressed exactly that point, saying the majority's range is unclear and, if a suspect's account of what he did to a victim is a matter about a person, there may be little that is not, so that every fact becomes a matter about a person. The majority answered only that statements other than personal details can be non-disclosable where the concern is recognised, and left the classification of particular statements undecided.

The decision also leaves open how its construction carries over to the wording now in force. As read on 24 October 2026, item 6 speaks of personal data within Article 2(1) of the Personal Information Protection Act rather than of 'information on personal matters, such as name and resident registration number', and the amendment history the majority and the separate opinion debated is that of the 2004 amendment rather than of the wording now in force. The decision does not say whether the difference alters the range it described, and the weighing under item (c) of the proviso remains to be done case by case.

When to reconsider

We revisit this brief if the Supreme Court states which parts of an investigative record are 'matters about a person' under Article 9(1)(6), if a later decision construes the item as now worded with reference to personal data under Article 2(1) of the Personal Information Protection Act, or if Article 9 of the Public Agency Information Disclosure Act is amended again.

Statutes referred to

• 구 공공기관의 정보공개에 관한 법률 제7조
• 공공기관의 정보공개에 관한 법률 제9조

Decisions referred to

• 대법원 2012. 6. 18. 선고 2011두2361 전원합의체 판결 · Decision ledger

Verification status

The texts read for this brief were the Full Bench judgment of 18 June 2012 in its published holdings, summary and reasons, and the current text of Article 9 of the Public Agency Information Disclosure Act, all read at the National Law Information Center on 24 October 2026. Article 7 of that Act is a former version whose current text was not read, and the cited decisions are taken as the judgment reports them.