검사의 불기소사건기록에 대한 정보공개를 둘러싼 법적 쟁점 ― 대법원 2012. 6. 18. 선고 2011두2361 전원합의체 판결 ―

This paper includes critical comments on the decision of the Supreme Court Justices' Council made on June 18, 2012 for the case No. 2011-DU-2361. As the information held by a public agency is characteristic of public goods in the information society, its importance goes without saying. On the other hand, indiscreet disclosure and circulation of private information may result in injury to a third party's honor or rights. Accordingly, information may be called a ‘double-edged sword’. Critical issues to be commented on the decision of this case may be focused on whether to allow disclosure of other information than personal information in the investigation records of the non-prosecution case including protocol of examination of a suspect and protocol of statement of a witness, and if allowed, to what degree. In connection with the scope of allowing the investigation agency not to disclose information for the non-prosecution case, it is considered that the decision of this case to be commented did not limit the scope of personal information protection only to the personal identification information but deliberately consider contents of other information and include even the information infringing on individual privacy and freedom in the scope in order to more strongly protect individual privacy than the public rights to know. In this aspect, the decision to be commented may be evaluated forward-looking in the viewpoint of protection of personal rights and privacy of the suspect of non-prosecution case against any indiscreet request for information disclosure. On the other hand, it may be pointed out as another issue that public prosecutor may voluntarily expand the scope of non-disclosure of its investigation record on the pretext of protection of a third party's personal information. To avoid this issue, it is desirable to allow information disclosure for the purpose of remedy of personal rights even for the investigation record of non-prosecution case, in the event that a third party agrees to disclose its information or any private information cannot be identified in combination with other information, in which infringement on privacy or personal freedom may not be caused. Furthermore, in future, if public prosecutor does not disclose information of investigation record for non-prosecution case, the defending administrative agency is required to be given the burden of proof and also the system is required to be complimented for obtaining opinion or consent from the concerned third party before the investigation agency decides non-disclosure on the pretext of protection of private information.