The Supreme Administrative Court rendered the 107-Pan-98 Decision of February 26, 2018 (hereinafter, the “Decision”), holding that an administrative agency which refuses to provide government information is required to indicate the legality for the refusal, and the court shall also examine such government information in whole or in part to determine if the refusal of such administrative agency to provide government information is lawful.
According to the facts underlying this Decision, the Plaintiff was the criminal accused in the case at issue, which became final when the prosecutor rendered a non-prosecutorial disposition and rejected the reconsideration application. The Plaintiff further applied to review the files of the case at issue. The Defendant issued a letter to communicate that since this case involved the Civil Servants Election and Recall Law and the materials contained in the case files related to the privacy of others, the case files should not be provided pursuant to law and the application was rejected. Dissatisfied, the Plaintiff brought this administrative action. The original decision was rendered to compel the Defendant to accept the Plaintiff’s application by rendering an administrative disposition to allow the Plaintiff to copy the portions of the investigation transcripts of the Bureau of Investigation, the transcripts of the prosecutor’s interrogation and wiretap transcripts in the case at issue which were relevant to the Plaintiff. Dissatisfied, the Defendant filed this appeal.
According to the Decision, all government information is controlled by administrative agencies. When refusing to provide government information, an administrative agency is required to indicate the legality for such refusal. When judicially examining a public matter involving government information, an administrative court is required to examine the government information in whole or in part in order to determine the existence of the government information for which a party has applied and the legality of the administrative agency’s refusal to provide such government information.
Moreover, according to the Decision, the original trial court failed to order the Defendant to provide the case files for the case at issue to determine the actual existence of information pertaining to the Plaintiff in the transcripts of the Bureau of Investigation, the transcripts of interrogation by the prosecutor and wiretap transcripts for the case at issue for which the Plaintiff had applied to copy and to ascertain if there was absolutely no issue or difficulty under the principle of separation set forth in Article 18, Paragraph 2 of the Freedom of Government Information Law. Instead, the original trial court directly concluded, that although there was information about another defendant and other criminal investigation information in the files for the case at issue, the information about the interrogation of another defendant and other information about the prosecutor’s criminal investigation could betechnically isolated and redacted, and it was factually feasible to provide for duplication only the portion relating to the Plaintiff in the investigation transcripts of the Bureau of Investigation, the interrogation transcripts of the prosecutor and the wiretap transcripts. Sincesuchredacted version ofinformation only contained Plaintiff’s answers to the inquiry and wiretapstranscripts relating to the Plaintiff personally,which did not include information about criminal investigation of others, the original trial court held that this certainly did not raise any concern about any violation of the Personal Information Protection Law, and the application should certainly be granted pursuant to the gist under Article 18, Paragraph 2 of the Freedom of Government Information Law. The reasoning of the original decision was certainly flawed for insufficiency of grounds in violation of Articles 125 and 133 of the Administrative Litigation Law. In addition, the “wiretap transcripts” pertained to the Plaintiff’s conversations with others and could even involve other third parties. Whether the redaction and isolation method adopted in the original decision was feasible should be prudently considered with specific reasons provided. Since the original decision was inappropriate for its failure to request the Defendant to provide the case files for the case at issue and examine and verify the above matters ex officio before concluding the Plaintiff prevailed, the original decision was reversed and remanded.