정보공개소송에서의 쟁점

• 영문명: Issues in Freedom of Information Act Litigation
• 발행기관: 전남대학교 법학연구소
• 저자명: 이철환(Lee Cheol Whan)
• 간행물 정보: 『법학논총』제28권 제1호, 441~467쪽, 전체 27쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2008.06.30

영문 초록

As a general rule, the information maintained by a public agency shall be available to public. However, such disclosuremay be denied under certain circumstances. When an agency decides not to disclose the information that is not subject to any of the specific exceptions to the general rule, the general public’s right to know is infringed. Accordingly, there shall be remedial procedures for such refusals. Moreover, there can be instances where certain disclosures may interfere with a third-party’s interests as they can reveal his or her privacy or trade secrets. For such instances, a legal device should be developed so as for the third-party to prevent the disclosures, including an opportunity to be heard in the process of disclosure determinations. The main remedial procedures either to protest refusals to disclose or to obtain relief from disclosures are the protest filings, the administrative proceedings, and the judicial administrative actions, the judicial actions presumably being at the center. The judicialactions involving the determinations for disclosure or non-disclosure shall be more focused than general administrative actions on balancing the two conflicting interests－the interest of having the relevantinformation timely and the interest of protecting private information. For the interest for having the timely information, we should consider introducing: (1) litigation mechanism for enforcement, (2) jurisdiction based on the plaintiff’s residence, and (3) preliminary injunctions. A legislative supplementation, authorizing indirect enforcement even with no enforcement decree, is needed to deal with the cases where an agency has decided to disclose, yet does not carry out the decision. On the other hand, since there can be irreparableinjuries arising out the disclosed information, a judicial stay shall be introduced as a preliminary remedy. Also, there is need for the introduction of preemptive action for non-disclosure order as a core proceeding. Specifically, since the preliminary injunction system against non-disclosure determinations and the judicial stay of disclosure conflict with each other with competing interests, there should be sufficient consideration anddiscussions on the needs and the requirements in the legislative process.

목차

Ⅰ. 머리말

Ⅱ. 비공개결정에 대한 행정소송

Ⅲ. 정보공개결정에 대한 제3자의 구제절차

Ⅳ. 맺는말

키워드

정보공개 알 권리 공공기관의정보공개에관한법률 비공개결정 정보자유법(FOIA) 인 카메라(In Camera) 심리 역정보공개소송(reverse FOIA suit) Disclosure of Information Freedom of Information Act Determination of Non-Disclosure In Camera Review Reverse FOIA Suit