Access to Public Information
Dotcom Trading 121 (PTY) Ltd v. King
Closed Contracts Expression
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The Seoul Administrative Court held that local government officials are not entitled to request public information under the access to information law in their official capacity. As such, they do not qualify as “people” entitled to access government information under the law.
This case analysis was contributed by Right2Info.org.
On 28 January 2005, the Ward of Songpa, head of the local government, requested information from the Seoul Election Commission (Commission) on a report that the Ward had violated the Public Officials Election Act when hosting an event in honor of elderly people. Specifically, the Ward wanted to know what had led the Commission to suspect the Ward of a violation of the election law.
The Commission rejected the request, claiming that the Public Official Elections Act prohibits disclosure of the requested information in order to protect those who confidentially report on election-related crimes (articles 262-2), and thus the information is exempt from disclosure under the Official Information Disclosure Act (OIDA) (article 9(1)1).
The Ward appealed to Seoul Administrative Court on two grounds: (1) even if a portion of the requested information is exempt from disclosure, the Commission must separate the exempt portion of the information from the non-exempt portion, and release the non-exempt portion; and (2) the Commission’s vague denial of the request for the information violated the right to information (RTI) law.
The Court held that the legal basis for the request – the OIDA – did not apply to the Ward because the Ward was acting in his official capacity. The Court explained that the RTI law protects the right to know, which is derived from fundamental principles of people’s sovereignty, human dignity, pursuit of happiness, and right to live as a human being, and is included in the freedom of expression the Constitution guarantees as a basic right (Constitutional Court, 88 Honma 22, Sept. 4, 1989).
However, the Ward, acting as a local government institution, is fundamentally the subject of public authority in charge of local administration under the Constitution. The conflict between the local government and the central or other public institutions, therefore, does not concern the basic rights guaranteed by the Constitution, rather it is a matter of hierarchy.
Because the local government institution is not premised on the “natural rights of character,” the RTI law does not recognize it as the “people,” and it does not enjoy the same rights as the people, including the right to know and the associated right to access government information.
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