The South Korean Constitution protects freedom of speech and the press of all citizens, without specifically referring to the right to information. The Constitutional Court ruled in 1989 that there is a constitutional right to information as an aspect of the right of freedom of expression. The court affirmed that there is a right to request disclosure of information held by the administrative agencies and that the government is obliged to comply with legitimate requests for information and emphasised that specific implementing legislation to define the contours of the right was not a prerequisite to enforcement of the right.
Right to Information Act
After several groundbreaking court judgments that paved the way for a right to information in South Korea, the government first formally recognised the right in 1993 with its changes to the Military Secrets Protection Act, allowing for the disclosure of military secrets in the public interest. In 1996, the Act on Disclosure of Information by Public Agencies (the RTI Act) was enacted as a consequence of the “activist” approach of the courts, and was one in a series of democratic reforms that the government saw necessary for making Korea a more open society. In 2004, the Act was revised to include some positive changes, for example the possibility of electronic disclosure and the introduction of “information disclosure review committees”. In 2013, after several years of other initiatives to enhance proactive disclosure, Korea adopted the Act on Promotion of the Provision and Use of Public Data.
Provisions of the RTI legislation
The purpose of the RTI Act is to secure participation of the people in state affairs and ensure transparency in the operation of state affairs. The original Act required individuals to state a purpose for requesting disclosure and obliged them to use the information “adequately” and in conformity with the declared purposes. These provisions were deleted in the 2004 amendments.
The Act allows all nationals to demand information held by public agencies. A separate Presidential Decree allows requests from foreigners who are permanent residents, in the country temporarily for scholarly research, or companies or organisations with an office in Korea. The Act prescribes the 44 obligation of “state agencies” to ensure the right to information; state agencies includes central government bodies, municipal governments, and public institutions under the Act on the Management of Public Institutions including companies in the majority ownership of the state and other institutions determined by the Presidential Decree. The Act also explicitly excludes from its scope information collected or created by agencies that handle issues of national security except for the obligations under Article 8(1) for creating catalogues. The term “information” means matters recorded in documents (including electronic documents), drawings, pictures, films, tapes, slides, and other media corresponding thereto that are made or acquired, and managed by public institutions for the performance of their duties
The RTI Act imposes an obligation on the bodies to actively provide information in the public interest. The government has long been active in promoting egovernment services as a means of improving access to information and to fight corruption. The 2013 Act on Promotion of the Provision and Use of Public Data promotes the release of electronically processed data or information created by public institutions with the intent to promote public access and the “smart industry.” It focuses on the release and free reuse for public and commercial purposes of data in 15 strategic areas including traffic, weather, space, welfare, health, food, tourism, and the environment. Following its enactment, the government adopted the Open Public Data Directive and Societal Use Principles to promote disclosure by government bodies. Through its OGP Action Plan, South Korea reported it has established a 24-hour public online services website with important citizen information and released the Open Data Portal. In addition, central and local government agencies have a specific section on their respective websites entitled “Government 3.0/Information Disclosure” with proactively disclosed public information.
Disclosure upon request
The request must be submitted in a written or oral form and contain the name and resident registration number of the requester, the content of the information and the method of disclosure. Requests for information to be released in electronic form shall be complied with unless it is remarkably difficult. In principle, the requesters may select the form of access to information, although reproductions may be restricted if information is already in the public domain, if it would damage the original copies, or if the number of documents is an “excessive quantity” that the release would seriously impede the agency’s normal operations.
Agencies must establish an “Information Disclosure Deliberative Committee” which decides upon requests. Under the Presidential Decree, agencies, mayors and other heads may designate among their civil servants a staff in charge of disclosure of information and arrange for such staff to handle the following in relation to disclosure of information. Bodies must also establish information management systems for proper preservation and expeditious search of information, have a department or human resources in charge of duties related to information disclosure, and endeavour to establish the information disclosure system by using the information and communications network. There are no provisions on providing assistance to the requesters, neither are there any procedures in place for situations when the request is incomplete. Under the Decree, bodies shall inform requesters that they do not hold the information.
Agencies must decide in 10 days, except when this is not possible due to an unavoidable reason; the permissible extension is another 10 days. In such a case, the agency must inform the requester of the reasons for the delay. If there is no response from the body in 20 days, it is deemed to have been rejected and can be appealed. The fees may be charged, but are limited to the actual costs determined by the Decree and the actual delivery costs. Fee reduction or waiver is foreseen if the information is requested for the purposes of “public welfare.”
There are eight categories of exemptions which aim to protect secrets as defined in other acts; national security and foreign relations; public safety of the safety of individuals or property; investigation of crime, criminal prosecution and litigation; audits, inspections and other decision-making processes; personal information; trade secrets; and particular private interests. The majority of exemptions are subject to a harm test with the exception of national security information. The public interest test may be applied to only two exemptions: protection of private information when disclosure is needed to remedy public interest; and protection of trade secrets if disclosure is needed for the protection of lives, bodies or health or to prevent individuals from illegal or unjust business operations. The RTI Act foresees a sunshine clause, stating that the information can be released once the passage of time or other factors has reduced its sensitivity.
There is a clear procedure for allowing partial access when only a part of information may be refused if it is possible to separate the information without changing the nature of the request. The requesters have the right to be informed in writing without delay of the reasons for non-disclosure, the methods and procedures for appeal.
There are three different paths to appeal, an internal, external and judicial procedure. Internally, the ACT foresees an “application of objection”, which is a confirmatory procedure, by which the requester asks the agency that issued a negative decision to reconsider its position. An external appeal is called “administrative adjudication”, whereby an appeal can be made to the Administrative Appeals Commission under the Administrative Appeals Act. The external appeal is possible either after using the internal confirmatory procedure or separate from it. Judicial review is provided under the Administrative Litigation Act. The Ministry of Government Administration is in charge of oversight and planning for the Act and can inspect and review the activities of state agencies.
Sanctions are not foreseen in the RTI Act. The Act only explains that the members of administrative appeals are considered as public officials for the purposes of the Criminal Act or other acts.
Publication / Reporting mechanisms / Promotional measures
The Minister of Government Administration and Home Affairs is in charge of promotional activities, policy-making and institutional reforms of the information disclosure system. The 2004 amendments added a requirement for a yearly report by the minister to the National Assembly.
Implementation of the RTI legislation
The South Korean courts have been particularly active in promoting and implementing the right to information. They found that disclosure should be the rule not the exception and that exemptions should be interpreted narrowly. The Constitutional Court also held that the system of classification of documents as secret should be subject to judicial oversight.In addition, the Supreme Court connected the public’s right to know to the protection of whistleblowing in a notable case of a public official releasing a secret internal report. People in South Korea are increasingly requesting disclosure of public information; the number of requests more than doubled in the three years from 2000 to 2003, from 61,586 to 192,295 requests. More than 90% of the requests are handled either entirely or partially and in more than 80% of cases requests have been granted in full.383 A coalition of citizens and anti-corruption groups launched the Korean Social Pact on Anti-Corruption and Transparency (K-Pact) in 2005, calling for the law to be amended to improve public access to information to fight corruption.
With establishment of the Korean Open Data portal, accessibility of information has undoubtedly increased. There has been a promise by the current government that the state will increase the amount of proactively released administrative data from 16% to 60% by 2016. By the end of 2013, there have been around 85,000 public documents released proactively. However, civil society voices criticism over the government’s pledges in relation to open data initiatives, saying that the intentions are not followed by strong action, as legislation is often vague in relation to setting out clear responsibilities for different agencies and clear options for citizens to access information.
State Secrets Act
The Military Secrets Protection Act was amended in 1993 to sets out rules on disclosure of classified information. The revision of this Act followed the Constitutional Court’s decision, ruling that military secrets may only be classified following a legal procedure and if they create a clear danger to national security. However, there is another severely limiting piece of legislation for freedom of expression and the free flow of information, the National Security Law (NSL), enacted in 1948 as a response to the threat from their neighbour North Korea. Despite several attempts to repeal the law, harsh sentences, even the death penalty, are still prescribed for accessing, gathering, leaking, transmitting or compromising a national security secret. Even communicating with “anti-state” groups is punishable with 10 years imprisonment.
Protection of whistleblowers
The recent Act on the Protection of Public Interest Whistleblowers (2011) was enacted to protect and support “people who report violations of the public interest.” Public interest is defined as touching upon the health and safety of the public, the environment, consumer interests and fair competition or criminally or administrative sanctioned acts. The Act applies to whistleblowers in both private and public sector and protects them from a long list of disadvantageous treatment, such as employment related detriments – removal or transfer from office, reduction of pay, removal of benefits and opportunities, bullying etc. Penalties for imposing such treatment are criminal sanctions and liability for damages.
Environmental protection legislation
In 1990, Korea adopted the Framework Act on Environmental Policy that serves as a basis for other more specific laws and regulations.The Framework Act stipulates that the Ministry of Environment may disseminate an environmental nature assessment map and shall publicise knowledge and information on the protection of environment, including on the current state of environment, and aim at making the environmental information easily accessible to the people, possibly through an environment information network. The State has also undertaken to publish permissible emission levels.
South Korea has acceded to the ICCPR and signed and ratified the UNCAC. South Korea applied to join the Open Government Partnership (OGP) in 2011 and is a participating country in its second cycle. It has also endorsed the ADB/OECD Anti-Corruption Initiative for Asia-Pacific in 2001 and OECD Busan Partnership for Effective Development Co-operation, whose one of the key commitments is strengthening transparency and approving common standard for the electronic publication of data on development co-operation.
Read the full report – Asia Disclosed: A Review of the Right to Information across Asia.