April Newsletter

We look forward to helping our readers better understand information disclosure in Korea and hope this newsletter will provide a broad view of the legal framework.

The following article is based on an interview with Attorney Sunhugh Kim. It has been translated from Korean into English and lightly edited.

When I first learned about the problems surrounding Korea's Special Adoption Law, I knew there was a problem even after reading a few articles and legal provisions. Although, at the time, I didn't know much about adoptees' identity issues, especially about international adoptees or the human right to know one's origins, as someone who has studied constitutional law and worked on constitutional cases, I felt that the balance of interests was completely one-sided.

Under Korea's legal system of adoption, adoptees' right to know their roots is entirely dependent on the consent of their birth parents. While it's not to say that birth parents don't have a vested interest in keeping their past and privacy private, it seems unjustifiable that the privacy of birth parents is almost always unilaterally prioritized over the personhood and underlying identity of adoptees. 

Before discussing information disclosure and adoption, I should cover briefly the legal landscape of information disclosure in Korea. 

Regarding information disclosure laws in Korea, there are two primary laws: the Information Disclosure Act on Disclosure of Information by Public Agencies (Information Disclosure Act) and the Personal Information Protection Act (PIPA). However, information disclosure is not restricted to these two laws. For example, the Special Adoption Law has an information disclosure provision. 

The Information Disclosure Act regulates information disclosure request procedures to ensure the public's right to know by disclosing information held and managed by public institutions. In simple terms, it gives citizens (and foreign residents under certain conditions) the right to request information held by public institutions. 

On the other hand, PIPA has a different legislative intent. It focuses on safely protecting personal information when organizations or people collect and process information about individuals. While the Information Disclosure Act applies only to information held by public institutions, PIPA applies to personal information held by private institutions and individuals as well. 

Therefore, it should be clarified that in the Korean judicial system, an information disclosure lawsuit is an administrative lawsuit filed under the Information Disclosure Act. In a narrow sense, it is a lawsuit that challenges the non-disclosure of information held and managed by a public entity (including national organizations, local governments, and public institutions) under the Information Disclosure Act. On the other hand, when a consumer demands disclosure of information held by a private entity, such as a private company, this can also be considered an information disclosure lawsuit in the broad sense.

The difficulty of an information disclosure is that the other party is a state or a large corporation. There is a significant difference in the amount of power, influence, and resources that can be mobilized between the parties. The state may have a separate group of lawyers representing it or hire a large law firm to prevent disclosure. Large corporations appoint large law firms to conduct research that supports their position. This research is then disseminated through news articles that reflect favorably on the corporations.

Of course, when civil society organizations file public interest lawsuits, they try to generate media attention by issuing press releases, holding debates, and asking experts with supportive positions to write news columns. However, it is not easy to prevail over the resources and influence of the state or corporations. Unless there is an explosive issue that gathers national attention, it often feels like a lone lawyer fighting an uphill battle.

In addition, in an information disclosure lawsuit against the state, it is necessary to go beyond the reasons for non-disclosure stipulated in Article 9(1) of the Information Disclosure Act. Article 9(1) provides a long list of exemptions from disclosure. Some of these exemptions include risks to "national security," "fair conduct of state affairs," and "secrecy of personal information and private life.” The claimant's lawyer must argue that the information requested does not fall within one of these exemptions.

It's more difficult to bring an information disclosure case against a corporation. Although the Korean Constitution does not explicitly lay out the right to sue a public entity for disclosure of information in the state's possession, this has been recognized as a fundamental right based on the interpretation of the Constitution, and the Information Disclosure Act is in place to implement it. Although the reasons for non-disclosure are broadly and abstractly defined, it is clear that disclosure is the 'rule' and non-disclosure is the 'exception.'

However, the right to seek disclosure of information from a private entity, such as a business, is not universally recognized but rather is understood to be a claim that can be based on individual laws depending on the nature of the information sought. For example, the Personal Information Protection Act recognizes the right of data subjects to request access to their personal information from companies that hold it, whether it is processed or provided to third parties, etc. However, based on my experience in litigation, I doubt that even this is sufficiently guaranteed. Moreover, unless it is personal information, information held by companies is often considered a kind of "trade secret" or "asset" of the company itself, so it is difficult for a claim to be easily accepted.

The severe prevalence of information also limits the ability to pursue litigation. A claimant with a considerable amount of data and information about the subject of the lawsuit has an advantage when filing a lawsuit. Still, if you don't have much information, then it's difficult to carry out the lawsuit. State agencies or corporations hold all the information we want to know, and we don't know whether that information exists or its specific contents. Moreover, we must prove that the information is essential to the claimant's interests and that there is no significant risk that disclosure would compromise national security, the impartial conduct of business, or the secrecy of private life. In principle, the state bears the burden of proving that there's a reason for non-disclosure. However, without knowing the content of the information, it is difficult to refute the validity of the state's claimed reason for non-disclosure.

Also, I have seen many cases where the state or a large corporation is asked to disclose certain information. Even when the court orders them to submit that information because the judge thinks it is necessary for the court proceedings, the state or large corporation says they cannot submit it because they have already destroyed it or no longer have it. In such cases, there is no way to force them to disclose the information in a civil lawsuit.

Another major challenge in information disclosure cases is that lawyers often enter new areas where there is a lack of legal precedents. When the state or a private entity denies an information disclosure request, one can file a lawsuit. When you file a lawsuit, you are challenging the denial decision of the state or private entity. If the state or a private entity denies information disclosure requests based on existing precedents (such as court orders) or current practices, then the burden of proof falls on the claimant; therefore, we must bring new evidence and arguments. It requires much more effort than other types of litigation because you're arguing and fighting new issues that haven't been examined before. Because of this, information disclosure cases are often regarded as a form of human rights activism. As a lawyer, you're often moving into a somewhat uncharted area.   

Attorney Sunhugh Kim. Attorney Kim has extensive knowledge of constitutional law, an area she majored in during graduate school. She previously worked as a constitutional law researcher at the Constitutional Court before joining a law firm. She also works with public interest law cases in civil society. She specializes in civil liberties, especially state and corporate violations of fundamental rights, including the freedom of expression and assembly. She has brought several information disclosure cases against corporate entities and government agencies.

In the following newsletter, Attorney Kim will discuss information disclosure and adoption.

We hope this newsletter has provided a brief overview and a better understanding of some of the challenges of information disclosure litigation in Korea. Attorney Kim will describe some unique disclosure challenges facing Korean adoptees in part II.