In the world of law, the prosecutor is the spear-wielding attacker, and the defense is the shield.

However, at times, even in the world of laws, the prosecution can be in a position where they must raise a shield and defend themselves. It is when the prosecution refuses to disclose the information that citizens requested under the Freedom of Information Act, and the case goes to court. At that point, the prosecution is in the position of defense. The citizens who make the disclosure request become the plaintiffs, and the Prosecutor General and the chief of District Prosecutors become the defendants.

In October 2019, three years and five months ago, I filed a request for information disclosure with the Prosecutors’ office as part of a power surveillance project that Newstapa has been conducting with three civil organizations (Sedojab, The Center for Freedom of Information and Transparent Society, Citizens’ Action Network). We requested the details of the prosecution’s special activity expenses, specific business expenses, and business promotion expenses, and the supporting documents for them. The Prosecutor General at the time was current President Yoon Suk Yeol.

The information related to the execution of this budget used by the prosecution has, in fact, never been disclosed before, so I filed the disclosure request. However, as I expected, the prosecution refused to disclose the related information. Thus, I became the plaintiff and filed an administrative lawsuit (Cancellation of refusal to disclose information) with the Seoul Administrative Court in November 2019. In order to get the information disclosed, we had to pierce the ‘shield’ put up by the prosecution during the proceedings. However, the prosecution raised an absurd shield in the first trial. They claimed that ‘there is no information related to special activity expenses.’ It did not make any sense that there was no information about the expenses after spending around 10 billion won of national tax in a year.

However, in an information disclosure lawsuit, if they claim that ‘there is no information’, the plaintiff must prove that there is a possibility that the related information exists. The prosecution took advantage of this and used the shield of ‘information non-existent’, and as the plaintiff, I had trouble proving it.

As the special activity expenses of the Prosecutor General Yoon Suk Yeol became controversial in the National Assembly, The Judicial Affairs Committee had to go for on-site verification in November 2020. At that time, the Prosecutors’ office showed a part of special activity expenses-related materials and withdrew them. Therefore, it became clear that the prosecution’s claim of ‘having no information’ was a lie. The court did not accept the prosecution’s claim of ‘no data’ in the first trial ruling in January 2022.

The prosecution changed its strategy in the 2 nd trial. They admitted that there is, in fact, existing information related to special activity expenses, but claimed that it could not be disclosed due to investigative confidentiality. It was a serious matter that a national institution made a false claim that there was ‘no data’ when there was, but it was more important to get a disclosure ruling first, so we proceeded with the trial.

The prosecution submitted certain data for the trial chamber to view and examine it privately. They also requested some spare time to explain it. In its prepared statement, the prosecution reiterated its claim that the special activity expenses, specific business expenses, and business promotion expenses were all ‘confidential’. They even claimed the restaurant they ate was also confidential. However, most of their arguments were not handed down in the second court ruling in December 2022. It decided to order the prosecution to disclose most of the information. Among the information, they were allowed to leave ‘name of the recipient’ and ‘execution title’ in special activity expenses, as well as ‘username,’ ‘execution title’ in special activity expenses, and ‘the number of attendees’ in case of meal expenses in specific business expenses as undisclosed.

We are disappointed with the court’s decision regarding this matter, but we believe if the rest of the execution information and supporting documents were disclosed, it would be possible to determine the appropriateness of the use of their budget.

In relation to the special activity expenses that drew the most attention, the court specified the information to be disclosed - ‘date of execution,’ ‘amount of expense,’ ‘expense report, documents of approval, and cash receipt (receipt and account statement). The court decided this information existed and could be disclosed.

The prosecution made an appeal to the Supreme Court. They submitted the appellate brief. After reading the brief, I believed that a ‘discontinuance of the trial’ would be possible. According to the Litigation Act, an appeal to the Supreme Court can only be made ‘when there is a violation of the constitution, laws, orders, or rules that affected the ruling’. However, in the appellate brief they submitted, their argument was legally too weak.For example, the prosecution argued that pulling out and disclosing some parts of the documents in the filing cabinet would produce or process new information, which made no sense.

I have requested and received information from many public institutions over the last 20 years, and never once has any institution claimed, ‘that pulling out and disclosing some parts of the documents in the filing cabinet would produce or process new information.’ It was an unreasonable claim that made no sense. Other reasons for their appeal were also contrary to past cases of the Supreme Court or factual claims.

When the reasons for appeal listed in the appellant brief are not recognized, the Supreme Court can make a ruling of ‘discontinuance of trial’ within four months of receiving the case. In short, it can decide that the case does not need to be heard anymore.

I submitted a response to draw ‘discontinuance of trial’. Instead of rebutting the prosecution’s reasons for appeal, I pointed out that the arguments made were not ‘eligible to be the reasons for an appeal’. The Supreme Court ruled to ‘discontinue the trial’, dismissing the prosecution’s appeal on April 13. Now the shields that the prosecutions held were all breached.

The court’s decision to disclose prosecutors’ special activity expenses / specific business expenses / business promotion expenses has three great implications.

First, it will be an essential step in making the prosecutors’ office which has become the most powerful institution since Korea’s democratization, an ordinary administrative institution. The most important aspect in making the prosecution an ‘ordinary administrative institution’ instead of a ‘special authority’ is the disclosure of information, and this ruling reveals the information that the prosecutors’ office wanted to hide the most.

The budgetary data of the prosecutors’ office, including special activity expenses, was off- limit to oversight and scrutiny, as it has never been submitted to the National Assembly, and now it will be exposed in broad daylight.

Second, the budget spent by the current president when he was in the prosecutors’ office is publicly revealed. This ensures that there is no exception to information disclosure. This ruling will also have a positive impact on the ongoing disclosure lawsuit against President Yoon Suk Yeol’s office for special activity expenses and no-bid contracts.

Third, this ruling can lead to media and civil organization’s increased monitoring of the entire prosecution system. With this ruling, it is now possible to disclose information on the budgets, including special activity expenses, specific business expenses, and business promotion expenses, of not only the Supreme Prosecutor’s office but also the High Prosecutor’s office and District Prosecutors’ offices. It is because the defendants in this case included the chief of Seoul Central District Prosecutors’ office as well as the Prosecutor General. In the future, prosecutors’ offices at all levels will be required to disclose budget information in accordance with the standards set forth in this ruling.

Of course, there is still more to work on. Whether the Prosecution will disclose the information soon or not still remains to be seen despite the ruling from the Supreme Court. It would be unforgivable for prosecutors to stall now that the ruling has been affirmed. I hope the prosecution will not resort to such behavior. The prosecution should respect the decision of the judiciary and disclose the information as soon as possible.