Collection of Policy Information and Background Checks Should Be Excluded from the Duties of Police Intelligence Operations
- NHRCK releases opinion to Speaker of National Assembly on amendments to Act on Performance of Duties by Police Officers-
The National Human Rights Commission of Korea(Chairperson Young-ae Choi) released an opinion to the Speaker of the National Assembly regarding the amendments to the Act on the Performance of Duties by Police Officers, which was deliberated and passed by the Public Administration and Security Committee of the National Assembly on December 3 2020, calling for the enumeration of intelligence gathering activities of police officers and the exclusion of policy information and background checks from the duties of intelligence-gathering officers.
One of the duties of police officers is to gather information related to public security to protect the lives and property of citizens and maintain public safety and orders. Police officers who are in charge of collecting such information are typically referred to as intelligence officers.
The Korean National Police Agency has conducted information-gathering activities based on Article 3(4) of the Police Act, which defines the responsibilities of intelligence officers, and Article 2(4) of the Act on the Performance of Duties by Police Officers, which regulates the collection, production and dissemination of information on public security. However, the Act on the Performance of Duties by Police Officers does not provide a definition of information on public security, raising concern about excessive intelligence gathering by police officers.
In this regard, the amendments to the Act on the Performance of Duties by Police Officers, deliberated and passed by the Public Administration and Security Committee, defines information on public security as information used for the purpose of preventing and responding to a threat to public safety, establishes the legal basis for intelligence officers and requires the scope of intelligence-gathering activities to be defined by a Presidential Decree.
The Commission, however, notes that the exercise of police power, an administrative action with the potential to infringe upon human rights, must be within the confines of law according to Article 37 Paragraph 2 of the Constitution. It also observes that information-gathering activities of police officers must be conducted for reasons explicitly stated in law as they are likely to limit the right to informational self-determination of citizens, which is guaranteed under Articles 10 and 17 of the Constitution. Moreover, the scope of information collected by police officers should be restricted to information that directly affects public safety and orders.
In this light, collection of policy information and background checks, routinely conducted by intelligence officers under their code of conduct, cannot be seen as duties of police officers directly related to the prevention and response to the threats to public safety and thus should be excluded from the duties of intelligence operations with a view to preventing improper exercises of police powers.
For instance, it was revealed in 2019 that the Korean National Police Agency, following the inspection of the NHRCK, produced documents that include policies adopted by the Commission, assessment of these policies, government responses and personal data of persons concerned. The Commission released a recommendation on December 27 2018 that background checks of civil service employees be conducted by government agencies which hire them rather than the National Intelligence Service or police stations given insufficient legal grounds for intelligence or police agencies to examine the candidate's credentials.
Accordingly, the Commission stated in its opinion to the Speaker of the National Assembly that the amendments to the Act on the Performance of Duties by Police Officers specify the list of information deemed necessary for the prevention and response to the threats to public safety and exclude collection, compilation, analysis, production and dissemination of policy information and background checks and management of personal records from the scope of activities conducted by intelligence officers.
