By Information Clearinghouse Japan

A new national disclosure law took effect in Japan in April 2001. This essay by Information Clearinghouse Japan shows how citizen’s groups, opposition parties and freedom of information advocates had lobbied for such an act for 20 years. While local governments had passed access laws since the 1980s, efforts to enact similar legislation at the national level were frustrated by a powerful professional bureaucracy and a parliament that had been dominated by a single political party for 40 years. The new law still faces some problems, but nearly 50,000 information requests were made in the first year of its implementation.

I. Introduction

For more than 20 years, citizen’s groups, opposition political parties and other freedom of information advocates lobbied for a national information disclosure law in Japan. Until the late 1990s, their efforts were frustrated by a powerful professional bureaucracy and a parliament dominated by a single political party throughout most of the postwar period.

On April 1, 2001, an information disclosure law (Joho Kokai Ho) finally came into effect in Japan. The Law Concerning Disclosure of Information Held by Administrative Agenciesprovides for the first time a legally enforceable right of access to Japanese national government files. (Click here for a summary of the main points of the law.)

Long before the national government acted, local governments around the country had adopted information disclosure ordinances. By the late 1980s these systems were in operation in most large population centers, and residents were requesting documents concerning consumer products, expenditures of public funds, environmental matters and other issues. Experience gained under these local rules provided the foundation for the legislation of a national access law. Court precedents concerning local information rules will also serve as a reference when Japanese courts interpret the new national law.

The efforts to draft a national disclosure law gained momentum when the Liberal Democratic Party, which has ruled Japan since 1955, lost its monopoly of power. In 1993, an opposition coalition took over the reins of government, electing a new prime minister who had enacted an information disclosure law when he was governor of a local prefecture. The change in government, the active role of opposition parties and the committed lobbying of citizen’s groups made the new law possible.

This report tells the story of how a small number of determined activists was able to focus on a clear objective, articulate the details of a workable system for information disclosure and build a coalition to support a freedom of information campaign. Our report will examine critical moments in the life of Japan`s freedom of information movement and will consider results to date of the Japanese information disclosure law. The examination of the impact of the law includes a statistical summary and sample cases where the law has made a difference in people’s lives.

The weaknesses of the law and other related issues are also discussed. The law itself embodies many compromises and there is certainly room for amendment in the future. Since the system is new, much needs to be done to educate both government officials and the Japanese people on how information disclosure can help develop stronger citizen participation in government.

II. Critical Stages in the Life of the Freedom of Information Movement

Since the 1960s, there has been increasing public concern about the dangers that arise from excessive government secrecy. For the most part, citizens’ interest in the right to information was spurred by revelations of secret deals and wrongdoing by public officials and also by widespread injury due to defective food and pharmaceutical products. The freedom of information movement in Japan is intimately linked with other efforts to protect consumers and to promote human rights.

Article 21 of Japan’s Constitution guarantees freedom of expression, but it does not have language protecting a right to receive information. The Supreme Court took a major step by conceptually expanding Article 21 in a 1969 decision to recognize a “right to know.” Japan is a signatory of the International Covenant on Civil and Political Rights, which was ratified by the Diet in 1979. Article 19 of the Covenant protects “the freedom to seek, receive and impart information.” Nonetheless, government officials and conservative political figures are reluctant to recognize a right to know. The disclosure law that was passed by the Diet in 1999 and became effective in 2001 does not include this term.

A. The Seeds of a Movement

1. The Nishiyama Case

In 1972, front-page coverage of a criminal prosecution involving the disclosure of state secrets catalyzed discussions on the balance between the public’s right to know and government secrecy. That year, newspaper reporter Takichi Nishiyama discovered what appeared to be a secret deal between Japan and the U.S. on the reversion of Okinawa. He obtained government cablegrams that were said to show that Japan agreed to secretly pay damages to Okinawan landowners whom the U.S. was supposed to compensate under the publicly announced reversion agreement. Nishiyama and an accomplice were convicted of revealing state secrets and their criminal convictions were upheld by the Supreme Court. The case prompted a debate among academics about freedom of the press and the public’s right to know. In response to the incident, the law journal Horitsu Jiho sponsored a roundtable discussion on the legal dimensions of the right to information. This was said to be the first public call for a law to enforce that right.

2. Scandals Help Shape a Movement

(a) Harmful Drugs and Food Products

From the 1960s, consumer and citizen groups such as the Homemakers Association (Shufu Rengokai) had been active in requesting minutes of policy-making meetings held by government bodies that regulate health and other products. In the 1970s and 1980s, the need for an information disclosure system was made evident by cases in which large numbers of consumers were injured by defective pharmaceutical products.

(i) OPP

The Japan Consumers Federation sought disclosure of the minutes of Ministry of Health discussions regarding the approval of OPP (olt phenil phenol), a substance which prevents the growth of mold in imported fruit. Although a warning had been issued that OPP may cause cancer, the Ministry approved it in 1977 as an additive to food products. The Federation’s request for disclosure was refused and the reasons for approving OPP use were never revealed to the public.

(ii) Thalidomide

In November 1961, Dr. Widukind Lentz of West Germany warned of the dangers of Thalidomide, causing the withdrawal of the harmful drug from the European market. Although the Ministry of Health notified Japanese pharmaceutical companies of the Lentz warning in December of the same year, information about the dangers of the drug was not publicly released. The Ministry of Health did not order the withdrawal of Thalidomide from the market until September 1962. Later, it was found that nearly half of the “Thalidomide babies” born in Japan were conceived during the 10-month period when this information was known to the Japanese government but not disclosed to the public. Several lawyers who represented victims in this and other cases subsequently made demands for a Japanese freedom of information law.

(iii) Chloroquine

The Japanese Ministry of Health received data showing that the drug chloroquine caused retinopathy, which can lead to blindness. Although an official at the Ministry stopped taking chloroquine personally, he made no attempt to notify the public, and many people became blind as a result of ingesting the drug.

(iv) Hemophiliac AIDS Case

In June 1983, the Japanese subsidiary of Travenol, an American pharmaceutical company, informed the director of the Biologics and Antibiotics Division of the Health and Welfare Ministry that it had recalled some of its products from the American market because one of its donors showed symptoms of AIDS shortly after donating blood. After this report was received, the Ministry assembled an AIDS research team. In an internal document dated July 4, 1983, the committee suggested the use of heated blood products and the issuance of an administrative warning against the use of unheated blood from the U.S. The following week, however, the committee reversed its position and authorized the use of unheated blood until clinical tests for heated blood products were performed. As a result, hemophiliacs who had been given unheated blood were infected with the HIV virus that causes AIDS. The document containing the original warning was revealed only in 1986.

(b) Political Corruption

The Lockheed Incident was by far the most prominent among Japan`s postwar bribery scandals. Former Prime Minister Kakuei Tanaka was arrested in 1977 for accepting bribes from the Lockheed Corporation as payment for persuading All Nippon Airways to purchase Lockheed jets. He was found guilty by the Tokyo District Court in 1983. Saturation press coverage and public discussion of this incident played a central role in increasing public interest in government affairs and awareness of the need for more transparent government.

3.The Role of International Models

In the course of the right-to-know campaign, academics, members of government-appointed panels and other experts made detailed studies of foreign disclosure laws, including the U.S. and Canadian Freedom of Information Acts (FOIA), in an effort to identify potential solutions and “best practices.” Foreign experts were invited to discuss the information disclosure systems in their countries. As interest in establishing limits on government secrecy grew, Japanese constitutional and administrative law scholars found inspiration from the U.S. FOIA and other foreign information disclosure systems. Later, such scholarly interest was followed by more direct calls for action.

B. Creating a National Organization and Action Plan

Some of the concrete steps taken by FOIA advocates in Japan included the following:

1. Drafting a Proposed Law

Members of the Japan Civil Liberties Union (JCLU) formed an “information disclosure” subcommittee and drafted a proposed law in September 1979. The proposal embodied the key demands of FOIA proponents.

2. Launching a Citizen’s Movement

In March 1980, leading activists formed the Citizen’s Movement for an Information Disclosure Law, an umbrella organization with the concrete goal of enacting freedom of information legislation. Members included the Japan Consumers Federation, the Housewives’ Federation (Shufu Rengokai), the Japan Civil Liberties Union and other individuals and groups concerned with environmental matters and other issues of public interest. Establishing this broad base of support became especially important in the Movement’s legislative and public education campaigns.

3. Drafting a Mission Statement

Leaders of the Movement conducted intensive discussions that led to the drafting of a document called “The Declaration of the Right to Information Disclosure.” A second statement, “The Eight Fundamental Principles of Information Disclosure,” listed the essential elements of a workable FOIA. These statements were made public in January 1981 and were disseminated through the mass media, newsletters of constituent organizations and other means.

4. Conducting Action at the Local Level

Members of the Movement discovered that there was far stronger interest in FOIA systems among local governments than in the national government. By 1979, several prefectural governments had formed their own information disclosure study committees. The Citizen’s Movement, therefore, directed its appeals for transparency to local government officials. The model national information disclosure law proposed by the JCLU had considerable influence at the local government level. In May 1981, the JCLU added to this by publishing a model information disclosure ordinance specifically for local governments. This served as a critical tool to promote best practices and persuade local officials to enact ordinances that embodied the “eight principles” of the Citizen’s Movement and other progressive features. For details of the legislative movement among local governments, see Section II (2) below.

5. Fighting against other Efforts to Limit the Right to Know

Although advocates did not persuade the Diet to adopt an information disclosure law in the 1980s, their campaign achieved other important results. The most important of these was the defeat of attempts to legislate an Official Secrets Act, which nationalistic Diet members and others were promoting through much of the 1980s. This Act would have established criminal penalties for persons convicted of disclosing or publishing information officially designated as secrets, thus posing a potentially chilling effect on journalism and other forms of writing and debate. Members of the Citizen’s Movement joined other advocates of free speech to block passage of such a law when the Liberal Democratic Party held large majorities in both Houses of the Diet.

6. Educating the Public

The Citizen’s Movement conducted an intensive public education campaign throughout the 1980s and 1990s. The adoption of local information ordinances provided an invaluable opportunity to identify real cases where disclosure of information had an impact on people’s lives. During this period, these cases inspired others to fight for greater access to information.

Movement members included attorneys, law professors and others with a technical understanding of legislation and impressive writing skills. Countless articles by Movement members appeared in Japanese newspapers and other media, and numerous books were written both for specialists and general readers. The Citizen’s Movement also organized countless symposiums and panel discussions at public venues, including the national Diet. One specific objective was to educate Diet members on the importance of disclosure and the many specific issues involved when considering an entire system.

By the time the political environment had changed to allow for a serious discussion of potential legislation, the hard work over many years by disclosure advocates, academics and others had clarified many important issues and focused discussion on the most difficult issues remaining to be resolved.

Information Clearinghouse Japan (ICJ) was formed in 1999 after the national disclosure law passed the Diet and the Citizen’s Movement was disbanded. In July of that year, the ICJ published a collection of cases where citizens successfully gained access to valuable documents. These “best practices” provided lessons to residents and local government officials and served as a tool to propagate disclosure practices.

7. Linking up with International Organizations

Members of the JCLU, the Citizen’s Movement and others contacted foreign and international organizations with similar agendas in other countries or on a global scale. These included the London-based Article 19 and the National Security Archive in the United States. In the spring of 2001, the ICJ sponsored a symposium on Asian FOIAs in Tokyo, featuring speakers from South Korea, Thailand, India and the Philippines. (Click here for the symposium papers.) This allowed Movement members to engage in exhaustive dialogue with their counterparts in many countries and to disseminate their message to a broad Japanese audience.

8. The Struggle to Build a Stable Organization

Although a national law has been implemented and local rules have been in existence for more than a decade, the community of individuals and organizations who understand and use these systems remains small. The ICJ and other prodisclosure groups have to create broader public awareness of the importance of access to government files. But their most difficult challenge is gaining the active support and involvement of citizens. Like other nonprofit organizations in Japan, the ICJ faces an environment with a low level of citizen activism and a very small number of charitable foundations and philanthropists inclined to make significant grants for prodisclosure activities.

In order to achieve its objectives, the ICJ is presently undertaking the following:

• Conducting training programs for government officials and individuals;
• Publishing guides, policy statements, a magazine and other documents;
• Maintaining a website;
• Creating an information center for gathering and organizing disclosed information;
• Providing support for information requesters, including counseling and establishing a fund to provide financial support for them;
• Monitoring information disclosure; and
• Making proposals and conducting studies on information disclosure and related systems.

C. Legislative Activities

1. National Government

From 1955 to 1993, Japan was ruled by the LDP. For nearly 40 years, opposition parties did not share power in the national government. Nonetheless, they played a critical role by developing a legislative agenda even though they were out of power and by tenaciously fighting for amendments to bills proposed by the ruling party.

Legislative interest in access to information began in the early 1980s when, in response to corruption scandals and consumer complaints, various opposition parties submitted information disclosure bills to the Diet. Unfortunately, none of these bills were ever formally deliberated. Each of them died when the Diet session during which they were introduced expired.

The government, however, did respond in some degree to the public demand for more information. On May 27, 1987, the Cabinet issued an order entitled “Measure to Improve the Service of Providing Information” that laid out procedures for releasing public documents, indexing these documents, establishing a desk for document inspection, and transferring them to the national archives.

Following the exposés on the Recruit scandal in 1989, in which numerous politicians and others were given shares of stock under questionable circumstances, the Rengo Party of the Upper House of the Diet established a special project on legislating access to information. In January 1991, the Socialist, Komeito, Socialist Democratic and Rengo Parties jointly announced a bill on the public disclosure of administrative information.

In June 1993, these parties and others submitted that bill as a joint proposal to the Upper House. Earlier, in March that year, the final report of the Provisional Administration Investigation Committee (Rinji Gyosei Chosakai) had indicated that a government information disclosure system needed to be considered. The Diet, however, did not take action and the bill expired.

In July 1993, the LDP single-party domination of government came to an end. A coalition government was formed that did not include the LDP. The newly elected Prime Minister, Morihiro Hosokawa, was a man who was willing to deal with information disclosure in a positive fashion before he became prime minister. As the governor of Kumamoto Prefecture, he enacted a prefectural-level information disclosure law. Soon after his election in November 1993, a national Administrative Procedure Law that revised key aspects of administrative practice was enacted. Business leaders also sought to improve government administration. The call to enact an information disclosure law grew louder.

In October 1994, the government established an Administrative Reform Committee (Gyosei Kaikaku Iinkai) to study how information disclosure systems worked. The Committee was required to deliver its report to the Prime Minister in two years. A specialist subcommittee of 13 nongovernment members was also appointed to study and propose a national freedom of information law. A retired Supreme Court justice chaired the committee, which included leading administrative law scholarsand other experts.

As the Committee continued its work, several Cabinets were formed and then disbanded. By the time the specialist subcommittee submitted its final report in November 1996, the nation was led by a coalition government headed by LDP Prime Minister Ryutaro Hashimoto. Based on the subcommittee’s report, the Administrative Reform Committee formally recommended to the Prime Minister the enactment of an information disclosure law. Opposition parties also announced alternative bills. In June 1997,the New Frontier Party and the Democratic Party unveiled their respective information disclosure bills. In October that year, the Communist Party submitted its Bill on Public Disclosure of Information and, in November, the New Frontier Party, the Democratic Party and the Sun Party jointly submitted to the Diet a Bill Regarding the Public Disclosure of Administrative Information.

All these bills clearly stipulated in their first articles the objective of protecting the “right to know.” The government coalition consisting of three parties (LDP, Socialist Party and Sakigake Party) agreed to discuss the issue among themselves. The discussion lasted more than a year, concluding in March 1998. On March 28, the government parties proposed to the Diet a Bill Regarding the Public Disclosure of Information held by Administrative Agencies. The text of the government bill did not include reference to a right to know or other progressive elements present in the opposition party bills.

On May 7, 1999, a plenary session of the House of Representatives passed an amended bill on public information. Thus, 20 years after the Japan Civil Liberties Union announced its General Outline for a Public Information Disclosure Law, the national law was finally enacted. The Diet had deliberated the government bill for 14 months. During Diet deliberations, volunteers from the Japan National Bar Association, the JCLU, members of the Citizen’s Movement and others continued their advocacy. They held symposiums, met with Diet members, drafted position papers and other materials, and worked in various ways to enrich the parliamentary deliberations and to ensure the adoption of a progressive information disclosure system.

This dedicated coaching by prodisclosure citizen groups guided opposition parliamentarians and prepared them to obtain key concessions from the ruling coalition, including revisions and supplements to the government bill. In the end, these amendments to the government bill were possible only because of the demands from opposition parties and the advocacy campaign conducted by volunteer lawyers, members of the Citizen’s Movement and others.

Important prodisclosure modifications to the government bill achieved during the final weeks of Diet deliberations show how citizens can influence the content of legislation. These changes served to guide the implementation of the law and to lay the foundation for future legislation expanding disclosure. They included the following:

• Jurisdiction. The original government bill would have required that all disclosure-related litigation be filed at the Tokyo District Court, making it difficult for citizens residing outside the capital to appeal their cases. The revised bill expanded jurisdiction to include district courts located at the eight appellate court venues throughout the country. (Opposition Diet members demanded, but failed, to add Naha in Okinawa as a ninth venue.)

• Special Public Corporations (tokushu hojin). Numerous special public corporations that provide basic public services were excluded from the disclosure law, which mandated that another law be adopted in two years to legislate disclosure by these entities. The Diet passed a government bill on disclosure by special public corporations on November 2, 2001.

• Future Action. The statute requires the Diet to review the operation of the law four years from its adoption and to consider measures to improve implementation. Additional statutory language requires the Diet to study such issues taken up during the deliberations, including the explicit mention of the “right to know” in the law and the adoption of an Administrative Documents Management Law (gyosei bunsho kanri ho).

• Service Fees. Disclosure advocates had always opposed imposition of fees to handle disclosure requests. Nonetheless, Article 16 of the government bill mandates payment of such fees to be set by administrative regulation. Although they were unable to delete this condition, prodisclosure Diet members did insert language into the law requiring that the amount of service fees be set as low as possible. This insertion would later bind administrative officers when they formally set fees.

2. Local Government

When Professor Hideo Shimizu, a leader of the Citizen’s Movement, addressed a symposium in Kanagawa in November 1980 on the issue of government information disclosure, he found an audience with representatives of some 78 local governments. By then, most of these governments had already commenced study of a local information disclosure ordinance or else planned to do so soon. (Click here for a comprehensive report on “Local Goverenment Disclosure Systems in Japan.”)

Japan’s Constitution provides for the principle of local autonomy, including the local government’s right to manage property, affairs and administration within the bounds of national law. Key features of local autonomy include the direct election of chief executive officers and other officials and the power to enact local regulations. The LDP’s monopoly of government at the national level was not replicated locally. The election of governors, mayors and members of local assemblies had been much more hotly contested. Thus, the politics of liberal enclaves in cities such as Tokyo, Osaka and Kanagawa was very different from the national pattern.

The reluctance of the national government to legislate disclosure did not prevent local governments from acting on their own. A project team was formed in Kanagawa as early as 1977 and a formal information disclosure preparation committee was appointed there in 1979. In a message to prefectural employees broadcast in July 1980, Governor Nagasu announced that an information disclosure system is “necessary, inevitable, and moreover, feasible. However, this is a massive undertaking.” Many other prefectural and municipal governments soon appointed commissions and commenced study of the information disclosure problem.

The first local government to formally adopt an information disclosure ordinance was the village of Kanayama in Yamagata prefecture in 1982. Kanagawa was the first prefecture to adopt an ordinance in October 1982 (effective as of April 1, 1983) and was followed by the major population centers of Saitama, Osaka and Tokyo by the end of 1983.

Japan witnessed a wave of freedom of information legislation in the 1980s. Twenty-five prefectures had adopted some kind of ordinance by the end of 1988. By the time the national law came into effect in April 2001, 2,178 local governments had adopted ordinances, including all prefectural governments.

III. Freedom of Information Systems Operating in Japan Today

A. National Government

1. The Launch

Once the law came into effect, it attracted much attention. In the preceding months, there had been a great deal of public anticipation of the law. On the very first day of its implementation, citizens demanding information crowded government offices. One event that got a great deal of media coverage was the Kasumigaseki Information Disclosure Tour sponsored by Information Clearinghouse Japan. The tour had about 20 participants, and like any Japanese tour worth its salt, a tour guide waving a flag led the way.

The tour began at the Ministry of Foreign Affairs on April 2, 2001, the first day that government offices were open for business under the information disclosure law. It then moved to other government agencies in the Kasumigaseki government district, giving the participants a chance to experience the information disclosure process first hand and to compare the responses of different government agencies. In addition to being a valuable experience for the participants, the media attention generated by the tour increased citizen awareness of the information disclosure law.

2. First Year Data

The law generated tens of thousands of information requests in its first year of operation. Statistics from the General Affairs Ministry show that from April 1, 2001 to March 31, 2002, 48,650 document requests were filed and 45,071 decisions were made by national government agencies subject to the law. Of these decisions, 39,995 or nearly 89 percent resulted in either full or partial disclosure while 5,076 or about 11 percent resulted in complete denials. The “partial disclosure” category cannot be meaningfully evaluated because it covers cases ranging from documents in which only minor details were withheld to instances where virtually all information of interest was blacked out. (Click here for agency-by-agency analysis of requests.)

The National Tax Agency (NTA) topped the list with the most number of requests. An NTA official told the ICJ that this was because the Agency regularly publishes lists of persons with the highest reported incomes. Innumerable merchants are eager to obtain this information and the new law made it readily accessible. Other agencies receiving more than 2,000 requests included the Ministry of Land and Transportation, the Ministry of Health and Labor, the Financial Services Agency and the Ministry of Foreign Affairs.

3. Special Features of the Information Disclosure Law

(a) The Role of Local Governments

Local governments played a critical role in developing FOIA policy in Japan. As described above, FOIA systems were adopted at the local government level nearly 20 years before the national law came into effect. When drafters considered the structure and wording of the national law, local government rules provided the most useful and familiar points of reference. Key elements of the law, such as the list of exempted categories and the appeal structure, parallel those of local ordinances.

Because Japan has a unitary national court system, with no prefectural or other local courts, court decisions in cases litigated under the local ordinances provided precedents for interpreting the national law. Local cases also gave attorneys, courts, administrative law scholars and others practical experience in dealing with FOIA cases. Moreover, the thousands of local governments (including 46 prefectures) provide a variety of laboratories for testing different approaches to the law and other means of enhancing transparency and citizen participation in government.

(b) Administrative Review by an Independent Appellate Board

The law provides those who have been denied information two separate avenues of appeal. They can file a request for review at the Information Disclosure Review Board (joho kokai shinsakai) or file suit for nullification of the denial directly with the courts in eight districts. There is no requirement that appeals should first be made to the Review Board before a case is filed in court. (For a diagram showing the information disclosure system, click here.)

The creation of the Information Disclosure Review Board is an innovative and important feature of the new law. The Prime Minister appoints all Board members for three-year terms. These appointments must be approved by both Houses of the Diet. In most cases, the Review Board considers appeals in three-member panels. These panels have the power to demand that the agency submit the documents in question and take oral and written evidence from requesters and their representatives as well as the government. Hearings are closed to the public, thus enabling in camera examination of the records.

Once the Review Board panel has come to a conclusion, it issues a written recommendation which is sent to the agency head and published on the Internet. The agency then must decide whether to follow the opinion of the Review Board or stand by its original disposition.

In 2001, 1,342 appeals were made to various administrative agencies. These agencies referred 571 of these cases to the Information Disclosure Review Board for examination; the Board formally accepted 384. As of March 31, 2001, the Board had issued formal recommendations in 178 cases.

The Board has already demonstrated its capacity to influence policy with several recommendations calling for expanded disclosure. Two of these cases are described below in Section III (A)(4).

(c) Counter Service and Internet Access

As illustrated in the Kasumigaseki Information Disclosure Tour, one special feature of Japan’s information disclosure system is the counter service provided by government agencies. Government agencies have established “information disclosure windows” where citizens can go for assistance. There, they are given general advice or assistance in identifying documents of interest. The information staff frequently contacts administrative offices directly in control of requested documents and personnel from such offices come to talk to requesters directly at these counters. The size of these facilities vary from agency to agency, with some having a large counter with several employees and computers while others, a small one-person room. Local governments have established similar facilities.

In addition to counter service, the national government has also established general information disclosure offices in each of Japan’s 47 prefectures. The role of these offices is to provide information and advice; they do not directly accept information requests.

Government agencies have also created virtual counters on their websites where visitors can obtain basic information concerning the information disclosure system and download information request forms.

4. Specific Cases

Since Japan’s FOIA has been in operation for only a little over a year, the number of cases we have identified in which the law has made a significant difference is small. We will cite three cases in this report. In the first, the consumer protection committee of the Osaka Bar Association used the law to obtain sufficient information to compel government prosecutors to pursue a lawsuit against a dairy manufacturer.

In the second case, requesters exposed the unaudited use of public funds by the heads of thousands of local post offices around the country. The demand for this information was initially rejected, but the national Information Disclosure Review Board recommended that it be disclosed. Because of this, the Postal Agency ended the practice of providing discretionary funds to the heads of post offices, resulting in government savings of tens of millions of dollars. The Information Disclosure Review Board also issued an important recommendation regarding accidents in national hospitals. Finally, we will give a brief summary of some of the information gathered and published by the media under the new law.

(a) The Snow Brand Scandal

In the summer of 2000, defective products distributed by Japanese dairy manufacturer Snow Brand (Yukijirushi) caused the food poisoning of more than 14,000 people. The victims included schoolchildren who had consumed Snow Brand products served in school lunches and an 84 year-old woman who died in the hospital after drinking Snow Brand milk. Disclosure requests filed under Japan’s new law uncovered information showing that Snow Brand had lied about the hygienic conditions of its factories and withheld information from the public.

Investigations revealed that Snow Brand recycled milk that had passed its expiration date to make new products. In early July 2000, the company admitted that it had discovered two types of toxin-producing bacteria in its production lines in the previous month, but announced the detection of only one bacteria variety.

The president of Snow Brand resigned as a result of the scandal, not only because of the widespread injury but also because he did not promptly recall the products. Neither did he inform the public about contamination-countering methods. Despite the harm they caused, the Osaka prosecutor’s office decided not to press criminal charges against Snow Brand officials.

On April 2, 2001, the first day government offices were open to accept requests under Japan’s new disclosure law, the Osaka Bar Association filed requests with the Ministry of Health and Labor seeking information on the victims of the Snow Brand food poisoning. In response, the Bar Association received data on the number of people injured and the types of injuries suffered.

This information also made clear that Snow Brand officials knew enough to prevent further injuries as of June 28, the day after the first case of food poisoning was reported. This is significant because Snow Brand waited until June 29 to announce a product recall and the number of victims had increased dramatically during the interim period. When the Bar Association presented this information to a prosecutorial review board, the prosecutor’s office reversed its decision and indicted Snow Brand officers.

(b) Special Post Office Funds (Watashi-kiri-hi)

A recommendation of the Information Disclosure Review Board resulted in the abolition of a program that cost Japanese taxpayers the equivalent of more than US$500 million annually. An information disclosure request was made concerning a nationwide system of paying discretionary and unaudited allowances (watashi-kiri-hi) to special post offices. Under this system, the national government paid approximately US$3,000 per month to the directors of some 18,600 special post offices throughout Japan. These funds were intended to purchase supplies and otherwise support operations, but no accounting for expenditures was required. Improper uses of the money had been revealed even before the disclosure law went into effect, but no significant action was taken to halt these practices.

“Citizen ombudsmen,” members of a loose national movement that monitors government activities, filed requests for information on allowances paid to directors of the 345 special post offices in Miyagi prefecture. The postal director for the Tohoku region denied the requests and the decision was appealed. After the Information Disclosure Review Board recommended disclosure, the national government announced the abolition of the entire program.

(c) Hospital Accident Records

In a series of recommendations it issued on January 9, 2002, the Information Disclosure Review Board showed that it had the potential to play a leading role in policy development. Requests filed by Information Clearinghouse Japan and national newspaper reporters sought to examine official reports concerning accidents that occurred in public hospitals and health-care facilities in 2000. The Ministry of Health and Labor made a “partial disclosure” under Article 6 of the Law, releasing a list of 83 possible medical malpractice incidents, but blacked out much critical information. The details released were so meager that, according to the recommendation issued by the National Information Disclosure Review Board, requesters could learn nothing more than the fact that reports were actually filed with the Ministry concerning these accidents.

The Ministry cited the exemption for “individual information” to support its decision to withhold details of the incidents. The Ministry reasoned that by disclosing details, persons with some relationship to the patient would be able to identify the patient. In its recommendation, the Board disagreed, saying that the individual information exemption should apply only when information released would enable persons with no special relationship to the patient (ippanjin) to make the identification.

Applying this logic, the Board went through a detailed list of types of information in the reports, deciding which information was properly withheld and which should be disclosed. The Board recommended for disclosure such information as the names of the chief and associate heads of the hospital, the chief physician in charge of departments involved in each incident, the date of the initial patient examination, dates and details of examinations and treatments, and reports by hospital accident review panels. Press accounts hailed the recommendations as “the first specific standards for malpractice disclosure.”

(d) Newspaper Reports

Journalists of leading national newspapers have been heavy users of the national freedom of information law. The most prominent among the many media reports that uncovered new information using the new law concerned the minutes of the proceedings of the Financial Rehabilitation Commission (FRC) held between December 1998 and January 2001. The FRC oversaw the examination of Japan`s commercial banks and made recommendations that included nationalizing weak financial institutions and injecting public money into others. Because of the FRC’s recommendations, the government in February 1999 decided to inject more than Y7 trillion into 15 banks to recapitalize Japan’s banking system.

Major newspapers filed requests for FRC minutes immediately after the law came into effect. Although numerous details were blacked out, a large volume of documents was released by the Financial Services Agency, leading to front-page newspaper stories. According to the Daily Yomiuri, “in about 1,000 pages of copies of FRC minutes, the names of companies and individuals involved in the public fund injection to the financial institutions were blacked out. FRC officials said publication of such names would jeopardize unreasonably the interests, rights and competitive status of those concerned.”

Other noteworthy disclosures included the details of “amakudari” placements of retiring central government officials who were given senior positions in government-controlled “special corporations” (tokushu hojin.) The disclosures included the compensation packages for these officials. Because of the new law, the media was also able to report that the Ministry of Foreign Affairs spent Y14.8 billion for the July 2000 Okinawa Summit. This excluded amounts spent by other ministries. Also disclosed were the administrative punishments imposed on doctors employed at national hospitals who had improperly received gifts from pharmaceutical and other companies.

One case that received special attention was the disclosure by the Ministry of Justice that in January 2001, only three months prior to implementation of the new law, it destroyed all records of executions carried out between 1949 and 1989. The action was taken in accordance with a newly adopted Ministry policy requiring that such records be maintained for only 10 years. It appears that official records of executions carried out prior to the 10-year period no longer exist.

B. Local Governments

Local governments have had much longer experience with information disclosure. Since 1982, when the first local freedom of information act was adopted by the village of Kanayama, ordinances have provided public access to a wide range of documents.

In one notable case, the national government even tried to block disclosure of information under a local ordinance. In 1989, two citizens of Naha City in Okinawa prefecture requested the construction plans for the Maritime Self-Defense Force’s Antisubmarine Warfare Operations Center (ASWOC), which was completed in 1990. The city of Naha decided to release the documents in 1989, but the national government protested on the ground that it posed a threat to national security.

The national government sought a court injunction to block the disclosure and the case went all the way up to the Supreme Court of Japan. On July 13, 2001, the Court ruled that the local ordinance does not provide protection of the interests of the national government and that the central government cannot use the judicial process to block information disclosure at the local level. This was an important victory for freedom of information in Japan, but the release of the document was delayed for 12 years while the case was being decided.

1. Basic Data

Information Clearinghouse Japan conducts an annual survey of information access in local governments in Japan. There is no government database that publishes such data. One aim of the survey is to evaluate the role of information disclosure review panels. The most recent survey conducted in 2001 was based on responses from 808 local governments. The survey showed that local review panels ordered additional disclosure in 53.8 percent of all cases. Full disclosure was ordered in 9.9 percent of all cases. Among prefectural and large city governments, additional disclosure was ordered in 53.3 percent of the cases and full disclosure was ordered in 8.1 percent of the cases. For cities, towns and villages, the figures were additional disclosure in 54.4 percent of cases and full disclosure in 12.8 percent of cases.

2. Sample Cases before the Passage of the National Disclosure Law

(a) Survey of Objects in Danger of Falling off Buildings

The Tokyo Metropolitan Government carried out a survey of objects in danger of falling off buildings and recommended improvements for some buildings. In 1995, a request was filed with the Tokyo government for information on unimproved buildings in order to create an avoidance map, but the information was only partially disclosed. The ward and area names were released disclosed, but the actual addresses were blacked out. The reason for this omission was that the building owners provided the information voluntarily and the government was afraid that full disclosure would hinder the information provided in future surveys. (Click here for additional information on these cases and samples of the documents disclosed.)

(b) Additives in Pharmaceutical Products

In 1998, a group of doctors requested the disclosure of additives in pharmaceuticals as only active ingredients were listed in the packaging. The Health and Welfare Ministry would not release the information, so the doctors requested approval applications from the Tokyo, Kanagawa and Osaka prefectures. The prefectures disclosed the names of the additives but not the amounts. As a result of this case, the Ministry of Health and Welfare broadened the listing requirements for pharmaceuticals to include additives.

(c) Standards for Selection of Children for Day-care Facilities

In 1999, a parent whose child was not accepted to a publicly funded day-care program in Kawasaki City asked the city government for the selection criteria for such facilities. The selection criteria were fully disclosed. Previously, there had been rumors that children with siblings were not accepted for day care, but this rumor died down after the parent who had obtained the information distributed it to others.

(d) List of Products Sold Door-to-door and Subject to Complaints

In 1983, the first information request filed in Kanagawa prefecture, the first prefecture in Japan to adopt an information disclosure ordinance, concerned complaints about the door-to-door sales of products. Although Kanagawa`s information disclosure regulations normally apply only to existing documents, the prefecture prepared a summary of relevant information as a way to commemorate the enactment of the information disclosure ordinance.

(e) Expenses for Foreign Trips of Local Legislators

In 1996, a request was filed for disclosure of expenses related to a European trip taken by Tokyo legislators. The Expense Chief refused to disclose the documents, claiming that it would damage relations between the governor and the legislature. The nondisclosure decision was appealed all the way to the Supreme Court of Japan and full disclosure was ordered. As a result, many falsified receipts were discovered. The requester then filed a demand for an audit, which revealed over Y800,000 (approximately US$6,800) in losses from falsified receipts. The legislators were forced to reimburse the prefecture.

C. Problems with Japan`s Information Disclosure Law and Its Relationship to Participatory Democracy

Information disclosure does not exist in a vacuum. The information law is merely a tool that citizens can use to enable them to participate effectively in governance and to allow them to monitor the actions of public officials. Some of the problems of information disclosure in Japan relate to the law. Others, however, must be dealt with by Japanese society as a whole. Since the information law is relatively new in Japan, much work needs to be done to raise awareness among ordinary citizens about how they can best use the information disclosure system.

The new law is only a first step in developing an effective system that promotes public participation in policymaking. The law itself is imperfect. Moreover, other critical elements of an infrastructure to promote citizen participation are lacking. For, example, there is no law providing adequate protection of individual information in government hands. Also, there are no formal mechanisms to enable citizens or citizen groups to actively participate in policymaking. Even when citizens are able to obtain information under the disclosure law, it is usually too late in the policy-making process for them to effectively lobby for reforms. There are no effective laws or government policies that actively seek to promote the growth of a vibrant civil society in Japan. Without effective civil society institutions, even the best-constructed FOIA will have little impact in promoting public participation in governance.

Requesters have made numerous complaints about the implementation of the national disclosure law. These include delays in receiving responses and the high cost of filing requests and making copies of documents. Better training for officials charged with handling information requests is critical. It appears that government officials readily disclose documents in unambiguous cases where the law clearly mandates disclosure. On the other hand, in cases that require more sophisticated judgment, officials reject requests, leaving the requester with the burden of filing an appeal. Unfortunately, there is already a serious backlog of appealed cases and the law does not provide time limits for administrative agencies to deliver appeals to the Review Board. Neither is there a prescribed period for reviewing cases and issuing formal recommendations.

The disclosure law provides no mechanisms to ensure compliance by government officials. There are no penalties for recalcitrant officials and no awards of attorney’s fees for requesters who may incur heavy costs in pursuing a just claim.

An incident uncovered in late spring 2002 at Japan’s Defense Agency demonstrated some of the flaws in the system. Newspaper reports revealed that officers of the Defense Agency and the Self-Defense Forces compiled lists of persons who had submitted information requests, conducted background investigations of those persons and then posted this information on local area networks or otherwise distributed it to officers in the Agency and the Self-Defense Forces.

This incident raised serious questions about the failure of the government to adequately train personnel on the purpose and significance of the new disclosure law. Subsequent efforts by Agency officials and political leaders to conceal the facts of the incident showed that they are not committed to aggressively promoting public access to government information.

Moreover, the incident demonstrated that protecting individual privacy is necessary to create an environment in which citizens feel free to use the disclosure law and participate in public policy debates without fear of retribution. Japanese law does not currently provide sufficient privacy protection. For example, there is no law that penalizes officials who misuse individual information in the manner that occurred in the Defense Agency case.

In addition, individuals currently have no right to demand information concerning themselves or to correct such information if they believe it is wrong. This issue was raised during deliberations on the information disclosure law, but it was decided that the matter should be addressed by a separate statute. So far, no such law has been adopted.

IV. Profile of Information Clearinghouse Japan

Information Clearinghouse Japan (ICJ) is a nonprofit, nongovernmental and nonpartisan organization established after the passage of the information disclosure law in May 1999. Although we are a new organization, we have a long history, beginning with the Citizen’s Movement for an Information Disclosure Law, which played an important role in the discussions that led to the passage of the law since its formation in 1980. Once the national law passed Japan’s Diet in May 1999, the Movement’s objective had been achieved. It was then disbanded and the ICJ was formed.

The first chairperson of ICJ was Hideo Shimizu, professor emeritus of Aoyama Gakuin University, who had served as representative of the Citizen’s Movement since its founding. Many ICJ directors and members have also been active in the Citizen’s Movement for many years. The current chairperson of ICJ is Masahiro Usaki, a law professor at Dokkyo University and a leading authority on information and media law and related constitutional issues.

ICJ is a national center for information disclosure and personal privacy issues. Its mission is to broaden information disclosure and improve access to government information in Japan. Through its own research efforts and through cooperation with citizen’s groups in Japan, the ICJ hopes to find the best avenues for increasing citizen access to government information and to disseminate that information to a wide audience.

ICJ publishes a magazine, Information Disclosure Digest, which features articles on significant information disclosure issues by ICJ members and others. ICJ conducts surveys, research, and training workshops for citizens, local governments and elected officials. It works on contract projects, dispatches instructors to local governments and publishes information on its Japanese-language website (English information can be found at http://www.foi-asia.org.).