By Lawrence Repeta and David M. Schultz
INTRODUCTION
After more than 20 years of lobbying by Japanese citizen’s groups, opposition political parties and others, Japan’s national Information Disclosure Law came into effect on April 1, 2001 (Joho Kokai Ho, formally titled Gyoseikikan no Hoyu Suru Joho no Kokai ni Kansuru Horitsu, Law Concerning Disclosure of Information Held by Administrative Agencies). This law creates for the first time a legally enforceable right of access to Japanese national government files.
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Japan thus joins a growing list of countries with national laws providing a right of access to government information, including in Asia, the Republic of Korea and Thailand. The U.S. Freedom of Information Act (FOIA), which served as a model and inspiration for Japan’s law, was enacted in 1966 and has been expanded and improved many times since. FOIA has been used by millions of people to access a vast range of previously confidential information concerning such matters as food and drug safety, the environment, government investigations, and virtually every topic of public interest.
Will the new Japanese law play a similar role in Japan? Only time will tell. More than four thousand information disclosure requests were filed with national government agencies during the first week of operation alone. It is too early to evaluate either the nature of these requests or the government’s response. Compared to the American FOIA, language in the Japanese statute clearly restricts the availability of many categories of important information and provides much broader discretion to officials in possession of the files.
Below is a brief legislative history of the law followed by an analysis and comparison of its key provisions with analogous provisions of the U.S. FOIA.
HISTORY
Academics, attorneys and civic activists in Japan began lobbying for a national disclosure law in the 1970s. Initial interest was spurred by strong public concern over failures in public administration illustrated by incidents such as the Lockheed scandal, illness and death due to defective drugs, severe cases of industrial pollution, and other causes.
Advocates saw a national information disclosure law as a practical tool to combat official secrecy and to root out the causes of government regulatory failures. Local governments responded quickly. By 1985 major population centers, including Tokyo, Osaka, Kanagawa and Saitama, had all adopted information disclosure ordinances. By the time the Information Disclosure Law was enacted in 1999, close to 900 local governments, including all the prefectures, had information disclosure ordinances or guidelines in place.
At the national level, the bureaucracy teamed with a single party government to delay serious consideration of a disclosure bill until the mid-1990s. Formation of the Hosokawa Cabinet in 1993 led to appointment of an Administrative Reform Commission (ARC, Gyosei Kaikaku Iinkai) with a mandate that included drafting a national disclosure statute. A subcommittee (Expert Committee on Disclosure of Administrative Information, Gyosei Joho Kokai Bukai) expressly devoted to this purpose was appointed in 1995. Chaired by a retired Supreme Court Justice and with leading administrative law scholars and ex-bureaucrats included among its membership, the committee delivered its final report (composed of a proposed bill, joho kokai yokoan, and commentary, kangaekata) in December 1996. That same month the Hashimoto Cabinet adopted a resolution declaring its intention to pass legislation based on this report. Members of both opposition and government parties seized upon the report as a base for legislation. In 1997, all major opposition parties submitted draft legislation to the Diet. In March 1998, the three ruling coalition parties reached agreement. They submitted a government bill to the Diet on March 28, 1998. This bill would be subject to debate and amendment over the course of the next fourteen months, and formally passed into law by resolution of the lower house of the Diet on May 7, 1999.
Under dedicated coaching from pro-disclosure citizens groups, opposition party Dietmembers successfully obtained a number of key concessions from the ruling coalition, resulting in a series of revisions and supplements to the government bill. The major thrust of these changes is to both guide implementation of the law and to lay the foundation for future legislation expanding disclosure. Key subjects included the following:
1. Jurisdiction. The original government bill would have required that all disclosure-related litigation be filed in Tokyo District Court, potentially imposing a significant burden on requesters residing far from Tokyo. The revised bill expanded such 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.)
2. Special Public Corporations (tokushu hojin). Numerous special public corporations that provide basic public services are outside the scope of administrative agencies subject to the statute. The bill requires that legislation governing disclosure by these entities be adopted within two years of passage of the disclosure law by the Diet. (A government bill was passed into law on November 2, 2001.)
3. Future Action. In addition to the statement concerning a future law governing public corporations, the statute also requires the Diet to review the operation of the law four years from its adoption and consider measures to improve implementation. Additional statutory language requires the continued study of issues such as explicit mention of the Right to Know in the law, adoption of an Administrative Documents Management Law (gyosei bunsho kanri ho) and other issues raised during Diet deliberations.
4. Standards Governing Disclosure Decisions. The revised bill requires the head of each government agency to adopt written standards governing disclosure and also to implement sound measures governing archiving of documents. Other key issues include the requirement that fees related to processing requests be reasonable (see note below) and that the information disclosure review panel have adequate resources.
Both the ARC commentary and the debates that took place in the Diet provide valuable insights into the reasoning behind each provision of the law. It is expected that this legislative history will play an important role in interpreting the new law.
The Information Disclosure Law is an important first step toward bringing Japan in line with a worldwide trend toward greater legislative and regulatory transparency. Of greatest importance, it provides a framework for further measures to heighten citizen participation in and supervision of government activity. The original American FOIA was itself a relatively weak statute, but the persistence of disclosure activists and the shock of Watergate-era events led to dramatic revisions to the statute and strengthening of the public right of access. As Japanese society transforms to meet the challenges of the future, the Information Disclosure Law will also be subject to change.
Local Government Disclosure Ordinances
As noted above, local governments began adopting disclosure ordinances in the mid-1980’s. Within a few years all major cities and prefectures had adopted disclosure rules and information requests were being filed all over the country. The disclosure movement received a major boost due to strong public interest in so-called “kan-kan settai,” “kara-shutcho” and other abuses in public spending that came to light through aggressive use of the disclosure ordinances by a national network of attorneys and public-spirited citizens (for details, see Lawrence Repeta “Local Information Disclosure Laws in Japan,” at www.nbr.org/publications/executive_insight). Disputes under these local rules found their way into the courts. As of the end of 2001, more than 300 contested cases had been decided by Japan’s courts under these regulations. Despite the generally broad language of exemption clauses (see below), in many cases the courts have decided in favor of disclosure. These cases will serve as precedent in interpreting the provisions of the new national law.
National Information Disclosure Law
The following chart identifies key provisions of Japan’s Information Disclosure Law, compares them against the most analogous provisions of the U.S. Freedom of Information Act, and offers brief commentary and analysis. All U.S. citations are to the Freedom of Information Act, at 5 U.S.C. sec. 551 et seq. Japan citations refer to the Gyoseikikan no Hoyu Suru Joho no Kokai ni Kansuru Horitsu (Law Concerning the Disclosure of Information Held by Administrative Organs), Law Number 42 of 1999.
INFORMATION DISCLOSURE RESOURCES
JAPAN – English Language Documents
A translation of the Information Disclosure Law is available at the Management and Coordination Agency’s internet site. http://www.somucho.go.jp/gyoukan/kanri/translation.htm
Boling, David. “Access to Government-held Information in Japan: Citizens’ “Right to Know” Bows to the Bureaucracy.” Stanford Journal of International Law, V34, No.1, 1998, 38pgs.
Boling, David. “Information Disclosure in Japan: Local Governments Take the Lead.” Paper presented to the Fifth International Conference on Japanese Information in Science, Technology & Commerce, 30 July-1 August 1997, US Library of Congress, Japan Documentation Center. Preprints, 127-132. [Contact (202) 482-6805, fax (202) 219-3310,
poneillbrown@doc.gov]Grier, Jean. “The Need for a More Transparent and Accessible Administrative System in Japan.” Paper presented to the Fifth International Conference on Japanese Information in Science, Technology & Commerce, 30 July-1 August 1997, US Library of Congress, Japan Documentation Center. Preprints, 89-92. [Contact (202) 482-6805, fax (202) 219-3310,
poneillbrown@doc.gov]Repeta, Lawrence. “Local Government Information Disclosure Systems in Japan,” The National Bureau of Asian Research, Executive Insight No. 16, October 1999. (Text available at http://www.nbr.org/publications/executive_insight)
Schultz, David, “Japan’s Information Disclosure Law: Why a Law Full of Loopholes is Better Than No Law At All.” Law in Japan: An Annual, Vol.27 (2001)
Tsuchiya, Motohiro. “Information Disclosure of Japanese Government on WWW Homepages.” Paper presented to the Fifth International Conference on Japanese Information in Science, Technology & Commerce, 30 July-1 August 1997, US Library of Congress, Japan Documentation Center. Preprints, pp 133-167. [Contact (202) 482-6805, fax (202) 219-3310, poneillbrown@doc.gov]
JAPAN – Japanese Language Documents
Important Websites:
http://clearing-house.org — This is the website of Information Clearinghouse Japan, a Tokyo-based NGO devoted to promoting broad information disclosure and citizen participation in public policymaking.
http://www.jkcc.gr.jp — This is the website of Joho Kokai Shimin Center (Information Disclosure Citizens Center), an NGO that promotes citizen involvement in government document disclosure. It is closely allied with the Citizen Ombudsmen organization.
Gyosei Kikan no Hoyu Suru Joho no Kokai ni Kansuru Horitsu (Law Concerning the Disclosure of Information Held by Administrative Organs) The text of the Information Disclosure Law itself, the ARC proposal and commentary, along with other documents can be found at: http://www.somucho.go.jp/gyoukan/kanri/a_06.htm
Other Documents:
Joho Kokai Ho Kaisetsu (Interpretation of the Information Disclosure Law), Kitazawa, Yoshihiro and Miyake, Hiroshi, Tokyo: Sanseido,1999. This book examines the law from the point of view of a potential requester, and provides detailed explanations and commentary.
Joho Kokai Ho no Tebiki (Handbook to the Information Disclosure Law), Miyake, Hiroshi: Kadensha, 1999.
Joho Kokai Ho no Chikujo Kaisetsu (Article by Article Interpretation of the Information Disclosure Law), Uga, Katsuya, Tokyo: Yuhikaku, 1999. This book provides a detailed examination and interpretation of each article of the law, from first to last, with an emphasis on the legal rationale behind each provision.
Joho Kokai Ho: Rippo no Ronten to Shiru Kenri (Information Disclosure Law: Legislative Issues and the Right to Know), Miyake, Tajima and Usaki (eds.), Tokyo: Sanseido, 1997. This volume gathers articles by a committee of specialists formed in 1994, including prominent attorneys, journalistsand young scholars promoting information disclosure. Topics include all key aspects of the ARC draft information disclosure bill with analysis of leading cases and comparisons to US and other foreign precedents.
Joho Kokai Hosei, Gyosei Kaikaku Iinkai Jimmukyoku Kanshu. (Information Disclosure Law, Editorial Supervision by the Secretariat of the Administrative Reform Committee) Dai-ichi Hoki, 1997. A 600-page volume which gathers documents reviewed by the Information Disclosure Subcommittee of the Administrative Reform Commission. It presents an extensive collection of Japan court decisions, translations of foreign statutes, court decisions and other documents, text and analysis of Japanese local government ordinances and other material.
Numerous articles have appeared in all major Japanese law periodicals including Jurisuto, Horitsu Jiho and others.
UNITED STATES – Documents
Freedom of Information Act Guide & Privacy Act Overview, US Department of Justice, Office of Information and Privacy (September 1998 edition). A 800-page overview discussion of FOIA, including statutory analysis, description of significant court precedents and many important procedural aspects. It is published as a guide to federal officers applying FOIA in their daily work.
UNITED STATES – Organizations
Office of Information and Privacy
Justice Department
Flag Bldg. #570
Washington, DC 20530
(202) 514-2000
fax (202) 514-1009
http://www.usdoj.gov/oip/oip.htmlFreedom of Information Clearinghouse
1600 20th Street, NW
Washington, DC 20036
(202) 588-1000
fax (202) 588-7795
foic@essential.org
http://www.citizen.org/
AUTHORS
Lawrence Repeta, Esq.
Mr. Repeta, Director, Temple University Law School Program in Japan, is a graduate of the University of Washington School of Law and a member of the Washington State Bar Association. He has been a member of the Japan Civil Liberties Union since 1980 and is a founding director of Information Clearinghouse Japan, a non-profit organization devoted to promoting sound government information disclosure practices. He served as a visiting scholar at the University of Washington Law School during the 1997-98 academic year when he commenced research on this project. His research into Japan’s information disclosure law has been supported by a grant from the U.S.-Japan Friendship Commission.
David M. Schultz, Esq.
Mr. Schultz is a practicing attorney with the Tokyo Law Firm of Abe and Matsutome. He holds J.D. and L.L.M. degrees in Asian and Comparative Law from the University of Washington School of Law. David’s work on this topic has been funded by a grant from the U.S.-Japan Friendship Commission. He is a member of Information Clearinghouse Japan and the Japan Civil Liberties Union. Before entering law school David worked for eight years in Tokyo as a television news producer, first with NBC’s Tokyo bureau, and then with the BBC. He received his B.A. in International Relations from Boston University.
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