By Joel Rheuben
Rheuben is an Australian lawyer resident in Japan. He was previously an associate in the Tokyo office of Herbert Smith Freehills, and is currently pursuing postgraduate studies in law at the University of Tokyo.
As recently reported on FreedomInfo.org, UK Prime Minister David Cameron will stress commitment to transparency as a goal for this year’s G-8 Summit, to be held in Northern Ireland in June. If Mr. Cameron hopes to extract more than rhetorical promises from the G-8, he may have his work cut out for him so far as one member country – Japan – is concerned.
An Annus Horibilis for Transparency
For the past several years Japan had appeared to be heading in the right direction in terms of greater government transparency and openness. In 2011 a new comprehensive archives law came into force, mandating the documentation of various government activities and restricting the ability of agencies to destroy certain categories of documents. The same year, a bill to revise Japan’s Information Disclosure Law was introduced to the Diet, Japan’s legislature, as described here.
However, 2012 quickly became a disappointment.
Both the Japanese government and TEPCO, the operator of the crippled Fukushima Dai-ichi Nuclear Power Plant, have faced strong criticism for their failure to provide adequate or timely information on safety risks following the meltdown of that plant in March 2011.
Early in 2012 it was revealed that regulators responsible for responding to the Fukushima disaster, including the cabinet’s own emergency response team, had failed to keep written minutes of their meetings. A subsequent investigation found that, in spite of the new archives law, many of the bureaucrats involved were either unaware of their obligation to keep records, or had never received proper training on how to do so.
The government responded to these revelations by amending the non-binding guidelines under the archives law so as to clarify when records of meetings must be kept, but did not create any hard law obligations.
In a related development, it later emerged that the country’s then-main nuclear regulator, the Atomic Energy Commission, had for more than a decade held secret “study meetings” in advance of regular formal meetings. Key discussion points were debated and agreed upon in study meetings and subsequently “rubber-stamped” in formal meetings, so as to avoid substantive deliberations from being minuted. Such practices are, from some accounts, not uncommon in the Japanese civil service. However, particularly egregious was that the study meetings were often attended by private nuclear industry operators, who in turn received and commented on meeting materials ahead of their official publication.
Again, the government has taken no legislative steps to avoid such practices in the future, relying instead on the archives law guidelines.
The lack of transparency in relation to Fukushima, including restrictions imposed on freelance journalists covering the disaster, was largely responsible for Japan’s drop from 22nd to 53rd place in the 2013 World Press Freedom Index, compiled by Reporters Without Borders.
Pro-transparency groups such as Information Clearinghouse Japan have sought to compensate for the government’s lack of openness by conducting information disclosure requests to compile a database of materials relating to the disaster and the government’s response to it. However, their task will not be aided by the slow progress of freedom of information law reform.
At the end of 2012 the Information Disclosure Law revision bill, which had sat in committee for more than 18 months, was allowed to expire when the lower house of the Diet dissolved for a general election. Under Japanese parliamentary procedure, bills automatically become void at the end of each Diet session, and must be reintroduced for deliberations to continue. There has been no commitment by the incoming Liberal Democratic Party (LDP) government of Prime Minister Shinzo Abe to reintroduce the bill, and nor is such a commitment foreseeable. A similar bill was rejected by the LDP when last in power.
The amendments to be introduced by the bill were largely incremental and non-controversial, but included some important provisions that would have made it easier to challenge non-disclosure decisions in judicial proceedings. They were nevertheless opposed by a significant proportion of the Japanese civil service. The close ties between the civil service and the LDP, which administered Japan for nearly all of the past 60 years, have likely sealed the bill’s fate.
Japan and the OGP
In addition to hosting this year’s G-8 Summit, the United Kingdom is also currently co-chair of the Open Government Partnership. In 2012 Japan pledged, along with the other G-8 members, to assist developing countries with progress towards membership of the OGP. Yet Japan appears to have next to no knowledge of or interest in the organization itself.
Neither the website of the Japanese Ministry of Foreign Affairs nor those of any of the government departments responsible for freedom of information administration make any reference to the OGP or to the Japanese government’s position on membership.
I submitted information disclosure requests to these departments in February 2013, seeking any internal documents assessing the merits of Japan joining the OGP. Six separate disclosure requests resulted in the production of a single page – a transcript from a Q&A session on e-commerce policy in early 2012 – in which it was simply noted that Japan would have to learn more about the OGP before deciding whether it would be appropriate for it to join. This appears not to have occurred. Indeed, in telephone conversations with dedicated FOI officers in the course of these requests, it was clear that none had ever heard of the OGP initiative.
The Japanese government’s lack of interest in the OGP is all the more disappointing given that, in addition to other G-8 participants, neighboring country South Korea was one of its earliest members. Several of Japan’s major aid recipients in Asia, including Indonesia, the Philippines and Mongolia have also joined.
After a bad year and a bleak near-term future for transparency in Japan, it is to be hoped, but by no means anticipated, that Mr. Cameron’s enthusiasm will rub off on Mr. Abe in Northern Ireland this June.
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