United Nations Special Rapporteur David Kaye has expressed strong concerns that Japan’s Specially Designated Secrets Act (SDS) restricts the public’s right to information.
He revealed his preliminary observations April 19 in Japan at the conclusion of a weeklong fact-finding trip. (Video of press conference and article in Jurist).
Kaye said the act “goes further than necessary in protecting information from disclosure, putting in peril the public’s right to know in areas of immense public interest, such as nuclear power, national security and disaster preparedness.”
He said the SDS “does not in my view adequately define the matters that can be designated secret or the preconditions for classification.” He continued:
The Government’s implementation standards have sought to clarify the four specific categories (defense, diplomacy, prevention of specified harmful activities, prevention of terrorist activities) under which information may be designated as secret, and I appreciate this effort. But the specific subcategories remain overly broad, and I would urge continued work and vigilance to avoid the possibility that information may be designated as secret even if its disclosure would not jeopardize Japan’s national security.
The SDS “puts journalists and their sources at risk of facing penalties,” Kaye also said. “I was pleased to hear from officials that the Government does not intend to apply Article 25’s harsh penalties to journalists, but the law should be so amended to eliminate any chilling effect on them,” he said.
He elaborated:
I also understand from our exchange that the unknowing disclosure of information by journalists will not be punished as long as the information is in the public interest and is acquired in the good faith and lawful pursuit of journalism. However, in keeping with the suggestion of the Human Rights Committee, I encourage the government to include an exception to guarantee that no individual – neither journalists nor government employees – is punished for disclosing information of public interest that does not harm national security.
Kaye also voiced concern that whistleblower protections “appear weak” and that the oversight mechanisms established by the SDS “are not sufficiently independent and are not guaranteed access to the information in order to determine the appropriateness of its designation as secret.”
He also said “the independence of the press is facing serious threats” citing “a weak system of legal protection” and “persistent Government exploitation of a media lacking in professional solidarity.”
Kaye’s predecessor, as well as the Human Rights Committee, raised concerns about the process by which the Act was adopted and the ways in which it deals with the public’s right to know.
Kaye, a US law professor, was appointed as Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression in August 2014 by the United Nations Human Rights Council.
Newspaper Editorial Criticizes SDS
Separately, an editorial in The Japan Times says, “The first reports issued by the Diet boards overseeing state secrets have proven, as had been widely feared, that their power is so weak that it’s almost impossible for them to effectively check abuse of the state secrets law by government offices. The Diet should seriously consider giving teeth to its boards in both chambers. This is all the more important since the boards, made up of elected officials, represent the only mechanism outside of the administrative branch to prevent arbitrary designation of government information as state secrets.”
Later it summarizes:
The boards have so far dealt with 382 cases comprising some 189,000 documents, including photos, that were designated as state secrets by the Defense Ministry, the Foreign Ministry and eight other government organizations in December 2014 right after the law went into effect. The government’s reports to the boards were so vague that it was almost impossible for them to determine specifically what the secrets were about.
For example, the government’s report lists the date when a particular piece of information was classified, the name of the official responsible for management of that secret and how long the information must be kept secret. It also includes an outline of the secret, but the description is in highly abstract terms, leaving the board members in the dark as to what specific information is being addressed. As a result, they had to give up trying to determine whether the designation as a state secret was appropriate.
The editorial makes series of reform suggestions.
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