Japan

International Focus

Background and History

In the sixties and seventies Japan saw a number of scandals in which government agents were criticised for withholding information from the public. In particular, the government was condemned for repeatedly failing to publicise the fact that certain drugs and chemicals were known to be dangerous. One government official, it emerged, had stopped taking the drug chloroquine when he learned that it could cause blindness, but had failed to publish the information on which he based his decision. Later, the Ministry of Health rejected a request from the Japan Consumers Federation that it should explain its reasons for approving the use of olt phenil phenol (OPP) as a food additive, despite knowing that it may cause cancer. The government also failed to publicise warnings about the dangers of the drug Thalidomide in a timely manner, and a large number of babies damaged by it were born before the risks were disclosed to the public. Several lawyers who acted for the victims of this policy responded by demanding a freedom information law. [1]

In March 1980, an umbrella organisation called the Citizen's Movement for an Information Disclosure Law was formed. Members included the Japan Consumers Federation, the Housewives' Federation, the Japan Civil Liberties Union and other individuals and groups. It began to campaign for a freedom of information law.[2]

Initially there was greater willingness to enact such a law at local than at national level.[3] The Liberal Democrat Party was in the middle of a forty year stint in control of the national government [4], and may have developed an executive mentality which could only view freedom of information as inimical to its interests. However, the Liberal Democrat's monopoly on power at the national level was not replicated at the local level, where politics played out very differently. In 1982, Kanayama, a village in the Yamagata prefecture, became the first place to adopt a freedom of information ordnance. By 1988 twenty-five prefectures had some kind of regulation facilitating the disclosure of information. In 2001, when the coalition which, by then, controlled national politics finally enacted country-wide freedom of information legislation, it drew on the lessons that had been learned by legislators at a local level.

Japan is typically seen as a lightly regulated business environment, in which the public, both as consumers and as citizens, are sometimes insufficiently protected, whether from poor products or dangerous practices. One very broad concept of freedom of information sees it as "filling the gaps" and allowing members of the public to obtain the information they need to protect themselves, in the absence of a more demanding regulatory environment.[5]

The Law

The national law came into effect on 1 April 2001. It creates a presumption that government agencies should disclose information when asked to do so. This presumption is subject to six broadly worded exemptions. Material need not be disclosed if it is:

1) "Confidential business information"

2) "Individual information"

3) Related to national security or foreign policy

4) Related to criminal investigation and prosecution

5) Policy deliberation within government agencies,

6) Related to any of a list of various other activities, including research and personnel management.[6]

It should be noted that the policy deliberation exemption would probably preclude the release of the information sought by the Japan Consumers Federation regarding the government's approval of the use of OPP.

Requests can be made in person, through the post or through the website of the government agency to whom the request is directed. A fixed fee of three hundred yen (currently £2.47) is charged. There is an additional fee of 100 yen (82p) per hundred pages of documentation, and there can also be a charge of 20 yen (16p) per page for photocopying.[7]

Article 10 of the Act requires that agencies respond to requests within 30 days, and the data shows that they usually, but not always, do so. The response time can be extended for a further thirty days if necessary, and for longer if a "very large volume" of data is involved.[8]

If a request is rejected the requestor can ask an administrative review board to reconsider the decision. There is no charge for this. The boards are comprised of retired officials, lawyers, academics and other prominent members of the community.[9] They are required to carry out their own investigation into the request, and requestors are entitled but not required to submit evidence and arguments for consideration. Review boards regularly order the release of some or all the relevant information.[10] If they decline to do so, the requestor may proceed to challenge their decision through the Courts. However, in practice this process can prove lengthy and expensive, and such cases are rarely pursued.[11] 

Statistics on requests

The Table below [12] shows high disclosure rates early on the regime are masked by the measurement of partial and full disclosed requests together. When these results were split in 2008 and 2009 figures, low rates of full disclosure become apparent.

Recent developments

Japan is currently governed by the Democratic Party of Japan. Improvement of the information disclosure system was a key policy for them in opposition, and in 2005 they unsuccessfully attempted to induce the national Parliament to enact a bill revising the current freedom of information legislation. Concerns included the fact that there is no time limit within which administrative appeals must be heard, and the broad nature of the statutory exemptions. It was also felt that the fact that courts may not examine government records, even in closed proceedings, hinders their ability to form the view that particular information should be disclosed.[13]

However, when the Democratic Party of Japan came into power, instead of reintroducing the bill, they conducted a review of the issue. An "Administrative Transparency Study Team" produced a number of reports, and the Party planned to publish a new bill on 15 March 2011. However, four days before that date, the "Great Earthquake" struck and all non-essential business was delayed, as the government focused it resources on managing the crisis.[14]

On 22 April an information disclosure bill was submitted to Parliament, but the Prime Minister who approved it was forced to resign on 26 August and, although his successor is also of the Democratic Party of Japan, no efforts have been made to enact the new freedom of information bill.[15]

Japanese FOI activists initially hoped that the delay merely reflected the more pressing immediate priorities of a government managing serious political and national troubles. However, on 7 October last year, the Chief Cabinet Secretary submitted to Parliament a bill strengthening the sanctions associated with leaking state secrets. The government justifies this move with reference to several recent leaks of confidential security information, including one which resulted in the names and addresses of terrorist informants becoming public.[16] However, some activists are troubled by the security bill because, since the Courts may not review private government records, they cannot assess the security significance, or lack thereof, of information which the government will not divulge. The state thus has first and final say on what it keeps hidden, and could theoretically designate any embarrassing fact a "state secret". The proposed freedom of information act, unlike the bill the Democratic Party of Japan drafted while they were in opposition, does nothing to remedy this situation, and allow the Courts to supervise the system.[17] So, whether or not the new freedom of information bill is enacted, it may be that FOI is no longer truly on the agenda of the Democratic Party of Japan, or the Japanese government.

References

[1] Information Clearing House Japan, 2002. Japan- Breaking Down the Walls of Secrecy: The Story of the Citizen's Movement for an Information Disclosure Law: http://www.freedominfo.org/2002/07/case-study-japan-breaking-down-the-walls-of-secrecy/

[2] Ibid

[3] Ibid

[4] Ibid

[5] Repeta L., 2006. Business confidentiality versus human health; the role of Japan's information disclosure laws: http://www.opengovjournal.org/article/view/382/383

[6] Soumu. Law Concerning Access to Information Held by Administrative Organs: http://www.soumu.go.jp/main_sosiki/gyoukan/kanri/translation4.htm

[7] Repeta L., 2001. JFOI Year One Essay: http://ebookbrowse.com/jfoia-year-one-essay-pdf-d58023986

[8] Ibid.

[9] Freedom Info. Freedom of Information in Japan: Promoting Accountability in Government: http://www.freedominfo.org/regions/east-asia/japan/japan/

[10] Ibid.

[11] Ibid.

[12] Statistics collated from the Ministry of Internal Affairs and Communications. 

[13] Freedom Info. Freedom of Information in Japan: Promoting Accountability in Government: http://www.freedominfo.org/regions/east-asia/japan/japan/

[14] Repeta L., 2011. Freedom Info. After Disasters, Japan FOI Reformers Wait Patiently: http://www.freedominfo.org/regions/east-asia/japan/japan/

[15] Japan Times, 2011. Freedom of information threatened: http://www.japantimes.co.jp/text/ed20111025a1.html

[16] Ibid.

[17] Ibid.