The Potential Impact of Japan’s New State Secrecy Bill

6 November 2013

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 this site, on 25 October the Japanese government moved to introduce to the Japanese legislature the “State Secrecy Bill” (formally, the Bill on the Protection of Designated Secrets).  The government apparently hopes to make the bill law by the end of the year, in time for the establishment of a new National Security Council, which has been used as the justification for the bill.

Perhaps because of this rush, the bill is – to paraphrase Oscar Wilde – not only bad, but badly written, which is worse.

Several commentators have rightly pointed to the increased penalties under the bill for leakers within the civil service, as well as the potential risk that journalists may face prosecution, due to vaguely worded penalties for “improperly accessing” classified documents or “conspiring” to leak.  The precedent for such prosecution is worrying: most famously, in 1978 the Japanese Supreme Court overturned the acquittal of Mainichi Shimbun reporter Takiji Nishiyama and found him guilty of violating the National Personnel Law.  Nishiyama had been leaked documents from a Ministry of Foreign Affairs staffer, with whom he had been having a romantic relationship, in relation to the reversion of Japanese sovereignty over Okinawa in 1972.  The Supreme Court held that Nishiyama had used his relationship to improperly induce the staffer to breach her official secrecy obligations.  Unsurprisingly, Nishiyama has come out against the bill.

At the very least, the bill could have a chilling effect on investigative journalism in Japan.  While the government did incorporate some weak safeguards into the bill at the eleventh hour, such as a requirement that agencies “take into consideration” human rights and freedom of the press, ultimately it will be necessary to have some faith in the common sense of the courts to interpret the proposed law consistently with the Constitution (although it bears mention that the constitutional protection of freedom of the press was argued without effect in the Nishiyama case).

Of potentially equal concern, however, is the total lack of oversight for classification of information as “secret”.  The bill would give heads of agencies – even those with functions unrelated to national defence or security, the main standards for classification – the unilateral power to determine that information is secret.  There is no provision for independent review of such determinations, nor any mechanisms for third parties to challenge them.  Journalists and others could theoretically seek agency or judicial review of classification decisions under Japanese administrative law, but it is unlikely that they would be successful in demonstrating standing, or that such decisions fall within the narrow range of conduct to which review applies.

It would therefore be possible for agencies to classify as secret any politically embarrassing information, no matter how tangentially related to the classification standards, without threat of reversal.  Some commentators worry that the government could seek to use the proposed law to hide information on matters like the Fukushima nuclear disaster.  Even if not abused, Prof. Lawrence Repeta at Meiji University is concerned that agencies, left unchecked, will develop a culture of “overclassification”.

What is left unclear by the bill in its current form is its relationship with the Information Disclosure Law (“IDL”), the country’s main freedom of information legislation.  The two laws need not necessarily be inconsistent: the State Secrecy Bill is explicitly aimed at preventing “leaks”, which presumably does not include disclosure in accordance with the formal procedures under the IDL.  Moreover, it is easy to imagine cases in which classified information could nevertheless be disclosed under the law; for example, where information is partway through a classification period and the reasons for classification no longer exist.

What is more likely, however, is that classification will be used as the basis to automatically refuse requests for disclosure in accordance with the IDL exemptions relating to defence and public order (the IDL gives agencies broad discretion to refuse disclosure of documents that could, for example, “pose a risk of harm to national security” or to “trust with other countries”).  If agencies and those responsible for reviewing agency decisions treat classification as conclusive for the purpose of these exemptions, it could remove documents from the appeal system established under the IDL precisely to prevent non-disclosure on the basis of political and other improper motives.  This would greatly reduce the efficacy of the IDL as a whole.

On the other hand, the bill explicitly provides that classified information may be provided to members of the Information Disclosure Review Council, an independent advisory body that reviews and makes recommendations on appeals against individual non-disclosure decisions.  This provision appears to pre-suppose the possibility that non-disclosure of classified documents could still be challenged under the IDL.  If so, the IDL could yet prove to be an indirect route to expose improper classification.

Either way, the absence of clear language under the bill suggests that the drafters have not fully thought through the implications of the propose law for the IDL.  As previously reported here, freedom of information does not appear to be on the Japanese government’s mind much at all.  The government continues to show little enthusiasm for the Open Government Partnership, or for picking up the aborted attempt of the previous government, under the Democratic Party of Japan, to amend the IDL to allow for greater transparency.  At the same time as the government introduced its State Secrecy Bill on Friday evening, the Democratic Party re-introduced its amendments to the IDL in the form of a private members’ bill.  Unfortunately, it looks likely that only one of these bills is likely to pass.

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