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Japan
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U.S.
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Comments
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Proactive
Information Disclosure |
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| Since
the 1980's, many of Japan's government offices have maintained windows for
examination of public documents. In 1991, an interministerial committee
adopted a set of standards for information to be disclosed. Citizens groups
have been thoroughly dissatisfied with this initiative, complaining that
officials disclose only documents prepared expressly for public dissemination,
cataloging of documents is haphazard, and working level officials have little
understanding of the standards. The
2001 Information Disclosure Law does not require government agencies to
take any proactive steps to publish or otherwise make documents publicly
available. It simply provides a right to request the disclosure
of information and a corresponding government obligation to respond.
A Cabinet
Order has been issued in accordance with Article 37 of the law that sets
out universal guidelines for agencies on how to manage their administrative
documents.This Cabinet Order directs that each government agency establish
and make available for public inspection via the internet a searchable
index of the titles of the documents held by that agency.While at first
glance such an index may appear to be a major tool for requesters, in
many cases the document titles provide little or no insight into what
information a document actually contains, forcing requesters to discuss
their requests with the administrators in charge of the information they
seek.
It should
also be noted that a 1999 Cabinet Order established a public comment procedure
for the formulation of regulations of general applicability. This requires
government agencies to publish proposed regulations or proposed amendments
to existing regulations, and to take into consideration public comments
before issuing final statements of regulations. |
The
opening sections of the US Freedom of Information Act ("FOIA") mandate proactive
information disclosure by government agencies. Section 552(a)(1) requires
publication in the Federal Register of information such as descriptions
of agency organizations, functions, procedures, substantive rules, and statements
of general policy. Section 552(a)(2) further requires the general availability
for public inspection and copying of final opinions in adjudicated cases,
specific policy statements and administrative staff manuals. This latter
set of documents is often referred to as "reading room materials."
The documents must be indexed for easy access and provided in "reading rooms"
available to the public. 1996
amendments to FOIA expressly expanded proactive disclosure to include
electronic media. This is discussed below. |
Although
Japan's law does not include a requirement of affirmative disclosure, Article
40 does state that "In order to comprehensively promote disclosure of the
information in its possession, the government shall strive to enhance measures
concerned with the provision of information held by administrative agencies."
Optimistic observers may point to this language as the source of a future
set of rigorous proactive disclosure requirements. The
proactive disclosure requirements of the US FOIA became especially important
with Congress' adoption of the Electronic FOIA (described below). Congress
stressed the efficiency benefits of proactive disclosure: by screening
documents already released under Sections 552(a)(1) and (2), requesters
in many cases may discover that information is available without the need
for a FOIA request at all. Review of released information should also
enable parties to frame more precise document requests. |
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Electronic
Media |
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| Japan's
law defines an "administrative document" to be a "document, drawing, or
electromagnetic record," and further defines an electromagnetic record as
"a record created in a form that cannot be recognized through one's sense
of perception such as in an electronic form or magnetic form." Regarding
methods of implementing disclosure of electronic records, the law states
that agencies must take into account the type of electronic record and
"the state of development of information technology." |
In
1996, the US Congress passed the "Electronic Freedom of Information Act,"
to address recent developments in information technology. This law
explicitly defined "records" to include information maintained "in any format,
including an electronic format" and established the affirmative requirement
that all records which an agency must make available under present law (including
"reading room materials") must be made available on-line as well as in hard
copy. This amendment also clarified that agencies must make reasonable
efforts to search for documents in electronic form and established the requirement
that all agencies must create general indices of previously released material
and that such indices must be made available on-line no later than December
31, 1999. |
Agencies
of both governments have proactively adopted extensive Internet websites
to provide access to a wide range of information. The 1996 FOIA amendments
seek to enhance internet usage. On-line access will spare many users
the need to visit "reading rooms" or otherwise travel to the location of
physical documents. Japan's
Ministry of Public Management is separately promoting policies for the
"informatization" (johoka) (increased use of computer files and networked
computer communication) of administrative practices. The terms of
this initiative do not address public information disclosure. |
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Right
to Demand Disclosure |
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| Japan's
law provides that "all persons" have the right to demand information.
Requesters must submit a document "in which are entered" the titles of administrative
documents or other particulars that will suffice to specify the administrative
documents relevant to the disclosure request." If the agency chief
deems that a request is deficient in some way, the requester may be asked
to revise the request; in such a case the law does obligate the agency chief
"to put at the requester's disposal information that will be helpful in
the revision." There
is no language regarding the government's burden to conduct a search for
relevant documents. Where a request is denied, there is no requirement
in the law itself that the requester be supplied with the specific reasons
for the denial. However, Japan's Administrative Procedure Law requires
that "at the time of rendering adverse dispositions, administrative agencies
shall indicate to the subject parties the reasons therefor." This
provision is seen as achieving the same effect as requiring a statement
of reasons for denial within the law itself.
As in the
US law, the right to demand disclosure is subject to exemptions (discussed
below). |
All
persons, domestic or foreign, natural or corporate, have the right to demand
disclosure. Requests are sufficient if they reasonably describe the
information sought; information can be sought for any reason whatever.
Requests apply to all information, held in whatever form, including electronic
formats. Government agencies must conduct a "reasonable" search for
the records requested; if challenged in court, the government must demonstrate
"what records were searched, by whom, and through what process." A
decision to deny a request must state the reasons for the denial, the right
to appeal and the name and title of each person responsible for the denial.
In litigation, the government has the burden to prove that the cited exemption
applies. |
Perhaps
the single most important factor in the success of an information disclosure
system is the attitude of the officials implementing the system. Through
much of its 30 year history, the American FOIA has been characterized by
a continuing battle between an activist Congress seeking broader disclosure
and an executive branch seeking to minimize disclosure standards.
1993 memoranda by President Clinton and Attorney General Reno dramatically
changed this relationship. The presidential memorandum states unequivocally
that maximum disclosure is government policy and calls for "consumer-friendly
service". The Reno memorandum directs release of information when
it only "technically or arguably" falls within an exemption and condones
non-disclosure only in cases of foreseeable harm due to disclosure.
These policies
appear to have been reversed by a memorandum from Attorney General Ashcroft
dated October, 2001 and other actions of the Bush Administration.
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Exemptions
to Disclosure |
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| Japan's
law creates six specific exemptions and also incorporates others by reference.
Language creating each of these exemptions is broad and appears to vest
a maximum of discretion in agency personnel. (e.g., certain categories of
administrative information can be withheld when the release of the information
would "risk unjustly causing confusion among the people.") |
The
US FOIA provides nine specific exemptions to disclosure and incorporates
by reference exemptions which may be created by language in other statutes.
In general, the language creating these exemptions is very narrow. (e.g.,
"specifically authorized" to be kept secret," "related solely to internal
personnel rules," "disclosure of which would constitute a clearly unwarranted
invasion of personal privacy"). |
Both
the US statute and Japan's law establish a structure in which information
disclosure is the general rule, but may be denied in exceptional cases.
Statutory language creating the exceptions is the biggest single factor
determining scope of disclosure. Broad wording of the exemptions in Japan's
law may have a big impact in limiting documents subject to disclosure.
Japan's law
has been subject to much criticism on this score, including comments that
it is an "information non-disclosure law." During the years leading
up to and during the government's drafting of the law, Japan's bar associations,
consumer groups and all of Japan's opposition political parties proposed
statutes with more narrow language setting exceptions to disclosure.
Analysis
of each of Japan's exemptions together with the most closely analogous
US exemption follows. |
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Exemption
for Individual Privacy Information |
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| Article
5(1) exempts information on individuals by which specific individuals may
be identified in a document or through a collation of information, or when
a specific individual cannot be identified, when by making the information
public there is a risk that an individual's rights and interests will be
harmed. Three exceptions allow disclosure: information that, by law
or custom, has been published, or is scheduled to be published, information
recognized as necessary to be made public in order to protect a person's
life, health, livelihood, or property, and information concerning the office
and the performance of duties of a public official. The
starting point is a presumption of non-disclosure when an individual can
be identified. Analysis then turns on interpretation of the exceptions.
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Exempts
personnel and medical files and similar files, the disclosure of which would
constitute a "clearly unwarranted invasion of personal privacy." Section
552(b)(6). To
decide whether an invasion is "clearly unwarranted," U.S. courts have
adopted the approach of balancing the personal privacy interest against
the public interest in access to the information. |
Japan's
law displays a radically different approach from US law. The US exemption
is limited to "clearly unwarranted" cases. Japan's exemption starts
with a blanket rule against disclosure of documents where a specific individual
can be identified. A draft provision proposed by the Japan Civil Liberties
Union ("JCLU") would have restricted non-disclosure to information concerning
"beliefs, religion, specific physical characteristics, health, family relationships,
work, school record, place of origin, address, organizational memberships,
property or income." Opposition party proposals adopted a similar approach.
The debate
in Japan over the release of information concerning individuals has centered
on demands for the release of the names of public officials when requesting
information on entertainment expenses under the local information disclosure
ordinances. The wording of the law appears to preclude the release
of the names of public officials, unless the names would customarily be
made public. In effect, it is expected that only the names of public
officials over a certain rank, whose names would customarily be published,
will be disclosed. In reaction to the widely publicized "kan-kan settai"
abuses, several prefectural ordinances now require, in principle, the
disclosure of officials' names. |
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Exemption
for Business Information |
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| Exempts
information concerning corporations or their officers or employees that
(A) may harm the rights, competitive status, or other legitimate interests
of the corporation or individual or (B) was voluntarily provided at the
request of a government agency on the condition that it not be disclosed
and where the attachment of the condition is rational in light of the nature
of the information and the circumstances at the time. Article (5)(2).
In the same
section, the law does allow the release of otherwise protected business
information "recognized as necessary to be made public in order to protect
a person's life, health, livelihood, or property." |
Exempts
trade secrets and commercial or financial information obtained from a person
and privileged or confidential. Section 552(b)(4). |
Application
of the US rule relies on common law regarding "trade secrets" and related
concepts. The voluntary/non-voluntary distinction in Japan's law was
borrowed from the US Critical Mass decision limiting the disclosure of information
that was voluntarily submitted to the government. What constitutes
"voluntary submission" can be a difficult issue. In the US, there
is much case law and executive branch guidance to assist in interpretation.
Non-disclosure
in cases where information is submitted on a voluntary basis has been
heavily criticized in Japan as welcoming collusion between government
officials and corporate officers to keep information confidential.
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Exemption
for National Security and Diplomacy Information |
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| Exempts
information that "the head of an administrative agency, with adequate reason,
deems to pose a risk of harm" to national security or foreign relations.
Article 5(3). |
Exempts
matters "specifically authorized under criteria established by an Executive
Order to be kept secret in the interest of national defense or foreign policy
and are in fact properly classified pursuant to such Executive Order."
Section 552(b)(1). |
U.S.
courts generally show great deference to agency expertise. At this
writing, the key US regulation is Executive Order 12,958, signed by President
Clinton in 1995. This order establishes several mechanisms to reduce
secrecy, including mandatory de-classification as documents age. It
is reported to be under review by the Bush Administration. Japan's
law leaves use of the exemption almost completely to the subjective judgment
of the agency head, only requiring "adequate reason" for a denial of disclosure.
While the ARCs draft employed an objective standard, the ARC commentary
does state that this is an area in which courts should defer to the expertise
of the bureaucracy. In Diet testimony it was explained that the
subjective standard employed in the law only makes clear the deferential
purport of the ARC draft.
In the US
case, in camera proceedings play an especially important role in applying
this exemption. Agencies may submit in camera affidavits
and documentation to assist the court in evaluating whether classification
is appropriate while at the same time protecting confidentiality.
It is generally
thought that Article 82 of the Constitution of Japan, which requires that
all trial proceedings be held in public, prohibits in camera proceedings.
However, hearings held by Japan's Information Disclosure Review Board
(Law, Acts. 21-26; see "Appeals Procedures," below) are closed to the
public, effectively creating an in camera procedure. |
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Exemption
for Criminal Investigation Information |
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| Exempts
information that an agency head "with adequate reason, deems to pose a risk
of causing a hindrance to the prevention, suppression or investigation of
crimes, the maintenance of public prosecutions, the execution of sentencing,
and other public security and public order maintenance matters." Article
5(4). |
Exempts
records compiled by law enforcement agencies but only to the extent disclosure
would (a) interfere with enforcement proceedings; (b) deprive a person of
a fair trial; (c) constitute a clearly unwarranted invasion of privacy;
(d) disclose identity of a confidential source; (e) disclose investigative
techniques and procedures or guidelines where disclosure could "reasonably
be expected" to risk circumvention of law; or (f) in cases where disclosure
"could reasonably be expected to endanger the life or physical safety of
an individual". Section 552(b)(7). |
While
the US exemption applies to both criminal and civil matters, in Japans case,
the ARC commentary points out that application of this exemption is meant
to be limited to information concerning the investigation and prevention
of crimes, rather than applying to all police or investigatory activities.
As in Japan's
exemption for national security information, above, the standard here
is subjective, deferring to the judgment of the agency head.Here again,
the unavailability of in camera procedures in Japans courts may
make it difficult for courts to adequately review decisions to withhold
information under this exemption. However, as noted above, the Review
Board may review documents in camera, adding weight to the role
of the Review Board as a means of overseeing the operation of law.
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Exemption
for Deliberative Process Information |
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| Exempts
"information concerning deliberations, studies, or consultations internal
to or between either national or local public entities that, if made public,
would risk unjustly harming the frank exchange of opinions or the neutrality
of decision making, risk unjustly causing confusion among the people, or
risk unjustly bringing advantage or disadvantage to specific individuals."
Article 5(5). |
Exempts
inter- and intra-agency memoranda and letters that would not be available
to a party in litigation. Section 552(b)(5). This exemption
includes several categories of documents, including those subject to the
attorney-client privilege and work product doctrine. The most commonly
invoked privilege is known as the "deliberative process privilege."
It is intended to protect the "decision making processes of government agencies." |
Language
in Japan's law appears to track case law under the US deliberative process
privilege. According to a Justice Department analysis, "three policy purposes
have been held to constitute the basis for this privilege: (1) to encourage
open, frank discussions on matters of policy between subordinates and superiors;
(2) to protect against premature disclosure of proposed policies before
they are finally adopted; and (3) to protect against public confusion that
might result from disclosure of reasons and rationales that were not in
fact ultimately the grounds for an agency's action." In
the US case, the standard used in deciding whether or not this exemption
may be applied is based on what would constitute privileged information
in the civil discovery context.Compared to this relatively well-established
standard, exemption is based on a rather vague sense of what would
constitute risking "unjustly causing confusion, etc.
ARC commentary
emphasizes that the harms this exemption seeks to avoid must be balanced
against the purpose of the law. (The proposed ARC draft law included
"participation in administration" by the public among express statutory
proposes. This language does not appear in the law adopted by the
Diet. Further, the commentary strongly supports disclosure of information
concerning the deliberations of the advisory committees (shingikai)
that are so often used to establish a consensus on policy issues.
The application
of exemption is a great deal broader than the US exemption in that
it not only applies to deliberative information of agencies that are subject
to the law, but it also applies to information regarding deliberations
in and between national and local bodies that are not subject to the law.
On the national level, communications with the Diet, the Cabinet, and
the judiciary may be protected by this exemption. While there is
no requirement that such bodies be consulted before disclosure of information
that may affect their deliberations, the ARC commentary recommends such
consultations.
Because the
information at issue under this exemption generally concerns only the
government itself, the 1993 Clinton and Reno memoranda described above
have applied most directly to cases affected by this exemption, thereby
expanding the range of documents disclosed. |
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General
Exemption for Agency Operations |
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| Japan's
Article 5(6) is an omnibus provision protecting a broad scope of information
concerning the operations not only of agencies directly subject to the law
but also other national and local entities. Under
an umbrella paragraph that exempts the release of information that would
cause a "hindrance to the proper performance" of the "affairs or business"
of national or local entities, there are five subparagraphs that set forth
examples of such information, as follows: (a) information concerning "audits,
inspections, supervision and testing," where the release of the information
would risk making difficult the "grasping of accurate facts," or facilitate
"illegal or unfair acts," (b) information concerning "contracts, negotiations,
or administrative appeals and litigation," the release of which would
risk "unfairly harming the State's property interests or position as a
party," (c) information concerning research studies, the release of which
would risk obstructing "their impartial and efficient execution," (d)
information concerning personnel management, the release of which would
risk hindering the "impartial and smooth maintenance of personnel matters,"
and (e) information concerning "the business of an enterprise managed
by the State," the release of which would risk harming "legitimate interests
arising from the management of the enterprise." |
Exempts
from disclosure documents "related solely to the internal personnel rules
and practices of an agency." Section 552(b)(2). |
The
language of Japan's law creates a very broad exemption for administrative
activities. Although the U.S. exemption for agency internal personnel
rules and practices is the most closely analogous provision, it is severely
limited by comparison. Article
5(6) exempts any information the disclosure of which risks "causing a
hindrance to the proper performance" of an agency activity. Thus,
application will turn solely on interpretation of the term "proper performance."
While the five subparagraphs may serve as limitations to the exemption
based on foreseeable harms and specific areas of activity, the subparagraphs
are merely examples which do not limit the actual scope of the exemption.
Similar language
is found in many prefectural ordinances. This provision is the source
of litigation concerning access to data describing entertainment and other
expenditures by local government officials. Draft proposals from
the Shinshinto and Minshuto limited protection to such administrative
documents when disclosure would "clearly result" in interference with
proper performance of the matter concerned.
Cases applying
the US exemption for internal personnel rules and practices have focused
on sensitive materials and have upheld nondisclosure of documents that
are "predominantly internal" and whose disclosure "significantly risks
circumvention of agency regulations." The foreseeable harm is that
disclosure would "benefit those attempting to violate the law and avoid
detection." Section 552(b)(2). |
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Conflicts
with Other Statutes |
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| In
drafting its proposed bill, the ARC decided it was unnecessary to provide
an express exemption for records required to be held confidential under
another statute. Instead, the ordinary rules of statutory construction
will be applied to solve potential conflicts between the Information Disclosure
Law and other statutes. This same thinking appears to have survived
in the law itself. Where
there is another law that provides for the release of information to any
person in a manner provided for by the information disclosure law, the
other law is to be applied and the agency head is not to disclose the
same materials in the same manner under the information disclosure law.
Article 15. |
FOIA
expressly exempts records which are "specifically exempted from disclosure
by statute" provided that such a statute "requires that the matters be withheld
from the public in such a manner as to leave no discretion on the issue"
or "establishes particular criteria for withholding or refers to particular
types of matters to be withheld." Section 552(b) |
Although
the language of the U.S. exemption is narrowly drawn, many statutes have
been held to qualify under this exemption. Examples include the federal
rules of criminal procedure preserving the secrecy of grand jury material,
the Ethics in Government Act, protecting the financial disclosure reports
of special government employees, and Title VII of the Civil Rights Act of
1964 concerning matters pending before the Equal Employment Opportunity
Commission. |
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Existence
or Non-Existence of a Document |
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| Article
8 of the law grants all administrative agencies the power to deny requests
without revealing the existence or non-existence of a document, in cases
where "by merely answering whether or not administrative documents exist
or do not exist" information that falls within the disclosure exemptions
will be released. |
Although
not specifically provided for by language in the FOIA, in a narrow range
of cases, US courts have allowed agencies to refuse to confirm the existence
or non-existence of a document where simple acknowledgment of the existence
of the document would constitute the disclosure of information that may
otherwise fall within a disclosure exemption. This is commonly known
as a "Glomar" response, after the original case in which this exception
was recognized. |
In
Japan this is a highly contentious provision. Draft proposals from
the Nichibenren and Minshuto had no such provision.
The Shinshinto proposal included a "Glomar" provision, but limited
application to defense, diplomacy and criminal investigations. Despite
Administrative Procedure Law provisions requiring agencies to provide a
reason for the denial of a request, disclosure activists worry that this
provision will be abused by the agencies, and that its use cannot adequately
be challenged in court. |
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Time
Limits |
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| An
agency must respond to a request within 30 days of request. Article 10.
May extend
for 30 days due to difficulty involved in the disposition or for some
other reason. The requester must be notified of the specific reason
for the extension. Article 10(2).
If a decision
cannot be made within 60 days because a request entails a voluminous number
of documents and a decision on each document within the time limit would
interfere with agency functions, the agency may make a decision as to
a reasonable part of the requested documents, making the remaining decisions
within a reasonable period of time. |
An
agency must respond within 20 working days of receipt. Section 552(a)(6).
May extend
date of determination for additional ten (10) days in cases of "unusual
circumstances" as defined in the statute. Section 552(a)(6)(B).
A court may
extend the deadline for determination in "exceptional circumstances" --
exceptional circumstances do not include heavy workload. Section
552(a)(6)(C). |
In
practice, many US government agencies are far behind schedule. Excessive
delay is probably the most common complaint regarding operation of the FOIA.
Use of electronic information technology to speed up processing of requests
was a major concern of Congress when it adopted the Electronic Freedom of
Information Act (1996). One of the major objectives of that law was
to expedite processing of requests. |
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Accountability/Disciplinary
Action for Failure to Disclose |
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| Japan's
law does not provide any sanction for an agency's improper denial of a request
and has no provision granting attorney's fees. |
Denial
shall include the names of officers or employees denying. Section
552(a)(6)(C) FOIA
provides both for disciplinary action against government officers who
deny requests "arbitrarily or capriciously" (Section 552(a)(4)(F)) and
for the award of attorney's fees and litigation costs in the discretion
of the court. Section 552(a)(4)(E). |
In
the US, disciplinary action against individual officers is very rare.
However, courts do award attorney's fees in many cases and sometimes the
amounts are substantial. Some public interest organizations that actively
bring FOIA suits rely on the award of fees and costs as a significant part
of their budgets. |
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Agencies
Subject to Disclosure Requirements |
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| Article 2(1)
defines agencies to include "organs within the Cabinet or established under
the jurisdiction of the Cabinet," the Cabinet Office and the Imperial Household
Agency, and other agencies designated in provisions of the National Government
Organizations Law and the Cabinet Office Establishment Law, as well as the
Board of Audit. The
law does not apply to over 80 "special corporations" established to conduct
various governmental affairs. Article 42 states that regarding such entities,
"the Government shall take necessary measures such as legislative measures...
in order to promote the disclosure and provision of information held by
public corporations." A separate statute providing for disclosure
by these entities passed the Diet on November 28, 2001. |
Section
552(f) expressly defines "agency" to include "any . . . Government corporation,
Government controlled corporation, or other establishment in the executive
branch of the Government, or any independent regulatory agency." |
This
is a highly contentious issue in Japan. Special corporations carry
out many regulatory and other governmental functions (e.g., Donen
regulates the nuclear power industry, Jutaku Kodan is a national
home financing agency, etc.) Exempting these organizations creates
a significant gap in statutory coverage. The
attachment of the additional provision requiring the government to take
action two years after promulgation was a significant victory won by opposition
parties in Upper House debates on the law.
On the US
side, there appear to be very few equivalents to Japan's "special corporations"
with administrative authority only loosely supervised by an administrative
agency. |
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Fees
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| Article
16 of the law requires that requesters pay a fee at the time the request
is submitted, as well as a fee upon disclosure of the requested information,
leaving the actual amount to be decided by Cabinet Order, but requiring
that fees be "within the limits of actual expenses," as well as that "consideration
be given to see that they are of as affordable an amount as possible."
The law provides for a potential fee waiver "when it is deemed that there
is economic hardship or other special reasons." The
Cabinet Order implementing the law sets the handling fee for submitting
requests at 300 Yen. Upon disclosure, to simply view the disclosed
information, there is a charge of 100 Yen for every 100 pages, and if
copies are desired there is an additional charge of 20 Yen per page.
However, the first 300 Yen of the viewing or copy fees will not be charged
as that amount is deemed to be covered by the original handling fee paid
at the time the request was submitted. There are different fee schedules
for inspection and copying of information that is recorded in a media
other than paper.
Fees may
be waived by up to 2,000 Yen where the requester cannot pay the charged
fee; it is likely that a person who receives welfare support would be
eligible for this waiver. Fees may also be waived for "other special
reasons," such as where the information should normally have been made
public without a request, or where the information is necessary to protect
a person's life, or where the agency has decided upon discretionary disclosure
of otherwise exempt information for reasons of public welfare.
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Section
552(a)(4)(A)(ii) sets out a three level system for determining fees that
is based upon the type of requester. The first level applies to requesters
who plan to put the requested information to "commercial use," and includes
"reasonable standard charges for document search, duplication and review."
The second level applies where "records are not sought for commercial use
and the request is made by an educational or noncommercial scientific institution
... or a representative of the news media." Requesters who fall into
this second category need only pay "reasonable standard charges for document
duplication," and are completely exempt from being billed for search and
review fees. The third level applies to any requester who does not
fall into the first two levels, and limits fees "to reasonable standard
charges for document search and duplication." Except for commercial-use
requesters, the first 100 pages of duplication as well as the first two
hours of search time must be provided free of charge, and agencies may not
charge a fee where "the costs of routine collection and processing of the
fee are likely to equal or exceed the amount of the fee" itself.
Section 552(a)(4)(A)(iii)
provides that fees should be waived or reduced "if disclosure of the information
is in the public interest because it is likely to contribute significantly
to public understanding of the operations or activities of the government
and is not primarily in the commercial interest of the requester."
Actual fee
schedules are promulgated as agency regulations that must conform to guidelines
promulgated by the Director of the Office of Management and Budget.
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The
ARC commentary states that in a system that provides a universal right to
request disclosure the government should not take into account the identity
of the requester or place any restrictions on usage of the disclosed information,
and therefore it cannot create any provisions that establish general fee
waivers based upon the identity of the requester or the purpose of the request.
Most Japanese
agencies have not set aside any particular part of their budgets to fund
information disclosure, and there are no estimates of the costs that the
new system will incur.
In the US,
businesses comprise the single largest category of FOIA requesters.
In Japan, it is generally believed that news reporters have been the most
active requesters in the first year of implementation. At the outset,
at least, it appears that Japanese business people have little interest
in trying to take commercial advantage of the new disclosure law.
Some speculate that long-established contacts within the various agencies
are seen as providing a more efficient means of accessing government information
than the law. Because the government does not ordinarily collect
information regarding the types of users and the purposes behind requests,
in the future it may be very difficult to determine accurately whether
or not commercial requests are at a sufficient volume that they such requesters
should bear a greater portion of the costs of disclosure. |
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Appeal
Procedures |
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| Dissatisfied
requesters are provided two avenues of appeal. They can file a request
for review of the non-disclosure decision by the "Information Disclosure
Review Board" (Review Board) established by the law (described below), or
they can file a suit for nullification of the non-disclosure decision directly
with one of eight district courts. There is no requirement that requesters
first appeal to the Review Board before filing suit in court. Articles
21-26 establish the Review Board, a nine-member panel attached directly
to the Office of the Prime Minister, with panel members appointed by the
Prime Minister subject to Diet approval. Appeals to the Review Board
are governed by the Administrative Complaint Inquiries Law. Under
this law, the Review Board does not actually have the power to force an
agency to disclose documents; the ARC commentary indicates that the council
is intended to act as a "third party," providing guidance to the administrative
agency that must make the disclosure decision. Thus, an appeal to
the Review Board is actually made to the agency that made the original
disposition, and the agency head then refers the appeal to the Review
Board for examination.
In most cases,
the Review Board examines appeals in three-member panels. These
panels have the power to demand that the agency submit document(s) in
question for an in camera examination. Once the Review Board
has come to a conclusion, it issues a written opinion on the matter, which
is published and sent to the agency head. The agency then must decide
whether to follow the opinion of the Review Board, or stand by its original
disposition. All Review Board recommendations are published on the
Internet. |
Section
552(a)(4)(b) of FOIA enables requesters to file suit seeking an injunction
to order disclosure of agency records improperly withheld. Requesters
have several choices of forum. They may file suit in federal district
court in the district where they reside or have their principal place of
business, or where the records are located, or finally, in the District
of Columbia Dissatisfied
requesters must first pursue an administrative appeal before going to
court. However, if a request is not answered within the twenty-day
statutory time limit (see "Time Limits", above), the requester is deemed
to have exhausted his or her administrative remedies, allowing an immediate
judicial review. |
A
major point of contention during Diet debate over law was the location
of judicial forum. Under the Administrative Case Litigation Law suits must
be filed in the district court that has jurisdiction over the area in which
the defendant government agency is headquartered, thus resulting in a virtual
requirement that all suits be filed with the Tokyo District Court.
The inconvenience to plaintiffs from Hokkaido, Okinawa, or other areas far
from Tokyo is obvious. Compromise was reached in the Upper House by creating
an exception allowing suits to be filed in any one of seven district courts
in addition to the Tokyo District Court, but still forcing plaintiffs from
Okinawa to travel to Kyushu to file their complaints. Appeals
to the Review Board have the advantage of being inexpensive and allowing
review by a relatively independent panel of experts. Also, an appeal
to the Review Board may create evidence (in the form of the Review
written opinion) that is based upon examination of the documents in question
(as noted above, it is generally believed that courts may not use
an in camera procedure).
Many local
ordinances have established Review Boards similar to that established
by the national law. Results appear to be mixed, with success rates
(overturning denials of disclosure requests) typically running between
25% to 50% on a prefecture-by-prefecture basis. Composition of the
panel is critical. Appeals on the local level have typically require
six to twelve months on average. |