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JULY 2002 INTRODUCTION After more than 20 years of lobbying by Japanese citizen's groups, opposition political parties and others, Japan's national Information Disclosure Law came into effect on April 1, 2001 (Joho Kokai Ho, formally titled Gyoseikikan no Hoyu Suru Joho no Kokai ni Kansuru Horitsu,“ Law Concerning Disclosure of Information Held by Administrative Agencies”). This law creates for the first time a legally enforceable right of access to Japanese national government files.
Japan thus joins a growing list of countries with national laws providing a right of access to government information, including in Asia, the Republic of Korea and Thailand. The U.S. Freedom of Information Act (FOIA), which served as a model and inspiration for Japan's law, was enacted in 1966 and has been expanded and improved many times since. FOIA has been used by millions of people to access a vast range of previously confidential information concerning such matters as food and drug safety, the environment, government investigations, and virtually every topic of public interest. Will the new Japanese law play a similar role in Japan? Only time will tell. More than four thousand information disclosure requests were filed with national government agencies during the first week of operation alone. It is too early to evaluate either the nature of these requests or the government's response. Compared to the American FOIA, language in the Japanese statute clearly restricts the availability of many categories of important information and provides much broader discretion to officials in possession of the files. Below
is a brief legislative history of the law followed by an
analysis and comparison of its key provisions with analogous
provisions of the U.S. FOIA. HISTORY Academics, attorneys and civic activists in Japan began lobbying for a national disclosure law in the 1970s. Initial interest was spurred by strong public concern over failures in public administration illustrated by incidents such as the Lockheed scandal, illness and death due to defective drugs, severe cases of industrial pollution, and other causes. Advocates saw a national information disclosure law as a practical tool to combat official secrecy and to root out the causes of government regulatory failures. Local governments responded quickly. By 1985 major population centers, including Tokyo, Osaka, Kanagawa and Saitama, had all adopted information disclosure ordinances. By the time the Information Disclosure Law was enacted in 1999, close to 900 local governments, including all the prefectures, had information disclosure ordinances or guidelines in place. At the national level, the bureaucracy teamed with a single party government to delay serious consideration of a disclosure bill until the mid-1990s. Formation of the Hosokawa Cabinet in 1993 led to appointment of an Administrative Reform Commission (ARC, Gyosei Kaikaku Iinkai) with a mandate that included drafting a national disclosure statute. A subcommittee (Expert Committee on Disclosure of Administrative Information, Gyosei Joho Kokai Bukai) expressly devoted to this purpose was appointed in 1995. Chaired by a retired Supreme Court Justice and with leading administrative law scholars and ex-bureaucrats included among its membership, the committee delivered its final report (composed of a proposed bill, joho kokai yokoan, and commentary, kangaekata) in December 1996. That same month the Hashimoto Cabinet adopted a resolution declaring its intention to pass legislation based on this report. Members of both opposition and government parties seized upon the report as a base for legislation. In 1997, all major opposition parties submitted draft legislation to the Diet. In March 1998, the three ruling coalition parties reached agreement. They submitted a government bill to the Diet on March 28, 1998. This bill would be subject to debate and amendment over the course of the next fourteen months, and formally passed into law by resolution of the lower house of the Diet on May 7, 1999. Under dedicated coaching from pro-disclosure citizens groups, opposition party Dietmembers successfully obtained a number of key concessions from the ruling coalition, resulting in a series of revisions and supplements to the government bill. The major thrust of these changes is to both guide implementation of the law and to lay the foundation for future legislation expanding disclosure. Key subjects included the following: 1. Jurisdiction. The original government bill would have required that all disclosure-related litigation be filed in Tokyo District Court, potentially imposing a significant burden on requesters residing far from Tokyo. The revised bill expanded such jurisdiction to include district courts located at the eight appellate court venues throughout the country. (Opposition Diet members demanded, but failed to add Naha in Okinawa as a ninth venue.) 2. Special Public Corporations (tokushu hojin). Numerous special public corporations that provide basic public services are outside the scope of administrative agencies subject to the statute. The bill requires that legislation governing disclosure by these entities be adopted within two years of passage of the disclosure law by the Diet. (A government bill was passed into law on November 2, 2001.) 3. Future Action. In addition to the statement concerning a future law governing public corporations, the statute also requires the Diet to review the operation of the law four years from its adoption and consider measures to improve implementation. Additional statutory language requires the continued study of issues such as explicit mention of the “Right to Know” in the law, adoption of an Administrative Documents Management Law (gyosei bunsho kanri ho) and “other issues” raised during Diet deliberations. 4. Standards Governing Disclosure Decisions. The revised bill requires the head of each government agency to adopt written standards governing disclosure and also to implement sound measures governing archiving of documents. Other key issues include the requirement that fees related to processing requests be reasonable (see note below) and that the information disclosure review panel have adequate resources. Both the ARC commentary and the debates that took place in the Diet provide valuable insights into the reasoning behind each provision of the law. It is expected that this legislative history will play an important role in interpreting the new law. The
Information Disclosure Law is an important first step toward
bringing Japan in line with a worldwide trend toward greater
legislative and regulatory transparency. Of greatest
importance, it provides a framework for further measures
to heighten citizen participation in and supervision of
government activity. The original American FOIA was itself
a relatively weak statute, but the persistence of disclosure
activists and the shock of Watergate-era events led to dramatic
revisions to the statute and strengthening of the public
right of access. As Japanese society transforms to meet
the challenges of the future, the Information Disclosure
Law will also be subject to change. Local Government Disclosure Ordinances As
noted above, local governments began adopting disclosure
ordinances in the mid-1980's. Within a few years all
major cities and prefectures had adopted disclosure rules
and information requests were being filed all over the country. The
disclosure movement received a major boost due to strong
public interest in so-called "kan-kan settai," "kara-shutcho"
and other abuses in public spending that came to light through
aggressive use of the disclosure ordinances by a national
network of attorneys and public-spirited citizens (for details,
see Lawrence Repeta "Local Information Disclosure Laws in
Japan," at www.nbr.org/publications/executive_insight). Disputes
under these local rules found their way into the courts.
As of the end of 2001, more than 300 contested cases had
been decided by Japan's courts under these regulations.
Despite the generally broad language of exemption clauses
(see below), in many cases the courts have decided in favor
of disclosure. These cases will serve as precedent in interpreting
the provisions of the new national law. National Information Disclosure Law The following chart identifies key provisions of Japan's Information Disclosure Law, compares them against the most analogous provisions of the U.S. Freedom of Information Act, and offers brief commentary and analysis. All U.S. citations are to the Freedom of Information Act, at 5 U.S.C. sec. 551 et seq. Japan citations refer to the Gyoseikikan no Hoyu Suru Joho no Kokai ni Kansuru Horitsu (Law Concerning the Disclosure of Information Held by Administrative Organs), Law Number 42 of 1999. INFORMATION DISCLOSURE RESOURCES
AUTHORS Lawrence Repeta, Esq. Mr.
Repeta, Director, Temple University Law School Program in
Japan, is a graduate of the University of Washington
School of Law and a member of the Washington State Bar Association.
He has been a member of the Japan Civil Liberties Union
since 1980 and is a founding director of Information Clearinghouse
Japan, a non-profit organization devoted to promoting
sound government information disclosure practices. He served
as a visiting scholar at the University of Washington Law
School during the 1997-98 academic year when he commenced
research on this project. His research into Japan's
information disclosure law has been supported by a grant
from the U.S.-Japan Friendship Commission. David M. Schultz, Esq. Mr. Schultz is a practicing attorney with the Tokyo Law Firm of Abe and Matsutome. He holds J.D. and L.L.M. degrees in Asian and Comparative Law from the University of Washington School of Law. David's work on this topic has been funded by a grant from the U.S.-Japan Friendship Commission. He is a member of Information Clearinghouse Japan and the Japan Civil Liberties Union. Before entering law school David worked for eight years in Tokyo as a television news producer, first with NBC's Tokyo bureau, and then with the BBC. He received his B.A. in International Relations from Boston University.
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