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The 2001 Information Disclosure Law, and a Comparison with the U.S. FOIA

By Lawrence Repeta and David M. Schultz

May 23, 2002

Table of Contents

A. Introduction
B. Information Disclosure Matrix
C. Information Disclosure Resources
D. Authors


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.


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.



Table of Contents
Proactive Information Disclosure
Electronic Media
Right to Demand Disclosure
Exemptions to Disclosure
Exemption for Individual Privacy Information
Exemption for Business Information
Exemption for National Security and Diplomacy Information
Exemption for Criminal Investigation Information
Exemption for Deliberative Process Information
General Exemption for Agency Operations
Conflicts with Other Statutes
Existence or Non-Existence of a Document
Time Limits
Accountability/Disciplinary Action for Failure to Disclose
Agencies Subject to Disclosure Requirements
Appeal Procedures
Proactive Information Disclosure
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.

Electronic Media
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.

Right to Demand Disclosure
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.

Exemptions to Disclosure
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.

Exemption for Individual Privacy Information
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.

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. 

Exemption for Business Information
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.

Exemption for National Security and Diplomacy Information
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.

Exemption for Criminal Investigation Information
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.

Exemption for Deliberative Process Information
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.

General Exemption for Agency Operations
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). 

Conflicts with Other Statutes
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.
Existence or Non-Existence of a Document
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.
Time Limits
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.
Accountability/Disciplinary Action for Failure to Disclose
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.
Agencies Subject to Disclosure Requirements
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. 

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.

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.

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.

Appeal Procedures
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.




English Language Documents

A translation of the Information Disclosure Law is available at the Management and Coordination Agency's internet site. http://www.somucho.go.jp/gyoukan/kanri/translation.htm

Boling, David. "Access to Government-held Information in Japan: Citizens' "Right to Know" Bows to the Bureaucracy." Stanford Journal of International Law, V34, No.1, 1998, 38pgs.

Boling, David. "Information Disclosure in Japan: Local Governments Take the Lead." Paper presented to the Fifth International Conference on Japanese Information in Science, Technology & Commerce, 30 July-1 August 1997, US Library of Congress, Japan Documentation Center. Preprints, 127-132. [Contact (202) 482-6805, fax (202) 219-3310, 

Grier, Jean. "The Need for a More Transparent and Accessible Administrative System in Japan." Paper presented to the Fifth International Conference on Japanese Information in Science, Technology & Commerce, 30 July-1 August 1997, US Library of Congress, Japan Documentation Center. Preprints, 89-92. [Contact (202) 482-6805, fax (202) 219-3310, 

Repeta, Lawrence. "Local Government Information Disclosure Systems in Japan," The National Bureau of Asian Research, Executive Insight No. 16, October 1999.  (Text available at http://www.nbr.org/publications/executive_insight)

Schultz, David, "Japan's Information Disclosure Law: Why a Law Full of Loopholes is Better Than No Law At All." Law in Japan: An Annual, Vol.27 (2001)

Tsuchiya, Motohiro. "Information Disclosure of Japanese Government on WWW Homepages." Paper presented to the Fifth International Conference on Japanese Information in Science, Technology & Commerce, 30 July-1 August 1997, US Library of Congress, Japan Documentation Center. Preprints, pp 133-167. [Contact (202) 482-6805, fax (202) 219-3310, poneillbrown@doc.gov]

Japanese Language Documents

Important Websites:

http://clearing-house.org --- This is the website of Information Clearinghouse Japan, a Tokyo-based NGO devoted to promoting broad information disclosure and citizen participation in public policymaking.

http://www.jkcc.gr.jp --- This is the website of Joho Kokai Shimin Center (Information Disclosure Citizens Center), an NGO that promotes citizen involvement in government document disclosure.  It is closely allied with the Citizen Ombudsmen organization.

Gyosei Kikan no Hoyu Suru Joho no Kokai ni Kansuru Horitsu (Law Concerning the Disclosure of Information Held by Administrative Organs) The text of the Information Disclosure Law itself, the ARC proposal and commentary, along with other documents can be found at: http://www.somucho.go.jp/gyoukan/kanri/a_06.htm

Other Documents:

Joho Kokai Ho Kaisetsu (Interpretation of the Information Disclosure Law), Kitazawa, Yoshihiro and Miyake, Hiroshi, Tokyo: Sanseido,1999.  This book examines the law from the point of view of a potential requester, and provides detailed explanations and commentary.

Joho Kokai Ho no Tebiki (Handbook to the Information Disclosure Law), Miyake, Hiroshi: Kadensha, 1999.

Joho Kokai Ho no Chikujo Kaisetsu (Article by Article Interpretation of the Information Disclosure Law), Uga, Katsuya, Tokyo: Yuhikaku, 1999.  This book provides a detailed examination and interpretation of each article of the law, from first to last, with an emphasis on the legal rationale behind each provision.

Joho Kokai Ho: Rippo no Ronten to Shiru Kenri (Information Disclosure Law: Legislative Issues and the Right to Know), Miyake, Tajima and Usaki (eds.), Tokyo: Sanseido, 1997.  This volume gathers articles by a committee of specialists formed in 1994, including prominent attorneys, journalistsand young scholars promoting information disclosure. Topics include all key aspects of the ARC draft information disclosure bill with analysis of leading cases and comparisons to US and other foreign precedents.

Joho Kokai Hosei, Gyosei Kaikaku Iinkai Jimmukyoku Kanshu. (Information Disclosure Law, Editorial Supervision by the Secretariat of the Administrative Reform Committee) Dai-ichi Hoki, 1997.  A 600-page volume which gathers documents reviewed by the Information Disclosure Subcommittee of the Administrative Reform Commission. It presents an extensive collection of Japan court decisions, translations of foreign statutes, court decisions and other documents, text and analysis of Japanese local government ordinances and other material.

Numerous articles have appeared in all major Japanese law periodicals including Jurisuto, Horitsu Jiho and others.



Freedom of Information Act Guide & Privacy Act Overview, US Department of Justice, Office of Information and Privacy (September 1998 edition).  A 800-page overview discussion of FOIA, including statutory analysis, description of significant court precedents and many important procedural aspects. It is published as a guide to federal officers applying FOIA in their daily work.

Office of Information and Privacy
Justice Department
Flag Bldg. #570
Washington, DC 20530
(202) 514-2000
fax (202) 514-1009
Freedom of Information Clearinghouse
1600 20th Street, NW
Washington, DC 20036
(202) 588-1000
fax (202) 588-7795


Lawrence Repeta, Esq.

Mr. Repeta, Director of the Temple University Law 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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