I. Why Was There Demand for an Information Disclosure Law?

1. The Consumer Movement and the Wall of Information Concealment

The demand for an information disclosure law was launched by consumer and other citizens groups in Japan in the 1960’s. Commencing in the mid-1960s, the Homemakers Association (Shufu Rengokai) sought the opening of administrative policymaking committees and disclosure of committee meeting minutes. One example of this work was the demand for release of information concerning approvals for the use of olt phenil phenol (OPP), a substance used to prevent the growth of mold in imported citrus fruits.

In April 1977, the Ministry of Health approved OPP as an additive to food products. At that time, a warning had been issued that OPP may contain 1/7 of a synthesized bacteria, AF2, and may cause cancer.

The issue of approving OPP was considered by the Food Hygiene Investigation Committee (shokuhin eisei chosa-kai). The Japan Consumers Federation requested the dates, times and locations of committee meetings to enable the Federation to deliver written appeals to each committee member requesting that they reject OPP. The Ministry of Health refused the Federation’s request. The Committee also refused to disclose test data. As a result, the reasons that OPP was approved for use were concealed from the Japanese people.

2. The Movement to Expose Injury Caused by Pharmaceuticals and the Disclosure of Information concerning Side-Effects

In the 1970’s, a citizens group denouncing drugs such as thalidomide requested the Ministry of Health to disclose information concerning the side effects of these drugs. The Thalidomide incident is a representative example of a case where administrative authorities’ failure to disclose information led to disaster. Pregnant women who ingested the composite substance Thalidomide caused injury to the fetuses they were carrying. Because Dr. Lentz of West Germany issued a warning of the dangers of Thalidomide on November 18, 1961, West Germany, Great Britain and other countries of northern Europe were able to recall the drug quickly.

On December 6 of the same year, pharmaceutical companies in Japan were notified of the Lentz warning by the Ministry of Health. However, the Ministry did not notify the public of the Lentz warning nor did the Ministry disclose any information. It only requested the pharmaceutical companies to conduct animal testing and perform documentary research. It did not put a stop to the buying and selling of thalidomide or recall any of the products. The Ministry of Health finally ordered a recall in September 1962, ten months after the Lentz warning, only because newspapers reported on the risks posed by thalidomide.

The ten month period?from the Lentz warning to the Ministry of Health’s order for recall?has crucial significance. It is estimated that approximately 48% of Japan’s “Thalidomide babies” were born to mothers who ingested thalidomide after the Lentz warning was issued. These women knew nothing of Lentz’s warning. If the Ministry had publicly warned citizens of Thalidomide’s dangers immediately after it received news of the Lentz warning, those pregnant women would not have ingested thalidomide and harmful effects of the drug would have been kept to a minimum.

Even after the Thalidomide Incident, a number of similar incidents have occurred. One example concerns the drug chloroquine. Although Japan’s Ministry of Health had received data showing that chloroquine caused retinopathy, the Ministry did not immediately disclose this information to the public. At that time, the head of the pharmaceutical department at the Ministry of Health happened to be taking chloroquine himself. Upon receiving the data, he immediately stopped taking the drug. But he did not attempt to notify the public of this information. As a result, many people continued to ingest chloroquine without knowing the risk involved and became blind as a result of retinopathy.

Tragedies caused by the failure to disclose information are continually repeated. Another example is the “Hemophiliac AIDS Disaster” in which approximately 2,000 hemophiliac patients were infected with the AIDS virus (HIV) by imported blood products. In the United States, the Center for Diseases Control (CDC) reported the first incidence of AIDS in hemophiliac patients in July 1982; within the year, there was a warning of this terrible risk. In Japan, in 1983, the pharmaceutical company Japan Travenol told the Ministry of Health that it wanted to stop shipments of blood because the AIDS virus appeared in donors of imported unheated blood products. As a result, a portion of the blood was returned.

However, in June 1983, although the Ministry set up a committee for AIDS research, the Ministry did not take any measures. The members of the AIDS Committee were not even aware of Japan Travenol’s warning. Information considered by the Committee has never been disclosed. On February 6, 1994, a portion of the facts and documents that the Ministry of Health did hide was finally exposed on an NHK television special called “The AIDS Warning That Was Buried Alive.”

3. Towards a Citizens’ Movement for Information Disclosure

In November 1976, the Japan Consumers Federation advocated establishing an information disclosure law?the first such demand voiced by private citizens. The necessity for an information disclosure system was debated substantially only after the occurrence of the Okinawa Secret Agreement Leak Incident in April of 1972. This leak involved negotiations of a secret agreement to return Okinawa to Japan. At that time Okinawa was an occupied territory of the United States. The necessity of an information disclosure system came to be recognized through a variety of similar events. These included exposure of the Lockheed Incident, in which the prime minister was accused of receiving a bribe in relation to the acquisition of an aircraft. The system was viewed as a tool to assist in preventing political corruption and in monitoring administrative agencies.

The Japan Civil Liberties Union (“JCLU”) was alerted to the issue of information disclosure by the Thalidomide Incident and the Okinawa Secret Agreement Leak Incident. In September 1979, it announced its “General Outline for an Information Disclosure Law,” the first detailed proposal of an information disclosure law for Japan. In May 1981, the JCLU also announced its draft “Model Information Disclosure Regulations.”

With the announcement of the “General Outline for an Information Disclosure Law,” various consumers’ and citizens’ movements were inspired once again to make information disclosure in Japan a reality, and, in March 1980, the “Citizens’ Movement for an Information Disclosure Law” was organized.

4. A Declaration of the Right to Information Disclosure

In January 1981, the “Citizens’ Movement for an Information Disclosure Law” made its “Declaration of the Right to Information Disclosure” and elucidated the principles and basis for such a law. The Movement proposed to extend its efforts to enact information disclosure regulations across Japan, especially in light of a need to establish such regulations in provincial regions where local governments have real relevance for the residents.

The Declaration of Right is clear. “The Japanese Constitution says that government ‘is a sacred trust of the people, the authority for which is derived from the people, the powers of which are exercised by the representatives of the people, and the benefits of which are enjoyed by the people.’ These words are the universal governing principle of mankind and clearly define the meaning of democracy.

Despite the fact that the national administration belongs to the people, the government has contradicted the principle of popular sovereignty and has kept significant information from the people for a long time. The people’s right to know, which is inherent in democracy, has long been ignored. In past wars, we have experienced all too keenly the disasters that can result when the eyes and ears of the people are blocked and they are kept in the dark.”

As we all know, pollution and harmful effects from medicine threaten and injure the lives, health and safety of the people. If government agencies had not conducted unjust investigations and concealed information, then the causes of these harms would have been uncovered speedily and injuries kept to a minimum. In addition, as illustrated by the Lockheed Incident, the frequent incidents of corruption of high-ranking government officials and misuse of public money are also the results of closed-door politics. Even at this moment, the truth remains unclear. Is this truly a national government whose sovereign power resides in the people?

The strengthening and enlargement of administrative power, which is characteristic of modern nations, have made government control and monopoly of information decisive in today’s so-called “Information Society.” However, public information is originally the common property of the people. It is the natural duty of the government, which is supposed to serve the people, to make information open to the public.

Freedom of participation in government safeguards democracy. James Madison, one of the drafters of the United States Constitution, emphasized this fact when he wrote, “The government of the people which does not have information nor the means to obtain it is either an overture of a comedy or a tragedy or both.” Moreover, the International Covenant on Civil and Political Rights, which our nation ratified in 1979, states that the right to freedom of expression “includes the freedom to seek all kinds of information and thought, and to receive and convey, such items regardless of national boundaries.”

In its “Declaration of the Right to Information Disclosure,” the Citizens Movement declared, “We believe that a system that concretely safeguards the right to know is indispensable to human rights and democracy. We hereby solemnly declare that we have the right to request and freely use all public information.”

5. The Enactment of Local Information Disclosure Regulations and the Delay of the National Government in Adopting a National System

In response to growing demands for information disclosure, the town of Kanayama in Yamagata Prefecture enacted Japan’s first local information disclosure ordinance in March 1982. (“Kanayama Town Act of Disclosure of Public Documents,” implemented as of April 1, 1982.)

In December of the same year, Kanagawa Prefecture enacted similar regulations (implemented on April 1, 1983) as did Saitama Prefecture (implemented on June 1, 1983). Additionally, in March 1984, the Osaka Prefecture Regulations were enacted, and, in October of the following year, the Tokyo Prefecture Regulations were enacted. Thus, the formats of information disclosure regulations for local governments were basically determined. As of April 2000, information disclosure systems have been adopted in 1,426 local governments out of 3,299. Thus, a great tide of change has washed over the local governments of Japan.

On the other hand, until recently the movement of to systemize information disclosure by the national government has been stagnant.

Because of the Lockheed Scandal, Japanese citizens realized that an information disclosure system is indispensable to protect against corruption in government administration. In response to this need, each opposition party submitted an information disclosure bill to the National Diet in the early 1980’s.

Unfortunately, these bills were not formally deliberated. Each proposal died with the dissolution of the Diet. Later, in September 1989, as a result of the discovery of the Recruit Scandal in which stocks were given to politicians , the Rengo Party of the House of Councilors (later, the Democratic Reform Union Minshu Kaikaku Rengo) established a special project to enact an information disclosure bill. In January 1981, the Socialist Party, the Komeito Party, the Socialist Democratic Party, and the Rengo Party jointly announced a bill regarding the public disclosure of administrative information. In June 1993, the Socialist Party, the Komeito Party, the Socialist Democratic Party, the New Party of Japan, and the Democratic Reform Union submitted that bill as a joint proposal to the House of Councilors. However, the Diet did not take action and this bill expired.

On May 27, 1987, the government issued a Cabinet order entitled “Measure to Improve the Service of Providing Information” and decided to improve the regulations concerning procedures for public disclosure of public documents, to make lists of documents, to establish a desk for inspection of documents, and to facilitate the transfer of those documents to the National Archives. Thus, the government made some efforts to promote information services. Further, the final report by the Provisional Administration Investigation Committee (Rinji Gyosei Chosakai) appeared in March 1993. This report indicated that a government information disclosure system needed to be considered. Before this report the government’s progress toward an information disclosure act had been slow and cautious.

In July 1993, however, the LDP Single-party domination of government came to an end. The newly elected Prime Minister, Morihiro Hosokawa, was a man who had enacted a prefectural-level information disclosure act as the governor of Kumamoto Prefecture. He was willing to deal with information disclosure in a positive fashion before he became prime minister. In November 1993, the national Administrative Procedure Law was enacted (which revised various aspects of administrative practice). Business leaders also sought to reduce information control. Thus the call to enact an information disclosure law grew louder.

In October 1994, the government established an “Administrative Reform Committee” (Gyosei Kaikaku Iinkai) which was commissioned to gather opinions and summarize how systems for information disclosure worked. The Committee was to deliver its report to the prime minister within two years.

In November 1996 the Subcommittee on Administrative Information Disclosure within the Administrative Reform Committee submitted its final report. Based on this report, the Administrative Reform Committee offered recommendations in favor of enacting an information disclosure act to then Prime Minister Ryutaro Hashimoto. Opposition parties also announced alternative bills. In June 1997, the New Frontier Party announced their “Bill concerning Disclosure of Administrative Information.” The Democratic Party respectively announced its “Bill concerning the Public Disclosure of Administrative Information.” Then, in October of the same year, the Communist Party submitted its “Bill on Public Disclosure of Information” to the Diet and, in November, the New Frontier Party, the Democratic Party, and the Sun Party jointly submitted to the Diet a “Bill Regarding the Public Disclosure of Administrative Information.”

All these bills clearly stipulated in their first articles the objective of protecting the right to know. The government coalition, consisting of three parties (Liberal Democratic Party, Socialist Party and Sakigake Party), agreed to discuss this issue among themselves. This discussion concluded in March 1998. On March 28, the government parties proposed to the Diet the “Bill Regarding the Public Disclosure of Information held by Administrative Organs.” Later, those bills were discussed in the Diet and were amended in the House of Councilors.

On May 7, 1999, the House of Representatives passed an amended bill on public information at the plenary session. Thus, twenty years after the Japan Civil Liberties Union announced the “General Outline for a Public Information Disclosure Law,” a disclosure law was finally enacted. The Diet had deliberated the government bill for 14 months. During Diet deliberations, volunteers from the Japan National Bar Association and members of the Citizens Movement provided reference material to assist opposition party members. Their effort enriched the Diet’s deliberations.

General Affairs Agency Officials often provide reference materials to Cabinet and government party members. However, repeated demand by the opposition parties to amend the bills coupled with the contribution by volunteer lawyers, citizens movement and staff members who provided reference materials indicates how citizens can influence the shape and content of legislation.

II. Establishment of the General Principle of Disclosure in Local Government Information Disclosure Litigation

1. Establishment of the General Principle of Disclosure in Local Government Information Disclosure Litigation

A general principle of disclosure under local information disclosure rules has gradually been established through the accumulation of court decisions and actual examples of information disclosure gathered by the Citizens Movement for an Information Disclosure Law (“Disclosure Movement”).

A compilation of samples of documents disclosed by local governments was published in the book “100 Examples of Information Disclosure” by Information Clearinghouse Japan. A portion of this book has been reported at today’s symposium by Chairman Shigeki Okutsu of the Information Clearinghouse Japan (former Executive Director of the Disclosure Movement).

I would like to report on developments in court decisions reviewing government rejections of disclosure requests.

2. The First Information Disclosure Suit

The first information disclosure suit concerned application of the Saitama Prefecture disclosure regulations. The suit was filed by a housewife who lived in Fujimi City. On June 1, 1983 (the same day the new Information Disclosure Regulations took effect), she requested to examine minutes from the Urban Regional Planning Committee of Saitama Prefecture. She wanted to learn how the Committee had deliberated on the construction of a garbage incinerator in Fujimi City. The site of the planned garbage incinerator was next to Katase Middle School. The incinerator would be located in the center of a school zone where a nursery school, two elementary schools, and a high school were located. The smoke from the incinerator contained mercury and dioxins that threatened the health of the children. The housewife opposed the building of the incinerator and had submitted her opinion on the issue to Fujimi City. Wanting to know how her opinion letter was discussed by the Committee, she requested the Committee minutes.

The Prefectural Archives Center rejected her request, citing Article 6(2)(1) of the Saitama Prefecture Administrative Information Disclosure Regulations, with no further explanation. The housewife filed suit to overturn the Center`s decision.

The court decision rendered on June 11, 1984 was the first court judgment in the history of Japan`s information disclosure system.

In the course of the suit, Saitama Prefecture raised a new defense to its non-disclosure decision: that the aforementioned information was protected by Article 6(2)(5) of the Saitama Ordinance, which exempts “information whose disclosure would clearly cause a conspicuous obstruction to the just and harmonious handling of administrative matters.” In its decision, the court held that, in applying this exemption, “it is not sufficient for the Prefecture to make a judgment based solely on the subjective beliefs of the responsible agency.” Instead, the Court held that “it is necessary that the concrete existence of such danger be clear and objective.” The Court then said “the impediments to administrative activities assumed to arise from the disclosure of the Deliberation Committee minutes can only be of a general and abstract nature. It is difficult to see how such asserted obstacles would even normally occur.”

The Court further noted that the defendant failed to make a concrete showing of the impediment to administrative activities as required in order to apply the exemption provided by Art. 6(2)(5) of the Saitama regulation. In response to the defendant Prefecture`s argument that the information at issue was “provided on the condition that it not be disclosed” and therefore qualifies for exemption under Art. 6(2)(5) of the Information Disclosure Ordinance, the Court stated, “Putting aside the issue whether this is appropriate concerning the proceedings of the Council, which do not mandate that minutes be secret, and of the portion of those minutes explanatory in this case, (such an interpretation) unduly emphasizes the covenience of the administrative authorities in receiving information, thus bringing about the threat of losing most of the significance of the above-mentioned (information disclosure) system. Therefore, the defendant’s arguments cannot be accepted.”

Thus, the court rejected the defendant’s arguments. At the same time, the Court emphasized the importance of disclosing the Deliberation Committee minutes by saying, “the disclosure of information particularly in such a case precisely fits the objective of the information disclosure ordinance and serves as the basis for embodying the principle of local self-government (self-rule by residents) provided by the Constitution.” Direct participation by residents is required in local government more than in national government, a principle clearly indicated in the Constitution and the Local Autonomy Law.

With this court decision, Saitama Prefecture gave up its appeal because “the object of the disclosure request was limited only to the Secretariat’s response to the plaintiff’s claims and it is difficult to expect development of theory beyond the original court judgment,” and also “in view the large picture of settling the information disclosure system securely.” Thus the court decision became final and the housewife was able to review the part explained by the Secretariat within the proceedings of the Deliberation Committee, and they were able to make a renewed request to make public the part of the content of deliberation within the proceedings and, after the decision to make it public was done, she was able to review the contents of the deliberation as well. As the result of this decision, it became clear that the grounds for exemption from disclosure must be interpreted narrowly the reason for non-disclosure of information within an information disclosure regulations must be strictly interpreted.

Abbreviation: Sections II(3-5) and Section II (1) are currently being translated.

Section III (2) Building a Future Based on Mutual Understanding and Tolerance

Through the introduction of Professor Masahiro Usaki of Dokkyo University, in Spring 1996 I had the opportunity to make a public address at Reinan University in Korea. When my speech was finished, a student asked whether Japan`s Information Disclosure Law would allow for the release of documents concerning the case of the wartime “comfort women,” and whether it would enable her and others to obtain this information.

The student’s question impressed me deeply. It forced me to think about the role of information disclosure in the relations between our people. Of course, I am not in a position to say what kinds of documents may or may not exist or may be released. But the first step is clear. We must use the new law to request information. This must lead to greater understanding.

Recently a history text has become the center of controversy. The book has been subject to both domestic and international criticism on the ground that it shows an insufficient understanding of the suffering and injury caused to the peoples of Asia by Japanese colonial control and war. Nonetheless, it has been approved for use in the schools of Japan.

What we need more than anything is to develop mutual understanding based upon a shared factual record. The mutual exchange of government documents can help to build this record. In this regard, a particular problem is posed by a gap in Japan’s disclosure law．Article 2 of the Law excludes historical materials from the definition of administrative documents subject to disclosure. The Documents Division (Shoryobu) of the Imperial Household Agency is charged with maintaining documents concerning the Imperial family over three years old. Such documents may go all the way back to the tombs of past emperors. Unfortunately, materials held by this agency are outside the scope of the new information disclosure law.

This should be changed. Through broad disclosure of materials maintained by the Imperial Household Agency, we can show an “Open Imperial House” not only to Asia, but to the world. About forty years ago, the great philosopher Masao Maruyama of the University of Tokyo proposed that we should place our hopes not with the “historical fact” of the Japanese Empire, but instead with the “illusion” of Postwar Democracy. I believe that with the tool of the new information disclosure system, we can now establish the “historical fact” of democracy. By aggressively opening government files, we can demonstrate that democracy is not merely an “illusion.”

Countries throughout Asia must develop information disclosure systems. There is a saying that “he who builds a bridge is not likely to be the one to use it.” Through the mutual demand for information disclosure, in the next generation, we can cross that bridge. By developing mature democracies in Japan and throughout Asia, we can realize the essential goals of mutual understanding and tolerance.

From Korea, I am confident that Professor Sun Nak-in of Seoul University and Professor Chung Jae Kil will lead the next generation across this bridge. Through this conference, I hope that we can enrich the flow of information to the people of Thailand, India, the Philippines and Indonesia.

For more than ten years, Japan has been unable to escape the dark cloud that has enveloped Japan`s politics, its economy and even its educational system. Countries throughout Asia have experienced difficulty escaping the effects of the Asian economic crises. Perhaps, open information disclosure can lead to a revival. In the imperialist age of the past, people sought to protect their own country by invading others. Today, we seek to live together in an “open civil society” in which information is readily available to all and anyone can obtain valuable information through the disclosure system of any country.

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