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New secrecy law seen best serving bureaucrats

by Ayako Mie

Staff Writer

Yukiko Miki was shocked in 2012 when she received the results of the information disclosure request she filed with the Cabinet Office seeking the minutes of meetings held to discuss the creation of a state secrets bill.

The meetings, attended by officials from various government agencies and other experts, took place from 2008 to 2009 under the then-ruling coalition government of the Liberal Democratic Party and New Komeito. She had filed the request in 2011 under the national Freedom of Information Act because she couldn’t find any information on the meetings on the government website.

When she received the documents, most of the minutes, except for the front page, preface and postscript, were blacked out. Dissatisfied, she filed an administrative complaint only to be rebuffed by the Cabinet Office’s screening panel, which said the decision to withhold most of the information had been appropriate. Finally, she decided to sue the central government in July. The first court session was held last month.

“There is already a lot of nondisclosure information under the current system,” said Miki, who heads Access-Info Clearinghouse Japan, a nonprofit organization pushing for an improved information disclosure system.

“Much of the information related to national security is already considered undisclosable, as well as information on nuclear energy,” Miki said. “It’s going to be a big problem if all undisclosable information is designated as state secrets with the passage of the state secrets bill currently in the Diet.”

The Cabinet of Prime Minister Shinzo Abe wants to pass the secrets bill before the extraordinary Diet session closes next month. But critics say it fails to address the need for proper management of government information, both classified and unclassified. They also charge that it lacks clear criteria and procedures for declassifying documents, as well as for reviewing the entire classification process.

Japan already has several laws to protect classified information. The civil servants law forbids bureaucrats from disclosing any information they learn through their work. The Mutual Defense Assistance Law, aimed at protecting classified information related to the Japan-U.S. alliance, can punish leakers with up to 10 years in prison. The revised Self-Defense Forces Law, which took effect in 2002, allows the defense minister to designate some information related to national security as classified, with violators facing up to five years in prison.

In addition, in April 2009, Japan introduced the “special secrets and information clearing system,” which is not a law, but a set of government-stipulated guidelines pertaining to national security and diplomacy.

Lower House lawmaker Tetsuya Shiokawa of the Japanese Communist Party said that about 90 “categories” of information are designated special secrets under the guidelines, although the government does not disclose exactly what the categories are. Shiokawa’s queries found, however, that 21 categories fall under the jurisdiction of the Ministry of Economy, Trade and Industry and are related to nuclear energy policy and the Trans-Pacific Partnership trade negotiations.

This spotlights a contradiction in government disclosure: Although the government claims that information on nuclear power plants and the TPP talks aren’t deemed state secrets, the public is already barred from accessing such information.

The new bill reclassifies defense, diplomacy, counterintelligence and counterterrorism information as “state secrets” and raises the penalty for leaking and obtaining them to up to 10 years in prison.

The bill also allows the heads of ministries and agencies to designate state secrets, giving the government discretionary power to decide what constitutes a secret. But the problem is, the heads of ministries and agencies — most of whom are appointed politicians — have little knowledge on what kind of information should be made secret, said Tsutomu Shimizu, secretary-general of the project team opposing the state secrets bill at the Japan Federation of Bar Associations.

“What this really means is that the bureaucrats make the decisions. The bill is a sign of their resistance against movements for more information disclosure taking place globally,” Shimizu said.

Miki of the Access-Info Clearinghouse said that a massive volume of government documents was discarded just before the information disclosure law took effect in 2001. Her investigation of paper waste at the Agriculture, Forestry and Fisheries ministry found that the weight of the documents it shredded and scrapped in 2000 was 20 times heavier than the previous year.

In fact, Japan is so far behind in documenting its actions that it didn’t even have a law overseeing the management of public documents until 2011, when it was revealed that the government had mismanaged and lost the pension premium records of thousands of people in 2007, spurring the law’s enactment. Since its debut, prime ministers have given permission to dispose of public documents.

This lack of basic protocol and oversight means loopholes abound in the halls of power.

In 2012, the Cabinet of Yoshihiko Noda of the Democratic Party of Japan admitted that 10 of the 15 government bodies involved the response to the Great East Japan Earthquake and subsequent core meltdowns at the Fukushima No. 1 power plant didn’t record any minutes from their conferences.

This is likely because there is no law mandating the compilation of the minutes for Cabinet meetings, which date back to 1885. Abe told the Diet last month that his team would consider amending the public documents law to require that records be made of such meetings.

The public documents law, however, does not apply to secrets designated by the defense minister under the revised Self-Defense Forces Law. That means historically valuable information could be discarded at the whim of bureaucrats.

This free-wheeling issue arose in newspaper reports that said the Defense Ministry had trashed some 34,000 secret documents between 2002 and 2011 while declassifying only part of a single document in that same period.

“Japan does not have a democratic way to manage information,” Miki said. “The Japanese government is good at making secrets, but it needs to have accountability.”

Meanwhile, Shimizu of the bar association warned that a new clearance system dwelling in the secrets bill could infringe on the privacy of personnel assigned to execute clearance procedures, posing potential curbs on public activism.

According to the type of security clearance procedures envisioned in the secrecy bill, the government will have the right to investigate those in charge of state secrets to determine whether they are involved in “harmful activities” that pose a threat to national security. This includes drug abuse, drinking habits and how they use their money.

While these conditions might appear reasonable on the surface, Shimizu says that the Japanese version would give the National Public Safety Commission, a hybrid Japanese intelligence unit similar to the CIA or NSA, too much access to civil servants’ lives.

For example, since the guidelines on special secrets were introduced in April 2009, some 53,000 public servants have already been investigated without their permission or knowledge, Shiokawa of the JCP said.

“As long as the government has an efficient information management system, what matters is if the person can manage the system to prevent information leaks,” Shimizu claimed. “Drinking habits or financial standing have nothing to do with their ability to run the system. A very sober person could abuse the system, too.”

Shimizu said he is also concerned about a clause in the bill that defines terrorist activities. He says the clause is so broad it could potentially be stretched to include innocent activities as well.

The bill designates activities by citizens who impose their beliefs on the country or its people as acts of terrorism. Shimizu said such activities as the anti-nuclear rallies in front of the prime minister’s office could hence be categorized as terrorist acts.

What’s more, activists could be arrested if they pursue certain types of government information persistently or aggressively, Shimizu said, emphasizing that there is no way for the public to know what the 90 or so categories that have been designated state secrets are.

“The purpose of the law is not really to prevent information leaks, but to create more jobs for the National Public Safety Commission,” Shimizu said.

  • Jim Colligan

    What is the mainstream media in Japan doing about their Government’s secrecy?