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PUBLIC RECORDS

Loopholes let records pertaining to Abe’s scandals slip through the cracks

by

Staff Writer

The Cabinet of Prime Minister Shinzo Abe is in crisis, stung by scandals that have bitten into his public approval ratings in recent weeks.

At a glance, these scandals look like separate events with little connecting them. But experts say they have one grave problem in common: an apparent violation of the Public Records and Archives Management Act.

How have government documents been mismanaged in the scandals? Why are they important? What measures are experts proposing to improve the situation?

Following are questions and answers about the government document management law and apparent violations in recent scandals:

What role do government documents play in the recent scandals hitting the Abe administration?

Expert say the scandals have all involved apparent violations of — or use of a loophole in — the Public Records and Archives Management Act.

Enacted in 2009 and implemented in 2011, the act obliges the government to prepare, register and preserve “administrative documents” so citizens can later look into how a government decision was made.

In some of the scandals, the government has been blamed for discarding key records by taking advantage of an apparent loophole in the law. In others, the government refused to investigate state papers leaked to the media, insisting they are not “administrative documents” covered by the public record act and don’t need to be disclosed.

“It has become clear that the government is managing administrative documents in a very sloppy way,” said Hajime Sebata, a lecturer of modern Japanese history at Nagano Prefectural College.

“Rather, it regards only documents that officials consider are necessary for themselves as public documents,” said Sebata, who is familiar with the history of the government’s document management policy and wrote a book about it in 2011.

The government doesn’t “understand why the information disclosure law and the public record and archive management law were enacted,” he said.

Why is compliance with the Public Records and Archives Management Act important?

The law was enacted after a number of government scandals involving the loss of official records, including the pension premium payments of millions of people that came to light in 2007.

Until the enactment of the law, the government was not obliged to prepare, manage or preserve administrative documents.

Document management was separately decided by each ministry, and many historical documents — including those concerning secret diplomatic arrangements with other countries — were lost or at best later discovered among papers in the private possession of former bureaucrats and politicians.

Together with the 1999 information disclosure law, citizens for the first time won a public system guaranteeing the preservation of, and access to, government documents detailing the processes of administrative actions.

“I sometimes go to America and see public archives and records. I was stunned to see the massive amount of documents there” compared with the small volume of historical government records preserved in Japan, Sebata said.

“The foundation of democracy lies in the use of sovereign power by the nation based on unrestricted access to accurate information and sound judgments by the people on it,” declares the preface of a 2008 final report by a government expert panel on public document management.

How has Abe’s government allegedly mishandled government documents?

In the Moritomo Gakuen scandal, the Finance Ministry sold a plot of land in Toyonaka, Osaka Prefecture, to the school operator in June last year at a whopping 86 percent discount.

During Diet sessions, Finance Ministry officials claimed they had discarded all of the records detailing the negotiations with Moritomo Gakuen. This thwarted an investigation by opposition lawmakers.

The public records law obliges the government to prepare, register and preserve administrative papers for between one and 30 years, depending on their degree of importance.

However, each ministry is authorized to judge the degree of importance of each paper. If a ministry judges that documents don’t fall into the category of “historical public records and archives” it can set the preservation period at less than one year. The Finance Ministry has been criticized for taking advantage of this loophole and quickly discarding the records pertaining to Moritomo Gakuen.

Kazuhiro Nakamoto, president of the Japan Federation of Bar Associations, released a statement April 28 pointing out that the loophole allows government entities to interpret the public records law “in an arbitrary manner” and quickly throw out official papers.

The JFBA also called on the government to keep all electronic data files of government documents for a certain period of time. It said specialized archivists, not a government agency, should be allowed to decide which papers are to be discarded.

The Kake Gakuen scandal also involved an alleged violation of the public records law.

Abe’s government has been accused of favoring the Okayama-based school operator in a special deregulation project to open a new veterinary department at a university — the first anywhere in Japan in 52 years.

The government has flatly denied engaging in favoritism. However, several internal documents created by the education ministry, leaked to the media in May, quoted Cabinet Office officials as saying it was Abe’s intent to favor Kake Gakuen.

The Cabinet initially refused to launch an investigation into these papers, insisting they were not “administrative documents” because it could not find copies of any of them in a shared online folder used by ministry officials.

But later it was revealed that ministry officials shared digital copies of some of the leaked documents by email. Copies of others were found on the computers of bureaucrats in multiple sections of the ministry.

Still, the Cabinet has insisted they are not “administrative documents” but “private memos” kept by ministry officials.

Many experts argue that all of the leaked Kake Gakuen papers, including those shared by email, are “administrative documents” as defined by the law.

Article 2 of the act simply defines all government papers that are prepared or obtained by government workers and shared for “organizational use” as “administrative documents.” No other conditions are given.

“Now officials seem to be trying to regard some documents as ‘nonadministrative’ because they want to hide papers that are inconvenient for them. Such an interpretation of the law is wrong,” Sebata said.

How about the data cover-up scandal that forced Defense Minister Tomomi Inada to resign on Friday?

Inada stepped down to take responsibility for “failing to oversee” Defense Ministry and Ground Self-Defense Force officials who tried to cover up daily activity logs of the GSDF’s peacekeeping operation in South Sudan in February.

The GSDF found digital copies of the data owned by a GSDF member in December and was obliged to disclose them under the information disclosure law in response to a request from a freelance journalist.

But officials reportedly decided to conceal the data files by regarding them as documents privately owned by the GSDF member, instead of as “administrative documents” held by the GSDF.

This decision was “inappropriate” and violated both the information disclosure law and the Self-Defense Forces Law, according to a report released Friday by a special government inspection team looking into the scandal.

Under the information disclosure law, any administrative document is to be released to the public if requested unless it violates privacy or causes problems in diplomacy, defense or other sensitive government matters.

Article 56 of the SDF law meanwhile stipulates that SDF personnel must comply with laws and ordinances in performing their duties.