The mushrooming scandal at Japan’s Defense Agency highlights the ongoing struggle between advocates of free speech and government secrecy. The clumsy and duplicitous handling of this affair by the Koizumi administration leaves even the most cynical observers of government speechless.

The basic facts are clear. Japan’s national Freedom of Information Act (FOIA) took effect in April 2001, the culmination of more than 20 years of lobbying by democracy activists. All central government agencies including the Defense Agency are subject to the law. Unless they can cite one of the law’s six exemptions, these agencies must disclose documents requested by anyone, Japanese or foreign. The requester need not state a reason for the request or provide personal details other than contact information.

Soon after launch of the FOIA system, several Defense Agency officials and military officers hit upon a clever idea: the system could be converted into a handy tool to collect information on persons considered potentially troublesome to the Agency. They started by compiling lists of document requesters. Next, they conducted background investigations, obtaining age, employment information and other details. (In at least one case, a list noted that a requester is an “antiwar member of the Self-Defense Forces.”) Then they posted the lists on JDA intranets so that senior officials throughout the Agency and the Self-Defense Forces would have ready access.

Copies of the lists were leaked to a reporter on May 28. Since then senior officials have stumbled through a series of mistaken and misleading statements as embarrassing details leaked out one drop at a time. Defense Agency Director Gen Nakatani bravely declared there would be a full investigation and the results released to the public. But when the day for this report arrived on June 11, Nakatani changed his mind. Under pressure from senior LDP leaders, he withheld the full 38-page report and released only a 4-page summary instead. Faced with yet another uproar, he reversed this decision within hours and released the full report anyway. The report itself leaves many questions unanswered. Now the Diet is at a standstill.

The problem is grave. Like freedom of information laws in other countries, the purpose of Japan’s law is to facilitate citizen oversight of government and participation in policymaking. In the law’s first year, government officials turned it upside down and refashioned this tool of transparency into a surveillance program.

Why did they create the lists? The obvious explanation is that zealous officers view information requesters as potential enemies. The database was created to keep track of them.

The Defense Agency itself admits that certain of its actions violate a modest 1988 privacy protection law. But the issue is much bigger than the application of one statute. The primary protection for Japanese democracy is an Occupation-era Constitution that has never been amended. Subsequent legislation providing protection for individual privacy or curbing government intrusion is scant to nonexistent. The Japanese FOIA itself only came into existence after more than 20 years of continuous lobbying.

A country’s defense agency is the repository of important secrets that must be protected. Drafters of Japan’s law took great care in this regard. The law exempts any information whose disclosure “the head of an administrative agency with adequate reason deems to pose a risk of harm to the security of the State . . .” So the FOIA itself does not pose a risk that national defense secrets will be leaked.

As Japan relaxes its constitutional policy of pacifism in favor of more direct participation in collective security arrangements, some Japanese citizens will object. Japan’s Constitution protects the right of free speech. For government to single out and investigate those who exercise that right is a terrible threat to freedom.

If the only result of this flareup is a series of fines and minor punishments, the moment is lost. Now is the time for Prime Minister Junichiro Koizumi to declare not only that the actions of these officials were wrong, but that the Koizumi administration itself fully supports transparency and citizen participation in government. Then the administration must follow through and adopt clear measures that protect the privacy of Japan’s citizens and their right to use Japan’s FOIA and fully exercise their right of free speech.

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