Accessing Japanese Government Information: What Are My Company's Rights Under the Information Disclosure Act (Joho Kokai Ho)?

Japanese Attorney at Law - Bengoshi L.L.

• 9 min read

In an increasingly globalized business environment, access to information held by government bodies can be critical for transparency, accountability, strategic decision-making, and ensuring fair regulatory treatment. Japan, like many other developed nations, has a legal framework for such access: the Act on Access to Information Held by Administrative Organs (行政機関の保有する情報の公開に関する法律 - Gyōsei Kikan no Hoyū Suru Jōhō no Kōkai ni Kansuru Hōritsu), commonly known as the Information Disclosure Act or Jōhō Kōkai Hō. This article explores the key features of this Act, outlining who can request information, what types of documents are covered, the grounds for non-disclosure, the request procedures, and how businesses can navigate this system.

The Core Principle: A Broad Right to Request Disclosure

The Japanese Information Disclosure Act, which came into full effect in 2001, establishes a fundamental principle: the right of individuals and entities to request access to information held by national administrative organs.

Who Can Request? The "Any Person" Principle (Article 3)
A significant feature of the Act is its broad definition of eligible requesters. Article 3 stipulates that "any person" (何人も - nannin mo) may request the disclosure of administrative documents. This inclusive term is generally understood to encompass:

  • Japanese nationals and foreign residents.
  • Japanese corporations and foreign corporations (regardless of whether they have a business presence in Japan).
  • Other legal entities and unincorporated associations.

Requesters are not required to state a reason or purpose for their request. This open-door policy aims to promote broad public scrutiny of government activities.

What Information is Covered? "Administrative Documents" (Article 2, Paragraph 2)
The Act applies to "administrative documents" (行政文書 - gyōsei bunsho). These are defined as documents, drawings, and electromagnetic records (e.g., electronic files) that:

  1. Have been prepared or obtained by an employee of an administrative organ in the course of his/her duties.
  2. Are held by the administrative organ for organizational use.

This means that purely personal memos or documents not intended for shared organizational use are typically excluded. The focus is on records that reflect the official business and decision-making processes of the agency.

The Fundamental Obligation to Disclose (Article 5)
Upon receiving a valid request, the head of an administrative organ is, in principle, obligated to disclose the requested administrative documents. This presumption of disclosure is central to the Act. However, this obligation is subject to a number of important exemptions, which are detailed further below.

The procedure for requesting information under the Act is designed to be relatively straightforward:

  1. Submitting a Request: A request must be made in writing (or electronically, where permitted by the agency) and should clearly identify the administrative documents being sought. The application form typically requires the requester's name and address, and a description of the documents sufficient for the agency to locate them.
  2. Agency's Response Timeframe (Article 10): The administrative organ must, in principle, make a decision on whether to disclose the information within 30 days from the date of receiving the request.
    • This period can be extended by up to an additional 30 days if there are justifiable grounds, such as the volume of documents being large or complex. The requester must be notified in writing if an extension is made.
  3. Fees (Article 16): A fee is charged for making a disclosure request and for the execution of disclosure (e.g., copying costs). The amounts are set by cabinet order and are generally modest, intended to cover administrative costs rather than act as a barrier to access.

Grounds for Non-Disclosure: Understanding the Exemptions (Article 5)

While the Act establishes a principle of disclosure, Article 5 lists several categories of information that are exempt from this obligation. Understanding these exemptions is crucial for businesses, both when seeking information and when considering the potential disclosure of their own information submitted to government agencies.

  1. Information Concerning Specific Individuals (Personal Information) (Article 5, Item 1):
    This exemption protects information that can identify a specific individual, unless:
    • The information is customarily made public or is intended to be made public by law.
    • Disclosure is necessary to protect a person's life, health, livelihood, or property.
    • The information pertains to the duties of a public official in that capacity. Importantly, a Supreme Court decision on November 11, 2003, clarified that information about public officials' performance of their duties is generally disclosable even if it identifies them.
      This exemption is primarily aimed at protecting individual privacy.
  2. Information Concerning Corporations and Other Entities (Corporate Information) (Article 5, Item 2):
    This is a key exemption for businesses. Information concerning corporations or other entities (including unincorporated associations) is non-disclosable if its disclosure is likely to:
    • Harm the rights, competitive position, or other legitimate interests of the said corporation, etc.
    • However, information deemed necessary to protect a person's life, health, livelihood, or property is excluded from this exemption and may be disclosed.
      Businesses often provide sensitive information (trade secrets, financial data, business plans) to regulatory agencies. This exemption aims to prevent such information from being disclosed in a way that could unfairly disadvantage them. When an agency receives a request for information that might fall under this category, it will often consult with the corporation concerned (see "Third-Party Rights" below).
  3. Information Concerning National Security, Defense, and Foreign Relations (Article 5, Item 3):
    Information whose disclosure is reasonably recognized as likely to harm national security, hinder defense efforts, prejudice trust in international relations, or disadvantage Japan in international negotiations.
  4. Information Concerning Public Safety and Order (Article 5, Item 4):
    Information whose disclosure is reasonably recognized as likely to hinder the prevention, suppression, or investigation of crimes, the maintenance of prosecutions, the execution of sentences, or otherwise harm the maintenance of public safety and order.
  5. Internal Deliberative, Examinational, or Consultative Information (Article 5, Item 5):
    Information concerning deliberations, examinations, or consultations within or between national government organs, local public entities, or independent administrative agencies, where its disclosure is reasonably recognized as likely to:
    • Unjustly harm the frank exchange of opinions or the neutrality of decision-making.
    • Unjustly cause confusion among the public.
    • Unjustly bring advantages or disadvantages to specific persons.
      This exemption is intended to protect the integrity of internal government decision-making processes. However, the Supreme Court (e.g., decision of June 29, 2004, concerning a dam construction consultation) has indicated that even if information was initially non-disclosable during a deliberative process, it might become disclosable once the process is concluded or if disclosure no longer poses a risk of harming frank discussions. An earlier Supreme Court decision on March 25, 1994, had upheld non-disclosure of "immature" information related to dam construction consultations that could confuse the public.
  6. Information Concerning Administrative Affairs or Business (Article 5, Item 6):
    Information concerning affairs or business conducted by an administrative organ, a local public entity, or an independent administrative agency, where its disclosure is reasonably recognized as likely to, due to its nature or the circumstances at the time of disclosure, hinder the proper execution of such affairs or business. This can include information related to audits, inspections, contracts, examinations, personnel management, or negotiations.
    A Supreme Court case on January 27, 1994, concerning a governor's discretionary (entertainment) funds, indicated that information identifying recipients might be non-disclosable under this exemption if it would harm future negotiations or information gathering.

Important Procedural Safeguards and Features

The Information Disclosure Act incorporates several features to balance the right to know with the need to protect sensitive information and ensure fairness:

  • Partial Disclosure (Article 6): If a requested administrative document contains both disclosable and non-disclosable information, and these can be reasonably separated, the administrative organ must disclose the disclosable portions. This "duty of severance" is a critical aspect of maximizing disclosure.
  • Discretionary Disclosure in the Public Interest (Article 7): Even if information falls under one of the exemption categories in Article 5, the head of the administrative organ retains the discretion to disclose it if they determine that there is a particular public interest in doing so. This allows for a case-by-case assessment where the benefits of transparency might outweigh the reasons for exemption.
  • Third-Party Notification and Opinion Submission (Article 13): If an administrative document contains information concerning a third party (e.g., another company, an individual) other than the State, an independent administrative agency, a local public entity, or the requester, the administrative organ may notify the third party of the request and provide them with an opportunity to submit a written opinion. In certain cases, such as when disclosing information that would normally be exempt corporate information but is being disclosed for public interest reasons, this notification and opportunity to comment become mandatory.
    A third party who objects to the disclosure of their information can challenge the agency's decision to disclose (Supreme Court, November 27, 2001).
  • Reasons for Non-Disclosure (Article 8 of the Act): If an agency decides not to disclose all or part of the requested information, it must notify the requester in writing and provide reasons for its decision. These reasons must be detailed enough for the requester to understand the basis of the non-disclosure and decide whether to challenge it.
  • Right is Personal to the Requester: The right to seek disclosure is considered personal to the requester. The Supreme Court (February 24, 2004) has held that if a requester dies while litigation concerning their disclosure request is pending, the litigation terminates as the right is not inheritable.

Challenging a Non-Disclosure Decision

If a requester is dissatisfied with an agency's decision (e.g., a decision of non-disclosure, partial disclosure, or an extension of the decision period deemed unreasonable), there are two main avenues for recourse:

  1. Administrative Complaint Review (Filing an Appeal with the Agency):
    A requester can file an administrative complaint (審査請求 - shinsa seikyū) with the administrative organ that made the decision, or with its superior agency, under the Administrative Complaint Review Act. A key feature of this process in information disclosure cases is that the reviewing agency is generally obligated to consult the Information Disclosure and Personal Information Protection Review Board (情報公開・個人情報保護審査会 - Jōhō Kōkai Kojin Jōhō Hogo Shinsa Kai) (Information Disclosure Act, Article 18). This independent expert body reviews the case, often including an in camera (private) inspection of the documents in question, and provides a report with its opinion to the reviewing agency. This "detour" through the Review Board is a significant aspect designed to ensure impartial scrutiny.
  2. Revocation Litigation (Filing a Lawsuit with the Court):
    A requester can file revocation litigation (torikeshi soshō) with a court to seek the revocation of the agency's non-disclosure (or partial disclosure) decision. This can be done directly, without first filing an administrative complaint, or after an administrative complaint review if the outcome is still unsatisfactory.
    It is important to note that Japanese courts, when reviewing non-disclosure decisions in information disclosure litigation, generally do not conduct their own in camera inspection of the contested documents. The Supreme Court (decision of January 15, 2009) has affirmed this limitation, emphasizing the specialized role of the Information Disclosure and Personal Information Protection Review Board for such inspections. The court's review is typically based on the agency's reasoning and the evidence presented by both parties regarding the applicability of exemptions.

The Broader Context: The Public Records and Archives Management Act

Supporting the Information Disclosure Act is the Public Records and Archives Management Act (公文書等の管理に関する法律 - Kōbunsho-tō no Kanri ni Kansuru Hōritsu), fully implemented in 2011. This Act establishes rules for the proper creation, classification, preservation, and eventual transfer of public documents to the National Archives of Japan or other designated archival institutions. It recognizes public documents as "intellectual resources shared by the people, to be used by present and future citizens as a basis for democratic governance." By ensuring that government records are systematically managed, this Act helps to guarantee that documents which should be accessible under the Information Disclosure Act are actually available and locatable.

A Brief Comparison with the U.S. Freedom of Information Act (FOIA)

For those familiar with the U.S. Freedom of Information Act (FOIA), some parallels and differences with Japan's Jōhō Kōkai Hō are noteworthy:

  • Access by "Any Person": Both systems grant a broad right of access to "any person," regardless of nationality or purpose.
  • Exemptions: Both Acts have categories of exempt information (FOIA has nine exemptions). While there is some overlap (e.g., national security, personal privacy, trade secrets), the specific wording, scope, and interpretation of these exemptions differ. For example, Japan's exemption for internal deliberative information (Art. 5(5)) has its own distinct contours compared to FOIA's deliberative process privilege (Exemption 5).
  • Response Times: Japan's Act generally requires a decision within 30 days (extendable). FOIA has a standard 20-working-day response time, though backlogs can lead to delays.
  • Administrative Appeals: Both systems provide for administrative appeals or reviews if a request is denied. In Japan, this involves the specialized Review Board.
  • Judicial Review: Both allow for judicial review of agency denials. However, the standard of review and procedural aspects, such as in camera review by courts (generally not done by Japanese courts in disclosure litigation but common in U.S. FOIA cases), differ.
  • Public Interest Balancing: Japan's Act explicitly includes a provision for discretionary disclosure of exempt information if it's in the particular public interest (Art. 7). While FOIA exemptions are generally considered more categorical, the "foreseeable harm" standard introduced by the FOIA Improvement Act of 2016 has added a dimension of harm-based assessment for withholding information.

Practical Implications for Businesses

The Information Disclosure Act can be a valuable tool for businesses in Japan:

  • Market Intelligence and Due Diligence: Companies can request information about regulatory policies, market conditions, government contracts, or the activities of competitors (to the extent not protected by exemptions).
  • Understanding Regulatory Processes: Accessing internal agency documents (where disclosable) can provide insights into how decisions are made, how regulations are interpreted, or the basis for specific administrative actions.
  • Ensuring Fair Treatment: If a business suspects it has been treated unfairly or inconsistently by an agency, information disclosure requests might help uncover relevant facts or precedents.
  • Protecting Your Own Information: Conversely, businesses need to be aware that information they submit to government agencies could potentially be requested by third parties. Understanding the scope of exemptions (especially Article 5, Item 2 for corporate information) and the third-party notification procedures (Article 13) is crucial for protecting sensitive data. When submitting information, clearly marking confidential business information and explaining why it should be exempt can be a proactive step.

Conclusion

Japan's Information Disclosure Act provides an important mechanism for promoting transparency and accountability in government. For businesses, it offers a channel to access a wide range of administrative documents, which can be invaluable for informed decision-making and ensuring a level playing field. However, the system is also characterized by significant exemptions designed to protect legitimate interests such as personal privacy, corporate competitiveness, and effective governance. Successfully utilizing the Act, whether as a requester or as a third party whose information is at stake, requires a clear understanding of its provisions, procedures, and the careful balancing of interests it entails.