Disclosure of Land Acquisition Prices in Japan: Balancing Transparency with Public Interest Under Information Disclosure Ordinances

Japan's information disclosure system, comprising a national Act on Access to Information Held by Administrative Organs and numerous prefectural and municipal ordinances, embodies the principle that administrative documents should generally be accessible to the public. This system aims to ensure accountable and fair administration. However, this principle of disclosure is not absolute. Ordinances invariably list exemptions—categories of information that public entities can withhold to protect legitimate public or private interests. A recurring point of contention is the disclosure of prices paid by public entities for land acquired for public works projects. While transparency in the use of taxpayer money is paramount, authorities often argue that revealing such prices could compromise future negotiations or other administrative functions.

This article delves into the legal intricacies surrounding requests for the disclosure of land acquisition prices under typical Japanese information disclosure ordinances, exploring how the balance between transparency and the asserted public interest in non-disclosure is struck, particularly in the context of litigation.

The Framework: Information Disclosure in Japan

The fundamental tenet of Japan's information disclosure laws and ordinances is the "principle of disclosure" (原則公開 – gensoku kōkai). Any person can typically request access to administrative documents held by public entities. Upon receiving a request, the entity is obligated to disclose the documents unless the information falls under one of the specifically enumerated non-disclosure exemptions.

Common non-disclosure exemptions include:

• Information concerning individuals that could identify them (personal information).
• Information that could harm the legitimate interests of corporations (e.g., trade secrets).
• Information related to national security or public safety.
• A crucial and often litigated category, relevant to our discussion, is information concerning deliberations, examinations, or consultations within or between government organs, or information concerning administrative affairs or undertakings, the disclosure of which is deemed likely to:
  • Unjustly harm the frank exchange of opinions or the neutrality of decision-making.
  • Unjustly hinder the accurate understanding of the people.
  • Unjustly cause profit or disadvantage to specific persons.
  • Make it impossible to achieve the purpose of said or similar administrative affairs, or cause significant hindrance to the fair and appropriate execution of these affairs.

It is this last sub-category – significant hindrance to the fair and appropriate execution of administrative affairs – that frequently comes into play when authorities seek to withhold land acquisition prices.

The Core Dispute: Disclosure of Land Acquisition Prices for Public Works

Let's consider a common scenario: A citizen requests documents related to land acquired by a prefecture for a road-widening project. The requested documents contain:

1. Names and addresses of landowners.
2. Location, lot numbers, land category, and area of the acquired land.
3. The acquisition price and unit price for each parcel.

The prefecture decides to partially disclose the documents. It releases information under points 1 and 2, arguing this is already publicly available through the land registry. However, it redacts (blacks out) the acquisition prices and unit prices (point 3).

The Prefecture's Justification for Non-Disclosure

The prefecture's rationale for redacting the prices, based on an ordinance provision similar to the "significant hindrance to administrative affairs" exemption, might be:

• Hindrance to Future Negotiations: Disclosure of past prices would make future negotiations for similar land acquisitions more difficult. Landowners in ongoing or upcoming projects might use the disclosed prices as a baseline, undermining the prefecture's negotiating position and potentially driving up costs.
• Dissatisfaction Among Past Sellers: Landowners who have already sold their land might become dissatisfied if they learn that others received different (perhaps perceived as better) terms, leading to complaints or distrust.
• Ongoing Negotiations: Some parcels for the current road-widening project might still be under negotiation.
• Similar Future Projects: The prefecture may have similar road construction or public works projects planned in nearby areas, which could be similarly affected.

The Requester's Counter-Arguments for Disclosure

The citizen seeking full disclosure would likely counter these arguments by asserting:

1. Objectivity of Land Prices: In Japan, prices for land acquired for public works are generally not determined by arbitrary negotiation but are calculated based on objective criteria, such as the official "Loss Compensation Standards" (損失補償基準 – sonshitsu hoshō kijun). These standards aim to provide fair compensation based on market values, often referencing published land prices (公示価格 – kōji kakaku). If prices are objectively determined, their disclosure should not prejudice future fair negotiations. The Supreme Court of Japan, in a ruling on July 13, 2006 (Hanrei Jihō No. 1945, p. 18, concerning land acquisition by Osaka Prefecture), supported this view, stating that where acquisition prices are determined based on such objective standards, with limited room for free negotiation, their disclosure is unlikely to cause "significant hindrance" to future acquisition affairs.
2. Limited Impact on Current Project: If most land acquisitions for the current project are already complete, the argument of hindering ongoing negotiations is weakened.
3. Speculative Harm to Future Projects: The nature of land, road projects, and local conditions vary from case to case. The claim that disclosing prices for one project will invariably and significantly hinder different future projects is often speculative and may not meet the threshold of "significant hindrance."
4. Public Interest in Transparency: There is a strong public interest in knowing how taxpayer money is spent on public land acquisitions. This transparency promotes accountability and trust in government.

Procedural Issues in Information Disclosure Litigation

When a public entity decides to withhold information, and the requester challenges this decision in court (typically through a revocation suit against the non-disclosure decision), several procedural issues become pertinent.

Burden of Proof (証明責任 – Shōmei Sekinin)

A fundamental principle in Japanese information disclosure litigation is that the burden of proof lies with the public entity (the defendant) to demonstrate that the withheld information falls under a specific non-disclosure exemption. This is because:

• Disclosure is the general rule, and non-disclosure is the exception. The party claiming an exception must justify it.
• The public entity possesses the document and is in the best position to explain why its contents warrant non-disclosure under the terms of the ordinance.

Thus, the prefecture in our scenario would need to actively prove to the court that disclosing the acquisition prices would indeed cause "significant hindrance to the fair and appropriate execution of these affairs."

Adding or Substituting Reasons for Non-Disclosure During Litigation (理由の追加・差替え – Riyū no Tsuika/Sashikae)

What happens if, during the course of litigation, the public entity wishes to assert a new reason for non-disclosure that was not mentioned in its original decision? For instance, our hypothetical prefecture, having initially cited "hindrance to administrative affairs," might later argue that the acquisition prices also constitute "personal information" of the landowners (under a different exemption, e.g., Article 9, Item 1 of the hypothetical ordinance, concerning information that could identify specific individuals and which they would not wish to be made public).

• Arguments Against Allowing New Reasons:
  • It undermines the purpose of requiring reasons to be stated at the time of the administrative disposition. The original reasoning requirement is intended to ensure careful agency deliberation and to allow the requester to make an informed decision about appealing. Allowing new reasons later circumvents this.
  • It can be unfair to the requester, who prepared their case based on the initial reasons.
  • Some scholars argue that reasons that could reasonably have been asserted at the time of the initial disposition should not be belatedly introduced to justify the same outcome.
• Arguments For Allowing New Reasons (and the Prevailing Judicial View):
  • The ultimate subject matter of a revocation suit in information disclosure cases is generally seen as the legality of withholding the specific information itself, not merely the validity of the initially stated reasons.
  • If the information is, in fact, legitimately non-disclosable under a different valid exemption (e.g., it is genuinely sensitive personal information), forcing its disclosure simply because the agency initially relied on an incorrect or insufficient reason would defeat the protective purpose of that other exemption and could lead to an absurd result.
  • It promotes judicial economy by allowing for a single, definitive resolution of whether the document should be disclosed.
    The Supreme Court of Japan, in the Zushi City Information Disclosure Case (Judgment of November 19, 1999, Minshu Vol. 53, No. 8, p. 1862), has generally permitted public entities to add or substitute reasons for non-disclosure during litigation. The Court reasoned that the ordinance's requirement to provide reasons at the disposition stage does not extend to prohibiting the agency from later asserting other legitimate grounds for non-disclosure in court.
• Impact of a Concurrent Mandatory Action Suit: If the requester, in addition to the revocation suit, files a mandatory action suit (義務付け訴訟 – gimuzuke soshō) seeking an order for disclosure, the court must comprehensively examine all factors for and against disclosure. In such a case, any new non-disclosure grounds raised by the agency would almost certainly be considered as part of this overall assessment.

Effect of a Revocation Judgment (Binding Force – Kōsokuryoku)

If a court revokes the non-disclosure decision because the initially stated reason was found invalid, and no new reasons were permitted or upheld, can the agency then issue a new non-disclosure decision regarding the same information, but this time based on a different exemption (e.g., personal information, which was not litigated)?

Generally, under Article 33 of the ACLA, a revocation judgment binds the administrative agency concerning the specific illegality found by the court. The agency must reconsider its decision in light of the judgment. However, the prevailing view is that if the judgment only invalidated the specific reason previously relied upon, it does not necessarily prevent the agency from making a new decision based on a different, valid reason that was not adjudicated in the prior lawsuit. This means the citizen might have to litigate again. However, there are scholarly arguments that an agency should be precluded from relying on reasons it could and should have raised in the first proceeding, particularly if doing so amounts to a vexatious re-litigation of the same underlying issue of disclosure.

Balancing Transparency with Legitimate Confidentiality

The disclosure of public land acquisition prices exemplifies the inherent tension in information disclosure law. On one hand, transparency regarding how public funds are expended is a cornerstone of democratic accountability. Citizens have a legitimate interest in scrutinizing such transactions.

On the other hand, public entities have a responsibility to conduct their affairs efficiently and fairly, which can sometimes necessitate confidentiality, particularly during active negotiations. The key often lies in the nature of the information.

• If acquisition prices are largely the result of subjective, "free" negotiation where revealing past deals could genuinely undermine bargaining positions, the argument for non-disclosure under the "hindrance to administrative affairs" exemption gains strength.
• However, if prices are predominantly determined by objective, publicly accessible standards like Japan's "Loss Compensation Standards" and "published land prices" (kōji kakaku), the concern about hindering future fair negotiations diminishes significantly. In such cases, the public interest in transparency is likely to outweigh the claimed need for confidentiality.

Courts will scrutinize whether the agency's fear of "significant hindrance" is concrete and substantial or merely speculative. The existence of objective valuation frameworks plays a vital role in this assessment.

Implications for Businesses Dealing with Public Entities in Japan

For businesses, including U.S. companies, operating in Japan and interacting with public entities, these principles have several implications:

• Potential for Disclosure: Information submitted to or generated in transactions with Japanese public bodies (contracts, permit applications, etc.) may become subject to third-party disclosure requests.
• Understanding Exemptions: If a business has a legitimate need to protect certain information (e.g., trade secrets, proprietary commercial information, personal data of its employees), it should understand which non-disclosure exemptions under the relevant act or ordinance might apply and how to substantiate claims for non-disclosure if consulted by the public entity.
• Public Procurement: When participating in public procurement or land sales to the government, be aware that pricing information, especially if based on standardized criteria, may eventually become public.

Conclusion

The legal framework governing the disclosure of government-held information in Japan, such as land acquisition prices, endeavors to balance the fundamental right of access to information with the need to protect specific, legitimate interests that could be harmed by disclosure. Disputes often center on the interpretation of non-disclosure exemptions, particularly the "hindrance to fair and appropriate execution of administrative affairs." While public entities bear the burden of proving that information qualifies for non-disclosure, courts, including the Supreme Court, have shown a willingness to scrutinize such claims carefully, especially when prices are determined by objective and transparent standards. Procedural complexities, such as the addition of reasons during litigation, further underscore the need for careful legal navigation in these matters. Ultimately, the system seeks to ensure that non-disclosure is an exception, not the rule, in the pursuit of transparent and accountable governance.