Comment on Ruling of the Tokyo District Court on Lawsuit Seeking Disclosure of Information on Okinawa Secret Agreements
On April 9, 2010, in the information disclosure litigation involving secret financial documents regarding the reversion of Okinawa to Japan from the United States, the Tokyo District Court rescinded the determination of the Foreign Minister and the Finance Minister that such documents did not exist. The court also ordered both ministers to disclose the documents and the state to pay compensation to the plaintiffs since their right to know was violated.
This ruling clearly acknowledged that the secret financial agreements existed and recognized that the related documents had first-level historic value. The ruling continued that if the person requesting disclosure was able to prove their claim that the documents were created, acquired, and retained, it could be presumed, as a matter of fact, that the documents were still being retained. In order to rebut this presumption, the state must argue and prove that it has lost possession of the documents through disposal or transfer, etc. This is a new framework for adjudicating the burden of proof regarding claims of whether documents existed or not.
This framework is consistent with the JFBA’s request that if documents have been disposed, the state should thoroughly verify the time and reason of the destruction. We value today’s ruling which clarifies the accountability of administrative organs regarding the destruction of official documents which are the shared intellectual resources of the people. This accountability of administrative organs is a key philosophy of the Act on Access to Information Held by Administrative Organs (hereinafter referred to as “Access to Information Act”).
From the standpoint that the Japanese government is accountable to the people for verification and explanation of facts in the past, the ruling also severely criticized that the decisions of the Japanese government not to disclose the documents without conducting investigations normally necessary in confirming the existence of documents betrayed the expectations of the plaintiffs and violated their right to know. Such action of the Japanese government was insincere.
A democratic state is formed on the premise that its people who hold sovereign power are able to know the necessary facts to discuss policies of their state. Destroying documents concerning secret agreements or other important matters could twist the democratic process resulting in a failure to direct the state in the right direction. This ruling has a significant meaning because it clearly acknowledged the importance and nature of the right of the people to know.
The JFBA has been recommending that the right to know be stipulated in the purpose provision of the Access to Information Act, the Act on Official Document Management stipulate that as a principle, official documents more than 30 years old be disclosed, and punishments be established in order to prevent arbitrary and inappropriate disposal of official documents and their loss due to careless management. Today’s ruling backs up the justice and appropriateness of our recommendations. The JFBA urges the Japanese government to reflect these recommendations on the ongoing discussions aiming to revise the Access to Information Act in order to establish the true sovereign power of the people over information with guaranteeing the people’s right to know.
April 14, 2010
Kenji Utsunomiya
President
Japan Federation of Bar Associations
