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Top>People>Towards 40 Years of Information Disclosure

People

Towards 40 Years of Information Disclosure

Akira Morita
Lawyer

1. Along with starting as a lawyer

I graduated from Chuo University in 1978. In this year, the campus moved from Surugadai to Tama, and I became a student of the last generation that spent four years at that (small) Surugadai campus.

I passed the bar examination the following year and became a judicial apprentice in the 34th term from April 1980. Professor Shinichiro Toyama and I graduated in the same year, and through this connection, I am writing this article here.

 

It was around that time that I came across the issue of information disclosure. In 1980, the information disclosure law of the United States(FOIA) became known also in Japan, and it was a time when efforts for legislation began. Although the enactment of the law at the national level was eventually postponed (Information Disclosure Act was enacted in 1999), at the local government level, information disclosure was institutionalized by so-called innovative municipalities at the time.

Kanagawa Prefecture was the one that has made the most enthusiastic efforts among them, and it became the first prefecture that established an information disclosure ordinance among all prefectures. In July 1980 when I went to Yokohama through practical training, the process of ordinance enactment in Kanagawa Prefecture was in the final stretch. Also at the Bar Association, a research team of information disclosure systems was formed, and Mr. Shigeji Suzuki who happened to be my mentor of the legal apprentice training course was the leader of that team. (I am still under the tutelage of Mr. Suzuki, who is a graduate of Chuo University and a major player of Kanagawa Bar Association, in various forms such as teaching as specialists at Kanagawa University.) I joined the study group of Bar Association and became involved with the study group of citizen groups to deepen engagement with information disclosure.

In April 1982, I was successfully registered as a lawyer, and in autumn that year, Kanagawa Prefecture’s information disclosure ordinance was enacted, and it came into force in April of the following year.

2. Until it happened to become my lifework

During that time, pollution litigation, medical malpractice litigation, and consumer incidents were the focus of attention, and I was also interested in these issues and joined various legal teams. Meanwhile, few lawyers were working in the field of information disclosure, and many cases in this field from the requestor side came to me who was a beginning lawyer. If you are a practitioner, you can easily imagine that we cannot make much money out of such cases. Since I could not handle too many cases, I made use of appeals. Kanagawa Prefecture has established a mechanism where a case is reviewed and decided by a third-party organization named Information Disclosure Committee, when complaints are filed based on the Administrative Complaint Review Act against the decisions closed to the public. I was often involved as an agent or an assistant of the petitioner for the examination at this Committee. I was highly valuing this review board system because it was not as burdensome as litigation and I could attain relatively good results. The opponents of the largest number of cases were Yokohama City, followed by Kanagawa Prefecture. Mr. Shizuo Fujiwara and Mr. Masao Horibe were the theoretical pillars at the review board of Yokohama City and Kanagawa Prefecture, respectively. Both taught later at Chuo Law School, and I was impressed with a luxurious environment of the school.

One of my cases that attracted attention was the decision of the Supreme Court on January 15, 2009 concerning in-camera inspection in information disclosure litigation. The decision reversed and denied the ruling of the Fukuoka High Court, which allowed for the in-camera inspection by an order to submit a document. It can be considered that this case has opened the way for introducing in-camera inspection, acknowledging the possibility of the in-camera inspection through any revision of the law (there was a view before that it was unconstitutional) and including concurring opinions which agreed with the idea of introducing in-camera inspection.

In addition, concerning the disclosure of information, I became in charge of a national compensation lawsuit on the case where “minutes that were considered non-existing, in fact, existed,” and I managed to obtain approval of an extremely large amount of compensation for this kind of cases (judgment in the first instance rendered by the Tokyo District Court on October 2, 2006 and the decision by the court of second instance by the Tokyo High Court on March 29, 2007). In this case, the cross examination of government officials worked well (probably), which is rare in Japan. At this time, a group of students from Chuo Law School were present as courtroom audience. Fortunately, I could save my face in front of them.

3. From a party that seeks disclosure to a party that judges

I basically became the party making the request for disclosure, but in 2000, I was appointed to be on the review boards of local public bodies. I became a member of the information disclosure review committee of Zushi in July 2000, and in October 2004, I became a member of the Kanagawa Prefecture’s personal information protection review board. This way, I took a part to judge appealed cases.

And, I was a full-time member of the Cabinet Office Information Disclosure and Personal Information Protection Review Board for three years from October 2011. This experience has greatly changed my life. Until the time I joined the Board, it was occupied by judges, prosecutors and civil servants, but they decided to include lawyers in the Board due to the Democratic administration’s policy at the time, and I was chosen. Because full-time committee members were not allowed to have concurrent jobs, I have canceled my lawyer registration, left the teaching job at law school, and focused on the work of the Review Board. I went to the Secretariat of the Review Board every day, stayed in a room all day and organized case issues with the staff. At a meeting that took place about three times a month, we spent 4 hours reviewing about 10 cases. We compiled 530 reports in 3 years. By being exposed to many cases including in-camera inspection of non-disclosure documents from a judging position, my vision has expanded widely and it became an irreplaceable experience.

When I was at the Review Board, about 20 students of Chuo Law School, who were led by Professor Kazuo Inaba, visited me after a review meeting. Professor Yoichi Ohashi of Gakushuin University Law School and Professor Reiko Nakasone of Kokugakuin University Law School were also in the committee I belonged to as part-time members, and since we enjoyed talking when we were with law students, the meeting with the students became quite exciting, and it seemed that it was also interesting for the students for a visit to a government office.

After my retirement, I summarized my thoughts about the main points of my work at the Review Board and information disclosure in a book called Comments on Points: Examples of Reports by the Information Disclosure/Personal Information Protection Review Board (Nippon Hyoron Sha, 2016). Although it costs about 6,000 yen including tax, which is expensive (I have to humbly say that it has become so expensive not because the contents are extremely educational, but because it is not likely to sell much), please read it if you are interested in this field.

4. My thoughts these days

After returning to be a lawyer in October 2014, I was planning to relax for a while, and four years have passed almost without doing much work as a lawyer. Nevertheless, currently, I am a member of deliberation councils and review boards related to information disclosure of several local public bodies, and my life is fulfilled.

Since last year, a series of scandals related to information disclosure and official document management occurred. In fact, similar issues were pointed out in the reports by the Review Board, but they were not resolved and irresponsibly repeated. The national compensation lawsuit mentioned in 2 is also a manifestation of the nature of the government office that “I can say that a document does not exist, even if it does exist in front of me.” Although the compensation was imposed and the Review Board made candid advice, that nature has not changed. I am acutely aware that the foundation of information disclosure is still to be established.

I will have my 40 year-anniversary as a lawyer in a few years. At the same time, it has also been almost 40 years since the information disclosure system of Japan was established. When that time comes, I would like to see how far the information disclosure system is rooted and fruitful, as a person who was involved in it from its beginning.

Akira Morita
Lawyer
In March 1978, Akira Morita graduated from the Department of Law in the Faculty of Law, Chuo University.
In April 1982, he registered as a lawyer of Yokohama Bar Association (currently, Kanagawa Bar Association).
From April 2004 to September 2011, he served as Professor in the Kanagawa University Law School.
From October 2011 to September 2014, he served as a full-time member of the Cabinet Office (currently under Ministry of Internal Affairs and Communications) Information Disclosure and Personal Information Protection Review Board.
In October 2014, he registered again as a lawyer of Yokohama Bar Association.
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