Access to government-held information in Japan: Citizens' "right to know" bows to the bureaucracy

Stanford Journal of International Law

Volumn 34, Issue 1, 1998, Pages 1-38

  Boling, David ^a,b  

^a Och Spine at New York Presbyterian Hospitals   (United States)

^b UNIVERSITY OF ARKANSAS   (United States)

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[No Author keywords available]

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EID: 0032372619     PISSN: 07315082     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (315)

1. James Sterngold, Japanese Begin to Crack the Wall of Secrecy Around Official Acts, N.Y. TIMES, May 15,1994, at A20.
2. Japan's first product liability law went into effect on July 1, 1995. See Seizōbulsu sekinin hō [Products Liability Law], Law No. 85 of 1994. For a critique of the Products Liability Law see Andrew Marcuse, Comment, Why Japan's New Products Liability Law Isn't, 5 PAC. RIM L. & POL'Y J. 365 (1996). One newspaper article emphasized that it is even more important to enact a national information disclosure law now that Japan has a product liability law. This article interviewed persons who argue that an information disclosure law facilitates informationgathering to prove a product defective; the article points to the equivalent U.S. law as a model. See Jōhō kōkai zehi hitsuyō [Information Disclosure Is a Must], ASAHISHINBUN (Satellite Edition), July 5, 1995, at 15.
3. Japan's first product liability law went into effect on July 1, 1995. See Seizōbulsu sekinin hō [Products Liability Law], Law No. 85 of 1994. For a critique of the Products Liability Law see Andrew Marcuse, Comment, Why Japan's New Products Liability Law Isn't, 5 PAC. RIM L. & POL'Y J. 365 (1996). One newspaper article emphasized that it is even more important to enact a national information disclosure law now that Japan has a product liability law. This article interviewed persons who argue that an information disclosure law facilitates informationgathering to prove a product defective; the article points to the equivalent U.S. law as a model. See Jōhō kōkai zehi hitsuyō [Information Disclosure Is a Must], ASAHISHINBUN (Satellite Edition), July 5, 1995, at 15.
4. Japan's first product liability law went into effect on July 1, 1995. See Seizōbulsu sekinin hō [Products Liability Law], Law No. 85 of 1994. For a critique of the Products Liability Law see Andrew Marcuse, Comment, Why Japan's New Products Liability Law Isn't, 5 PAC. RIM L. & POL'Y J. 365 (1996). One newspaper article emphasized that it is even more important to enact a national information disclosure law now that Japan has a product liability law. This article interviewed persons who argue that an information disclosure law facilitates informationgathering to prove a product defective; the article points to the equivalent U.S. law as a model. See Jōhō kōkai zehi hitsuyō [Information Disclosure Is a Must], ASAHISHINBUN (Satellite Edition), July 5, 1995, at 15.
5. U.S.C. § 552 (1993). The predicate undergirding the FOIA is that agency disclosure of information is favored; thus, the law obliges agencies to release information requested by any member of the public, unless the information falls within one of the exempted categories. Exemptions include: (1) national security specifically authorized by executive order; (2) matters solely related to internal rules and practices of an agency; (3) specific exemption by statute; (4) trade secrets or commercial information; (5) inter-agency or intra-agency correspondence; (6) personnel and medical files; (7) law enforcement and investigation records; (8) reports by agencies regulating financial institutions; and (9) geological information. See 5 U.S.C. § 552(b)(1)-(9) (1993). Also, redaction of portions of released information to prevent "clearly unwarranted invasion of privacy" is allowed under § 552(a)(2)(C). Other policy choices reflected in this FOIA are: (1) all individuals have a right to access; (2) the onus is on the government to explicate a reason for nondisclosure, not on the citizen to justify disclosure; and (3) if one is improperly denied access, request for injunctive relief to the courts is available. See BERNARD SCHWARTZ, ADMINISTRATIVE LAW 216 (3d ed. 1988) (outlining Attorney General's Memorandum on the Public Information Section of the Administrative Procedure Act, 21 Admin. L. 2d (P&F) 203-04 (1967)).
6. U.S.C. § 552 (1993). The predicate undergirding the FOIA is that agency disclosure of information is favored; thus, the law obliges agencies to release information requested by any member of the public, unless the information falls within one of the exempted categories. Exemptions include: (1) national security specifically authorized by executive order; (2) matters solely related to internal rules and practices of an agency; (3) specific exemption by statute; (4) trade secrets or commercial information; (5) inter-agency or intra-agency correspondence; (6) personnel and medical files; (7) law enforcement and investigation records; (8) reports by agencies regulating financial institutions; and (9) geological information. See 5 U.S.C. § 552(b)(1)-(9) (1993). Also, redaction of portions of released information to prevent "clearly unwarranted invasion of privacy" is allowed under § 552(a)(2)(C). Other policy choices reflected in this FOIA are: (1) all individuals have a right to access; (2) the onus is on the government to explicate a reason for nondisclosure, not on the citizen to justify disclosure; and (3) if one is improperly denied access, request for injunctive relief to the courts is available. See BERNARD SCHWARTZ, ADMINISTRATIVE LAW 216 (3d ed. 1988) (outlining Attorney General's Memorandum on the Public Information Section of the Administrative Procedure Act, 21 Admin. L. 2d (P&F) 203-04 (1967)).
7. Japan Civil Liberties Union, Jōhō kōkai hō seizōbutsu sekinin hō wo mitomete[:] Rarufu Nēdā kara Nihon no shōhisha shimin e no teigen [In Pursuit of Freedom of Information and Strict Product Liability: Ralph Nader's Proposals to Japanese Consumers and Citizens] 27 (1992).
8. Robert B. Leflar, Japan's Democracy Deficit, 1 ARK. L. REC. 11 (1991).
9. See, e.g., Horibe Masao, Making "Freedom of Information" Laws in Japan - An Academic Lawyer's Experience, 20 HITOTSUBASHI J.L. & POL. 33 (1992).
10. Jōhō kōkai hō is usually translated as "information disclosure law" whereas the American term "freedom of information law" usually appears in Japanese translations as jōhō jiyū hō. See, e.g., Isogareru jōhō kōkai hō seilei [Expediting Passage of an Information Disclosure Law], NIBEN NYŪSU, Nov. 20,1993, at 1.
11. See generally Daniel A Rosen, Speaking for Democracy: Japan's New Campaign-and-Election Law System, JAPAN FOUND. NEWSL. (The Japan Foundation, Tokyo, Japan), Mar. 1996, at 10.
12. The word "bureaucracy" has interesting origins. It was first used by Physiocrat Vincent de Gournay in the mid-eighteenth century. Derived from the Latin burrus, which refers to a dark brown cloth that was commonly used to cover a desk, or bureau, and from the Greek kratein, meaning "to rule," the word means "government by desk." Thus, from the outset "bureaucracy" has been pejorative in nature. See Mary Yeager, Bureaucracy, in 3 ENCYCLOPEDIA OF AMERICAN ECONOMIC HISTORY 894 (Glenn Porter ed., 1980). Likewise the Japanese equivalent of the word "bureaucrat"-kanryö-has a highly negative connotation. See Albert M. Craig, Functional and Dysfunctional Aspects of Government Bureaucracy, in MODERN JAPANESE ORGANIZATION & DECISION MAKING 3 (Ezra F. Vogel ed., 1975).
13. The word "bureaucracy" has interesting origins. It was first used by Physiocrat Vincent de Gournay in the mid-eighteenth century. Derived from the Latin burrus, which refers to a dark brown cloth that was commonly used to cover a desk, or bureau, and from the Greek kratein, meaning "to rule," the word means "government by desk." Thus, from the outset "bureaucracy" has been pejorative in nature. See Mary Yeager, Bureaucracy, in 3 ENCYCLOPEDIA OF AMERICAN ECONOMIC HISTORY 894 (Glenn Porter ed., 1980). Likewise the Japanese equivalent of the word "bureaucrat"-kanryö-has a highly negative connotation. See Albert M. Craig, Functional and Dysfunctional Aspects of Government Bureaucracy, in MODERN JAPANESE ORGANIZATION & DECISION MAKING 3 (Ezra F. Vogel ed., 1975).
14. See Karl van Wolferen, Japan Analyst Urges People to Take Their Political Life Seriously, TOKYO BUS. J., Jan. 1992, at 46, 47._ (This article is a partial English translation from van Wolferen's Japanese book NIHON WO DŌ SURU!? [WHAT TO DO WTTH JAPAN!?] 85 (1991)). Van Wolferen states: Among all the categories of powerholders, bureaucrats must be regarded with the greatest suspicion always and everywhere, because much of what they do is not easily visible. And the position of Japanese bureaucrats is extraordinary; they have more power than their counterparts in other advanced industrialized countries, and Japan falls far short in institutional provisions to limit such power. Id. The Japanese regulatory state's pervasiveness reflects the bureaucracy's power. Approximately 11,000 regulations govern Japanese economic and social activity. See Dick K. Nanto, Deregulation as Market Opening in Japan, CRS REP. FOR CONG., Feb. 1, 1995, at 2. An editorial in the Nihon Keizai Shinbun observed that in a report on nations' competitiveness, regarding the extent of government regulations, Japan ranked lower than Russia, which received a world rank of 30. See "Kigyō no kyōsōryoku" to "hunt no kyōsōryoku" ["Corporate Competitiveness" and "National Competitiveness"], NIHON KEIZAI SHINBUN, June 13, 1996, at 2. Attempts to reduce the bureaucracy's power through deregulation have met stiff resistance. See, e.g., Bureaucrats Blunt Drive to Cut Red Tape, NIKKEI WKLY., Oct 25, 1993, at 4.
15. See Karl van Wolferen, Japan Analyst Urges People to Take Their Political Life Seriously, TOKYO BUS. J., Jan. 1992, at 46, 47._ (This article is a partial English translation from van Wolferen's Japanese book NIHON WO DŌ SURU!? [WHAT TO DO WTTH JAPAN!?] 85 (1991)). Van Wolferen states: Among all the categories of powerholders, bureaucrats must be regarded with the greatest suspicion always and everywhere, because much of what they do is not easily visible. And the position of Japanese bureaucrats is extraordinary; they have more power than their counterparts in other advanced industrialized countries, and Japan falls far short in institutional provisions to limit such power. Id. The Japanese regulatory state's pervasiveness reflects the bureaucracy's power. Approximately 11,000 regulations govern Japanese economic and social activity. See Dick K. Nanto, Deregulation as Market Opening in Japan, CRS REP. FOR CONG., Feb. 1, 1995, at 2. An editorial in the Nihon Keizai Shinbun observed that in a report on nations' competitiveness, regarding the extent of government regulations, Japan ranked lower than Russia, which received a world rank of 30. See "Kigyō no kyōsōryoku" to "hunt no kyōsōryoku" ["Corporate Competitiveness" and "National Competitiveness"], NIHON KEIZAI SHINBUN, June 13, 1996, at 2. Attempts to reduce the bureaucracy's power through deregulation have met stiff resistance. See, e.g., Bureaucrats Blunt Drive to Cut Red Tape, NIKKEI WKLY., Oct 25, 1993, at 4.
16. See Karl van Wolferen, Japan Analyst Urges People to Take Their Political Life Seriously, TOKYO BUS. J., Jan. 1992, at 46, 47._ (This article is a partial English translation from van Wolferen's Japanese book NIHON WO DŌ SURU!? [WHAT TO DO WTTH JAPAN!?] 85 (1991)). Van Wolferen states: Among all the categories of powerholders, bureaucrats must be regarded with the greatest suspicion always and everywhere, because much of what they do is not easily visible. And the position of Japanese bureaucrats is extraordinary; they have more power than their counterparts in other advanced industrialized countries, and Japan falls far short in institutional provisions to limit such power. Id. The Japanese regulatory state's pervasiveness reflects the bureaucracy's power. Approximately 11,000 regulations govern Japanese economic and social activity. See Dick K. Nanto, Deregulation as Market Opening in Japan, CRS REP. FOR CONG., Feb. 1, 1995, at 2. An editorial in the Nihon Keizai Shinbun observed that in a report on nations' competitiveness, regarding the extent of government regulations, Japan ranked lower than Russia, which received a world rank of 30. See "Kigyō no kyōsōryoku" to "hunt no kyōsōryoku" ["Corporate Competitiveness" and "National Competitiveness"], NIHON KEIZAI SHINBUN, June 13, 1996, at 2. Attempts to reduce the bureaucracy's power through deregulation have met stiff resistance. See, e.g., Bureaucrats Blunt Drive to Cut Red Tape, NIKKEI WKLY., Oct 25, 1993, at 4.
17. See Karl van Wolferen, Japan Analyst Urges People to Take Their Political Life Seriously, TOKYO BUS. J., Jan. 1992, at 46, 47._ (This article is a partial English translation from van Wolferen's Japanese book NIHON WO DŌ SURU!? [WHAT TO DO WTTH JAPAN!?] 85 (1991)). Van Wolferen states: Among all the categories of powerholders, bureaucrats must be regarded with the greatest suspicion always and everywhere, because much of what they do is not easily visible. And the position of Japanese bureaucrats is extraordinary; they have more power than their counterparts in other advanced industrialized countries, and Japan falls far short in institutional provisions to limit such power. Id. The Japanese regulatory state's pervasiveness reflects the bureaucracy's power. Approximately 11,000 regulations govern Japanese economic and social activity. See Dick K. Nanto, Deregulation as Market Opening in Japan, CRS REP. FOR CONG., Feb. 1, 1995, at 2. An editorial in the Nihon Keizai Shinbun observed that in a report on nations' competitiveness, regarding the extent of government regulations, Japan ranked lower than Russia, which received a world rank of 30. See "Kigyō no kyōsōryoku" to "hunt no kyōsōryoku" ["Corporate Competitiveness" and "National Competitiveness"], NIHON KEIZAI SHINBUN, June 13, 1996, at 2. Attempts to reduce the bureaucracy's power through deregulation have met stiff resistance. See, e.g., Bureaucrats Blunt Drive to Cut Red Tape, NIKKEI WKLY., Oct 25, 1993, at 4.
18. See Karl van Wolferen, Japan Analyst Urges People to Take Their Political Life Seriously, TOKYO BUS. J., Jan. 1992, at 46, 47._ (This article is a partial English translation from van Wolferen's Japanese book NIHON WO DŌ SURU!? [WHAT TO DO WTTH JAPAN!?] 85 (1991)). Van Wolferen states: Among all the categories of powerholders, bureaucrats must be regarded with the greatest suspicion always and everywhere, because much of what they do is not easily visible. And the position of Japanese bureaucrats is extraordinary; they have more power than their counterparts in other advanced industrialized countries, and Japan falls far short in institutional provisions to limit such power. Id. The Japanese regulatory state's pervasiveness reflects the bureaucracy's power. Approximately 11,000 regulations govern Japanese economic and social activity. See Dick K. Nanto, Deregulation as Market Opening in Japan, CRS REP. FOR CONG., Feb. 1, 1995, at 2. An editorial in the Nihon Keizai Shinbun observed that in a report on nations' competitiveness, regarding the extent of government regulations, Japan ranked lower than Russia, which received a world rank of 30. See "Kigyō no kyōsōryoku" to "hunt no kyōsōryoku" ["Corporate Competitiveness" and "National Competitiveness"], NIHON KEIZAI SHINBUN, June 13, 1996, at 2. Attempts to reduce the bureaucracy's power through deregulation have met stiff resistance. See, e.g., Bureaucrats Blunt Drive to Cut Red Tape, NIKKEI WKLY., Oct 25, 1993, at 4.
19. For an excellent overview of the Japanese bureaucracy's history and characteristics see B.C. KOH, JAPAN'S ADMINISTRATIVE ELITE (1989). One manifestation of the Japanese bureaucracy's power is its reliance upon informal mechanisms to effectuate industrial policy goals. See, e.g., CHALMERS JOHNSON, MITI AND THE JAPANESE MIRACLE (1982). For an amusing account of how the Japanese Ministry of International Trade and Industry through legally nonbinding techniques jawboned a gasoline entrepreneur into not importing gasoline, despite the fact that importation violated no regulation or law, see Frank K. Upham, The Man Who Would Import: A Cautionary Tale About Bucking the System in Japan, 17 J. JAPANESE STUD. 323 (1991) (reviewing T. SATO, I WAS BUTCHERED BY MITI! (1986) ).
20. For an excellent overview of the Japanese bureaucracy's history and characteristics see B.C. KOH, JAPAN'S ADMINISTRATIVE ELITE (1989). One manifestation of the Japanese bureaucracy's power is its reliance upon informal mechanisms to effectuate industrial policy goals. See, e.g., CHALMERS JOHNSON, MITI AND THE JAPANESE MIRACLE (1982). For an amusing account of how the Japanese Ministry of International Trade and Industry through legally nonbinding techniques jawboned a gasoline entrepreneur into not importing gasoline, despite the fact that importation violated no regulation or law, see Frank K. Upham, The Man Who Would Import: A Cautionary Tale About Bucking the System in Japan, 17 J. JAPANESE STUD. 323 (1991) (reviewing T. SATO, I WAS BUTCHERED BY MITI! (1986) ).
21. For an excellent overview of the Japanese bureaucracy's history and characteristics see B.C. KOH, JAPAN'S ADMINISTRATIVE ELITE (1989). One manifestation of the Japanese bureaucracy's power is its reliance upon informal mechanisms to effectuate industrial policy goals. See, e.g., CHALMERS JOHNSON, MITI AND THE JAPANESE MIRACLE (1982). For an amusing account of how the Japanese Ministry of International Trade and Industry through legally nonbinding techniques jawboned a gasoline entrepreneur into not importing gasoline, despite the fact that importation violated no regulation or law, see Frank K. Upham, The Man Who Would Import: A Cautionary Tale About Bucking the System in Japan, 17 J. JAPANESE STUD. 323 (1991) (reviewing T. SATO, I WAS BUTCHERED BY MITI! (1986) ).
22. For an excellent overview of the Japanese bureaucracy's history and characteristics see B.C. KOH, JAPAN'S ADMINISTRATIVE ELITE (1989). One manifestation of the Japanese bureaucracy's power is its reliance upon informal mechanisms to effectuate industrial policy goals. See, e.g., CHALMERS JOHNSON, MITI AND THE JAPANESE MIRACLE (1982). For an amusing account of how the Japanese Ministry of International Trade and Industry through legally nonbinding techniques jawboned a gasoline entrepreneur into not importing gasoline, despite the fact that importation violated no regulation or law, see Frank K. Upham, The Man Who Would Import: A Cautionary Tale About Bucking the System in Japan, 17 J. JAPANESE STUD. 323 (1991) (reviewing T. SATO, I WAS BUTCHERED BY MITI! (1986) ).
23. National information disclosure laws exist in such nations as Australia, Canada, Denmark, Finland, France, New Zealand, and Norway. See Katō Masanobu, Jōhō kōkai to sono genjō [Information Disclosure and Its Present State], 142 HŌSEI RONSHŪ 1, 12-13 (1992) (listing nations with freedom of information laws enacted). As of 1989, the only two G-7 nations without an IDL were Japan and Italy. See Miyake Hiroshi, Ima koso jōhō kōkai hō no seitei wo [Enactment of Information Disclosure Is Necessary Especially Now], ASAHI SHINBUN, Apr. 6, 1989, at 6. Japanese journalists have expressed envy at the fact that South Korea's November 1996 passage of an IDL and January 1998 implementation of the law will make it the first Asian country to have an IDL. See, e.g., Kubotani Hiroshi, Jōhō kōkai wa Kankoku ga riido [South Korea Leads in Information Disclosure], ASAHISHINBUN (Satellite Edition), Aug. 29, 1997, at 4.
24. National information disclosure laws exist in such nations as Australia, Canada, Denmark, Finland, France, New Zealand, and Norway. See Katō Masanobu, Jōhō kōkai to sono genjō [Information Disclosure and Its Present State], 142 HŌSEI RONSHŪ 1, 12-13 (1992) (listing nations with freedom of information laws enacted). As of 1989, the only two G-7 nations without an IDL were Japan and Italy. See Miyake Hiroshi, Ima koso jōhō kōkai hō no seitei wo [Enactment of Information Disclosure Is Necessary Especially Now], ASAHI SHINBUN, Apr. 6, 1989, at 6. Japanese journalists have expressed envy at the fact that South Korea's November 1996 passage of an IDL and January 1998 implementation of the law will make it the first Asian country to have an IDL. See, e.g., Kubotani Hiroshi, Jōhō kōkai wa Kankoku ga riido [South Korea Leads in Information Disclosure], ASAHISHINBUN (Satellite Edition), Aug. 29, 1997, at 4.
25. National information disclosure laws exist in such nations as Australia, Canada, Denmark, Finland, France, New Zealand, and Norway. See Katō Masanobu, Jōhō kōkai to sono genjō [Information Disclosure and Its Present State], 142 HŌSEI RONSHŪ 1, 12-13 (1992) (listing nations with freedom of information laws enacted). As of 1989, the only two G-7 nations without an IDL were Japan and Italy. See Miyake Hiroshi, Ima koso jōhō kōkai hō no seitei wo [Enactment of Information Disclosure Is Necessary Especially Now], ASAHI SHINBUN, Apr. 6, 1989, at 6. Japanese journalists have expressed envy at the fact that South Korea's November 1996 passage of an IDL and January 1998 implementation of the law will make it the first Asian country to have an IDL. See, e.g., Kubotani Hiroshi, Jōhō kōkai wa Kankoku ga riido [South Korea Leads in Information Disclosure], ASAHISHINBUN (Satellite Edition), Aug. 29, 1997, at 4.
26. See JAPAN CIVIL LIBERTIES UNION 1993 REPORT CONCERNING THE PRESENT STATUS OF HUMAN RIGHTS IN JAPAN 60 (May 1993) [hereinafter JCLU REPORT].
27. See id.
28. See Jon Choy, Proposed Information Access Law Could Shred Government Veil of Secrecy, No. 43B JAPAN ECON. INST. REP., Nov. 15, 1996, at 9, 10-11.
29. Higuchi Norio, Lecture on Japanese Information Disclosure, Mar. 1992; see also Kent E.Calder, Elites in an Equalizing Role, COMP. POL. 379, 395-96 (1989) (noting that Japanese government ministries and agencies often exclusively possess economically strategic information to a greater extent than do European and American government organs, thus forcing smaller companies outside the traditional business establishment to hire former bureaucrats in order to gain access to important business information). But see Ulrike Schaede, The "Old Boy" Network and Government-Business Relationships in Japan, 21 J. JAPANESE STUD. 293, 293 (1995).
30. Higuchi Norio, Lecture on Japanese Information Disclosure, Mar. 1992; see also Kent E.Calder, Elites in an Equalizing Role, COMP. POL. 379, 395-96 (1989) (noting that Japanese government ministries and agencies often exclusively possess economically strategic information to a greater extent than do European and American government organs, thus forcing smaller companies outside the traditional business establishment to hire former bureaucrats in order to gain access to important business information). But see Ulrike Schaede, The "Old Boy" Network and Government-Business Relationships in Japan, 21 J. JAPANESE STUD. 293, 293 (1995).
31. Higuchi Norio, Lecture on Japanese Information Disclosure, Mar. 1992; see also Kent E.Calder, Elites in an Equalizing Role, COMP. POL. 379, 395-96 (1989) (noting that Japanese government ministries and agencies often exclusively possess economically strategic information to a greater extent than do European and American government organs, thus forcing smaller companies outside the traditional business establishment to hire former bureaucrats in order to gain access to important business information). But see Ulrike Schaede, The "Old Boy" Network and Government-Business Relationships in Japan, 21 J. JAPANESE STUD. 293, 293 (1995).
32. Businesses and attorneys make over 50% of requests under the FOIA. See Figuratively Speaking, A.B.A. J., Jan. 1996, at 12.
33. See Citizens' Movement Seeking FOIA in Japan (Radio Japan broadcast, Jan. 20, 1994) [hereinafter Radio Japan] (interviewing Miyake Hiroshi).
34. See Second Annual Report of the U.S-Japan Working Group on the Structural Impediments Initiative, July 30, 1992, at II-43-44.
35. See Higuchi, supra note 16; see also JCLU REPORT, supra note 13.
36. Submission by the Government of the United States to the Government of Japan Regarding Deregulation, Administrative Reform and Competition Policy in Japan, Nov. 15, 1996, at 35; see also Submission by the Government of the United States to the Government of Japan regarding Deregulation and Administrative Reform in Japan, Nov. 15, 1994, at 25; Jean Grier, The Need for a More Transparent and Accessible Administrative System in Japan, in FIFTH ANNUAL CONFERENCE ON JAPANESE INFORMATION IN SCIENCE TECHNOLOGY AND COMMERCE, Jul. 30-Aug. 1, 1997, at 89. Rather than encourage Japan to enact an IDL, one commentator has suggested that the United States repeal its FOIA. He asserts that the FOIA makes it too easy for foreign companies to acquire technologically sensitive American business information. See JOHN J. FIALKA, WAR BY OTHER MEANS 207-08 (1997).
37. Submission by the Government of the United States to the Government of Japan Regarding Deregulation, Administrative Reform and Competition Policy in Japan, Nov. 15, 1996, at 35; see also Submission by the Government of the United States to the Government of Japan regarding Deregulation and Administrative Reform in Japan, Nov. 15, 1994, at 25; Jean Grier, The Need for a More Transparent and Accessible Administrative System in Japan, in FIFTH ANNUAL CONFERENCE ON JAPANESE INFORMATION IN SCIENCE TECHNOLOGY AND COMMERCE, Jul. 30-Aug. 1, 1997, at 89. Rather than encourage Japan to enact an IDL, one commentator has suggested that the United States repeal its FOIA. He asserts that the FOIA makes it too easy for foreign companies to acquire technologically sensitive American business information. See JOHN J. FIALKA, WAR BY OTHER MEANS 207-08 (1997).
38. U.S. Trade Representative, 1997 NATIONAL TRADE ESTIMATE REPORT ON FOREIGN TRADE BARRIERS 211-12.
39. See infra notes 175-222 and accompanying text
40. Metropolitan areas in Japan, such as Tokyo and Osaka, include smaller cities within their geographical area but have separate governments. For example, the Tokyo metropolitan area has a governor while each city within Tokyo has its own mayor.
41. See Miyake Hiroshi, Jōhō kōkai rippō to shiru kenri (I) [Codification of Information Disclosure and the Right to Knew (I)], 65 HŌRITSU JIHO 17 (1993).
42. See Jōhō kōkai hō wo ronsen no zenmen ni [All Sides of the Debate to Pass an Information Disclosure Law], ASAHISHINBUN (Satellite Edition), Oct. 4, 1996, at 5.
43. Miyake, supra note 25. A top official of the National Citizens Ombudsman Organization notes that despite the proliferation of local and prefecture IDOs, local government officials aggressively oppose disclosure. See Konshū no hito [Person of the Week], NIHON KEIZAISHINBUN, Jan. 22, 1996, at 33. The National Citizens Ombudsman Organization increased from having chapters in four prefectures in 1995 to having chapters in about 30 prefectures as of January 1996. See id.
44. See Jōhō kōkai seikyū 15manken kosu [Information Disclosure Requests Top 150,000], ASAHI SHINBUN, Dec. 21, 1992, at 1. The average annual number of requests under the FOIA is 600,000. See Figuratively Speaking, supra note 17, at 12. About 60% of FOIA requests between 1983 and 1989 were made to the Department of Defense and the Department of Health and Human Services. See Harold Relyea, The Administration and Operation of the Freedom of Information Act: An Overview, 1966-1990, CRS REP. FOR CONG., Oct. 26, 1990, at 9.
45. See Jōhō kōkai seikyū 15manken kosu [Information Disclosure Requests Top 150,000], ASAHI SHINBUN, Dec. 21, 1992, at 1. The average annual number of requests under the FOIA is 600,000. See Figuratively Speaking, supra note 17, at 12. About 60% of FOIA requests between 1983 and 1989 were made to the Department of Defense and the Department of Health and Human Services. See Harold Relyea, The Administration and Operation of the Freedom of Information Act: An Overview, 1966-1990, CRS REP. FOR CONG., Oct. 26, 1990, at 9.
46. See Freedom of Information, ASAHI EVENING NEWS, Mar. 16, 1989, at 3.
47. Id. at 3.
48. See Jōhō kōkai hō "yōyō" 58% [Fifty-eight Percent Say IDL Would Be Useful], ASAHI SHINBUN (Satellite Edition), Dec. 12, 1996, at 20.
49. See EDWIN O. REISCHAUER, THE JAPANESE 167-78 (1977).
50. See Taibatsu no jittai kanshi jōhō kōkai wo katsuyō [Utilize Information Disclosure to Monitor Corporal Punishment], ASAHI SHINBUN (Saitama Prefecture Edition), Apr. 19, 1989, at 10; Nosaka Minoru, Kyōiku gyōsei to shimin no "shiru kenri" [School Administration and Citizens' "Right to Know"], 36 HIKAKU URAWA TSŪSHIN, Apr. 6, 1989, at 15; Jōhō kōkai tte nāni? [What Is Information Disclosure?], SAITAMA SHINBUN, Apr. 23, 1989, at 15. See generally Sterngold, supra note 1.
51. See Taibatsu no jittai kanshi jōhō kōkai wo katsuyō [Utilize Information Disclosure to Monitor Corporal Punishment], ASAHI SHINBUN (Saitama Prefecture Edition), Apr. 19, 1989, at 10; Nosaka Minoru, Kyōiku gyōsei to shimin no "shiru kenri" [School Administration and Citizens' "Right to Know"], 36 HIKAKU URAWA TSŪSHIN, Apr. 6, 1989, at 15; Jōhō kōkai tte nāni? [What Is Information Disclosure?], SAITAMA SHINBUN, Apr. 23, 1989, at 15. See generally Sterngold, supra note 1.
52. See Taibatsu no jittai kanshi jōhō kōkai wo katsuyō [Utilize Information Disclosure to Monitor Corporal Punishment], ASAHI SHINBUN (Saitama Prefecture Edition), Apr. 19, 1989, at 10; Nosaka Minoru, Kyōiku gyōsei to shimin no "shiru kenri" [School Administration and Citizens' "Right to Know"], 36 HIKAKU URAWA TSŪSHIN, Apr. 6, 1989, at 15; Jōhō kōkai tte nāni? [What Is Information Disclosure?], SAITAMA SHINBUN, Apr. 23, 1989, at 15. See generally Sterngold, supra note 1.
53. See ASAHI SHINBUN, May 4, 1989, at 12.
54. See Zenmen kaiji wo tōshin [Full Disclosure Report Requested], ASAHI SHINBUN, Oct. 14, 1992, at 4; cf. ASAHI SHINBUN, May 5, 1989, at 7 (detailing another case involving the death of a child, in which the father was unable get information about his son's death after it was attributed to an influenza vaccine).
55. See Zenmen kaiji wo tōshin [Full Disclosure Report Requested], ASAHI SHINBUN, Oct. 14, 1992, at 4; cf. ASAHI SHINBUN, May 5, 1989, at 7 (detailing another case involving the death of a child, in which the father was unable get information about his son's death after it was attributed to an influenza vaccine).
56. See Kawasaki City to Release Pupils' Guidance Reports, MAINICHI DAILY NEWS, Feb. 8, 1993, at 12; Students in Kawasaki Given Right to Seé Files, JAPAN TIMES, Feb. 7, 1993, at 2. For a Japanese-language article, see also Shidō yōroku wo zenmen kaiji [Guidance Records to Be Fully Disclosed], ASAHI SHINBUN, Feb. 7, 1993, at 1.
57. See Kawasaki City to Release Pupils' Guidance Reports, MAINICHI DAILY NEWS, Feb. 8, 1993, at 12; Students in Kawasaki Given Right to Seé Files, JAPAN TIMES, Feb. 7, 1993, at 2. For a Japanese-language article, see also Shidō yōroku wo zenmen kaiji [Guidance Records to Be Fully Disclosed], ASAHI SHINBUN, Feb. 7, 1993, at 1.
58. See Kawasaki City to Release Pupils' Guidance Reports, MAINICHI DAILY NEWS, Feb. 8, 1993, at 12; Students in Kawasaki Given Right to Seé Files, JAPAN TIMES, Feb. 7, 1993, at 2. For a Japanese-language article, see also Shidō yōroku wo zenmen kaiji [Guidance Records to Be Fully Disclosed], ASAHI SHINBUN, Feb. 7, 1993, at 1.
59. See Kawabata Tai, Information on Nuclear-Plant Accident Hard to Get, JAPAN TIMES, July 20, 1988, at 13.
60. See Tokyo Fire Department Nixing Requests for Nuclear Fuel Shipment Information, ASAHI EVENING NEWS, Apr. 29, 1992, at 4.
61. After Kyoto passed an IDO, local civic organizations sponsored an "information disclosure tour" to educate citizens about exercising their new right On that day 37 requests were made, including a request for the mayor's social expense account records. See Kōbunsho kōkai jōrei sutāto [Public Documents Disclosure Ordinance Gets Implemented], SHŌHI KEIZAI SHINBUN, Feb. 13, 1992, at 1.
62. See Kōsaihi wo zenmen kōkai [Entertainment Expenses Fully Disclosed], ASAHI SHINBUN, May 3, 1989, at 8.
63. See id.
64. See infra notes 156-200 and accompanying text
65. Citizens Demand Officials Stop Catering to Bureaucratic Fat Cats, NIKKEI WKLY., Oct. 30, 1995, at 4.
66. CHALMERS JOHNSON, JAPAN: WHO GOVERNS? 190 (1995). The late Itami Juzo, one of Japan's most famous film directors, once stated, "In effect, local governments [have become] nothing more than branch offices of the central bureaucracy." Miyamoto Masao, Foreword to STRAIGHTJACKET SOCIETY.12 (1993) (this book is the English version of Miyamoto's Japanese original OYAKUSHO NO OKITE [RULES FOR BUREAUCRATS]).
67. CHALMERS JOHNSON, JAPAN: WHO GOVERNS? 190 (1995). The late Itami Juzo, one of Japan's most famous film directors, once stated, "In effect, local governments [have become] nothing more than branch offices of the central bureaucracy." Miyamoto Masao, Foreword to STRAIGHTJACKET SOCIETY.12 (1993) (this book is the English version of Miyamoto's Japanese original OYAKUSHO NO OKITE [RULES FOR BUREAUCRATS]).
68. CHALMERS JOHNSON, JAPAN: WHO GOVERNS? 190 (1995). The late Itami Juzo, one of Japan's most famous film directors, once stated, "In effect, local governments [have become] nothing more than branch offices of the central bureaucracy." Miyamoto Masao, Foreword to STRAIGHTJACKET SOCIETY.12 (1993) (this book is the English version of Miyamoto's Japanese original OYAKUSHO NO OKITE [RULES FOR BUREAUCRATS]).
69. JOHNSON, supra note 44, at 134. See also PUBLIC ADMINISTRATION IN JAPAN 129 (Tsuji Kiyoaki ed., 1984). Although Japanese local government organs lack the independence and flexibility of their foreign counterparts, one political scientist has suggested that "[t]he probability of a local government going bankrupt or getting itself in severe financial difficulties is probably less than in North America or Western Europe." STEVEN R. REED, JAPANESE PREFECTURES AND POLICYMAKING 32 (1986).
70. JOHNSON, supra note 44, at 134. See also PUBLIC ADMINISTRATION IN JAPAN 129 (Tsuji Kiyoaki ed., 1984). Although Japanese local government organs lack the independence and flexibility of their foreign counterparts, one political scientist has suggested that "[t]he probability of a local government going bankrupt or getting itself in severe financial difficulties is probably less than in North America or Western Europe." STEVEN R. REED, JAPANESE PREFECTURES AND POLICYMAKING 32 (1986).
71. See JOHNSON, supra note 44, at 134.
72. Kitamura Yoshinobu, a professor at Yokohama National University, has observed that one reason the National Citizens Ombudsman Organization has been relatively successful is due to its legal savvy. Unlike other Japanese consumer interest groups, several lawyers participate in the organization and have evinced a willingness to sue. See Interview with Kitamura Yoshinobu, Professor, Yokohama National University (Aug. 3, 1996).
73. See Kanryō to kondan, nen 9600man'en nan [Social Gatherings with Central Government Bureaucrats in One Year Total ¥96,000,000], ASAHI SHINBUN (Satellite Edition), June 3, 1995, at 22.
74. See id.
75. See id.
76. See id.
77. See id.
78. Yonjū dōfuken shokuryōhi ni 52okuen [Forty Local and Prefectural Governments'Food and Drink Expenses Total ¥5.2Billion], ASAHI SHINBUN (Satellite Edition),July 26, 1995, at 1.
79. Kometsu sengen wo ketsugi [Eradication Declaration Passed], ASAHI SHINBUN (Satellite Edition) July 30, 1995, at 23.
80. See "Tada sake" gyōsri no iyashisa ["It's Only Liquor": The Baseness of Government Officials], ASAHI SHINBUN (Satellite Edition), Aug. 8, 1995, at 5.
81. See, e.g., "Kankan settai wa hitsuyōaku" konkyo nashi ["Entertaining Government Officials is a Necessary Evil" is a Groundless Argument], ASAHI SHINBUN (Satellite Edition), Sept. 2, 1995, at 4.
82. See Kachō no hanko de 1000man made [Up to ¥10 Million Approved by the Section Chief], ASAHI SHINBUN (Satellite Edition), Aug. 6, 1995, at 22.
83. See Seikyū kakikae 1200ken [1200 Instances of Rewritten Bills], ASAHI SHINBUN (Satellite Edition), Sept. 5, 1995, at 9.
84. See Jūmin 1800nin ga kansa seikyū [1800 Residents Demand Audit], ASAHI SHINBUN (Satellite Edition), Nov. 14, 1995, at 22.
85. See Akita chiji ga ji'i hyōmei [Akita Prefecture's Governor Announces Intent to Resign], ASAHI SHINBUN (Satellite Edition), Nov. 26, 1996, at 1; see also Kevin Sullivan & Mary Jordan, Japanese Putting Bite on Officials 'Free Lunch, WASH. POST, Jan. 6, 1997, at A1.
86. See Akita chiji ga ji'i hyōmei [Akita Prefecture's Governor Announces Intent to Resign], ASAHI SHINBUN (Satellite Edition), Nov. 26, 1996, at 1; see also Kevin Sullivan & Mary Jordan, Japanese Putting Bite on Officials 'Free Lunch, WASH. POST, Jan. 6, 1997, at A1.
87. "Kankan settai wa hitsuyōaku" konkyo nashi, supra note 56, at 4.
88. "Tada sake" gyōsei no iyashisa, supra note 55, at 5.
89. See "Kankan settai wa hitsuyōaku" konkyo nashi, supra note 56, at 4.
90. See Kankan settai kō sureba wakaru [This is How You Can find Out About Kankan Settai], ASAHI SHINBUN (Satellite Edition), Sept. 24, 1995, at 8.
91. See Shokyuryōhi 12tofuken ga sakugensaku [Twelve Prefectural Governments Plan to Cut Entertainment Expenses], ASAHI SHINBUN (Satellite Edition), Sept. 24, 1995, at 1.
92. Kankan settai wo zenpai [Kankan Settai to be Abolished], ASAHI SHINBUN (Satellite Edition), Sept. 26, 1995, at 3; Miyagi mo kankan settai zenpai [Miyagi Prefecture Also Bans Kankan Settai], ASAHI SHINBUN (Satellite Edition), Sept. 27, 1995, at 1.
93. Kankan settai wo zenpai [Kankan Settai to be Abolished], ASAHI SHINBUN (Satellite Edition), Sept. 26, 1995, at 3; Miyagi mo kankan settai zenpai [Miyagi Prefecture Also Bans Kankan Settai], ASAHI SHINBUN (Satellite Edition), Sept. 27, 1995, at 1.
94. See Shuchō/kaisetsu [Opinion/Editorial], ASAHI SHINBUN (Satellite Edition), Dec. 18, 1995, at 4.
95. Id.
96. See Rainen wa kara shuttchō tsuikyū [Next Year's Target the Pursuit of "Fictitious Business Trips "], ASAHISHINBUN (Satellite Edition), Dec. 10, 1995, at 22.
97. See id.
98. See Ichioku yonsen man en ni [¥140 million], ASAHI SHINBUN (Satellite Edition), Nov. 14, 1995, at 22.
99. See 36 Hokkaido Gov't Officials Reprimanded Over Fund Misuse, JAPAN ECON. NEWSWIRE, Apr. 15, 1997, available in WESTLAW, Allnews Plus Database.
100. See Governments Punish Officials for Fund Misuse, NIKKEI WKLY., Dec. 9, 1996, at 2.
101. See Futehisei shinshutsu 43okuen [¥4.3 Billion in Improper Expenditures], ASAHI SHINBUN (Satellite Edition), June 24, 1997, at 22.
102. See Governments Punish Officials fo Fund Misuse, supra note 73, at 2; see also Sullivan & Jordan, supra note 60, at A1.
103. See Japan Sets "Agreement" on Bureaucrats' Codes of Conduc, BNA INT'L TRADE DAILY, Dec. 23, 1996, available in WESTLAW, Legal News, Highlights and Notable Trials Database.
104. Hōan nerinaoshi gotō kyōdō de teishutsu [Fve Parties Collaborate and Submit a Redrafted Bill], NIHOM SHŌHI KEIZAI SHINBUN, Feb. 17, 1992, at 1; see also JŌHŌ KŌKAI MONDAI NI_KANSURU RENRAKU KAIGI [AD HOC COUNCIL ON INFORMATION DISCLOSURE PROBLEMS], GYŌSEI JŌHŌ KŌKAI KIJUN [ADMINISTRATIVE INFORMATION DISCLOSURE STANDARDS] 20 (Dec. 1991) [hereinafter DISCLOSURE STANDARDS]; Sterngold, supra note 1, at A20 (quoting Miyamoto Masao as saying that when he entered the government, one of the "most important things he was told was: "We control the information. When you give information to anybody, you are doing them a favor. They have no right to this information.").
105. Hōan nerinaoshi gotō kyōdō de teishutsu [Fve Parties Collaborate and Submit a Redrafted Bill], NIHOM SHŌHI KEIZAI SHINBUN, Feb. 17, 1992, at 1; see also JŌHŌ KŌKAI MONDAI NI_KANSURU RENRAKU KAIGI [AD HOC COUNCIL ON INFORMATION DISCLOSURE PROBLEMS], GYŌSEI JŌHŌ KŌKAI KIJUN [ADMINISTRATIVE INFORMATION DISCLOSURE STANDARDS] 20 (Dec. 1991) [hereinafter DISCLOSURE STANDARDS]; Sterngold, supra note 1, at A20 (quoting Miyamoto Masao as saying that when he entered the government, one of the "most important things he was told was: "We control the information. When you give information to anybody, you are doing them a favor. They have no right to this information.").
106. Hōan nerinaoshi gotō kyōdō de teishutsu [Fve Parties Collaborate and Submit a Redrafted Bill], NIHOM SHŌHI KEIZAI SHINBUN, Feb. 17, 1992, at 1; see also JŌHŌ KŌKAI MONDAI NI_KANSURU RENRAKU KAIGI [AD HOC COUNCIL ON INFORMATION DISCLOSURE PROBLEMS], GYŌSEI JŌHŌ KŌKAI KIJUN [ADMINISTRATIVE INFORMATION DISCLOSURE STANDARDS] 20 (Dec. 1991) [hereinafter DISCLOSURE STANDARDS]; Sterngold, supra note 1, at A20 (quoting Miyamoto Masao as saying that when he entered the government, one of the "most important things he was told was: "We control the information. When you give information to anybody, you are doing them a favor. They have no right to this information.").
107. See Jōhō kōkai kyōdō teian e [Coalition Information Disclosure Bill Proposal], ASAHI SHINBUN May 28, 1993, at 2; see also Kuni no gyōsei jōhō kōkai kijun wo kangaeru [Considering the National Administrative Information Disclosure Standard], NIHON SHŌHI KEIZAISHINBUN, Mar. 2, 1992, at 1.
108. See Jōhō kōkai kyōdō teian e [Coalition Information Disclosure Bill Proposal], ASAHI SHINBUN May 28, 1993, at 2; see also Kuni no gyōsei jōhō kōkai kijun wo kangaeru [Considering the National Administrative Information Disclosure Standard], NIHON SHŌHI KEIZAISHINBUN, Mar. 2, 1992, at 1.
109. See Murase Taro, Mondai ooi gyōsei jōhō kōkai kijun [An Information Disclosure Standard with Abundant Problems'], SHŪKAN HŌRITSU SHINBUN, Jan. 10, 1992, at 2.
110. See id.
111. Id.; see also DISCLOSURE STANDARDS, supra note 77, at 26.
112. Murase, supra note 79, at 2; see also DISCLOSURE STANDARDS, supra note 77, §§ 4(1), 4(2), 4(3)1-3.
113. Koyō no bunya ni okeru danjo no kintō no kikai oyobi taigō no kakuhotō joshi rōdōsha nofukushi no zōshin ni kansuru hōritsu [Law to Promote the Welfare of Female Workers by Providing for Equality of Opportunity and Treatment in Employment for Women], Law No. 45 of 1985.
114. See FRANK UPHAM, LAW AND SOCIAL CHANGE IN POSTWAR JAPAN 129-44 (1987).
115. See Loraine Parkinson, Note, Japan's Equal Employment Opportunity Law: An Alternative Approach to Social Change, 89 COLUM. L. REV. 604 (1989). The law prohibits employers from discriminating against women on the basis of gender in the following fields: education and training, employee benefits, and mandatory retirement age, retirement, and dismissal. The law requires equal opportunity efforts, however, only in the following areas: recruitment and hiring, and job assignment and promotion. Id. at 606-07. As the author concedes, The essence of [the enforcement] mechanisms is administrative guidance." Id. at 639. Thus, the national bureaucracy controls the pace of social change in the field of workplace discrimination, because it ultimately decides how aggressively to enforce the law.
116. UPHAM, supra note 84.
117. See UPHAM, supra note 84, at 18, 212, 217. John Haley, however, challenges the notion that informal mechanisms of regulation as manifested in the practice of, for example, gyōsei shidō or "administrative guidance" reflect the bureaucracy's power. He maintains the unconventional view that administrative guidance instead reflects the weakness of the Japanese bureaucracy which is unable to rely on legal coercion to mold behavior. See JOHN O. HALEY, AUTHORITY WITHOUT POWER 160-68 (1991). For another unconventional view of the power of the Japanese bureaucracy, see J. MARK RAMSEYER & FRANCES MCCALL ROSENBLUTH, JAPAN'S POLITICAL MARKETPLACE 121-41 (1993) (arguing that bureaucrats are not as independent and autonomous as generally perceived and are highly susceptible to manipulation by the Liberal Democratic Party).
118. See UPHAM, supra note 84, at 18, 212, 217. John Haley, however, challenges the notion that informal mechanisms of regulation as manifested in the practice of, for example, gyōsei shidō or "administrative guidance" reflect the bureaucracy's power. He maintains the unconventional view that administrative guidance instead reflects the weakness of the Japanese bureaucracy which is unable to rely on legal coercion to mold behavior. See JOHN O. HALEY, AUTHORITY WITHOUT POWER 160-68 (1991). For another unconventional view of the power of the Japanese bureaucracy, see J. MARK RAMSEYER & FRANCES MCCALL ROSENBLUTH, JAPAN'S POLITICAL MARKETPLACE 121-41 (1993) (arguing that bureaucrats are not as independent and autonomous as generally perceived and are highly susceptible to manipulation by the Liberal Democratic Party).
119. This law is formally known as Shiteki dokusen no kinshi oyobi kōsei torihiki no kakuhō ni kansuru hōritsut [The Act Concerning Prohibition of Private Monopoly and Maintenance of Fair Trade], translated in YANAGIDA, FOOTE, JOHNSON, RAMSEYER & SCOGIN, LAW AND INVESTMENT IN JAPAN 667 (1994). See also MATSUSHITA MITSUO, INTERNATIONAL TRADE AND COMPETITION LAW IN JAPAN 296-343 (1993).
120. This law is formally known as Shiteki dokusen no kinshi oyobi kōsei torihiki no kakuhō ni kansuru hōritsut [The Act Concerning Prohibition of Private Monopoly and Maintenance of Fair Trade], translated in YANAGIDA, FOOTE, JOHNSON, RAMSEYER & SCOGIN, LAW AND INVESTMENT IN JAPAN 667 (1994). See also MATSUSHITA MITSUO, INTERNATIONAL TRADE AND COMPETITION LAW IN JAPAN 296-343 (1993).
121. Harry First, Antitrust Enforcement in Japan, 64 ANTITRUST L.J. 137, 147 (1995).
122. Id.
123. See id, at 179-80. Private litigation by MCI against American Telephone and Telegraph (AT&T) played an important role in fashioning the Department of Justice's antitrust case that led to the break up of AT&T. See STEVE COLL, DEAL OF THE CENTURY 148-49 (1987). Like the JFTC, however, the Department of Justice has been criticized for not bestowing more rights upon private litigants. A 1970s study called for the Antitrust Division to allow private litigants to bring treble damage actions based upon a defendant's violation of a consent decree. It also argued for the Division to negotiate clauses in consent decrees to hold the defendant prima facie liable to anyone who could prove injury from the conduct. See MARK GREEN ET AL., THE CLOSED ENTERPRISE SYSTEM, 181, 205-08 (1972).
124. See id, at 179-80. Private litigation by MCI against American Telephone and Telegraph (AT&T) played an important role in fashioning the Department of Justice's antitrust case that led to the break up of AT&T. See STEVE COLL, DEAL OF THE CENTURY 148-49 (1987). Like the JFTC, however, the Department of Justice has been criticized for not bestowing more rights upon private litigants. A 1970s study called for the Antitrust Division to allow private litigants to bring treble damage actions based upon a defendant's violation of a consent decree. It also argued for the Division to negotiate clauses in consent decrees to hold the defendant prima facie liable to anyone who could prove injury from the conduct. See MARK GREEN ET AL., THE CLOSED ENTERPRISE SYSTEM, 181, 205-08 (1972).
125. First, supra note 89, at 177.
126. Draft laws have been introduced in 1980, 1981, 1985, 1989, and 1993. See Seigi no taiman ga towareru [Questioning the Supineness of Politics], ASAHI SHINBUN (Satellite Edition), Apr. 25, 1996, at 2. But see Michael Gonzalez, Japan's Mini Revolutions, WALL ST. T., Oct. 22, 1996, at A22 (arguing that Japan underwent a number of significant reforms in 1996 by misleadingly pointing to "a law modeled on the U.S. Freedom of Information Act," which "has already been presented to the [Japanese] Diet," as reflective of the depth of changes occurring. However, the author did not mention that such a proposed law had been introduced on five occasions since the 1980s and had failed to garner enough support each time).
127. Draft laws have been introduced in 1980, 1981, 1985, 1989, and 1993. See Seigi no taiman ga towareru [Questioning the Supineness of Politics], ASAHI SHINBUN (Satellite Edition), Apr. 25, 1996, at 2. But see Michael Gonzalez, Japan's Mini Revolutions, WALL ST. T., Oct. 22, 1996, at A22 (arguing that Japan underwent a number of significant reforms in 1996 by misleadingly pointing to "a law modeled on the U.S. Freedom of Information Act," which "has already been presented to the [Japanese] Diet," as reflective of the depth of changes occurring. However, the author did not mention that such a proposed law had been introduced on five occasions since the 1980s and had failed to garner enough support each time).
128. See Miyake Hiroshi, Jōhō kōkai hō no seitei wo motomete [In Pursuit of the Enactment of an Information Disclosure Law], 510 SHINBUN KENKYO 32, 33 (1994). For a discussion of the Lockheed scandal in the context of the political career of Tanaka Kakuei, see JOHNSON, supra note 44, at 183-211.
129. See Kōkai uia sairyō denaku "seido" ni [Institutionalize Disclosure Without Discretion], ASAHI SHINBUN (Satellite Edition), Oct 10, 1995, at 6.
130. See David Boling, Challenging the Rule of Angels, AM. CHAMBER COM. J. JAPAN, May 1993, at 39, 41. Mark Ramseyer and Francis Rosenbluth have challenged the orthodox view that in Japan "bureaucrats largely do as they please" and "[l]egislators do not much matter." RAMSEYER & ROSENBLUTH, supra note 87, at 100. They concede that the bureaucracy dominates the law-making process but that "[i]f bureaucrats . . . regulate as legislators want them to regulate, then legislators will leave them alone." Id. at 102. As a result, to focus simply on the number of enacted bills which are drafted by the bureaucracy is misleading. In other words, what at first blush appears to be an acquiescence to bureaucratic power by legislators is in actuality the exercise of power over policymaking. Ramseyer and Rosenbluth's proposition illuminates the failure to enact an IDL. The LDP has squarely opposed an IDL, just like the bureaucracy, for over a decade. The LDP's opposition is likely because of its post-war success at the ballot box; that is, any damaging information that might be released through a national IDL would likely implicate LDP politicians who were in positions of power. Ramseyer's and Rosenbluth's criticisms are aimed primarily at the foreign scholars' reading of the power of the Japanese bureaucracy. See id. at 100-02. But not only foreign scholars reach this conclusion; many Japanese commentators and critics have reached the exact same conclusion with regard to the power of Japan's bureaucracy. For example, Japanese politics is often referred to as being "bureaucratic-led." See, e.g., Imai Hajime, "anshu seiji"
131. See David Boling, Challenging the Rule of Angels, AM. CHAMBER COM. J. JAPAN, May 1993, at 39, 41. Mark Ramseyer and Francis Rosenbluth have challenged the orthodox view that in Japan "bureaucrats largely do as they please" and "[l]egislators do not much matter." RAMSEYER & ROSENBLUTH, supra note 87, at 100. They concede that the bureaucracy dominates the law-making process but that "[i]f bureaucrats . . . regulate as legislators want them to regulate, then legislators will leave them alone." Id. at 102. As a result, to focus simply on the number of enacted bills which are drafted by the bureaucracy is misleading. In other words, what at first blush appears to be an acquiescence to bureaucratic power by legislators is in actuality the exercise of power over policymaking. Ramseyer and Rosenbluth's proposition illuminates the failure to enact an IDL. The LDP has squarely opposed an IDL, just like the bureaucracy, for over a decade. The LDP's opposition is likely because of its post-war success at the ballot box; that is, any damaging information that might be released through a national IDL would likely implicate LDP politicians who were in positions of power. Ramseyer's and Rosenbluth's criticisms are aimed primarily at the foreign scholars' reading of the power of the Japanese bureaucracy. See id. at 100-02. But not only foreign scholars reach this conclusion; many Japanese commentators and critics have reached the exact same conclusion with regard to the power of Japan's bureaucracy. For example, Japanese politics is often referred to as being "bureaucratic-led." See, e.g., Imai Hajime, "anshu seiji" daha e kokumin tōhyōsei wo [Break Up "ureaucrat-Led Politics"Through a National Referendum System], RONZA, July 1996, at 48. Japanese commentators also criticize the Diet for simply rubber-stamping bureaucratically drafted legislation. See, e.g., Kanryō no "hukaku tenta"wo tadase [Correct the Bureaucracy's "art Before the Horse" Leadership], MAINICHI SHINBUN, May 4, 1996, at 5; Yayama Taro, Kanryō ha minshushugi wo shinjinai [Bureaucrats Don't Believe in Democracy], SANKEISHINBUN (Morning Edition), Aug. 21, 1996, at 6.
132. See David Boling, Challenging the Rule of Angels, AM. CHAMBER COM. J. JAPAN, May 1993, at 39, 41. Mark Ramseyer and Francis Rosenbluth have challenged the orthodox view that in Japan "bureaucrats largely do as they please" and "[l]egislators do not much matter." RAMSEYER & ROSENBLUTH, supra note 87, at 100. They concede that the bureaucracy dominates the law-making process but that "[i]f bureaucrats . . . regulate as legislators want them to regulate, then legislators will leave them alone." Id. at 102. As a result, to focus simply on the number of enacted bills which are drafted by the bureaucracy is misleading. In other words, what at first blush appears to be an acquiescence to bureaucratic power by legislators is in actuality the exercise of power over policymaking. Ramseyer and Rosenbluth's proposition illuminates the failure to enact an IDL. The LDP has squarely opposed an IDL, just like the bureaucracy, for over a decade. The LDP's opposition is likely because of its post-war success at the ballot box; that is, any damaging information that might be released through a national IDL would likely implicate LDP politicians who were in positions of power. Ramseyer's and Rosenbluth's criticisms are aimed primarily at the foreign scholars' reading of the power of the Japanese bureaucracy. See id. at 100-02. But not only foreign scholars reach this conclusion; many Japanese commentators and critics have reached the exact same conclusion with regard to the power of Japan's bureaucracy. For example, Japanese politics is often referred to as being "bureaucratic-led." See, e.g., Imai Hajime, "anshu seiji" daha e kokumin tōhyōsei wo [Break Up "ureaucrat-Led Politics"Through a National Referendum System], RONZA, July 1996, at 48. Japanese commentators also criticize the Diet for simply rubber-stamping bureaucratically drafted legislation. See, e.g., Kanryō no "hukaku tenta"wo tadase [Correct the Bureaucracy's "art Before the Horse" Leadership], MAINICHI SHINBUN, May 4, 1996, at 5; Yayama Taro, Kanryō ha minshushugi wo shinjinai [Bureaucrats Don't Believe in Democracy], SANKEISHINBUN (Morning Edition), Aug. 21, 1996, at 6.
133. See David Boling, Challenging the Rule of Angels, AM. CHAMBER COM. J. JAPAN, May 1993, at 39, 41. Mark Ramseyer and Francis Rosenbluth have challenged the orthodox view that in Japan "bureaucrats largely do as they please" and "[l]egislators do not much matter." RAMSEYER & ROSENBLUTH, supra note 87, at 100. They concede that the bureaucracy dominates the law-making process but that "[i]f bureaucrats . . . regulate as legislators want them to regulate, then legislators will leave them alone." Id. at 102. As a result, to focus simply on the number of enacted bills which are drafted by the bureaucracy is misleading. In other words, what at first blush appears to be an acquiescence to bureaucratic power by legislators is in actuality the exercise of power over policymaking. Ramseyer and Rosenbluth's proposition illuminates the failure to enact an IDL. The LDP has squarely opposed an IDL, just like the bureaucracy, for over a decade. The LDP's opposition is likely because of its post-war success at the ballot box; that is, any damaging information that might be released through a national IDL would likely implicate LDP politicians who were in positions of power. Ramseyer's and Rosenbluth's criticisms are aimed primarily at the foreign scholars' reading of the power of the Japanese bureaucracy. See id. at 100-02. But not only foreign scholars reach this conclusion; many Japanese commentators and critics have reached the exact same conclusion with regard to the power of Japan's bureaucracy. For example, Japanese politics is often referred to as being "bureaucratic-led." See, e.g., Imai Hajime, "anshu seiji" daha e kokumin tōhyōsei wo [Break Up "ureaucrat-Led Politics"Through a National Referendum System], RONZA, July 1996, at 48. Japanese commentators also criticize the Diet for simply rubber-stamping bureaucratically drafted legislation. See, e.g., Kanryō no "hukaku tenta"wo tadase [Correct the Bureaucracy's "art Before the Horse" Leadership], MAINICHI SHINBUN, May 4, 1996, at 5; Yayama Taro, Kanryō ha minshushugi wo shinjinai [Bureaucrats Don't Believe in Democracy], SANKEISHINBUN (Morning Edition), Aug. 21, 1996, at 6.
134. Freedom-of-Information Law on Hold, NIKKEI WKLY., Jan. 10, 1994, at 5.
135. in November 1993 the Diet enacted the APL. For a Japanese-language discussion of the substance of the legislation, see Gyōsei tetsuzuki no seitei, 1039 JURISUTO 1 (1994). For a criticism of the APL bill for its failure to encompass information disclosure mechanisms, see David Boling, Regulations for Regulators, ASAHI EVENING NEWS, Feb. 17, 1993, at 9, and for general criticisms of the APL after its enactment, see Lorenz Kōdderitzsch, Japan's New Administrative Procedure Law: Reasons for its Enactment and Likely Implications, 24 L. JAPAN 105, 132-35. Former United States trade official Charles Lake has observed that the main problem with the APL is that it fails to reign in gyōsei shidō or "administrative guidance." According to the APL, for instance, when an applicant for a license or permit is subjected to administrative guidance, he may ask that the guidance be put in writing. However, the onus is on the applicant to request the written form rather than upon the government official to always put such guidance in writing. Thus, when the applicant asks for the guidance to be put in writing the official may attempt to dissuade the applicant from such a request In essence, the bureaucrat may exercise administrative guidance on the applicant s request that administrative guidance be clearly articulated in writing. See Interview with Charles Lake, July 30, 1994. One year after the APL's enactment, an official with the Japan Federation of Economic Organizations found that the corporations were still reluctant to take on the bureaucrats. See Benjamin Fulford, Law to Limit Bureaucratic Rule fizzles, NIKKEI WKLY., Apr. 8, 1996, at 1. One author optimistically concludes that the passage of the APL represents the declining power of the Japanese regulatory authorities and Japan's willingness to embrace market-driven principles. See Ken Duck, Comment, Now That the Fog Has Lifted: The Impact of Japan's Administrative Procedures Law on the Regulation of Industry and Market Governance, 19 FORDHAM INT'L L.J. 1686, 1703-04 (1996). An English translation of the APL is available in Administrative Procedure Act: Translated and Annotated, 25 L. JAPAN 141 (1995).
136. in November 1993 the Diet enacted the APL. For a Japanese-language discussion of the substance of the legislation, see Gyōsei tetsuzuki no seitei, 1039 JURISUTO 1 (1994). For a criticism of the APL bill for its failure to encompass information disclosure mechanisms, see David Boling, Regulations for Regulators, ASAHI EVENING NEWS, Feb. 17, 1993, at 9, and for general criticisms of the APL after its enactment, see Lorenz Kōdderitzsch, Japan's New Administrative Procedure Law: Reasons for its Enactment and Likely Implications, 24 L. JAPAN 105, 132-35. Former United States trade official Charles Lake has observed that the main problem with the APL is that it fails to reign in gyōsei shidō or "administrative guidance." According to the APL, for instance, when an applicant for a license or permit is subjected to administrative guidance, he may ask that the guidance be put in writing. However, the onus is on the applicant to request the written form rather than upon the government official to always put such guidance in writing. Thus, when the applicant asks for the guidance to be put in writing the official may attempt to dissuade the applicant from such a request In essence, the bureaucrat may exercise administrative guidance on the applicant s request that administrative guidance be clearly articulated in writing. See Interview with Charles Lake, July 30, 1994. One year after the APL's enactment, an official with the Japan Federation of Economic Organizations found that the corporations were still reluctant to take on the bureaucrats. See Benjamin Fulford, Law to Limit Bureaucratic Rule fizzles, NIKKEI WKLY., Apr. 8, 1996, at 1. One author optimistically concludes that the passage of the APL represents the declining power of the Japanese regulatory authorities and Japan's willingness to embrace market-driven principles. See Ken Duck, Comment, Now That the Fog Has Lifted: The Impact of Japan's Administrative Procedures Law on the Regulation of Industry and Market Governance, 19 FORDHAM INT'L L.J. 1686, 1703-04 (1996). An English translation of the APL is available in Administrative Procedure Act: Translated and Annotated, 25 L. JAPAN 141 (1995).
137. in November 1993 the Diet enacted the APL. For a Japanese-language discussion of the substance of the legislation, see Gyōsei tetsuzuki no seitei, 1039 JURISUTO 1 (1994). For a criticism of the APL bill for its failure to encompass information disclosure mechanisms, see David Boling, Regulations for Regulators, ASAHI EVENING NEWS, Feb. 17, 1993, at 9, and for general criticisms of the APL after its enactment, see Lorenz Kōdderitzsch, Japan's New Administrative Procedure Law: Reasons for its Enactment and Likely Implications, 24 L. JAPAN 105, 132-35. Former United States trade official Charles Lake has observed that the main problem with the APL is that it fails to reign in gyōsei shidō or "administrative guidance." According to the APL, for instance, when an applicant for a license or permit is subjected to administrative guidance, he may ask that the guidance be put in writing. However, the onus is on the applicant to request the written form rather than upon the government official to always put such guidance in writing. Thus, when the applicant asks for the guidance to be put in writing the official may attempt to dissuade the applicant from such a request In essence, the bureaucrat may exercise administrative guidance on the applicant s request that administrative guidance be clearly articulated in writing. See Interview with Charles Lake, July 30, 1994. One year after the APL's enactment, an official with the Japan Federation of Economic Organizations found that the corporations were still reluctant to take on the bureaucrats. See Benjamin Fulford, Law to Limit Bureaucratic Rule fizzles, NIKKEI WKLY., Apr. 8, 1996, at 1. One author optimistically concludes that the passage of the APL represents the declining power of the Japanese regulatory authorities and Japan's willingness to embrace market-driven principles. See Ken Duck, Comment, Now That the Fog Has Lifted: The Impact of Japan's Administrative Procedures Law on the Regulation of Industry and Market Governance, 19 FORDHAM INT'L L.J. 1686, 1703-04 (1996). An English translation of the APL is available in Administrative Procedure Act: Translated and Annotated, 25 L. JAPAN 141 (1995).
138. in November 1993 the Diet enacted the APL. For a Japanese-language discussion of the substance of the legislation, see Gyōsei tetsuzuki no seitei, 1039 JURISUTO 1 (1994). For a criticism of the APL bill for its failure to encompass information disclosure mechanisms, see David Boling, Regulations for Regulators, ASAHI EVENING NEWS, Feb. 17, 1993, at 9, and for general criticisms of the APL after its enactment, see Lorenz Kōdderitzsch, Japan's New Administrative Procedure Law: Reasons for its Enactment and Likely Implications, 24 L. JAPAN 105, 132-35. Former United States trade official Charles Lake has observed that the main problem with the APL is that it fails to reign in gyōsei shidō or "administrative guidance." According to the APL, for instance, when an applicant for a license or permit is subjected to administrative guidance, he may ask that the guidance be put in writing. However, the onus is on the applicant to request the written form rather than upon the government official to always put such guidance in writing. Thus, when the applicant asks for the guidance to be put in writing the official may attempt to dissuade the applicant from such a request In essence, the bureaucrat may exercise administrative guidance on the applicant s request that administrative guidance be clearly articulated in writing. See Interview with Charles Lake, July 30, 1994. One year after the APL's enactment, an official with the Japan Federation of Economic Organizations found that the corporations were still reluctant to take on the bureaucrats. See Benjamin Fulford, Law to Limit Bureaucratic Rule fizzles, NIKKEI WKLY., Apr. 8, 1996, at 1. One author optimistically concludes that the passage of the APL represents the declining power of the Japanese regulatory authorities and Japan's willingness to embrace market-driven principles. See Ken Duck, Comment, Now That the Fog Has Lifted: The Impact of Japan's Administrative Procedures Law on the Regulation of Industry and Market Governance, 19 FORDHAM INT'L L.J. 1686, 1703-04 (1996). An English translation of the APL is available in Administrative Procedure Act: Translated and Annotated, 25 L. JAPAN 141 (1995).
139. in November 1993 the Diet enacted the APL. For a Japanese-language discussion of the substance of the legislation, see Gyōsei tetsuzuki no seitei, 1039 JURISUTO 1 (1994). For a criticism of the APL bill for its failure to encompass information disclosure mechanisms, see David Boling, Regulations for Regulators, ASAHI EVENING NEWS, Feb. 17, 1993, at 9, and for general criticisms of the APL after its enactment, see Lorenz Kōdderitzsch, Japan's New Administrative Procedure Law: Reasons for its Enactment and Likely Implications, 24 L. JAPAN 105, 132-35. Former United States trade official Charles Lake has observed that the main problem with the APL is that it fails to reign in gyōsei shidō or "administrative guidance." According to the APL, for instance, when an applicant for a license or permit is subjected to administrative guidance, he may ask that the guidance be put in writing. However, the onus is on the applicant to request the written form rather than upon the government official to always put such guidance in writing. Thus, when the applicant asks for the guidance to be put in writing the official may attempt to dissuade the applicant from such a request In essence, the bureaucrat may exercise administrative guidance on the applicant s request that administrative guidance be clearly articulated in writing. See Interview with Charles Lake, July 30, 1994. One year after the APL's enactment, an official with the Japan Federation of Economic Organizations found that the corporations were still reluctant to take on the bureaucrats. See Benjamin Fulford, Law to Limit Bureaucratic Rule fizzles, NIKKEI WKLY., Apr. 8, 1996, at 1. One author optimistically concludes that the passage of the APL represents the declining power of the Japanese regulatory authorities and Japan's willingness to embrace market-driven principles. See Ken Duck, Comment, Now That the Fog Has Lifted: The Impact of Japan's Administrative Procedures Law on the Regulation of Industry and Market Governance, 19 FORDHAM INT'L L.J. 1686, 1703-04 (1996). An English translation of the APL is available in Administrative Procedure Act: Translated and Annotated, 25 L. JAPAN 141 (1995).
140. in November 1993 the Diet enacted the APL. For a Japanese-language discussion of the substance of the legislation, see Gyōsei tetsuzuki no seitei, 1039 JURISUTO 1 (1994). For a criticism of the APL bill for its failure to encompass information disclosure mechanisms, see David Boling, Regulations for Regulators, ASAHI EVENING NEWS, Feb. 17, 1993, at 9, and for general criticisms of the APL after its enactment, see Lorenz Kōdderitzsch, Japan's New Administrative Procedure Law: Reasons for its Enactment and Likely Implications, 24 L. JAPAN 105, 132-35. Former United States trade official Charles Lake has observed that the main problem with the APL is that it fails to reign in gyōsei shidō or "administrative guidance." According to the APL, for instance, when an applicant for a license or permit is subjected to administrative guidance, he may ask that the guidance be put in writing. However, the onus is on the applicant to request the written form rather than upon the government official to always put such guidance in writing. Thus, when the applicant asks for the guidance to be put in writing the official may attempt to dissuade the applicant from such a request In essence, the bureaucrat may exercise administrative guidance on the applicant s request that administrative guidance be clearly articulated in writing. See Interview with Charles Lake, July 30, 1994. One year after the APL's enactment, an official with the Japan Federation of Economic Organizations found that the corporations were still reluctant to take on the bureaucrats. See Benjamin Fulford, Law to Limit Bureaucratic Rule fizzles, NIKKEI WKLY., Apr. 8, 1996, at 1. One author optimistically concludes that the passage of the APL represents the declining power of the Japanese regulatory authorities and Japan's willingness to embrace market-driven principles. See Ken Duck, Comment, Now That the Fog Has Lifted: The Impact of Japan's Administrative Procedures Law on the Regulation of Industry and Market Governance, 19 FORDHAM INT'L L.J. 1686, 1703-04 (1996). An English translation of the APL is available in Administrative Procedure Act: Translated and Annotated, 25 L. JAPAN 141 (1995).
141. Freedom-of-Information Law on Hold, supra note 97, at 5.
142. American Embassy, Tokyo, Daily Summary of Japanese Press Tuesday, Dec. 21, 1993, at 13.
143. See Jōhō Kōkai hō seitei e junbishitsu [Clearinghouse Set Up for Enacting an Information Disclosure Law], ASAHI SHINBUN (Satellite Edition), Dec. 30, 1993, at 13.
144. See Kyodo News International Inc., Murayama to Stress Administrative Reform in Diet Speech, JAPAN POL'Y & POL., Jan. 23, 1995, available in WESTLAW, Allnews Plus Database.
145. See Jōhō kōkai hō ni kokumin no kanshin wo [Citizens Need to Take an Interest in the Information Disclosure Law], ASAHI SHINBUN (Satellite Edition), Aug. 8, 1995, at 5.
146. See Jōhō kōkai hō yōkōan (chūkan hōkoku) [Draft IDL (Interim Report)], Apr. 24, 1996. See also Info-disclosure Plan Targets Bureaucratic Power, NIKKEI WKLY., Apr. 29, 1996, at 4. Miyake Hiroshi criticized the interim report's draft law on a number of fronts. For example, he observed: (1) certain "special legal entities" that are nonetheless affiliated with the government were exempted under the draft law; (2) the draft law exempted situations when a corporation provided documents to the government based on the understanding that the government could not disclose the information - a practice which has been abused by pharmaceutical companies when dealing with the Ministry of Health and Welfare; (3) the draft law stipulated that the government had an affirmative obligation to disclose information that could endanger one's life; although this was a good idea, in actuality a number of IDOs have similar provisions but these provisions are rarely used as a disclosure basis; (4) the exemptions for deliberations of shingikai are overly broad; and (5) the draft law does not oblige the government to confirm or deny the existence of documents. See "Kakushigoto" dekinu jōhō kōkai hō [An IDL that Unearths "Hidden Things"], ASAHI SHINBUN (Satellite.Edition), Apr. 25, 1997, at 9.
147. See Jōhō kōkai hō yōkōan (chūkan hōkoku) [Draft IDL (Interim Report)], Apr. 24, 1996. See also Info-disclosure Plan Targets Bureaucratic Power, NIKKEI WKLY., Apr. 29, 1996, at 4. Miyake Hiroshi criticized the interim report's draft law on a number of fronts. For example, he observed: (1) certain "special legal entities" that are nonetheless affiliated with the government were exempted under the draft law; (2) the draft law exempted situations when a corporation provided documents to the government based on the understanding that the government could not disclose the information - a practice which has been abused by pharmaceutical companies when dealing with the Ministry of Health and Welfare; (3) the draft law stipulated that the government had an affirmative obligation to disclose information that could endanger one's life; although this was a good idea, in actuality a number of IDOs have similar provisions but these provisions are rarely used as a disclosure basis; (4) the exemptions for deliberations of shingikai are overly broad; and (5) the draft law does not oblige the government to confirm or deny the existence of documents. See "Kakushigoto" dekinu jōhō kōkai hō [An IDL that Unearths "Hidden Things"], ASAHI SHINBUN (Satellite.Edition), Apr. 25, 1997, at 9.
148. See Jōhō kōkai hō yōkōan (chūkan hōkoku) [Draft IDL (Interim Report)], Apr. 24, 1996. See also Info-disclosure Plan Targets Bureaucratic Power, NIKKEI WKLY., Apr. 29, 1996, at 4. Miyake Hiroshi criticized the interim report's draft law on a number of fronts. For example, he observed: (1) certain "special legal entities" that are nonetheless affiliated with the government were exempted under the draft law; (2) the draft law exempted situations when a corporation provided documents to the government based on the understanding that the government could not disclose the information - a practice which has been abused by pharmaceutical companies when dealing with the Ministry of Health and Welfare; (3) the draft law stipulated that the government had an affirmative obligation to disclose information that could endanger one's life; although this was a good idea, in actuality a number of IDOs have similar provisions but these provisions are rarely used as a disclosure basis; (4) the exemptions for deliberations of shingikai are overly broad; and (5) the draft law does not oblige the government to confirm or deny the existence of documents. See "Kakushigoto" dekinu jōhō kōkai hō [An IDL that Unearths "Hidden Things"], ASAHI SHINBUN (Satellite.Edition), Apr. 25, 1997, at 9.
149. See Jōhō kōkai hō yōkōan [Draft IDL], ASAHI SHINBUN, Nov. 2, 1996, at 9, art. 6(1)-(5) [hereinafter Draft IDL]; see also Suzuki Yumiko, Reformers Urge Sweeping Disclosure Law, NIKKEI WKLY., Nov. 4, 1996, at 4 (providing a complete text of the draft law).
150. See Jōhō kōkai hō yōkōan [Draft IDL], ASAHI SHINBUN, Nov. 2, 1996, at 9, art. 6(1)-(5) [hereinafter Draft IDL]; see also Suzuki Yumiko, Reformers Urge Sweeping Disclosure Law, NIKKEI WKLY., Nov. 4, 1996, at 4 (providing a complete text of the draft law).
151. See, e.g., Choy, supra note 15, at 11.
152. See "Dare demo seikyū" ni takai hyōka - "sonpi sae fumei" wa ranyō kenen ["Anyone Can Request" [System] Gets High Marks - Concern About Abuse of "Uncertainty of [Documents'] Existence" [ExcuseI], ASAHI SHINBUN (Satellite Edition), Nov. 2, 1996, at 21.
153. See, e.g., Miyake Hiroshi, Hōseika no ugoki ima doko made [Legislative Activity - How Far Has It Gone?], HŌGAKU SEMINĀ, July, 1995, at 46; Public Has Constitutional Right to Disclosure of Information, NIKKEI WKLY., May 6, 1996, at 6.
154. See, e.g., Miyake Hiroshi, Hōseika no ugoki ima doko made [Legislative Activity - How Far Has It Gone?], HŌGAKU SEMINĀ, July, 1995, at 46; Public Has Constitutional Right to Disclosure of Information, NIKKEI WKLY., May 6, 1996, at 6.
155. See Draft IDL, supra note 105, art. 3.
156. See Doko made susumu? jōhō kōkai hō [How Far Will the IDL Go?], ASAHISHINBUN (Satellite Edition),June 19, 1997 ,at 21 [hereinafter Doko made susumu?].
157. See Tokushu hōjin no jōhō kōkai wo suishin seyo [Promote Information Disclosure of Public Corporations], YOMIURI SHINBUN, June 26, 1997.
158. See Suzuki Yumiko, Coverup Exposure Scorches Nuclear Agency, NIKKEI WKLY., Apr. 21, 1997, at 1.
159. Draft IDL supra note 105, arts. 6(3), (5)-(6).
160. See infra text accompanying note 194.
161. Draft IDL, supra note 105, art. 6.
162. See id. arts. 17-22.
163. See Doko made susumu?, supra note 110, at 21.
164. For example, the enactment of a 1992 law requiring that information on assets held by governors, mayors, and local assembly members be subject to disclosure seemed to bode well for the prospects of a national IDL. See Disclosure Laws Widespread, JAPAN TIMES, Mar. 4, 1996, at 4. Also, the medical "informed consent" movement seemed to have gained enough steam that the medical establishment accepted the inevitability of having to provide greater information to patients. See Robert B. Leflar, Informed Consent and Patients Rights in Japan, 33 HOUS. L. REV. 1, 110 (1996).
165. For example, the enactment of a 1992 law requiring that information on assets held by governors, mayors, and local assembly members be subject to disclosure seemed to bode well for the prospects of a national IDL. See Disclosure Laws Widespread, JAPAN TIMES, Mar. 4, 1996, at 4. Also, the medical "informed consent" movement seemed to have gained enough steam that the medical establishment accepted the inevitability of having to provide greater information to patients. See Robert B. Leflar, Informed Consent and Patients Rights in Japan, 33 HOUS. L. REV. 1, 110 (1996).
166. See supra text accompanying notes 43-76.
167. Jon Choy, Local Government in Japan: The Next People-Power Revolution?, JAPAN ECON. INST. REP., Nov. 15, 1996, No. 43A at 1, 14.
168. Id. at 16.
169. Id, at 16; see also Scandal in Japan, WASH. POST, Dec. 12, 1996, at A20 (giving information on further scandals).
170. See Sato Makoto, Information Access Battle Far from Over, NIKKEI WKLY., May 13, 1996, at 4.
171. Jōhō kōkai hōan teishutsu - rainendochū ni [Information Disclosure Drafl Law Slated for Introduction During Next Fiscal Year], ASAHISHINBUN (Satellite Edition), Dec. 22, 1996, at 1.
172. See Ködderitzsch, supra note 98, at 120.
173. See Radio Japan, supra note 18. For another example of local citizens taking action in the context of land use planning that surpassed similar efforts on the national level, see Michael Young, Judicial Review of Administrative Guidance: Governmentally Encouraged Consensual Dispute Resolution in Japan, 84 COLUM. L. REV. 923, 928-32 (1984).
174. All legislation in Japan, including the budget, originates in government ministries, and as a consequence, Chalmers Johnson has concluded, "it is foolish to attempt to lobby the Japanese Diet." Chalmers Johnson, MITI, MPT, and the Telecom Wars, in POLITICS AND PRODUCTIVITY (Chalmers Johnson et al. eds., 1989) at 177, 179, 202. Former U.S. Ambassador to Japan Walter Mondale has observed, "In the Diet, when you see bureaucrats also participating in the debates, answering questions, preparing amendments, preparing the budgets, you realize that this is a society in which the publicly elected side is very limited." Nicholas Kristof, Monderusan's Last Campaign, N.Y. TIMES MAG., Nov. 5, 1995, at 35, 37. One scholar has concluded that when the bureaucracy drafts laws that could be used to threaten its institutional authority, the end product inevitably uses vague terms giving discretion to the bureaucrats. See DAN FENNO HENDERSON, FOREIGN ENTERPRISE IN JAPAN: LAWS & POLICIES 200 (1973). For an interesting account of a Western-trained Japanese bureaucrat's surprise when he discovered one of his primary duties as a Japanese bureaucrat was to draft laws, see MIYAMOTO, supra note 44, at 31-35. One study concluded that bureaucratically drafted bills have been enacted from 75% to 95% of the time. See RAMSEYER & ROSENBLUTH, supra note 87, at 136. Although this percentage is high from the U.S. perspective, parliamentary democracies such as England, Germany, and France have similarly high proportions of bureaucracy-proposed bills that become law. See Sakakibara Eisuke, Nihon wa hontō ni ishitsu no ka? [Is Japan Really Different?], CHŪŌ KŌRON, Aug. 1, 1995, at 271.
175. All legislation in Japan, including the budget, originates in government ministries, and as a consequence, Chalmers Johnson has concluded, "it is foolish to attempt to lobby the Japanese Diet." Chalmers Johnson, MITI, MPT, and the Telecom Wars, in POLITICS AND PRODUCTIVITY (Chalmers Johnson et al. eds., 1989) at 177, 179, 202. Former U.S. Ambassador to Japan Walter Mondale has observed, "In the Diet, when you see bureaucrats also participating in the debates, answering questions, preparing amendments, preparing the budgets, you realize that this is a society in which the publicly elected side is very limited." Nicholas Kristof, Monderusan's Last Campaign, N.Y. TIMES MAG., Nov. 5, 1995, at 35, 37. One scholar has concluded that when the bureaucracy drafts laws that could be used to threaten its institutional authority, the end product inevitably uses vague terms giving discretion to the bureaucrats. See DAN FENNO HENDERSON, FOREIGN ENTERPRISE IN JAPAN: LAWS & POLICIES 200 (1973). For an interesting account of a Western-trained Japanese bureaucrat's surprise when he discovered one of his primary duties as a Japanese bureaucrat was to draft laws, see MIYAMOTO, supra note 44, at 31-35. One study concluded that bureaucratically drafted bills have been enacted from 75% to 95% of the time. See RAMSEYER & ROSENBLUTH, supra note 87, at 136. Although this percentage is high from the U.S. perspective, parliamentary democracies such as England, Germany, and France have similarly high proportions of bureaucracy-proposed bills that become law. See Sakakibara Eisuke, Nihon wa hontō ni ishitsu no ka? [Is Japan Really Different?], CHŪŌ KŌRON, Aug. 1, 1995, at 271.
176. All legislation in Japan, including the budget, originates in government ministries, and as a consequence, Chalmers Johnson has concluded, "it is foolish to attempt to lobby the Japanese Diet." Chalmers Johnson, MITI, MPT, and the Telecom Wars, in POLITICS AND PRODUCTIVITY (Chalmers Johnson et al. eds., 1989) at 177, 179, 202. Former U.S. Ambassador to Japan Walter Mondale has observed, "In the Diet, when you see bureaucrats also participating in the debates, answering questions, preparing amendments, preparing the budgets, you realize that this is a society in which the publicly elected side is very limited." Nicholas Kristof, Monderusan's Last Campaign, N.Y. TIMES MAG., Nov. 5, 1995, at 35, 37. One scholar has concluded that when the bureaucracy drafts laws that could be used to threaten its institutional authority, the end product inevitably uses vague terms giving discretion to the bureaucrats. See DAN FENNO HENDERSON, FOREIGN ENTERPRISE IN JAPAN: LAWS & POLICIES 200 (1973). For an interesting account of a Western-trained Japanese bureaucrat's surprise when he discovered one of his primary duties as a Japanese bureaucrat was to draft laws, see MIYAMOTO, supra note 44, at 31-35. One study concluded that bureaucratically drafted bills have been enacted from 75% to 95% of the time. See RAMSEYER & ROSENBLUTH, supra note 87, at 136. Although this percentage is high from the U.S. perspective, parliamentary democracies such as England, Germany, and France have similarly high proportions of bureaucracy-proposed bills that become law. See Sakakibara Eisuke, Nihon wa hontō ni ishitsu no ka? [Is Japan Really Different?], CHŪŌ KŌRON, Aug. 1, 1995, at 271.
177. All legislation in Japan, including the budget, originates in government ministries, and as a consequence, Chalmers Johnson has concluded, "it is foolish to attempt to lobby the Japanese Diet." Chalmers Johnson, MITI, MPT, and the Telecom Wars, in POLITICS AND PRODUCTIVITY (Chalmers Johnson et al. eds., 1989) at 177, 179, 202. Former U.S. Ambassador to Japan Walter Mondale has observed, "In the Diet, when you see bureaucrats also participating in the debates, answering questions, preparing amendments, preparing the budgets, you realize that this is a society in which the publicly elected side is very limited." Nicholas Kristof, Monderusan's Last Campaign, N.Y. TIMES MAG., Nov. 5, 1995, at 35, 37. One scholar has concluded that when the bureaucracy drafts laws that could be used to threaten its institutional authority, the end product inevitably uses vague terms giving discretion to the bureaucrats. See DAN FENNO HENDERSON, FOREIGN ENTERPRISE IN JAPAN: LAWS & POLICIES 200 (1973). For an interesting account of a Western-trained Japanese bureaucrat's surprise when he discovered one of his primary duties as a Japanese bureaucrat was to draft laws, see MIYAMOTO, supra note 44, at 31-35. One study concluded that bureaucratically drafted bills have been enacted from 75% to 95% of the time. See RAMSEYER & ROSENBLUTH, supra note 87, at 136. Although this percentage is high from the U.S. perspective, parliamentary democracies such as England, Germany, and France have similarly high proportions of bureaucracy-proposed bills that become law. See Sakakibara Eisuke, Nihon wa hontō ni ishitsu no ka? [Is Japan Really Different?], CHŪŌ KŌRON, Aug. 1, 1995, at 271.
178. The statutory authority for shingikai is set out in Article 8 of the Kokka gyōsei soshiki hō [National Government Organization Law], Law No. 120 of 1949.
179. The Ministry of Post and Telecommunications (MPT) has tried since the 1980s to break up Nippon Telegraph and Telephone (NTT), Japan's dominant telecommunications provider. In early 1996, one of MPT's affiliated shingikai, the Telecommunications Council, again issued a report calling for the break up of NTT. It came as no surprise that the Council adopted the view of its sponsoring ministry. See David Boling, Breaking Up is Hard to Do - When NTT Is Involved, E. ASIAN EXECUTIVE REP., Mar. 15, 1996, at 9, 16; Shingikai - sekinin mojinsen mo futōmei [Deliberation Councils-Responsibility and Member Selection Both Nontransparent], YOMIURI SHINBUN (Satellite Edition), June 6, 1996, at 14 (quoting sources as stating, "The [Telecommunication Council's] decision to urge NTT's break up was a done deal").
180. The Ministry of Post and Telecommunications (MPT) has tried since the 1980s to break up Nippon Telegraph and Telephone (NTT), Japan's dominant telecommunications provider. In early 1996, one of MPT's affiliated shingikai, the Telecommunications Council, again issued a report calling for the break up of NTT. It came as no surprise that the Council adopted the view of its sponsoring ministry. See David Boling, Breaking Up is Hard to Do - When NTT Is Involved, E. ASIAN EXECUTIVE REP., Mar. 15, 1996, at 9, 16; Shingikai - sekinin mojinsen mo futōmei [Deliberation Councils-Responsibility and Member Selection Both Nontransparent], YOMIURI SHINBUN (Satellite Edition), June 6, 1996, at 14 (quoting sources as stating, "The [Telecommunication Council's] decision to urge NTT's break up was a done deal").
181. See Oishi Nobuyuki, Reform Sought in Bureaucrats'Shadow Advisers, NIKKEI WKLY., Mar. 7, 1994, at 3.
182. See Tensei, jingo [Vox Populi, Vox Dei], ASAHI SHINBUN (Satellite Edition), Oct. 27, 1995, at 1. Chalmers Johnson has noted that without greater independence from the sponsoring ministry or agency (e.g., establishment of a separate budget and secretariat) it is difficult for shingikai to "hold their own against their sponsoring ministry." JOHNSON, supra note 44, at 123.
183. See Shingikai ni shokanshōchō OB wa iranai [Bureaucracy Old Boys Not Needed for Government Councils], NIHON KEIZAI SHINBUN, Oct 3, 1995, at 2. This editorial notes that nonbureaucrats who serve on councils are reluctant to criticize the sponsoring ministry or agency because such comments inevitably get back to the bureaucrats. Such critical comments usually lead to a phone call to the critic from a top bureaucrat suggesting that the critic does not quite understand the ministry or agency's position. The official then requests time to visit with the critic. Thereafter the government officials visit the critic, provide voluminous documentation, and try to dissuade the critic from his negative views. Because of this subtle form of harassment, such council members are reticent to criticize the bureaucracy. See id. For a listing of all existing shingikai, including the chairperson's name and the number of members, as of June 1996, see Genkō shingikai ichiran [Overview of Current Deliberation Councils], YOMIURI SHINBUN (Satellite Edition),June 6, 1996, at 15.
184. See Shingikai ni shokanshōchō OB wa iranai [Bureaucracy Old Boys Not Needed for Government Councils], NIHON KEIZAI SHINBUN, Oct 3, 1995, at 2. This editorial notes that nonbureaucrats who serve on councils are reluctant to criticize the sponsoring ministry or agency because such comments inevitably get back to the bureaucrats. Such critical comments usually lead to a phone call to the critic from a top bureaucrat suggesting that the critic does not quite understand the ministry or agency's position. The official then requests time to visit with the critic. Thereafter the government officials visit the critic, provide voluminous documentation, and try to dissuade the critic from his negative views. Because of this subtle form of harassment, such council members are reticent to criticize the bureaucracy. See id. For a listing of all existing shingikai, including the chairperson's name and the number of members, as of June 1996, see Genkō shingikai ichiran [Overview of Current Deliberation Councils], YOMIURI SHINBUN (Satellite Edition),June 6, 1996, at 15.
185. See Tensei, jingo, supra note 131, at 1.
186. See Qya Eiko, Kore de ii no ka - seifu shingikai [Are Government Deliberation Councils Acceptable as They Are?], CHŪŌ KŌRON, Mar. 1996, at 50, 58.
187. In 1994, the first foreigner was invited to participate in a shingikai. See Oishi, supra note 130.
188. See Second Annual Report of the U.S.-Japan Working Group on the Structural Impediments Initiative, supra note 19, at 11-44-45; Submission by the Government of the United States to the Government of Japan Regarding Deregulation, Administrative Reform and Competition Policy in Japan, supra note 21, at 23-24.
189. The Government in the Sunshine Act, 5 U.S.C. § 552b (1993), applies only to agencies with collegial bodies (e.g., the Federal Trade Commission and the Securities and Exchange Commission) and requires "such agencies to provide advance notice of meetings at which agency business is to be conducted, and to meet in public unless the members, by majority vote, decide that the subject matter falls within one of nine statutory exemptions." JERRY MASHAW & RICHARD MERRILL, ADMINISTRATIVE LAW[:] THE AMERICAN PUBLIC LAW SYSTEM CASES & MATERIALS 53 (2d ed. 1985). Litigation based on the act has been infrequent and compliance surprisingly high. See id. One critic has argued that the law creates too much exposure, which inhibits collegial decisionmaking. See Randolph J. May, Taming the Sunshine Act, LEGAL TIMES, Feb. 5, 1996, at 24.
190. The Government in the Sunshine Act, 5 U.S.C. § 552b (1993), applies only to agencies with collegial bodies (e.g., the Federal Trade Commission and the Securities and Exchange Commission) and requires "such agencies to provide advance notice of meetings at which agency business is to be conducted, and to meet in public unless the members, by majority vote, decide that the subject matter falls within one of nine statutory exemptions." JERRY MASHAW & RICHARD MERRILL, ADMINISTRATIVE LAW[:] THE AMERICAN PUBLIC LAW SYSTEM CASES & MATERIALS 53 (2d ed. 1985). Litigation based on the act has been infrequent and compliance surprisingly high. See id. One critic has argued that the law creates too much exposure, which inhibits collegial decisionmaking. See Randolph J. May, Taming the Sunshine Act, LEGAL TIMES, Feb. 5, 1996, at 24.
191. The Federal Advisory Committee Act (FACA), 5 U.S.C. § 1 (1993), establishes guidelines to be followed when federal agencies rely on outside resources (e.g., consulting groups from the private sector) and articulates how such outside advisory committees shall be structured, how the members will be selected, and the time period for which the committee will operate. The goal is to "facilitate public awareness of the advice an agency receives from outside persons and to inhibit preferential access by regulated firms." MASHAW & MERRILL, supra note 137, at 54.
192. One critic of shingikai observes that issues like the composition of the councils would no longer be of importance if the deliberation councils were open to the public. See Shingikai ni shokanshōchō OB wa iranai [Bureaucracy Old Boys Not Needed for Government Councils], supra note 132, at 59.
193. See Shingikaitō no tōmeika, minaoshi tō ni tsuite [Reforming and Making Transparent Deliberation Councils], Sept. 29, 1995, Cabinet Order [hereinafter Cabinet Order]. For a discussion of the order, see Overhaul of Government Advisory Panels Should Help Reform Efforts, NIKKEI WKLY., Oct. 16, 1995, at 6.
194. See Shingikaitō no tōmeika, minaoshi tō ni tsuite [Reforming and Making Transparent Deliberation Councils], Sept. 29, 1995, Cabinet Order [hereinafter Cabinet Order]. For a discussion of the order, see Overhaul of Government Advisory Panels Should Help Reform Efforts, NIKKEI WKLY., Oct. 16, 1995, at 6.
195. Although a cabinet order comes from the most powerful organ in Japanese government, in one scholar's view, penal sanctions may not be attached if the order cannot be traced to an explicit delegation of law. See, e.g., NODA YOSHIYUKI, INTRODUCTION TO JAPANESE LAW 97 (1976). Additionally, the cabinet order "may neither create rules which impose new obligations nor limit existing rights without a delegation of law." Id.
196. See Yonwari ga hikōkai [Forty Percent Undisclosed], ASAHISHINBUN (Satellite Edition), June 29, 1996, at 2.
197. MIYAMOTO, supra note 44, at 40.
198. Id.
199. See "Oyakusho no okite" hissha menshoku [Author of "Rules for Bureaucrats" Dismissed], ASAHI SHINBUN (Satellite Edition), Feb. 24, 1995, at 23. For the author's account of the day he was dismissed, see Moto kōseisho kachō ga sensen fukoku [Former Ministry of Health and Welfare Section Chief Declares War], SHŪKAN GENDAI, Mar. 18, 1995, at 170. The popularity of Miyamoto's book among foreign critics of the Japanese bureaucracy was displayed when a U.S. Trade Representative official quoted Miyamoto's book while negotiating with Japanese government representatives. See id. at 172.
200. See "Oyakusho no okite" hissha menshoku [Author of "Rules for Bureaucrats" Dismissed], ASAHI SHINBUN (Satellite Edition), Feb. 24, 1995, at 23. For the author's account of the day he was dismissed, see Moto kōseisho kachō ga sensen fukoku [Former Ministry of Health and Welfare Section Chief Declares War], SHŪKAN GENDAI, Mar. 18, 1995, at 170. The popularity of Miyamoto's book among foreign critics of the Japanese bureaucracy was displayed when a U.S. Trade Representative official quoted Miyamoto's book while negotiating with Japanese government representatives. See id. at 172.
201. Cabinet Order, supra note 140, at 2 (emphasis added).
202. See Tensei, jingo, supra note 131, at 1.
203. Id.
204. Id.
205. Id.
206. See David Boling, Japan's New Administrative Procedure Law: Commendable Provisions, Glaring Omissions, and Some Disappointing Defects, E. ASIAN EXECUTIVE REP., July 15, 1994, at 7, 15-16. The Japanese influence on the Asian Pacific Economic Council (APEC) may be inferred from APEC s November 1995 statement on the integration of the APEC members' economies. The agreement states that member countries will "endeavor to apply" the principle of equal treatment. Doi Ayako & Kim Willenson, Overdue Bill, WASH. POST, Nov. 19, 1995, at C2.
207. See David Boling, Japan's New Administrative Procedure Law: Commendable Provisions, Glaring Omissions, and Some Disappointing Defects, E. ASIAN EXECUTIVE REP., July 15, 1994, at 7, 15-16. The Japanese influence on the Asian Pacific Economic Council (APEC) may be inferred from APEC s November 1995 statement on the integration of the APEC members' economies. The agreement states that member countries will "endeavor to apply" the principle of equal treatment. Doi Ayako & Kim Willenson, Overdue Bill, WASH. POST, Nov. 19, 1995, at C2.
208. Cabinet Order, supra note 140, at 2.
209. See Suzuki Shunichi v. Okutsu Shigeki, 1453 HANREIJIHO 116 (1991).
210. See id. at 117-18; see also Court Supports Right to Know, JAPAN TIMES, Dec. 11, 1992, at 2.
211. See Suzuki Shunichi v. Okutsu Shigeki, 1453 HANREI JIHO at 117-18; "Hikaiji riyū wakariyasuku" ["Make the Reason for Nondisclosure Easy to Understand"], ASAHI SHINBUN, Dec. 10, 1992, at 2; see also Kojin jōhō hikaiji no baai wa riyū fuki ga hitsuyō [A Reason Is Necessary When Personal Information Is Not Disclosed], 149 HŌGAKU KYŌSHITSU 99 (1992).
212. See Suzuki Shunichi v. Okutsu Shigeki, 1453 HANREI JIHO at 117-18; "Hikaiji riyū wakariyasuku" ["Make the Reason for Nondisclosure Easy to Understand"], ASAHI SHINBUN, Dec. 10, 1992, at 2; see also Kojin jōhō hikaiji no baai wa riyū fuki ga hitsuyō [A Reason Is Necessary When Personal Information Is Not Disclosed], 149 HŌGAKU KYŌSHITSU 99 (1992).
213. See Court Orders Osaka Pref. Gov't to Reveal Governor's Expenses, ASAHI EVENING NEWS, Mar. 15, 1989, at 3.
214. See id.
215. See JOHNSON, supra note 44, at 193.
216. See Gov. Must Reveal Expense Accounts, DAILYYOMIURI, Mar. 15, 1989, at 2.
217. See id.
218. Id.; see also Iwasaki Management Center v. Kishi Sakae, 1309 HANREIJIHO 3, 10 (1989).
219. See Iwasaki Management Center, at 12-13; Gov. Must Reveal Expense Accounts, supra note 159.
220. See Iwasaki Management Center, at 12-13; Gov. Must Reveal Expense Accounts, supra note 159.
221. See Iwasaki Management Center, 1309 HANREI JIHO, at 9-10.
222. In Full View of the Public, ASAHI EVENING NEWS, Mar. 17, 1989, at 7.
223. Freedom of Information, supra note 29, at 3.
224. See Kishi Sakae v. Iwasaki Management Center, 1366 HANREI JIHO 18 (1990).
225. See Nishi Fusami v. Watanabe Fumio, 1330 HANREI JIHO 3 (1989).
226. See Nishi Fusami v. Watanabe Fumio, 1374 HANREI JIHO 27 (1991).
227. 170 See Higuchi, supra note 16, at 4.
228. See id. In addition to Article 21, another potential constitutional basis arguably exists for the right to know Article 23 enumerates the right to education, which might be construed to guarantee the right to know. See Ronald G. Brown, Government Secrecy and the "People's Right to Know" in Japan: The Implications of the Nishiyama Case, 10 L. JAPAN 112, 116 (1977).
229. See Higuchi, supra note 16, at 4.
230. On October 15, 1992, the Tokyo District Court issued an opinion ordering the Tokyo governor to disclose information concerning his social account expense expenditures using the redacted approach supported by Professor Higuchi. See Tax Oversight Group v. Suzuki Shunichi, 1436 HANREI JIHO 6 (1992); see also "Kojin" nozoki zenmen kōkai wo [Complete Disclosure with Individuals' [Names] Removed], ASAHI SHINBUN, Oct. 15, 1992, at 1. From 1988 to June 1990 there were 2168 disbursements made from the governor's account. See id. In a case brought by a citizens' watchdog group, the court rejected arguments advanced by the city of Tokyo that disclosure would constitute a barrier to the smooth operation and fair implementation of the government's work. See id. Ordering the metropolitan government to conform to due process, the court stated, "In the case of [information] nondisclosure, the reason must be concretely stated and supported, but the city has failed to do this." Id. Further, the court, in contrast to the Tochigi district court, underscored that even in cases where individuals' names could be identified, the names, organizations, and positions should simply be redacted, rather than ordering complete nondisclosure. See id.
231. See NOOA, supra note 141, at 126 n.18.
232. See id. at 126-27.
233. See Judgment of Jan. 27., 1994, Saikō Saibansho 18 (1991) [hereinafter Osaka Ruling]; see also Privacy Right Takes Precedence over Full Disclosure, Court Implies, NIKKEI WKLY., Jan. 31, 1994, at 4; Top Court Rejects Ruling on Osaka Governor's Expenses, JAPAN ECON. NEWSWIRE, Jan. 27, 1994, available in WESTLAW, Allnews Plus Database.
234. See Judgment of Jan. 27., 1994, Saikō Saibansho 18 (1991) [hereinafter Osaka Ruling]; see also Privacy Right Takes Precedence over Full Disclosure, Court Implies, NIKKEI WKLY., Jan. 31, 1994, at 4; Top Court Rejects Ruling on Osaka Governor's Expenses, JAPAN ECON. NEWSWIRE, Jan. 27, 1994, available in WESTLAW, Allnews Plus Database.
235. See Judgment of Jan. 27., 1994, Saikō Saibansho 18 (1991) [hereinafter Osaka Ruling]; see also Privacy Right Takes Precedence over Full Disclosure, Court Implies, NIKKEI WKLY., Jan. 31, 1994, at 4; Top Court Rejects Ruling on Osaka Governor's Expenses, JAPAN ECON. NEWSWIRE, Jan. 27, 1994, available in WESTLAW, Allnews Plus Database.
236. Chiji kōsaihi kōkai soshō hanketsu [Judgment in Governor's Expense Account Litigation], YOMIURI SHINBUN, Jan. 27, 1994, at 2. The author has translated the term osore as "risk." See infra notes 192-95 and accompanying text for a discussion of the interpretation of this term.
237. Although the key inquiry was whether the ordinance covered the requested materials, the Supreme Court of Japan did not set out the ordinance's precise language in its opinion.
238. See Osaka Ruling, supra note 176, at 9.
239. Id. at 13.
240. Id.
241. See id. at 13-14.
242. Id. at 14-15.
243. Id. at 16.
244. See Chiji kōsaihi kōkai ni seigen [Disclosure of Governor's Expense Account Restricted], YOMIURI SHINBUN (Evening Edition), Jan. 27, 1994, at 1; Aite waharu jōhō wa hikōkai [No Disclosure of Material that Identifies Counterparts in Meetings], ASAHISHINBUN (Evening Edition), Jan. 27, 1994 at 1
245. See Chiji kōsaihi kōkai ni seigen [Disclosure of Governor's Expense Account Restricted], YOMIURI SHINBUN (Evening Edition), Jan. 27, 1994, at 1; Aite waharu jōhō wa hikōkai [No Disclosure of Material that Identifies Counterparts in Meetings], ASAHISHINBUN (Evening Edition), Jan.
246. See Chiji kōsaihi kōkai soshō hanketsu [Judgment in Governor's Expense Account Disclosure Litigation], YOMIURI SHINBUN (Evening Edition), Jan. 27, 1994, at 2; Saikōsai hanketsu riyō no yōshi [Summary of the Supreme Court's Judgment], ASAHI SHINBUN, Jan. 27, 1994, at 14.
247. See Chiji kōsaihi kōkai soshō hanketsu [Judgment in Governor's Expense Account Disclosure Litigation], YOMIURI SHINBUN (Evening Edition), Jan. 27, 1994, at 2; Saikōsai hanketsu riyō no yōshi [Summary of the Supreme Court's Judgment], ASAHI SHINBUN, Jan. 27, 1994, at 14.
248. Jidai ni gyakkō suru hanketsu [An Opinion that Goes Against the Times], YOMIURI SHIMBUN (Evening Edition), Jan. 27, 1994, at 15.
249. See Jōhō kōkai e no rikai kaita hanketsu [An Opinion Devoid of Understanding of Information Disclosure], ASAHI SHINBUN, Jan. 28, 1994, at 2.
250. See id.
251. Id.
252. Public the Big Loser, supra note 169. One of the leading scholars of information disclosure, Horibe Masao, also expressed his disappointment at the supreme court's expansive reading in the governors' expense account litigation. See Horibe Masao, Kōsaihi saikōsai hanketsu no gaiyō to aitekata shikibetsuron [An Outline of the Supreme Court's Opinions on Social Account Expenditures and a Discussion on the Ability to Identify Third Parties [Through Information Disclosure]], 47 HŌRITSU NO HIROBA 4, 10 (1994).
253. Public the Big Loser, supra note 169. One of the leading scholars of information disclosure, Horibe Masao, also expressed his disappointment at the supreme court's expansive reading in the governors' expense account litigation. See Horibe Masao, Kōsaihi saikōsai hanketsu no gaiyō to aitekata shikibetsuron [An Outline of the Supreme Court's Opinions on Social Account Expenditures and a Discussion on the Ability to Identify Third Parties [Through Information Disclosure]], 47 HŌRITSU NO HIROBA 4, 10 (1994).
254. See Judgment of Jan. 27, 1994, Saiko Saibansho No. 69, at 15-16 [hereinafter Tochigi Ruling].
255. See THE NEW JAPANESE-ENGIJSH CHARACTER DICTIONARY 1211 (Jack Halpern ed., 1990).
256. Tochigi Ruling, supra note 192, at 16.
257. See id. at 16-17. The Democratic Party of Japan's draft IDL avoids the use of osore and instead uses akiraka. See supra text accompanying note 115. The proper approach to statutory interpretation has been the topic of a spirited discussion in the United States. See, e.g., William N. Eskridge, Jr., The New Textualism, 37 UCLA L. REV. 621 (1990); Patricia M. Wald, Some Observations on the Use of Legislative History in the 1981 Supreme Court Term, 68 IOWA L. REV. 195 (1983). A U.S. court faced with an ambiguous term would likely consult the legislative history of the law as a first step. However, the notion of using legislative history in statutory interpretation has not taken root in Japan. See, e.g., P.S. ATIYAH & ROBERT S. SUMMERS, FORM AND SUBSTANCE IN ANGLO-AMERICAN LAW 100-01(1987) (showing that English courts generally do not make inquiries into legislative intent unless the statute is unclear on its face). Even if a Japanese court tried to discern a law's "legislative intent," it is questionable how fruitful this approach would be considering the heavy role the bureaucracy plays in drafting laws. See Murase, supra note 79, at 2. In addition, the Japanese Diet does not conduct hearings on proposed legislation to the extent that the U.S. Congress does, due to the Diet's limited ability to subpoena witnesses. Consequently, in order to divine the law's intent a Japanese court would more likely have to engage in what may be termed "bureaucratic intent" However, this approach has a deeper problem: It undercuts the notion that the Japanese Diet is indeed the sole lawmaking body which represents the will of the Japanese citizenry. Fidelity to democratic principles demands that the intent of the elected representatives, not the intent of the nonelected civil service, be the guiding principle when attempting to understand the basis for legislative language.
258. See id. at 16-17. The Democratic Party of Japan's draft IDL avoids the use of osore and instead uses akiraka. See supra text accompanying note 115. The proper approach to statutory interpretation has been the topic of a spirited discussion in the United States. See, e.g., William N. Eskridge, Jr., The New Textualism, 37 UCLA L. REV. 621 (1990); Patricia M. Wald, Some Observations on the Use of Legislative History in the 1981 Supreme Court Term, 68 IOWA L. REV. 195 (1983). A U.S. court faced with an ambiguous term would likely consult the legislative history of the law as a first step. However, the notion of using legislative history in statutory interpretation has not taken root in Japan. See, e.g., P.S. ATIYAH & ROBERT S. SUMMERS, FORM AND SUBSTANCE IN ANGLO-AMERICAN LAW 100-01(1987) (showing that English courts generally do not make inquiries into legislative intent unless the statute is unclear on its face). Even if a Japanese court tried to discern a law's "legislative intent," it is questionable how fruitful this approach would be considering the heavy role the bureaucracy plays in drafting laws. See Murase, supra note 79, at 2. In addition, the Japanese Diet does not conduct hearings on proposed legislation to the extent that the U.S. Congress does, due to the Diet's limited ability to subpoena witnesses. Consequently, in order to divine the law's intent a Japanese court would more likely have to engage in what may be termed "bureaucratic intent" However, this approach has a deeper problem: It undercuts the notion that the Japanese Diet is indeed the sole lawmaking body which represents the will of the Japanese citizenry. Fidelity to democratic principles demands that the intent of the elected representatives, not the intent of the nonelected civil service, be the guiding principle when attempting to understand the basis for legislative language.
259. See id. at 16-17. The Democratic Party of Japan's draft IDL avoids the use of osore and instead uses akiraka. See supra text accompanying note 115. The proper approach to statutory interpretation has been the topic of a spirited discussion in the United States. See, e.g., William N. Eskridge, Jr., The New Textualism, 37 UCLA L. REV. 621 (1990); Patricia M. Wald, Some Observations on the Use of Legislative History in the 1981 Supreme Court Term, 68 IOWA L. REV. 195 (1983). A U.S. court faced with an ambiguous term would likely consult the legislative history of the law as a first step. However, the notion of using legislative history in statutory interpretation has not taken root in Japan. See, e.g., P.S. ATIYAH & ROBERT S. SUMMERS, FORM AND SUBSTANCE IN ANGLO-AMERICAN LAW 100-01(1987) (showing that English courts generally do not make inquiries into legislative intent unless the statute is unclear on its face). Even if a Japanese court tried to discern a law's "legislative intent," it is questionable how fruitful this approach would be considering the heavy role the bureaucracy plays in drafting laws. See Murase, supra note 79, at 2. In addition, the Japanese Diet does not conduct hearings on proposed legislation to the extent that the U.S. Congress does, due to the Diet's limited ability to subpoena witnesses. Consequently, in order to divine the law's intent a Japanese court would more likely have to engage in what may be termed "bureaucratic intent" However, this approach has a deeper problem: It undercuts the notion that the Japanese Diet is indeed the sole lawmaking body which represents the will of the Japanese citizenry. Fidelity to democratic principles demands that the intent of the elected representatives, not the intent of the nonelected civil service, be the guiding principle when attempting to understand the basis for legislative language.
260. See Tochigi Ruling, supra note 192, at 13.
261. See id.
262. See, e.g., John O. Haley, Japanese Administrative Law: Introduction, 19 L. JAPAN 1, 14 (1986) (concluding that Japanese public law theory has allowed Japanese bureaucracies to preserve their independence from judicial oversight during the post-war period); RAMSEYER & ROSENBLUTH, supra note 87, at 150-51 (noting the agreement among scholars that the Japanese judiciary is highly deferential to both the legislature and the bureaucracy).
263. For an example of Japanese judicial opinions which insulate informal administrative actions from judicial review, thereby conferring more power to the bureaucracy, see Robert W. Dziubla, The Impotent Sword of Japanese Justice: The Doctrine of Shobunsei as a Barrier to Administrative Litigation, 18 CORNELL INT'L L.J. 37 (1985). American courts consider a wider ambit of informal action justiciable. See, e.g., A.E. Staley Mfg. Co. v. United States, 310 F. Supp. 485 (D. Minn. 1970); National Student Assoc. v. Hershey, 412 F.2d 1103 (D.C. Cir. 1969); Krestview Nursing Home v. Dept. of Health, 381 So. 2d 240 (Fla. App. 1979).
264. Ramseyer and Rosenbluth suggest that in order to rise in the Japanese judiciary, a judge must avoid controversial opinions. The LDP, through the Secretariat, reviews the performance of judges, and the LDP will punish judges who issue opinions contrary to LDP policy preferences by either refusing reappointment to the bench or assigning the judge to a judicial backwater. See RAMSEYER & ROSENBLUTH, supra note 87, at 161-81. The upshot is that judges who advance the furthest are not being rewarded for creative judicial craftsmanship or an independent approach to the law but are being rewarded for exactly the opposite. Ramseyer's and Rosenbluth's hypothesis may, in part, provide insight into the supreme court's deference to the bureaucracy in IDO cases. First, in order to gain a position on the supreme court a judge must conform his opinions to traditional doctrines. Traditional administrative law doctrine in Japan is highly deferential to both the legislature and bureaucracy; clearly this deferential posture is a policy preference of the LDP because the LDP has in effect been the "legislature" during the post-war years, and LDP policy preferences are often aligned with those held by the bureaucracy. See, e.g., Kevin Sullivan & Mary Jordan, Hashimoto Seeks Market Deregulation, WASH. POST, Nov. 12, 1996, at 1 (describing the LDP as "pro-bureaucrat" and the party "most closely associated with Japan's powerful government bureaucrats"). Thus, the justices who decided the Osaka and Tochigi governors' expense account cases were likely to have been heavily deferential to the bureaucracy, because if they had adopted a contrary view earlier in their career they likely would not have made it to the court. Second, the LDP historically has opposed an IDL. Under the Ramseyer and Rosenbluth hypothesis, the justices were likely effectuating the LDP's policy preference of skepticism towards liberal information disclosure. If the Ramseyer and Rosenbluth hypothesis is indeed true, it is a damning critique of the heavy role politics plays in Japanese judicial decisionmaking. For a challenge to Ramseyer's and Rosenbluth s hypothesis, see John Haley, Judicial Independence in Japan Revisited, 25 L. JAPAN 1 (1995).
265. Ramseyer and Rosenbluth suggest that in order to rise in the Japanese judiciary, a judge must avoid controversial opinions. The LDP, through the Secretariat, reviews the performance of judges, and the LDP will punish judges who issue opinions contrary to LDP policy preferences by either refusing reappointment to the bench or assigning the judge to a judicial backwater. See RAMSEYER & ROSENBLUTH, supra note 87, at 161-81. The upshot is that judges who advance the furthest are not being rewarded for creative judicial craftsmanship or an independent approach to the law but are being rewarded for exactly the opposite. Ramseyer's and Rosenbluth's hypothesis may, in part, provide insight into the supreme court's deference to the bureaucracy in IDO cases. First, in order to gain a position on the supreme court a judge must conform his opinions to traditional doctrines. Traditional administrative law doctrine in Japan is highly deferential to both the legislature and bureaucracy; clearly this deferential posture is a policy preference of the LDP because the LDP has in effect been the "legislature" during the post-war years, and LDP policy preferences are often aligned with those held by the bureaucracy. See, e.g., Kevin Sullivan & Mary Jordan, Hashimoto Seeks Market Deregulation, WASH. POST, Nov. 12, 1996, at 1 (describing the LDP as "pro-bureaucrat" and the party "most closely associated with Japan's powerful government bureaucrats"). Thus, the justices who decided the Osaka and Tochigi governors' expense account cases were likely to have been heavily deferential to the bureaucracy, because if they had adopted a contrary view earlier in their career they likely would not have made it to the court. Second, the LDP historically has opposed an IDL. Under the Ramseyer and Rosenbluth hypothesis, the justices were likely effectuating the LDP's policy preference of skepticism towards liberal information disclosure. If the Ramseyer and Rosenbluth hypothesis is indeed true, it is a damning critique of the heavy role politics plays in Japanese judicial decisionmaking. For a challenge to Ramseyer's and Rosenbluth s hypothesis, see John Haley, Judicial Independence in Japan Revisited, 25 L. JAPAN 1 (1995).
266. See Kawakami Isamu v. Ueta Hajime, 1355 HANREIJIHO 8 (1990).
267. See Judgment of Feb. 8, 1994, Saikō Saibansho No. 149, at 2 (1990) [hereinafter Osaka Waterworks Ruling]; see also Toyoshima Ryozo v. Ueta Hajime, 1488 HANREIJIHO 3 (1994).
268. See Osaka Waterworks Ruling, supra note 202, at 3.
269. See id. at 4.
270. See id, at 5.
271. See id.
272. See id. at 5-6.
273. See id. at 6.
274. See id. at 6.
275. See id. at 6-7.
276. See id at 7.
277. See id. at 7-8.
278. See id. at 9.
279. See id.
280. See id. at 10.
281. See id. at 10-11.
282. See id. at 11.
283. See id. at 11-12.
284. See id. at 12.
285. Justice Ono Masao, a former civil rights attorney who participated in the Osaka Waterworks opinion, has ruled against the government before. See, e.g., Sonni Efron, Japan's High Court Rules Government May Not Tamper with Truth in Textbooks, WASH. POST, Aug. 30, 1997, at A28. He may have persuaded his counterparts in the Osaka Waterworks opinion to be more skeptical of the government's arguments.
286. See Hiramatsu Tsuyoshi, Jōhō kōkai seikyūken to shiru kenri [The Right to Request Information Disclosure and the Right to Know], 47 HŌRITSU NO HIROBA 11, 17 (1994).
287. See Sakakibara Hidenori, Jōhō kōkai seikyū soshō to risshō sekinin no han'i [Information Disclosure Request Litigation and the Scope of the Obligation to Produce Evidence], 47 HŌRTTSU NO HTROBA 18, 23-24 (1994).
288. Text accompanying notes 226-34 draws heavily from a legal memorandum written by Professor John J. Watkins of the University of Arkansas, Fayetteville; submitted at the Japanese plaintiffs' attorney's' request, the memorandum outlines the predicted result of a similar case under the federal and Arkansas FOIA provisions.
289. LOUIS D. BRANDEIS, OTHER PEOPLE'S MONEY AND HOW THE BANKERS USE IT 92 (1914).
290. See Relyea, supra note 28, at 1.
291. 5 U.S.C. § 552 (b) (6) (1989).
292. Department of State v. Washington Post Co., 456 U.S. 595, 602 (1982).
293. Department of the Air Force v. Rose, 425 U.S. 352, 372 (1976).
294. National Ass'n of Retired Fed. Employees v. Horner, 879 F.2d 873, 879 (D.C. Cir. 1989).
295. See Rural Hous. Alliance v. Department of Agric., 498 F.2d 73, 73 (D.C. Cir. 1974).
296. Department of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 773 (1989) (quoting from N.Y. REV. BOOKS, Oct 5, 1972, at 7).
297. Aronson v. Internal Revenue Serv., 767 F.Supp. 378, 392 (D. Mass. 1991), aff"d in part, 973 F.2d 962 (1st Cir. 1992) (quoting I.B.E.W. Local Union No. 5 v. HUD, 852 F.2d 87, 91 (3d Cir. 1988)).
298. Letter from John J. Watkins, Professor of Law, University of Arkansas, Fayetteville, to Miyake Hiroshi & Kondo Takeshi 4 (Nov. 4, 1993) (on file with the author) (outlining the federal and Arkansas law approaches to the social expense account disclosure question). Notably, Arkansas law would mandate the same result in Professor Watkins' view. See id. at 5-10.
299. The FOIA states in pertinent part: "Any reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt. . . ." 5 U.S.C. § 552(b) (1989).
300. Despite its interest in reporting stories related to documents disclosed by IDOs (e.g., kankan settai and kara shuttchō), the Japanese press, unlike its U.S. counterpart, seems less interested in vigorously using IDOs to gather information.
301. See Barry v. Washington Post Co., 529 A.2d 319, 320 (D.C. App. 1987).
302. See id. at 320.
303. Id. at 322.
304. id.
305. id. at 322-23.
306. See Ikeda Ayako, Barii shichō kōsaihi kōkai no tenmatsu [Complete Disclosure of Mayor Barry's Social Expenses], 426 HŌGAKU SEMINĀ 116 (1989).
307. See supra notes 198-200 and accompanying text.
308. Shiru kenri ni genkyū sezu [No Mention of the Right to Know], ASAHI SHINBUN (Evening Edition), Jan. 27, 1994, at 1.
309. See supra text accompanying note 231.
310. See supra text accompanying notes 77-82.
311. See Boling, supra note 151, at 7, 15-16; see also supra note 98 and accompanying text.
312. gee supra notes 140-52 and accompanying text.
313. Chalmers Johnson has noted that bribery cases have occurred virtually every year in Japan since the end of the war. See JOHNSON, supra note 44, at 202. Kanemaru Shin, a former igh-ranking LDP politician indicted on numerous counts involving corruption and the receiving of bribes from the construction industry, was tried in summary proceedings which did not disclose documents related to the prosecution. A well-known journalist confronted obstacles in his attempt to acquire these records, which detail how the courts have handled this notorious case of graft and corruption. See JCLU Supports Special Kokoku-Appeal Against Denial of Request to Inspect Kanemaru Trial Records, UNIVERSAL PRINCIPLE HUM. RTS. REP. FROM JCLU, Summer 1993, at 16. Additionally, IDL proponent Miyake Hiroshi has maintained that if a national IDL had been in place in the late 1980s, the Recruit stock-for-favors scandal that ultimately led to the downfall of the Takeshita government could have been unearthed earlier. See Citizens Group Works to Open Closed-Door Politics, JAPAN TIMES, May 21, 1989, at 11.
314. Chalmers Johnson has noted that bribery cases have occurred virtually every year in Japan since the end of the war. See JOHNSON, supra note 44, at 202. Kanemaru Shin, a former igh-ranking LDP politician indicted on numerous counts involving corruption and the receiving of bribes from the construction industry, was tried in summary proceedings which did not disclose documents related to the prosecution. A well-known journalist confronted obstacles in his attempt to acquire these records, which detail how the courts have handled this notorious case of graft and corruption. See JCLU Supports Special Kokoku-Appeal Against Denial of Request to Inspect Kanemaru Trial Records, UNIVERSAL PRINCIPLE HUM. RTS. REP. FROM JCLU, Summer 1993, at 16. Additionally, IDL proponent Miyake Hiroshi has maintained that if a national IDL had been in place in the late 1980s, the Recruit stock-for-favors scandal that ultimately led to the downfall of the Takeshita government could have been unearthed earlier. See Citizens Group Works to Open Closed-Door Politics, JAPAN TIMES, May 21, 1989, at 11.
315. See supra notes 43-76 and accompanying text.