Freedom of Information: A Comparative Legal Survey - Federation of ...

hindered” by trying to provide all of the information within the 60-day period, the head of the public body
may simply disclose a “reasonable portion” within that time period, providing the rest within a “reasonable
period of time.” In this case, the applicant must be given written notice, including of the application of this
rule and the extended time limit for the remaining documents, although there is no penalty where public
bodies do not comply with their own deadlines as provided to applicants (Article 11).
These rules allocate signifi cant discretion to public bodies to delay disclosure. The fi rst extension, for
up to 30 additional days, is subject only to a low barrier of ‘justifi able grounds’, and further delay may be
occasioned for as long as this is ‘reasonable’, which is not defi ned in the Law. Many right to information
laws do not allow for indefi nite extensions of this sort, but instead provide for ‘hard’ overall time limits
for responding to requests. The Ministry of Foreign Affairs stands out for taking advantage of this gap in
the Law to delay responses indefi nitely. In 2003, for example, that Ministry responded within the ordinary
time limit of 30 days for 181 requests but imposed an extension in some 705 cases, nearly four times as
many. It only complied with its own extension in about one-half of these cases and, in 129 of these cases,
the extension was for longer than a year. There have been a few cases in which applicants have fi led suit
seeking compensation for unreasonable delays in disclosing information. 201
Requests may be transferred to another body where there is a “justifi able ground” for doing so, such as
that the document was prepared by the other body, upon written notice being provided to the applicant
(Articles 12 and 12-2). This is a low standard for the transfer of requests, which in many right to information
laws is permitted only when the document is more closely associated with the work of the other body.
The Law includes extensive provisions relating to consultation with third parties to whom requested
information relates. Such parties may be given an opportunity to make representations. Where a third
party opposes disclosure, a two-week period must be imposed between any decision to disclose and actual
implementation of that decision (i.e. actual disclosure of the information). The third party must also be
informed immediately where the decision is to disclose the information, so that they might appeal against
that decision if they wish (Article 13).
Where a decision has been made to disclose information, the applicant shall be notifi ed of that fact in
writing, as well as of relevant matters regarding the form of disclosure. Where a decision has been made
not to disclose information, including because the information is not held by the public body, the applicant
shall again be notifi ed of that fact, although the Law does not specify what such notice shall contain (Article
9). However, Article 8 of the Administrative Procedure Act requires reasons to be provided, 202 and notice of
the right to appeal, both administratively and to the courts, must also be provided. 203
Article 14 of the Law sets out various means by which access may be granted. Applicants may ask to
inspect the record, to be provided with copies or for other forms of access to electromagnetic records, as
specifi ed by Cabinet Order, and their request should normally be respected. Where, however, inspection
of the record is requested and this might pose a risk of harm to the record, the request may instead be
satisfi ed by provision of a copy of the record.
Fees may be charged for both processing requests and for providing the information, pursuant to a Cabinet
Order, provided that these may not exceed actual costs. When establishing the fee structure, “consideration
shall be given to make the amount as affordable as possible” and, again pursuant to a Cabinet Order, the
head of the public body may reduce or waive the fee in cases of economic hardship or for other special
reasons (Article 16). Pursuant to Articles 13 and 14 of the Information Disclosure Enforcement Order, the
fee for fi ling a request is 300 yen (approximately USD2.60), or 200 yen for information held electronically,
while access via inspection is 100 yen for 100 pages and the copy fee is 10 yen (approximately USD0.09) per
page. Waivers are extremely rare. 204
Duty to Publish
The Japanese RTI Law does not provide for a proactive obligation to publish certain categories of information,
a serious omission given the important role proactive disclosure has assumed in many jurisdictions.
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