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

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Exceptions
The Japanese RTI Law includes a list of six different categories of information which may be withheld from
applicants, in Article 5. A supplementary law adopted together with the RTI Law provides a list of other
statutes which can exclude application of the RTI Law. This list includes many laws that provide alternative
means of access to information, such as the code of criminal procedure concerning litigation documents,
the real property registration law and others. These rules do not necessarily conform to recognised
right to information standards; it would be preferable if the RTI Law overrode these other laws in case of
inconsistency, rather than the reverse, which is presently the case.
Most exceptions are subject to a harm test. In some cases these require that actual harm will result from
disclosure, although in some cases this may be based on an assessment by the public body that there is
‘adequate reason’ to believe the harm will result. In others a mere risk of harm is enough.
There are two types of ‘public interest override’. Article 7 provides for a general public interest override,
where “there is a particular public interest necessity”, but this is couched in discretionary terms, providing
only that in such cases the head of the public body “may” disclose the information. Furthermore, the
standard of application appears to be high so that it is only where there is a clear overriding interest, rather
than simply a more important interest, that the rule would be engaged. In addition, more specifi c overrides
for designated types of harm are provided within the exceptions for individual information and commercial
information (see below).
Where only part of a document is covered by an exception, the rest of the document must be disclosed where
this would still be meaningful (Article 6). The Law does not include provisions on historical disclosure.
The fi rst exception in Article 5 relates to information about an individual where it is possible to identify
that individual or, where it is not possible to identify anyone, where disclosure of the information “is likely
to cause harm to the rights and interests of an individual.” This is commonly referred to as the ‘individual
information’ exception. It is a very broad exception, in particular as it covers all information identifying an
individual rather than information which would harm a legitimate privacy interest, or which even relates
to a privacy interest. Furthermore, the ‘identifi cation of individual’ part of this exception is not subject to a
harm test. This is mitigated to some extent by limits on this exception, for example where disclosure of the
information is required, by law or by custom, or where disclosure is necessary in order to protect someone’s
life, health, livelihood or property, an internal public interest override, as noted above. This exception also
does not apply to information concerning the offi cial activities of a public offi cial, an important limitation
on its scope. The individual information exception is cited by government offi cials in a majority of cases
where disclosure is denied.
The second exception in Article 5 relates to corporate information where there is a risk that the rights,
competitive standing or another legitimate interest of the corporation will be harmed or where it was
provided in confi dence and on condition of confi dentiality, and this is “reasonable” in all of the circumstances.
Again, this exception is does not apply where disclosure is necessary in order to protect someone’s life,
health, livelihood or property.
The third exception covers information where “there are reasonable grounds” for the head of the
public body to deem disclosure to pose a risk to State security or to relations with another country or
international organisation, or of causing disadvantage in negotiations with another country or international
organisation.
The fourth exception concerns information the disclosure of which is, again with adequate reason, deemed
to pose a risk of harm to the “prevention, suppression or investigation of crimes, the maintenance of
prosecutions, the execution of punishment, and other matters concerning maintenance of public safety
and public order.”
The fi fth exception applies to internal government deliberations or consultations the disclosure of which
would risk unjustly harming the frank exchange of views or the neutrality of decision-making, unnecessarily
risk causing confusion, or risk causing unfair advantage or disadvantage to anyone. This exception is