State secrets could be destroyed by civil servants

December 30, 2013

Special state secrets could be destroyed at discretion of officials

http://mainichi.jp/english/english/perspectives/news/20131230p2a00m0na013000c.html 

The possibility has emerged that under the new heavy-handed state secrets law, information designated as a special state secret could be destroyed by civil servants with jurisdiction over the information before declassification, drawing criticism from experts.

Under the state secrets protection act, a special state secret can be destroyed after declassification with the approval of the prime minister, but the law does not address the possibility of destroying information during its special state secret classification.

The possibility was revealed in the government's response to a question from opposition Democratic Party of Japan (DPJ) legislator Akira Nagatsuma asking whether information could be destroyed while it is designated a special state secret. The Cabinet approved a response on Dec. 6, the day the state secrets law was passed, that "it cannot be denied that through a government ordinance, information could be destroyed before it is declassified if it is found to be truly unavoidable to preserve the secret."

Article 5 of the new law seeks Cabinet members with the authority to designate special secrets to institute necessary regulations through government ordinances. What sort of rules will be established regarding the disposal of information before declassification will be a point of contention between now and when the law goes into effect -- next fall at the earliest.

While Nagatsuma's question addressed the handling of information while it is designated as a special state secret, what will happen to information after its special secrets status is lifted?

According to the Public Records and Archives Management Act, the information would be transferred to the National Archives or destroyed with the prime minister's approval. However, this law allows for exceptions if other laws are applicable.

For example, "defense secrets" as stipulated by the 2001 revised Self-Defense Law are exempt from the Public Records Act because of a Defense Ministry directive that all declassified information be destroyed. As a result, at least 40,000 defense secrets files were destroyed between 2007 and 2012.

During Diet deliberations on the state secrets bill, the government claimed that special secrets would be subject to the Public Records Act. It also explained that special secrets whose classification periods last for over 30 years would be transferred to the National Archives, preventing any loopholes as in the case of defense secrets.

However, it has been made clear from the government's response to Nagatsuma that a rule to make possible the destruction of information during its designation as a special state secret could be established. The Cabinet Office, which has jurisdiction over the state secrets law, says that the government's response has at its basis the Defense Ministry's bylaws in which an official in charge of a defense secret is permitted to destroy it if there is adequate reason to judge that it is unavoidable and no other method exists to protect it.

Yukiko Miki, head of the nonprofit organization Access-Info Clearinghouse Japan, which has been monitoring the issue of defense secret disposal, is concerned that the government is envisioning the same rules for special state secrets as for defense secrets.

"If that's the case, there's a danger that information will be destroyed arbitrarily," she warned.

Meanwhile, a Cabinet Office official told the Mainichi, "We are not yet at the stage of setting down government ordinances or directives, and cannot yet say whether we will set rules on disposal."