What are secrets in terms of the violation of confidentiality?

The Chinese fishing boat collision incident off the Senkaku Islands has raised questions over the nature of the state and information in Japan as well as Japan-China relations. While this issue entered a new phase on November 10, when a Japan Coast Guard official confessed that he uploaded the video in question to YouTube, the most important point in this issue remains the same-i.e., what the people's right to know should be, and to what extent the state may keep information secret.

Civil servants leaking secrets they gathered while on duty violate Article 100, Paragraph 1 of the National Public Service Act, which may result in penalties of imprisonment for up to one year or fines of up to 500,000 yen, according to Article 109 (12) of the same Act. Civil servants handle a broad range of secrets during their work. Making such information known to outside parties may preclude smooth administration and damage trusting relationships with other countries. Therefore, the National Public Service Act prohibits government officials from leaking secrets that they gathered during their duty.

So the issue is, what matters are regarded as secrets they gathered during their duty as mentioned above. In government offices and private firms, documents that should be concealed from many people are generally stamped FOR INTERNAL USE ONLY, CONFIDENTIAL, SECRET, and the like. Are documents with those stamps to be treated as secret? The interpretation that they should is called officially secret, while the position which argues that the materials to be concealed must be determined according to their content is called substantially secret.

Strictly adhering to the officially secret interpretation, all the information that government offices consider to be secret at any rate would be concealed from the outside world. What should be considered as secret is determined by government offices, even when such secrecy might be insignificant or unnecessary. This idea is, however, is tantamount to a cover-up or manipulation of information. The court therefore adopted an interpretation for judging whether or not information designated as secret must actually be treated so-i.e., the substantially secret interpretation arguing that secrets should be defined according to their substance ("Tax Evasion Textbook" case, Supreme Court decision on December 19, 1977, Criminal Digest Vol. 31, No. 7, p. 1053).

So, how does the court determine whether or not any information should actually be treated as secret? The determination is generally made according to two requirements. One is that the information in question has not been known to the public (non-public knowledge requirement), and the other is that the information needs to be secret (necessity requirement).

Secrecy of the Chinese boat collision video

Can the video of the incident off the Senkaku Islands be regarded as secret? Does uploading it to YouTube constitute a breach in confidentiality? The point here is whether or not the video corresponds to information unknown to the public. In a sense, the video itself can be considered so, because it has been disclosed to only a limited number of lawmakers. On the other hand, at the same time, the content of the video has already been known to the entire nation. What happened off Senkaku, and who collided against whom-everyone knows this information without having watched the video. Is it necessary to make such a thing secret at this point? If you argued that everything designated as secret must be secret, it would be equivalent to formally secret interpretation.

The next problem is whether or not there is a necessity to make this video secret. The government had maintained from the outset that they would not release the video in question because it would be used as evidence for a criminal trial. Nevertheless, the captain of the Chinese boat that collided against the Japan Coast Guard vessel has been released and rapidly returned to China. There are no reports that he will be brought back to Japan to be prosecuted in the near future. Now that the criminal trial has been abandoned, the argument of the government is no longer acceptable.

What reasons are possible other than the above? One might be the fear that disclosure of this video could intensify anti-Chinese sentiment among the nation, which would damage Japan-China relations. Of course, diplomatic relations are important, and friendly relationships with neighboring countries are important for national interests. Can such interests, however, be achieved by concealing information? Deciding whether or not any information should be released based on the expected responses of the people would be too problematic in many ways in terms of how a democracy should be. None other than the sovereign nations must make the ultimate decision about the nature of the country or its diplomatic relations. The people have the right to know. Regulating free expression for fear of its impact is called communicative impact restriction. This is similar to regulating free expression because of its content, which is a kind of regulation democracies must avoid.

This incident is the touchstone for judging whether or not Japan can remain as a democracy. We should not trivialize it into an issue of a breach in confidentiality by a single public servant.