The Act on the Protection of Specially Designated Secrets has now been in force for five years. Simply put, the law allows for pieces of information deemed important to national security to be labelled "specially designated secrets" and sets out heavy penalties for anyone who leaks one.
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Until recently, 70 state organs had been subject to the law's provisions, but recent revisions to the government ordinance dictating its application reduced that to 28 bodies. The move was based on the secrets act's supplemental provisions. The 42 other agencies such as the Imperial Household Agency, public prosecutors offices and the National Tax Agency were dropped because they had not designated a single special secret in the past five years. This strongly suggests that the law initially cast far too wide a net, likely due to insufficient deliberation when it was enacted.
As of the end of June this year, 581 pieces of information had been classified as special secrets, 334 of which were designated by the Defense Ministry. The number of documents affected had hit some 440,000 by the end of 2018.
The secrets law came in for severe criticism as the administration of Prime Minister Shinzo Abe pushed it through the legislative process and enactment. There were strong fears that government agencies would use national security as a pretense to hide important information from the public, and that the law's provisions would harm freedom of expression in Japan.
To address these concerns, an independent public document management inspector post was created in the Cabinet Office, and a Board of Oversight and Review of Specially Designated Secrets was established in each of the houses of the Diet.
However, the Cabinet Office-based inspectorate has no enforcement powers. Last year, it demanded four ministries and agencies correct their practices in six cases after pointing out that these practices constitute violations of the law or ordinances. But the cases were put down to document mislabeling or similar relatively minor issues. Reports released by the Diet oversight boards, meanwhile, have become increasingly stale with each new release. Their memberships have a short turnover period, so the legislators do not have time to accumulate sufficient knowledge on the issues they are tasked with keeping tabs on.
In short, neither the administrative nor the legislative branches of Japan's government could be said to be exercising sufficient oversight of the secrets law.
In 2017, the House of Representatives oversight board pointed out the existence of some "empty designated secrets," or designations made in anticipation of receiving information, and thus not covering any actual documents. The board sent an official notice to the executive branch demanding that the administration make its secrets designations carefully, but we do not know if or to what degree the government has reflected this request in its practices.
The designated secrets system remains a black box, wherein even what is considered secret is a secret. Regarding the meaning of the law, Chief Cabinet Secretary Yoshihide Suga has stated that it "has increased international trust (in Japan), and we are thus receiving more critical information than before (the act went into effect.)" However, we have no way to know if this is true.
There has as of yet been no insider report suggesting problematic implementation of the secrets law. But this does not erase our worries about its arbitrary application.
The regulations governing how the law is applied are set for review five years after initial implementation. The Abe administration's attitude to public document availability is already under critical scrutiny. That being the case, the secrets law system must be checked especially rigorously.