The Supreme Court upheld on Monday a lower court's acknowledgement that the government may have surreptitiously destroyed secret diplomatic documents concerning the 1972 reversion of Okinawa to Japan from U.S. control, while rejecting plaintiffs' appeal over the Tokyo High Court decision not to order the government to disclose the documents.
In the first decision of its kind, the top court said the same day that the documents administrative agencies say do not exist could not be made public unless those seeking their disclosure can prove their existence.
Monday's ruling by the top court's Second Petty Bench, presided by Justice Katsumi Chiba, passes the burden of proof onto people who seek information disclosure and gives administrative agencies wider discretion in controlling the flow of information to the public.
It remains to be seen how it would affect an ongoing national debate on how to ensure the public's right to know ahead of the implementation of Japan's controversial state secrecy law.
Chief Cabinet Secretary Yoshihide Suga welcomed Monday's ruling as the court's "endorsement" of the state's arguments. When asked about the likelihood that the papers had been destroyed, he said the government has no plans to reinvestigate where the papers have gone.
The lawsuit was filed in March 2009 by Takichi Nishiyama, a former reporter for major Japanese daily The Mainichi Shimbun, and others who sought the disclosure of three documents that they say indicated the existence of the bilateral secret pact. The suit was filed after the state refused access to them.
Nishiyama, who hinted at the existence of a secret bilateral pact in his newspaper article in 1971, a year before the Okinawa reversion, and was convicted in 1978 of instigating a leak of state secrets, harshly criticized the ruling at a news conference on Monday.
"Documents which show information about the conclusion of diplomatic negotiations are the intellectual property of the public, and these papers essentially should be preserved permanently," the 82-year-old plaintiff said.
In a landmark ruling in April 2010, the Tokyo District Court said the government possessed the documents -- which showed there was a secret accord for Japan to shoulder part of the U.S. costs for the reversion of the southwestern island prefecture -- and ordered it to disclose them. The state was also ordered to pay 100,000 yen in damages to each of the plaintiffs.
In its September 2011 ruling, however, the high court overturned the district court decision ordering the government to release the documents.
The court said then that the government could have disposed of the documents before the law on freedom of information was enacted in 2001 to avoid exposing Japan's secret negotiations with the United States. With no existing documents, the high court revoked the district court's order for the state to disclose the papers and pay damages.
The documents in question were compiled from 1969 to 1971, according to the district court's ruling. The high court ruling said the Okinawa reversion deal was made secret because the Japanese government wanted to conceal the bilateral negotiation process so the public would not think that Japan had "bought back Okinawa."
On the point of proving the existence of the documents, the district court said if the plaintiffs proved that the state had compiled the documents, it should be assumed the state still possesses them unless the state proves the documents were destroyed.
In March 2010, a month before the district court ruling, the foreign and finance ministers acknowledged there had been a secret agreement.
The papers sought by Nishiyama and other plaintiffs included one indicating that Japan paid $4 million in costs on behalf of the United States in restoring land in Okinawa that had been used by U.S. forces.