2021.06.15

2020 (Gyo-Hi) 102

Minshu Vol. 75, No. 7

Judgment concerning the issue of whether retained personal information relating to medical care which a person in a penal institution received during commitment falls under the retained personal information prescribed in Article 45, paragraph (1) of the Act on the Protection of Personal Information Held by Administrative Organs

Case seeking rescission of a decision not to disclose information, etc.

Judgment of the Third Petty Bench, quashed and remanded

Tokyo High Court, Judgment of November 20, 2019

Retained personal information relating to medical care which a person in a penal institution received during commitment does not fall under the retained personal information prescribed in Article 45, paragraph (1) of the Act on the Protection of Personal Information Held by Administrative Organs.

(There is a concurring opinion.)

Article 45, paragraph (1) of the Act on the Protection of Personal Information Held by Administrative Organs



Act on the Protection of Personal Information Held by Administrative Organs
(Exclusion from Application)
Article 45　(1)　The provisions of Chapter IV do not apply to Retained Personal Information relating to a judgment in a criminal case or juvenile case, a disposition executed by a public prosecutor, public prosecutor's assistant officer, or judicial police official, execution of a punishment or protective measure, post-incarceration rehabilitation services, or pardon (limited to Retained Personal Information relating to a person who received that judgment or measure, a person towards whom the punishment or protective measure was executed, a person who applied for post-incarceration rehabilitation services, or a person who filed a petition for pardon).

The judgment in prior instance is quashed.

This case is remanded to the Tokyo High Court.

Concerning the reasons for a petition for acceptance of final appeal stated by the counsel for final appeal, URAKI Tomoko, KIMOTO Shigeki, and KUNII Toshiaki

1. The appellant who was committed in the Tokyo Detention House as a detainee awaiting a judicial decision requested the Superintendent of the Tokyo Regional Correction Headquarters to disclose retained personal information recorded on a medical record relating to the medical care which the appellant received during commitment (hereinafter referred to as the "Information") under the Act on the Protection of Personal Information Held by Administrative Organs (hereinafter referred to as the "Administrative Organs Personal Information Protection Act"). However, the appellant received a decision not to disclose the whole of said retained personal information (hereinafter referred to as the "Decision") on the grounds that said retained personal information falls under the retained personal information prescribed in Article 45, paragraph (1) of the same Act and is excluded from the subject of a request for disclosure. Therefore, the appellant filed this action against the appellee to seek the rescission of the Decision, as well as the payment of a solatium, etc. under the Article 1, paragraph (1) of the State Redress Act.

2. The outline of facts determined by the court of prior instance is as follows.

(1) Article 12, paragraph (1) of the Administrative Organs Personal Information Protection Act provides that any person may, pursuant to the provisions of the same Act, request that the head of an administrative organ disclose retained personal information which the administrative organ holds on that person. Article 14 of the same Act provides that when the aforementioned request is filed, the head of an administrative organ must disclose the relevant retained personal information to the person who filed the request unless any non-disclosure information set forth in the items of the same Article is included in the retained personal information.

Article 45, paragraph (1) of the Administrative Organs Personal Information Protection Act provides that the provisions of Chapter IV of the same Act, including the aforementioned provisions, do not apply to retained personal information relating to a judgement in a criminal case or juvenile case, a disposition executed by a public prosecutor, public prosecutor's assistant officer, or judicial police official, execution of a punishment or protective measure, post-incarceration rehabilitation services, or pardon (limited to retained personal information related to a person who received that judgment or measure, a person towards whom the punishment or protective measure was executed, a person who applied for post-incarceration rehabilitation services, or a person who filed a petition for pardon).

(2) The appellant was committed in the Chiba Prison as the accused on January 25, 2016 and was transferred from the same prison to the Tokyo Detention House on July 20, 2016.

On May 12, 2017, the appellant requested that the Superintendent of the Tokyo Regional Correction Headquarters: who had received the delegation of authority or processes from the Minister of Justice, disclose the Information. However, on June 15, 2017, the Superintendent of the Tokyo Regional Correction Headquarters made the Decision to the effect that the whole of the Information is not to be disclosed on the grounds that the Information falls under the retained personal information prescribed in Article 45, paragraph (1) of the Administrative Organs Personal Information Protection Act.

3. The court of prior instance determined as summarized below based on the aforementioned facts and ruled that the Decision is lawful because the Information falls under the retained personal information prescribed in Article 45, paragraph (1) of the Administrative Organs Personal Information Protection Act and is thus excluded from the subject of a request for disclosure under the provisions of Article 12, paragraph (1) of the same Act. Based on this ruling, the court of prior instance determined that the appellant's claims should be dismissed.

The treatment of an inmate is an action that is incidental by necessity to the achievement of the content of a judgment in a criminal case. If retained personal information relating thereto becomes subject to a request for disclosure, it would be used for the examination of previous convictions, etc. by a third party, which is likely to cause adverse effects, such as preventing the re-integration into society of a person covered by the relevant information. Therefore, the aforementioned retained personal information should be considered to fall under retained personal information relating to a judgment in a criminal case prescribed in Article 45, paragraph (1) of the Administrative Organs Personal Information Protection Act. As medical care to an inmate is provided as part of the treatment of the inmate, information relating thereto also falls under the aforementioned retained personal information relating to a judgment in a criminal case unless otherwise specified.

4. However, the aforementioned determination of the court of prior instance cannot be upheld for the following reasons.

(1)A. The provisions of Article 45, paragraph (1) of the Administrative Organs Personal Information Protection Act were newly established through the amendment of the whole of the Act on the Protection of Personal Information Electronically Processed and Held by Administrative Organs (hereinafter referred to as the "Former Act") by Act No. 58 of 2003 (hereinafter this amendment is referred to as the "2003 Amendment"). The Former Act provided that any person may request that the head of an administrative organ that holds a personal information file disclose processed information on him/herself (meaning personal information recorded on the personal information file; the same applies hereinafter) (main clause of Article 13, paragraph (1)). At the same time, the Former Act provided that this does not apply to a personal information file on which matters concerning a judgement in a criminal case, a disposition executed by a public prosecutor, public prosecutor's assistant officer or judicial police official or execution of a punishment (hereinafter referred to as "matters concerning a criminal case, etc.") are recorded (the proviso to the same paragraph). These provisions are considered to have been based on the purpose of preventing personal information relating to matters concerning a criminal case, etc. from becoming subject to a request for disclosure because such personal information includes information about the previous convictions, history of commitment, etc. of the relevant individual, and if it becomes subject to a request for disclosure, it may be used for the examination of previous convictions, etc. by a third party by means of having the individual submit the result of a request for disclosure at the time of employment, and this may cause adverse effects, such as preventing the re-integration into society of the relevant individual. Moreover, the Former Act also provided that processed information recorded on a personal information file that is not included in the personal information file register is to be excluded from the subject to a request for disclosure (main clause of Article 13, paragraph (1)) and that a personal information file used for processes relating to the execution of detention, correction or offenders rehabilitation (Article 7, paragraph (3), item (iii)), etc. may be excluded from the personal information file register if it is found that the file is highly likely to extremely hinder the appropriate performance of processes related to the purpose for which the personal information file is held (main paragraph of the same paragraph).

On the other hand, the proviso to Article 13, paragraph (1) of the Former Act provided that processed information recorded on a personal information file on which matters concerning medical care at a hospital, clinic or birthing center (hereinafter referred to as "matters concerning medical care") etc. are recorded is excluded from the subject of a request for disclosure, in addition to matters concerning a criminal case. These provisions are considered to have been based on the idea that it is appropriate, for the moment, to leave the disclosure of personal information relating to matters concerning medical care to a medical determination that is based on a relationship of mutual trust between the parties to medical care.

B. Incidentally, at penal institutions, including detention houses, adequate hygienic and medical measures based on public standards of hygiene and medical care are to be taken in order to maintain the health, etc. of persons who are committed therein (hereinafter referred to as "inmates") (Article 56 of the Act on Penal Detention Facilities and the Treatment of Inmates and Detainees). The same Act also provides that when an inmate is injured or suffering from a disease or is suspected to be in such condition, the warden of a penal institution is to promptly have a staff doctor, etc. (meaning a physician or dentist; the same applies hereinafter) give the inmate medical care and carry out other necessary medical measures (Article 62, paragraph (1), etc. of the same Act). In addition, the provisions of the Medical Care Act are, in principle, also applicable to a hospital or clinic established in a penal institution (see Article 30-2 of the same Act and Article 3, paragraph (2) of the Order for Enforcement of the Medical Care Act), and a physician, etc. who engages in medical care at such hospital or clinic is also to conduct medical acts in accordance with the provisions of the Medical Practitioners' Act or the Dental Practitioners' Act. Consequently, the nature of medical care that inmates receive during commitment should be considered to not differ from that of medical care provided in society in general. It can be said that this was also the same even under the Prison Act, etc. of the time when the Former Act was enacted.

C. In light of the above, it is natural to consider that under the Former Act, processed information recorded on a personal information file on which matters concerning medical care which an inmate received during commitment are recorded was excluded, in terms of its nature, from the subject of a request for disclosure as the matters concerning medical care referred to in the proviso to Article 13, paragraph (1). It is thus considered that it was not assumed to exclude such processed information from the subject of a request for disclosure as information relating to matters concerning a criminal case, etc. or matters concerning the processes prescribed in Article 7, paragraph (3), item (iii).

(2) The provisions of Article 45, paragraph (1) of the Administrative Organs Personal Information Protection Act that were newly established through the 2003 Amendment are considered, in light of the context thereof, to be provisions that provide that the provisions of Chapter IV are not applicable to retained personal information that includes matters concerning the processes prescribed in Article 7, paragraph (3), item (iii) of the Former Act (matters which had been provided as those for which a request for disclosure of processed information cannot be filed only in certain cases from the perspective of preventing the hindrance to the appropriate performance of processes under the Former Act) that meet the same purpose as the provisions on matters concerning a criminal case, etc. in the proviso to Article 13, paragraph (1) of the Former Act, as well as matters concerning a criminal case, etc., and thereby exclude such information from the subject of a request for disclosure, etc. for the aforementioned purpose.

On the other hand, the Administrative Organs Personal Information Protection Act does not have any provision to the effect that retained personal information relating to matters concerning medical care is to be excluded from the subject of a request for disclosure. The purport thereof is considered to exist in making retained personal information relating to matters concerning medical care in general subject to a request for disclosure, in light of the citizens' opinions, requests, etc. in the context of dissemination of the philosophy of informed consent relating to medical acts, etc., from the perspective of expanding the scope of disclosure as far as possible in consideration of the importance of the citizens' benefit of receiving the disclosure of personal information held by administrative organs. Upon newly establishing Article 45, paragraph (1) of the same Act, it does not appear that specific deliberations were carried out regarding non-applicability of the provisions of Chapter IV of the same Act to retained personal information relating to medical care that an inmate received during commitment, which does not differ in the nature from medical care provided in society in general. There is no other ground for considering such retained personal information to be included in the retained personal information prescribed in the same paragraph.

For the reasons described above, it is reasonable to consider that retained personal information relating to medical care that an inmate received during commitment does not fall under the retained personal information prescribed in Article 45, paragraph (1) of the Administrative Organs Personal Information Protection Act.

(3) Consequently, the Information becomes subject to a request for disclosure under the provisions of Article 12, paragraph (1) of the Administrative Organs Personal Information Protection Act as it does not fall under the retained personal information prescribed in Article 45, paragraph (1) of the same Act.

5. The aforementioned determination of the court of prior instance that differs from the above contains a violation of laws and regulations that has clearly influenced the judgment. The counsel's arguments are well-grounded as arguments to this effect, and the judgment in prior instance should inevitably be quashed. This case is remanded to the court of prior instance to be further examined.

Accordingly, the Court unanimously decides as set forth in the main text of the judgment. There is a concurring opinion of Justice UGA Katsuya.

The concurring opinion stated by Justice UGA Katsuya is as follows.

I agree with the majority opinion, but I would like to express my concurring opinion.

In Japan, there was controversy over the advisability of filing a request for disclosure of a medical record in the past. However, nowadays, informed consent is the basis of medical care, and Article 1-4, paragraph (2) of the Medical Care Act also provides that "in the delivery of medical care, a physician, dentist, pharmacist, nurse or other medical care professional shall give appropriate explanations and endeavor to gain the understanding of the recipients of medical care." The physician's obligation to give explanations was also found by this Court (1998 (O) No. 576, the judgment of the Third Petty Bench of the Supreme Court of November 27, 2001, Minshu Vol. 55, No. 6, at 1154). In addition, this Court also found that the right to self-determination in medical care must be respected as one of the personal rights (1998 (O) No. 1081 and 1998 (O) No. 1082, the judgment of the Third Petty Bench of the Supreme Court of February 29, 2000, Minshu Vol. 54, No. 2, at 582).

In Japan, the right to request the disclosure of a medical record is granted in the Act on the Protection of Personal Information, the Act on the Protection of Personal Information Held by Administrative Organs, the Act on the Protection of Personal Information Held by Incorporated Administrative Agencies, etc., and ordinances for the protection of personal information. Therefore, it is possible to file a request for the disclosure of self-information in relation to a medical record held by a body that has established a hospital, etc., irrespective of whether the body is the State, incorporated administrative agency, national university corporation, local public entity, local incorporated administrative agency (in the case where the local incorporated administrative agency is an agency that implements an ordinance for the protection of personal information), medical corporation or individual. Article 19, paragraph (2) of the Medical Practitioners' Act also provides that no medical practitioner who has performed an examination shall, in principle, refuse a request for a medical certificate.

The importance of informed consent does not differ even in relation to information relating to medical care in a penal institution. In "Kyosei Iryo (Correctional medical care)" edited by the Director of the Medical Care Division, Correction Bureau, Ministry of Justice, it is also stated that the content required for correctional medical care is basically the same as the medical care in society in general (this was also the same in the age of the Prison Act; the rationale for medical care in prison was considered to exist primarily in preventing damage to the physical and mental health of persons in prison from the humanitarian standpoint; transfer to a hospital was also considered to be conducted solely for the purpose of the treatment of a sick person, and therefore, it should not be considered that a measure to transfer a person in prison to a hospital could be taken only after a disposition by a public prosecutor, etc.; Ono Seiichiro and Asakura Kyoichi, "Kaitei Kangokuho" (Prison Act: revised edition)).

Principle 26 of the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment adopted by the United Nations General Assembly in 1988 provides as follows: "The fact that a detained or imprisoned person underwent a medical examination, the name of the physician and the results of such an examination shall be duly recorded. Access to such records shall be ensured. Modalities therefore shall be in accordance with relevant rules of domestic law." It can be said that the ensuring of access to one's own medical information in a penal institution has already become a global standard. In addition, Rule 26, paragraph 1 of the United Nations Standard Minimum Rules for the Treatment of Prisoners (Mandela Rules) adopted by the United Nations General Assembly in 2015 provides as follows: "The health-care service shall prepare and maintain accurate, up-to-date and confidential individual medical files on all prisoners, and all prisoners should be granted access to their files upon request. A prisoner may appoint a third party to access his or her medical file." It is thereby provided that granting prisoners the right to access their own medical records is the minimum required. The Declaration of Lisbon on the Rights of the Patient adopted by the World Medical Association (WMA), to which over 100 medical associations in the world have acceded, also declares as follows: "The patient has the right to receive information about himself/herself recorded in any of his/her medical records, and to be fully informed about his/her health status including the medical facts about his/her condition." In a handbook written by Andrew Coyle, titled "A Human Rights Approach to Prison Management," it is clearly specified that "Any medical judgements and treatments will be based on the needs of the individual prisoner and not on the needs of the administration."

Moreover, Article 62, paragraph (3) of the Act on Penal Detention Facilities and the Treatment of Inmates and Detainees provides that the warden of a penal institution may have an inmate visit a hospital or a clinic outside the penal institution as required or may commit an inmate to a hospital or a clinic outside the penal institution if this is unavoidable. If an inmate receives medical care at a hospital or clinic outside a penal institution, he/she may file a request for the disclosure of the record of the medical care because the record of the medical care falls under an ordinary medical record and the history of commitment is not revealed even if the record is disclosed; on the other hand, if an inmate receives medical care at a hospital or clinic in a penal institution, he/she may not file a request for the disclosure of the record of the medical care, and this might be unreasonable.

Justice UGA Katsuya

Justice TOKURA Saburo

Justice MIYAZAKI Yuko

Justice HAYASHI Michiharu