［Provisional Translation by Reiko Okazaki (23 April 2014)］
A and others v. Japan and Tokyo metropolitan government
Country of jurisdiction: Japan
Court: Tokyo District Court
Division: Civil 41st Division
Judge: Masamitsu Shiseki (Presiding Judge)
Date of Judgment: 15 January 2014
Case Number: Heisei 23 (2011) Wa (Civil Case) No.15750, Heisei 23 (2011) Wa (Civil Case) No.32072 and Heisei 24 (2012) Wa (Civil Case) No.3266
1. The defendant Tokyo metropolitan government shall pay to each plaintiff, with the exception of plaintiff 4, money in the amount of 5.5 million yen as well as money accruing therefrom at an annual interest rate of 5% during a period starting from 26 July 2011 up to a date when the payment will be completed.
2. The defendant Tokyo metropolitan government shall pay to plaintiff 4 money in the amount of 2.2 million yen as well as money accruing therefrom at an annual interest rate of 5% during a period starting from 26 July 2011 up to a date when the payment will be completed.
3. The plaintiffs’ other claims against the defendant Tokyo metropolitan government, as well as their claim against the defendant Japanese government, are dismissed.
4. The defendant Tokyo metropolitan government shall pay half of the plaintiffs’ court costs and half of the defendant Tokyo metropolitan government’s court costs, and the plaintiffs shall pay the remainder of the court costs incurred by the plaintiffs and the defendant Tokyo metropolitan government, as well as the defendant Japanese government’s court costs.
5. Only the preceding paragraphs 1 and 2 can be provisionally executed in the present judgment.
Facts and Reasons
The defendants shall jointly pay to each plaintiff 11 million yen as well as money accruing therefrom at an annual interest rate of 5% during a period starting from 26 July 2011 up to a date when the payment will be completed.
II. Outline of the Facts
1. In this case, the plaintiffs, who are Muslims, submitted that The Metropolitan Police Department (MPD), as well as the National Police Agency (NPA) and the National Public Safety Commission (NPSC): (i)encroached upon the plaintiffs’ constitutional rights including the freedom of religion through the surveillance of mosques etc., as well as collecting, storing and using personal information in a manner that violates the Protection of Personal Information Held by Administrative Agencies Act (hereinafter referred to as the ‘Protection Act’) as well as the Tokyo Metropolitan Ordinance for the Protection of Personal Information (hereinafter referred to as the ‘Protection Ordinance’); and (ii) subsequently, by breaching their duty of care etc. in information management, allowed the personal information to leak onto the Internet, and furthermore failed to take appropriate measures to mitigate the damage; both of which are illegal for the purposes of the State Compensation Act. The plaintiffs claimed damages of 11 million yen each, as well as money accruing therefrom at an annual interest rate of 5% during a period starting from 26 July 2011, the day after service, up to a date when the payment will be completed, against the defendant Tokyo metropolitan government, the entity liable for the Metropolitan Police Department, as well as the defendant Japanese government, the entity liable for the National Police Agency and the National Public Safety Commission.
2. Undisputed Facts (facts that are not in dispute between the parties, or readily follow the attached evidence or the pleadings in their entirety)
(1) The plaintiffs
(2) Occurrence of the Leak Incident
On or around 28 October 2010, 114 articles of data (1 through 114 in Exhibit A-1, hereinafter referred to as ‘the Data’) were posted on the Internet through the file exchange software Winny (Exhibits A-2 and A-3. Hereinafter this incident is referred to as the ‘the Leak Incident’.) As of 25 November 2010, the Data had been downloaded onto more than 10,000 computers in over 20 countries and regions (Exhibit A-5).
(3) Summary of the Plaintiffs’ Descriptions in the Data
In addition to numerous data regarding countermeasures against international terrorism, including a document marked “Outline for Reinforcing Reality Assessments” dated 10 September 2007, the Data contained A4- sized pages resembling résumés (hereinafter referred to as the ‘Résumé-like Page’) with the nationality, birthplace, name, gender, date of birth (age), current address, place of employment and vehicle for each of the plaintiffs (with the exception of plaintiffs 1, 4, 13 and 17) and others. It also included information such as their date of entry, passport number and issue date, residence status, address at home country, duration of residence, registry date, municipality of residence and registration number (only the passport number, issue date and duration of residence for plaintiff 2) listed under the heading “Entry and Residence Related”; their history regarding residence address, schooling and employment in Japan under “History of Addresses, Schooling and Employment”; as well as e.g. height, build, and the presence or absence of hair, beard, or eyeglasses under “Physical Characteristics”; names, dates of birth, employers and addresses of family members, except for one individual outside this suit, under “Familial Relationships and Acquaintances”; and for some, the type, date obtained and number for their licenses under “Licenses’; date of arrest, offence, station of arrest and outcome under “Criminal Information”; as well as sections titled “Suspicions”, “Response Status and Policy”, “Affiliated Organisations”, “Status, Positions and Roles etc.”, “Mosque Access”, “Visited and Frequented Locations”, “Summary of Behavioural Patterns”, of which “Suspicions” and “Response and Policy” were recorded for all individuals, but other sections recorded for only some individuals, and with a profile picture attached (11(1) and (20), 1 (12) of Exhibit A-1).
Plaintiff 1’s name, date of birth, employer and address was noted as the husband of plaintiff 2 under the “Familial Relationships and Acquaintances” section of the latter’s Résumé-like Page, and plaintiff 4’s name, date of birth and address was entered as the wife of plaintiff 3 under the same section of plaintiff 3’s Résumé-like Page (11(5) and (14) of Exhibit A-1).
Although a Résumé-like Page for plaintiff 17 does not exist in the Data, the plaintiff’s nationality, name, date of birth, passport number, residence status, employer and its address, place of birth, address at home country, address in Japan, mobile and home telephone numbers, family, entry and departure history in Japan and accessed mosques were recorded as “1 Particulars of Identity”, together with a specific and detailed account of exchanges and friendship with a particular Muslim individual under “2 Information on Suspicions” (the document with the headings “1 Particulars of Identity” and “2 Information on Suspicions” is hereinafter referred to as the ‘Identity and Suspicions Page’).
Furthermore, although the Data did not include a Résumé-like Page or Identity and Suspicions Page for plaintiff 13, the surname of Plaintiff 13 appears under the “Suspicions” section on the Résumé-like Pages of plaintiffs 2, 3, 5, 7, 9, 11, 14 and 15 (11(3)-(5), (10), (11), (14), (15), (19) of Exhibit A-1) as well as under the heading “2 Information on Suspicions” in plaintiff 17’s Identity and Suspicions Page (the plaintiffs’ personal information contained in the Data are hereinafter referred to as the ‘Personal Data’).
(4) Investigation of the Leak Incident
On 29 October 2010, the National Police Agency and the Metropolitan Police Department recognised the Leak Incident and commenced investigations.
The National Police Agency compiled interim findings etc. in December of that year, publishing a document titled “Regarding Interim Findings Etc. on the Case of Data about Countermeasures against International Terrorism Posted on the Internet” (Exhibit A-2), and on the 24th of that month the Metropolitan Police Department published a document titled “Regarding the Case of Data about Countermeasures against International Terrorism Posted on the Internet” (Exhibit A-3), comprising a summary of investigations thus far, etc. Each document mentions an acknowledgement of the fact that the Data contains information with a high probability of having been handled by a member of the police force, but does not disclose specifics of how the Data was removed.
Despite continued investigation by the police regarding the circumstances surrounding the posting of the Data, the details have not been revealed to this day (facts in the public knowledge).
3. Issues and Arguments from the Parties
III Judgment of this Court
(1) On Issue 1
(1) Regarding the Manner of Collection etc. of the Data
A) Taking into consideration (4) of the Undisputed Facts, the evidence (1 through 114, 2, 3 and 6 (1) of Exhibit A-1), and the pleadings in their entirety, it can be found that each of the documents that were the bases of the Data was in the possession of the Third Foreign Affairs Division [of the MPD].
B) Taking into consideration the Undisputed Facts, attached evidence and the pleadings in their entirety, the following facts can be found as the specific content of the Data.
a) A Résumé-like Page was created for the plaintiffs with the exception of A-C and 17 , listing the items in (3) of the Undisputed Facts, including personal information on each of the plaintiffs including “Comings and Goings at Mosques” (save for plaintiff 12, whose comings and goings at mosques were not observed). As for the specific content of “Comings and Goings at Mosques”, most individuals only had the name of the mosque they attend recorded, but it is stated that plaintiff 2 “instructs women and children in recitation of the Qur’an at Mosque D”; plaintiff E “participated in Friday prayers at Mosque F”; and plaintiff G “partook in Friday prayers and Saturday Arabic lessons at Mosque H, respectively, and these 3 plaintiffs are noted as taking part in religious ceremonies or instructional activities (11(2)-(5), (9)-(11), (14), (15), (18)-(20), and 1(12) of Exhibit A-1).
Notice has also been taken of many of the above plaintiffs regarding friendly relations etc. with a particular Muslim, in the “Suspicions” section of their Résumé-like Pages.
b) Regarding Plaintiff 17, although no Résumé-like Page exists in the Data, an Identity and Suspicions Page was created as per the Undisputed Facts (3). “J” is noted under the sub-heading “Mosque Accessed” in the “1 Particulars of Identity”.
While Identity and Suspicions Pages were created not only for plaintiff 17 but also all plaintiffs other than 1, 4, 13 and 16, entries under its sub-heading “Mosque Accessed” did not differ significantly from entries under “Comings and Goings at Mosques” on the Résumé-like Pages. The “Information on Suspicions” section, in contrast, contains content that specifies and details the information under the “Suspicions” section on the Résumé-like Page. For example, regarding plaintiff 2, as well as the fact that she herself instructs women and children on recitation of the Qur’an, it is noted that plaintiff 1, her husband, holds a lecturer-like position at the mosque, is highly reputable as a Islamic lecturer, and consistently participates in workshops, special prayers, sermons etc., passionately engaging in missionary activities as a couple (15-18, 20, 21, 24-26, 29-31 of Exhibit A-1).
c) The fact that plaintiff 13’s surname appears in the “Suspicions” section of the Résumé-like Page for plaintiffs 2, 3, 5, 7, 9, 11, 14 and 15, as well as under the “2 Information on Suspicions” sub-section of plaintiff 17’s Identity and Suspicions Page, is as stated in (3) of the Undisputed Facts. Of those, in the “Suspicions” section for plaintiffs 2, 3, 5, 9, 11, 14 and 15, it is noted to the effect that they are or were acquaintances of plaintiff 13. In addition, on the Identity and Suspicions Page (19 of Exhibit A-1) of a Muslim individual outside this lawsuit, it is recorded as a result of direct questioning that said individual was asked by plaintiff 13 to deliver some cash, possibly terrorism funds, that was collected by the said plaintiff and sent it to another Muslim individual by hiding it inside an electric rice cooker; as well as the plaintiff’s statement that despite Jihad obligations being waived due to heart complications, “I would go too, if needed”; as well as the name of plaintiff 13’s wife and prefecture of residence.
d) That plaintiff 1 is plaintiff 2’s, and plaintiff 4 is plaintiff 3’s respective spouse, and that their names, dates of birth and such were recorded in the “Familial Relationships and Acquaintances” section of plaintiffs 2 and 3’s Résumé-like Pages, is as stated in (3) of the Undisputed Facts. Also, plaintiff 1, as per above (b), was noted for his passionate missionary activities with his spouse in the Identity and Suspicions Page of plaintiff 2.
e) Further, considering the fact that the Résumé-like Pages created on the plaintiffs in above (a), (with the exception of plaintiff 16), (11(2)-(5), (9)-(11), (14), (15), (18)-(20) of Exhibit A-1), display a document date of 7 November 2008, and the Résumé-like Page created on plaintiff 16 (12 of Exhibit A-1) displays a document date of 2 October of the same year, and assuming that the Identity and Suspicions Pages, which are included in the Data just like the above Résumé-like Pages and share commonalities in their headings, were created around the same time, it can be found that the information in both the Résumé-like Pages and the Identity and Suspicions Pages were collected before November 2008, approximately.
C) Next to be considered are the circumstances of how each of the above information was obtained.
a) According to evidence (8 and 50 through 53 of Exhibit A-1) and the pleadings in their entirety, the Metropolitan Police Department was engaging in efforts to assess the state of Islamic communities at the risk of exploitation as terrorist infrastructure by November 2005 at the latest, said efforts being undertaken at locations such as the Iranian Association, Arabic Islamic Institute, Tokyo Camii, Shin-Okubo Mosque, Otsuka Mosque, and Ikebukuro Mosque. The Metropolitan Police Department, in order to prevent international terrorism accompanying the Hokkaido Lake Toya Summit held from 7 July 2008 to the 9th of that month, had, since 23 June of that year, organised a “Mosque Squad” of 43 agents with the mission of “detecting suspicious activities of mosque attendants”, designated K, L, M, N, O, P, Q and R mosques as “Mosques for Inspection”, and for each of those mosques, stationed ground staff and behaviour-monitoring personnel from roughly 8:30 am, until the end of evening prayers at 7:30 pm, with the objective of detecting and observing new arrivals and suspicious individuals at the mosques. Of the plaintiffs on whom Résumé-like Pages were created (all plaintiffs with the exception of plaintiffs 1, 4, 13 and 17), their Résumé-like Pages, except for plaintiff 12, noted the name of the mosque they frequented as well as participation, if any, in religious ceremonies or instructional activities under “Comings and Goings at Mosques”, as found in the above B (a); and the Identity and Suspicious Page created for plaintiff 17 listed Mosque J as “Mosque of Attendance” as found in the above B (b). In light of these facts, it can be assumed that for the plaintiffs, with the exception of plaintiff 12, information regarding their comings and goings at mosques and participation in religious ceremonies or instructional activities were collected by agents directly engaging in assessment activities (the monitoring of the plaintiffs regarding matters such as mosque access are hereinafter referred to as ‘Mosque Monitoring Activities’).
Furthermore, the Metropolitan Police Department had been engaging in the collection of terrorism-related information etc. in cooperation with relevant agencies and businesses etc. (Exhibit C-1), and as it has been found that some of the plaintiffs had themselves been directly contacted or searched etc. (1, 2, 5, 7-9, 11, 13, 17 of Exhibit C-34), it can be assumed that the remainder of the information had been gathered through their receipt from relevant agencies such as the Immigration Bureau under the Ministry of Justice etc., or contacting and searching the plaintiffs as above.
b) Incidentally, the plaintiffs allege that the Metropolitan Police Department and the National Police Agency had, as of 31 May 2008, assessed and digitalised the personal information of “roughly 12,677 individuals” equalling “roughly 89% of the 14,254 foreign nationals from Muslim countries registered in Tokyo”, and later, by the Hokkaido Toya Lake Summit convened July of that year, had “profiled roughly 72,000 individuals from OIC (Organisation of the Islamic Conference) countries (assessment rate of 98%)”, assessed the attendance of 3639 individuals by continuous surveillance at mosques, and conducted Information Gathering Activities regarding the names, locations, and financial situation etc. of Islamic-related organisations etc. However, in this lawsuit, the issue is simply whether or not the plaintiffs suffered damage through the illegal exertion of public authority carried out against them, so whatever information-gathering activities that may have been conducted in relation to Muslims and Islamic-related organisations other than the plaintiffs cannot be said to influence the judgment in this case.
In addition, the plaintiffs allege to the effect that the Metropolitan Police Department (i)established a relationship with 4 major automobile rental dealerships headquartered in Tokyo whereby they could receive user information without a referral document and had that information submitted; (ii)had hotels reinforce their retention of foreign passport photocopies; (iii)acquired the history of paycheck deposits for staff working at the Iranian embassy, from Tokyo Mitsubishi Bank (currently Mitsubishi Tokyo UFJ Bank); and (iv)obtained a roster of foreign students from the administrators at the Tokyo University of Agriculture and Technology as well the University of Electro-Communications, assessed the personal information of students from Muslim countries, and collected information on Muslims and Islamic-related organisations etc. However, there is inadequate evidence to find that the plaintiffs in this case had their information acquired by the Metropolitan Police Department through such methods.
c) Accordingly, it is fair to observe that the Data, by and large, was gathered in the manner of above (a).
D) On this point, the defendant Tokyo metropolitan government argues to the effect that the cause of action against said defendant is not identified with sufficient specificity, as the plaintiffs have not made individual and concrete arguments on the question of what measures and methods the Metropolitan Police Department officers employed in collecting particular personal information of the plaintiffs, instead alleging unconstitutionality in the relationship between the nationwide police forces, including the Metropolitan Police Department, and all Muslims including the plaintiffs. The defendant Japanese government also argues to the effect that the plaintiffs’ allegations are unfounded as it is unclear what breach of official duty they are alleging. Although it is true that the plaintiffs’ allegations regarding the Information Gathering Activities contain sections that question the relationship vis-a-vis all Muslims including the plaintiffs, by redrawing this in terms of a relationship with the plaintiffs, it can be understood that they are arguing facts including the facts found and held in above (c). Considering that it is an undeniable fact that the plaintiffs’ personal information was collected by police officers in one way or another, and that it may well impose hardship upon the plaintiffs to require precise identification of the measures and methods through which personal information of each individual plaintiff was gathered, the above degree adequately identifies the cause of action. Therefore, the defendants’ foregoing arguments cannot be accepted.