[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)
Soichiro Shindo
Humiyasu Miyasaki
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
Judgement
Main Text
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
I.
Claims
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
〈abbreviation〉
(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
(translation omitted)
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.