Employers in Japan Cannot Access Employee Criminal History Information
Most non-Japanese security professionals responsible for foreign visitors or participants at the Tokyo 2020 Olympics will likely hire local Japanese staff to assist them (either directly or through a “temp” agency) with their security and safety preparations in Tokyo. The range of services which foreign visitors and participants at the Tokyo Olympics will require is extensive: security guard services, charter bus services, guide services, administrative services, lodging services, hired car services, and catering services are the most likely. Some services can be arranged without much concern about the background of the service provider. But for other services at the 2020 Tokyo Olympics security professionals will want to conduct due diligence investigations of the service providers (e.g., chauffer services and security guard services).
Background investigation practices used by private corporations when hiring staff vary greatly around the world. In the U.S. security professionals conducting an employment background investigation can usually can learn if the prospective employee has a criminal history.
For example, in the U.S. a company considering retaining the services of a car and driver for several days might hire a limousine company to provide the car and driver. The hiring company might want to specify in the contract that it be able to conduct a criminal background investigation of the driver. In most jurisdictions in the U.S. this condition of employment is allowed and criminal history information (an arrest or worse) is usually a matter of public record. For example, the state of Pennsylvania has established procedures expressly for the purpose of providing criminal history information maintained by that state. The vast majority of government agencies in the U.S. that maintain criminal history records have similar procedures for dissemination of that information. In addition, many states maintain additional public records of individuals who have been convicted of sex crimes or crimes against children. For example, here is a link to the Texas Public Sex Offender Registry.
But what about Japan? Is it possible for a potential employer in Japan to check government records and search for the criminal history of a citizen or resident of Japan? In most cases the answer is no. Japanese laws limit public dissemination of criminal history information. In addition, Japan recently made significant revisions to its privacy laws. Those revisions are quite new and how they will ultimately affect access to criminal history information maintained by the Japanese government is still unclear. However, based upon nine years of working with the Japanese criminal justice system the writer can confidently predict that the revisions to Japan’s privacy laws will not expand public access to criminal history information.
The Mystery of the Disappearing Criminal History
Most criminal records in Japan are maintained by the 47 prefectural police departments in the country. Usually prefectural police departments will not release criminal history information to a third party and will cite “privacy laws” as the reason. A Japanese prosecutor told the writer that he once wanted the police to review a list of potential jurors to ensure none had criminal records or membership in any criminal organizations. The police cited Japan’s privacy laws and refused to share that information with the prosecutor.
Can a Japanese resident or citizen get his own criminal record information? Absolutely! The Japanese police will allow an individual to request and receive a written statement of his own criminal history information from the Japanese police. If the requestor has no criminal history in Japan the Japanese police will instead issue an official document to certify the individual has no criminal history (statement of no criminal history).
But even if a potential employee in Japan presents to an employer an official document to certify he has no criminal history it doesn’t mean much. Japanese law allows dozens (one prosecutor told the writer the number is greater than 60) of ways for a person to nullify, expunge, permanently seal, or otherwise ensure his criminal history is not listed on a statement of no criminal history issued by the Japanese police. So when a potential employee presents an official statement of no criminal history from the Japanese police it has little meaning. The job applicant could have committed several violent felonies in the past but due to expungement laws, etc. they would not be listed on the statement of no criminal history issued by the police.
The Internet Provides No Solution
What about internet searches? If an employee committed a crime serious enough to be reported by news outlets then an internet search would likely reveal it. Well, as this news article illustrates, slander laws in Japan might hide criminal news reporting from internet search engines.
For those who wish to read further about Japanese privacy and slander laws here are some links to related information available on the internet: Japanese defamation laws; personal information privacy in Japan; the Japanese personal number identification law. Incidentally, Japan has criminal slander laws. That means that in Japan it is possible to be sent to prison for committing some types of slander or defamation. This is different from the U.S. where the constitution forbids criminalization of slander or defamation.
What is the Alternative?
So is there a solution for the overseas security professional who wants to conduct a background investigation of a potential employee in Japan? The only solution I can recommend is to hire a reputable private investigator to conduct the most thorough background investigation allowed by Japanese law.
But this answer begs the question: how do you find a reputable private investigator in Japan? My recommendation is to find a private investigator who retired from a prefectural police department and has graduated from the FBI National Academy. Before a foreign police officer is allowed to attend the FBI National Academy he is thoroughly investigated by the FBI. Another option is to find a private investigator who retired from a prefectural police department and attended another U.S federal law enforcement training program or class. At least two other U.S. federal law enforcement agencies (the Drug Enforcement Administration and the Department of Homeland Security) invite foreign police officers to participate in some of their training and education programs. Usually before a foreign officer can participate in any U.S. federal law enforcement education he must past a background investigation conducted by the agency that extended the invitation to the officer.
Japanese privacy laws and practices limit what potential employers can learn about potential employees. And the investigative methods a prospective employer can use are limited, relatively expensive, and take time. Therefore, security professionals who will investigate potential Japanese employees for work at the Tokyo 2020 Olympics will need to carefully consider what information they can and cannot obtain, the price the information will cost, and the amount of time an investigation of a potential employee will take.