Access to Public Information, Defamation / Reputation
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The Supreme Court of Israel upheld the Tel Aviv District Court’s decision that the Ministry of Defense improperly relied on a national security exemption when they refused to disclose a document relating to the provision of food to the Gaza strip. The Court found that the present case required a two-step approach, first assessing the sensitivity of the documents and whether the public authority had an obligation to consider partial disclosure of information, especially for issues of public importance. Second, they applied the test of reasonableness and proportionality.Taking these factors into account the Court reasoned that the Ministry had failed to examine all relevant considerations because it had neither detailed the underlying reasons for sensitivity nor considered partial disclosure.
This case analysis was contributed by Right2Info.org
In 2007, after Hamas took over internal control of the Gaza Strip, Israel decided to restrict the passage of certain goods to the area, to reduce the supply of fuel and electricity, and to restrict the movement of people. In June 2009, the Haaretz weekend magazine published an investigative report that claimed that Israeli authorities had calculated the number of calories consumed by Gaza residents and used it to establish a “humanitarian minimum”, a minimum of food supply necessary for not causing hunger or malnutrition in the area. Following the report, Gisha Legal Center for Freedom of Movement requested information relating to its policy on the transfer of civilian goods into the Gaza Strip from the Ministry of Defense.
After the Ministry’s mute refusal, Gisha issued proceedings in the Tel Aviv District Court where the Ministry initially relied on the national security exemption claiming that disclosure would put national security at risk and damage Israel’s foreign policy.
Following the internationally condemned military operation by Israeli authorities against ships carrying humanitarian aid and construction materials to Gaza (the flotilla incident) that resulted in Israel easing its blockade on the area, the Ministry agreed to disclose some of the documents stating that their disclosure no longer threatened national security or foreign affairs. However, it refused to make public the “red line document” which supposedly contained calculations of the minimum consumption of food in Gaza below which the restriction policy would not apply. The Ministry claimed that the document was a draft and that under Section 9(b)(4) of the FOI Act it was not obliged to disclose “information concerning internal deliberations”.
In 2011, the Tel Aviv District Court ordered disclosure of the “red line document” (para. 2). The Court found that the fact that the document was part of internal deliberations in itself was not sufficient to justify refusal of disclosure. Section 9(b)(4) was intended to protect against a “chilling effect” from mandatory disclosure of sensitive internal information but the Ministry was unable to demonstrate the sensitive nature of the information. The State would have to show that in these specific circumstances there was a fear of a “chilling effect”. Since the document did not contain the views of particular individuals, disclosure would not threaten the deliberation process. Rather, the document involved a health issue of public importance that weighed in favor of disclosure according to Section 10 of the FOI Act, which requires a public authority to “take into account […] the public interest […] for reasons of maintaining public health”. There was public interest in disclosure even if the document was not the basis for the implemented policy.
In April 2011 the Ministry appealed, maintaining the Section 9(b)(4) exemption argument and the irrelevance of Section 10 public health considerations, since people living in Gaza were not necessarily Israeli citizens.
While the FOI Act protects a key constitutional right to receive information from a public authority, this right is not absolute and may be weighed against other important rights. Accordingly, Section 8 lists situations when a public authority is “entitled to reject” requests for information and Section 9 lists the types of information a public authority “has no obligation to provide”.
However, information of the types listed in Sections 8 and 9 is not precluded from disclosure altogether, as Sections 10 and 11 contain additional factors the public authority must consider in the disclosure decision. Namely, Section 10 provides that information relating to certain issues of public importance may warrant disclosure more than others, while Section 11 sets out guidelines for partial disclosure of information that the government is not obliged to disclose.
The FOI Act also provides a new review scheme. Typically, in examining administrative decisions, the primary test for a reviewing court is to assess whether the public authority exercised discretion proportionately and reasonably. However, Section 17(d) of the FOI Act allows the court to exercise its own discretion in place of the authority, either by reviewing the issue or by examining the public authority’s rationale. Under that provision, a court may order disclosure of information that would otherwise not be subject to disclosure if “there is a public interest in the disclosure of the information that takes precedence over the grounds for rejecting the request”. Thus, in the instant case, Section 17(d) requires the Court to take a two-step approach. First, the Court must consider whether the information indeed falls within the ambit of Section 9; second, if the answer to the first question is positive, the Court must apply the reasonableness and proportionality filters of Sections 10 and 11.
The Court held that the information fell under the internal deliberations exemption of Section 9(b)(4). Although the information did not relate to a debate between individuals the data was collected for the Ministry’s internal deliberations and as such qualified for the Section 9(b)(4) exemption.
The Court then considered the additional factors in Sections 10 and 11. It found the concern for public health argument to be weak, since the document was not ultimately adopted. However, noting that sensitivity to foreign affairs and security was another factor under Section 10, the Court agreed with the district court that the Ministry had not sufficiently elaborated on the underlying reasons for sensitivity. Nor had it adequately considered Section 11 and provided partial disclosure, omitting certain details that would unduly burden the authority. Since the Ministry’s decision to refuse disclosure failed to examine all relevant considerations holistically, the Court dismissed the appeal.
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The decision expands expression by restating sections of the FOI Act that require public bodies to consider additional factors concerning the reasonableness and proportionality of their decisions before refusing disclosure.
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