Case Summary and Outcome

Israeli daily newspaper, The Marker, submitted a request to the government, seeking to obtain a list of all cases pending before each and every district court and Supreme Court justices. As the information would necessarily disclose the names of justices presiding over the backlog of both civil and criminal cases, the government denied the request by invoking the Freedom of Information Act’s exemption under Article 9(b)(1), which prohibits disclosure of information that could interfere with “the orderly functioning of the public authority or with its ability to perform its tasks.”

After a district court ruling in favor of the newspaper, the government appealed to the Supreme Court of Israel. The Court affirmed the decision, holding that the main essence of the Freedom of Information Act is to maintain public trust in governance and in this case, the Court was of the view that transparency was one of the basic measures to secure trust in the judicial system. It also did not find the information being capable of damaging the functioning of the judicial system.

Facts

Israeli daily newspaper, The Marker, filed a request under the Freedom of Information Act (the Act), seeking to obtain a list of all cases pending before each and every district court and Supreme Court justices. The request was subsequently denied under the Article 9(b)(1) of the Act, which provides that “[a] public authority is not under obligation to deliver . . . information, whose disclosure is liable to interfere with the orderly functioning of the public authority or with its ability to perform its tasks.”

Upon appeal, the District Court, sitting an administrative court, ruled in favor of the newspaper. The government then appealed the decision to the Supreme Court of Israel.

Decision Overview

The question for the Supreme Court of Israel was whether the government’s decision to deny the disclosure of the requested information was justified under Article 9(b)(1) exemption.

Justice Arbel first proceeded with weighing the competing interest in the case, namely the public’s right to information and on the other hand, the legitimate interest in maintaining the proper conduct of the judicial system, which includes the protection of the rule of law and the public’s trust in the judiciary. The justice said that the government is justified in not disclosing the information only when there is a high certainty that the disclosure could harm the functioning of the judiciary system.

In addressing the underlying principles behind the Act and the fundamental right to access public information as whole, Justice Arbel stated that Act’s purpose is to guarantee the transparency of the public authority, and not the transparency of public employees. Relevant here in this case, the justice noted that matters concerning judges are distinct from other public employees due to their professional independence. And therefore, the distinction between collective information and personal information stipulated in the Act did not apply in the present case.

The government argued that attributing a judge to a certain pending case would frame the judge as the sole cause for the backlog of cases in the court system, as well as judiciary misconducts without considering other causes. And such misconception would ultimately divert the attention from the system as a whole, its malfunctions, and possible solutions to its problems.

The Supreme Court, however, sided with the newspaper, holding that transparency is one of the basic measures to secure the public’s trust in the judicial system. It also said that the information was of matter of public interest and the requesting newspaper had an obligation to the public to seek transparency as part of the freedom of the press.

As such, the Supreme Court denied the government’s appeal and affirmed the District Court’s ruling in favor of the newspaper.