Supreme Court: Publicly-funded bodies must provide freer information

By DAN IZENBERG
The Supreme Court handed down a landmark decision last week, ruling that in principle, publicly-funded organizations must provide information about internal meetings and consultations in accordance with the 1998 Freedom of Information Law. Until now, there has been no definitive interpretation of this detail of the law, and many public organizations have refused to divulge internal information. Because of the importance of the question, Supreme Court President Aharon Barak appointed an expanded panel of seven justices to consider it. The issue was raised in the form of two separate appeals by the Council for Higher Education against lower court decisions ordering it to provide information to the Haaretz newspaper and to Shahar, a non-profit organization for the advancement of education in Israel. In January 2002, Haaretz asked the Council for Higher Education to see the minutes of the meetings and decisions it had made during the previous few years and the minutes of the council's Planning and Funding Subcommittee. The newspaper wanted the information to follow up on a report about the council written in 1999 by the state comptroller. When the council refused to reveal the minutes of the meetings, Haaretz appealed to Jerusalem District Court. Shahar appealed to the same court after the council rejected its application to open a pre-medical school in Ashkelon as a local branch of the University of Gdansk, in Poland. In an appeal to the Jerusalem District Court, it asked to see the minutes of the council meeting which ended with the rejection of its request. In two separate decisions, the Jerusalem District Court upheld both appeals. The council then appealed both decisions to the Supreme Court which heard them together. Both cases involved a difference of opinion between the Council for Higher Education and the original appellants over the definition of Article 9 (b) (4) of the law. The article states that the public authority is not obliged to reveal "information regarding internal deliberations, memos of internal consultations among public servants, their colleagues or advisors, or statements made in the context of an internal investigation, as well as opinions, drafts, advice or recommendations given in the decision-making process except for those specified by law." The council argued that the provision relieves them of any obligation to disclose any kind of internal deliberation to the public. However, Justice Esther Hayut, who wrote the decision, said that the purpose of the Freedom of Information Law was above all to grant the public access to information as part of its fundamental democratic rights. Therefore, it should oblige publicly funded institutions to disclose information except for those exceptional circumstances set down by the law itself. The law explicitly prohibits publicly funded institutions from revealing information involving state security, foreign relations and public and individual safety. However, the wording of the law regarding internal discussions of institutions is far more flexible. Hayut wrote that in this case, the institution must weigh the public's right to know against the harm that could be caused by granting its request according to the individual merits of each case. It could make a blanket refusal to reveal internal information on the basis of Article 9 (b) (4). "Because of the general public interest…the public authority may, indeed, refuse to disclose information regarding internal deliberations, but before doing so, it must take into account all the relevant factors involved and it must find, in the specific circumstances of each given case, the point of equilibrium between the public interest in concealing the information, and the public and private interest in revealing it," wrote Hayut. "The authority cannot refuse to divulge the requested information simply by relying exclusively on…" the above-mentioned article. As a result, the court unanimously rejected the Council for Higher Education's appeals and ordered it to provide the information requested. It also ordered the council to pay NIS 20,000 to each of the respondents for court costs.