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The Israeli parliament, the Knesset, unanimously passed the Freedom of Information Law on 19 of May 1998. Justice Minister Tzachi Hanegbi described the law's passing as a step towards an administration "that is open, available, accessible to every citizen and every resident, and a more democratic and healthier society", a turning point in "the relationship between the citizen and government authorities" [1].
The legislation, which subsequently came into effect in 1999, can be seen as the culmination of a number of progressive Supreme Court rulings and extensive lobbying efforts by campaign groups such as the Coalition for Freedom of Information. These efforts contributed to a change in prevailing attitudes of both the Israeli establishment and civil society about the ownership of public information, and Israeli citizens' right to know [2].
Background and History
Lacking a written constitution or a specific statutory authority guaranteeing the freedom of Information, the public's expectations regarding access to information held by public authorities was previously determined by court judgements [2]. A series of influential Supreme Court rulings provide an illuminating account of the development of prevailing attitudes towards the public's right to access information held by the administration.
In 1973, a former employee of the Israel Defence Force appealed against the prohibition of the publication of his book containing publicly held information. Whilst there are issues with the specifics of the case [3], the overriding importance assigned to executive discretion and the government's ownership of information was clear. The Supreme Court ruled that the information was "not a commodity" and that the state had "the right to use (or refrain from using) as it deems proper, for its own needs and purposes"[1]. The dominant view was that the government should be allowed to act with minimal public supervision. This view was cultivated by several factors including a centralised political culture, a delicate security situation, and a large immigrant population with low awareness of their rights [1].
Throughout the 1980's however, came the first signs of a change in the Court's attitude regarding access to government information. Characterised by contradictory decisions, some judges remained unconvinced of the obligation for authorities to disclose information, whereas other rulings promoted the public's right to know [1].
The tipping point came in the Shalit case of 1990 where a group of citizens requested sight of the pre-government agreements signed by officials. The Supreme Court ruled that the information could not be withheld as it "belongs to the public" [1], citing the Israeli citizens' right to be informed about the political process, the importance of public scrutiny, and the confidence that access to information would instil as being central in the decision.
This momentum was supported by the Coalition for Freedom of information who formed soon after in 1992: a collective of NGOs who lobbied and campaigned for legislation securing the public right to information. The Coalition are credited with initiating the law that was eventually presented to and, following amendments, approved by the Knesset.
The Legislation
The Law states that "every Israeli citizen and resident has the right to obtain information from a public authority", defining information as that which is "in the possession of a public authority, whether written, recorded, filmed, photographed, or computerized"[4]. The government, Knesset, president, courts, local authorities, and any other state controlled agency performing a public function, are all subject to the legislation.
Requests are to be submitted in writing, acknowledged immediately by the authority, with a response to be provided within 30 days, though an extension to 60 days is available if required. Requests can be rejected if they require an "unreasonable allocation of resources" [4], if the material cannot be located or is no longer held and if the information has already been published, the authority will refer the applicant to the appropriate location.
The law requires the heads of institutions to internally appoint an employee to be responsible for managing the implementation of the law and responding to requests. Guidelines are also set out for the periodic publication of a report explaining the main functions, activities and responsibilities of the institution, as well detailing how the requirements of the legislation have been implemented and adhered to by the authority.
One notable aspect of the regime is the legislation did not establish an independent regulatory body such as an Information Commissioner's office to oversee the implementation of the legislation, resolve disputes, impose sanctions, or provide guidance to public authorities and officials. Instead, individuals denied information are able to challenge the refusal through the administrative courts who will administer a public interest test.
Exemptions and Limitations
The exemptions cover areas similar to most existing FOI laws such as information concerning policy still being formed, information relating to law enforcement, information provided in confidence and information that if disclosed would prevent an authority from properly carrying out its duties.
When considering a refusal under an exemption the official must take into consideration "the interest of the applicant in the information, if cited in the request, and the public interest in the disclosure of the information, for reasons of maintaining public health, security, or the environment" [4], a provision broadly similar to most FOI regimes. The Law also includes some progressive measures to ensure that exemptions will not be misused stipulating that disclosable information will not be withheld solely because it appears alongside some exempt information [2].
Absolute exemptions include information concerning national security and foreign affairs, information that if disclosed would infringe the privacy of others, and information that is withheld in accordance with other legislation. In addition, as a set of institutions the Israeli Security and Intelligence services are entirely exempt from the scope of the FOI legislation.
Recent developments
Recent assessments suggest that the achievements and effectiveness of the Israeli FOI Law have been limited by poor implementation and low levels of awareness amongst both officials and the public. The change in the culture of centralisation and 'reallocation' of the ownership of public information to the Israeli citizens that was hoped for has not materialised, with government ministries said to be more concerned with how they can utilise exemptions to refuse requests rather than facilitating the public's right to know [7]. However many blame this on the insufficient training and lack of supportive environment that FOI officials have found themselves in [1]. There has also been a lack of interest shown by requesters, with most ministries receiving less than 100 requests each year [5]. Recent figures show that only 0.5 out of every 1000 citizens in Israel submit a request each year, as opposed to 5 in every 1000 in USA [7].
Seemingly taking note of the criticism received, the Israeli administration has recently introduced measures aimed improving the effectiveness of the law and the application of its requirements. As a member of the Open Government Partnership, an international initiative concerned with the promotion and development of open data and transparency, Israel announced its commitment to establish a Freedom of Information Unit housed in its Ministry of Justice [6].
The Unit will make broad policy decisions, determine guidelines and publicise Government information and conduct training and consultations for FOI officials. The Unit will also seek to resolve complaints made against offices and their handling of requests, as well as maintaining a freedom of information website and raising public awareness. The move has been praised by the Movement for Freedom of Information in Israel [8], and the extent to which the Israeli administration and its new FOI Unit achieve their objectives will be independently assessed in 2013 as part of its OGP membership.
Bibliography
[1] Rabin, Y and Peled, R (2005) Between FOI Law and FOI Culture: The Israeli Experience. Open Government, A Journal on Freedom of Information,1:2
[2] Rabina, D. (1999), FOIL and FOIA compared: A comparison between the freedom of information law in Israel and the U.S. freedom of information act, Journal of Government Information, 26:2, 89-108, http://www.sciencedirect.com/science/article/pii/S1352023799000039
[3] Shetreet, S. (1977), Reflections on the Protection of the Rights of the Individual: Form and Substance, Israel Law Review, 12:1, 32-67,
[4] Israel Freedom of Information Law, 5758-1998, http://www.freedominfo.org/documents/Israel--FOIL1998.pdf
[5] Banisar, D. (2006), Freedom of Information round the world 2006: A Global Survey of Access to Government Information Laws
http://www.freedominfo.org/wp-content/uploads/documents/global_survey2006.pdf
[6] Israel OGP Action Plan, http://www.opengovpartnership.org/commitments/establishing-freedom-information-unit-ministry-justice
[7] Ilan, S. (2008) Freedom of Information Law gets low marks, 10 years on,
[8] Press release (2011), Israeli Cabinet Approves Creation of New FOI Unit
http://www.freedominfo.org/2011/03/israeli-cabinet-approves-creation-of-new-foi-unit/
