Information Wants to Be Free

This book explores Israel's Freedom of Information Act from a theoretical, doctrinaire, comparative, practical and empirical perspective in order to provide a complete and thorough understanding of the impact of the Act, its modes of implementation and the difficulties (and successes) that it has encountered.

The study includes an empirical case analysis of all the Israeli Supreme Court decisions relating to the Freedom of Information Act over a span of seven years. The findings, which were analyzed according to the types of petitions filed, their chances of acceptance and the issues they addressed, reveal a trend of minimal invocation of the Act, in particular, by public bodies and newspapers.

A comprehensive survey, consisting of questionnaires and in-depth interviews of government officials regarding their operational approaches to the implementation of the Freedom of Information Act was concurrently conducted with this assessment. The survey reveals a general lack of awareness of the Act, conflicting approaches to its implementation and a lack of appropriate resources for its enforcement.

This study includes an academic examination and interpretation of the decisions rendered concerning different sections of the Act, with a focus on the clauses that have received the most attention in Israeli case law. The rulings and decisions concerning the implementation of these clauses are also examined, both descriptively and critically, in order to delineate the proper scope of the Act.

This book also presents a comprehensive, comparative survey of the implementation of similar laws in five countries: the U.S., England, Australia, Canada and Sweden. The survey's findings, which are discussed in the presentation of the study as well as in a separate chapter, yield fascinating observations regarding both practical trends and modes of implementation of the law and of legal approaches to the right to freedom of information. The conclusions and insights drawn from a close examination of foreign law serve as the basis for some of our recommendations.

The study's conclusions specify a lengthy list of recommendations that should be introduced in the formulation, integration and application of the Freedom of Information Act in Israel. First and foremost, we propose that the right to freedom of information be established in the Constitution of the State of Israel. The enactment of this right will make it possible to overcome many of the difficulties that arise from the current ambiguous nature of this right, thereby, raising Israel to the same standing as that of the many states that have established this right in their constitutions. Second, we recommend setting up an autonomous Freedom of Information Commission that would serve as a central agency for the implementation and incorporation of the Act through the supervision of the appointment and training of the officials charged with implementing the Freedom of Information Act; the monitoring of the enforcement of the Act by the relevant officials in every government body; the issuing of a uniform outline and model for generating the reports required by law, including the data specifications; the acceptance or refusal of requests for extensions; and the decision to order the reexamination of a request for information that has been previously denied by a specific government body.

We also propose modifying the Freedom of Information Act itself by changing the Act's approach to bodies with a "dual function" and expanding its application to their activities. Developments in Israeli administrative law concerning the application of the Freedom of Information Act to "dual-function" bodies do not adequately address the issues of transparency and freedom of information, and the Act should be adapted to the era of the regulatory state, privatization and outsourcing. We also suggest that the information request fee be revoked for a trial period. The study clearly demonstrates that the fee is a significant impediment to the submission of requests under the Act. Moreover, there is a considerable lack of consistency in the regulations and guidelines governing exemption from the initial fee as well as from the handling fee. We propose that the fee for the initial application be abolished, at least for a trial period, in order to encourage the public to exercise its right to information. We also call for the creation of uniform procedures in all government bodies regarding the amount of the additional fees, and clear guidelines to regulate exemption from the fee.

In light of the findings of the interviews, we propose making an organizational change by establishing stipulations for the position of Freedom of Information Officer; in some government bodies, the same person who holds this position simultaneously serves as the office's spokesperson. Since these multiple roles involve an inherent conflict of interest, we propose avoiding it by prohibiting such a duality of offices. It is also evident from the study that the number of hours of seminars and of on-the-job training, as well as the qualification requirements for the position are totally inadequate. Consequently, the officials charged with enforcing the Freedom of Information Act tend to hold conflicting views and at times, misconceptions, about the right to freedom of information. For example, some of them assume that government bodies "own" the information and that the citizen must justify "acquiring" it from them. For this reason, we propose the establishment of a network of on-the-job training, education programs and meetings for the Freedom of Information Officers.

The study indicates a lack of public awareness of the Freedom of Information Act and of its application; therefore, we recommend the publication of information about the public's rights under the Act. At the same time, considering the very small number of requests for information by both public bodies and the media, we recommend the creation of a fast track for requests that will expedite the process of obtaining some types of information, and will make it readily available for investigative reporting.

The processing of requests for information, particularly in terms of the length of time involved, was also found to be defective. The failings stem both from the Act itself, which sets a lengthy and unreasonable amount of time to process requests, as well as from the way in which the Act is applied in certain government bodies. It is clear that there is an extremely large gap in the time that it takes to handle most of the requests, which is relatively short,  and the lengthy amount of time that it takes to process the others. Since the majority of the requests are handled within a briefer period than established by law, we propose that the stipulated time be shortened. We further recommend adopting an approach similar to that of U.S. legislation and to specify a limited list of reasons that would justify extending the processing period. In addition, such an extension should require the approval of a high-ranking official outside the public authority that received the request (e.g., a Commissioner for Freedom of Information). It is likewise advisable to adopt the American principle that if the public authority does not respond to the request within the processing time frame set by law, the applicant will not be required to reapply to the authority in order to file an appeal.

We also found that the high fees and court costs substantially impede the applicant's right to legal recourse and we, therefore, propose that the courts limit imposing court costs on the petitioners. Furthermore, we propose that a basic approach be adopted whereby the burden of proof for privileged information rests with the public authority and not with the applicant.

On the judicial level, we propose a lengthy series of changes that can and should be instituted in the field of case law. We recommend the adoption of a complete legal decision making model, which we have developed and which we believe is more appropriate than the current model. The advantage of the proposed model is that it provides an entire framework for structuring an authority's judgment. The first stage of this model involves assessing whether any of the exemption clauses apply. If the authority upholds that one (or more) of the values protected by an exemption clause is violated, it must consider whether there are concrete grounds for applying the exemption as set forth in the clause; it is not enough to cite the existence of the exemption clause. During the second stage, the authority must balance the various competing interests, which include the right to information, the public interest and the values protected by the exemption clauses. If the authority determines that the balance reached is to the detriment of the applicant, it is allowed to inform him or her that in the absence of additional grounds - for example, his or her interest in the information being sought - the information will not be disclosed. If the applicant fulfills the authority's request and presents additional grounds, which the authority did not consider during the second stage, the authority proceeds to the third stage to reconsider its position. The fourth stage is not part of the judgment model, but it does have an important consequence: if the applicant believes that the authority erred in its decision, he or she is entitled to submit an appeal to the court, which will consider the balance of interests de novo, from the beginning, as opposed to conducting an exceptional assessment of the reasoning of the authority's decision.

There are no uniform criteria in Israel to ascertain whether an authority possesses certain information. We propose adopting the Australian approach to test the possession of information by an authority, which is limited to the physical possession of information, unlike other models in the world, particularly in America. Our recommendation is based on the fact that Israel's Freedom of Information Act stipulates a series of balances in relation to the rights and privacy of third parties so as to not allow them to be unduly harmed. On the other hand, we argue that the creation of barriers to entry for information by establishing tests of the authority's possession of information is liable to materially harm the Act's effectiveness.

In addition, we recommend abolishing the present distinction between the permission to disclose information and the obligation to refrain from doing so. In practice, this distinction does not exist and only complicates the enforcement of the Act, as well as causes material harm to the right to freedom of information.

In our opinion, the courts have the authority to conduct a de novo review of the public authority's decisions. We recommend that they adopt this approach in their rulings - which is of central importance to the manner in which judicial review of the public authority's actions is conducted - and that they not accept the prevailing view that judicial review is a form of standard administrative review.

Among the recurring issues in the application of the Freedom of Information Act is the exemption from disclosure regarding the publication of the "internal discussions" of a public body. After studying various cases, and being careful to respect the fundamental values on which this exemption is based, we recommend that the public authority's point of departure be that internal discussions be publicized without revealing the names of the speakers. It must be emphasized that this recommendation applies to cases in which the discussion relates to an individual per se, and not to a general issue concerning the authority. Regarding the method of defining information as internal, we propose adopting the main points of American deliberative criteria, which examines the information in the context of the authority's deliberation process.

With regard to trade and professional secrets, our primary conclusion is to adopt the approach expressed in the rulings on the concept of "implied waiver," according to which a body that enters into a commercial agreement with a public authority is deemed as having consented to waive its privileges of confidentiality with respect to the agreement.

A key recommendation involves requiring the authority to proactively publicize information of public importance. The publication of information at the authority's initiative, like the potential obligation to produce information in certain contexts, will uphold the spirit of the Freedom of Information Act and will lead to the fullest exercise of the right to freedom of information. This recommendation is made in the context of our more general proposal concerning the interpretation of the concept of an unreasonable allocation of resources. We propose that this concept be interpreted on three levels: On the first level, the reasonableness of the allocation of resources should be assessed on the basis of the weight of the right that is infringed upon: in the case of the complete denial of a fundamental right, the authority should be required to divert substantial resources (and vice versa). As for the second level, it is important to recognize that the authority is required to periodically publicize certain documents, and if it does so, it cannot claim unreasonable allocation of resources when a request is submitted for the same documents. With respect to the third level, the courts must set a high standard of factual proof for claims of this type. The authority will be required to present a status report on the availability of information with which they are charged. If limited accessibility of information stems from negligence on the part of the authority, it is reasonable to require the latter to supply the information despite the difficulty entailed.

Implementing the study's conclusions will require a comprehensive legislative, organizational and public shift as well as a change in the approach of the courts. We believe that such changes are justified and important, and that the benefits will outweigh the costs. They will serve to implement the principles of transparency and civil involvement, and will help enhance the oversight of government bodies in the State of Israel.

Full Policy Paper (Hebrew)