Israeli Court Orders Disclosures by Ministry

1 April 2011

By Roy Peled

Director, Movement for Freedom of Information in Israel 

The Tel-Aviv administrative court March 30 issued an important ruling, in which it ordered the Ministry of defense to release drafts that were later not adopted by the ministry, in which authors calculated what should be considered “red lines” of minimal food produce that should be allowed into the Gaza strip under the Israeli imposed closure. 

“Gisha” an NGO fighting for more freedom of movement in the occupied territories and against the closure policy, asked the Ministry of Defense to provide documents that the ministry used to determine what products would be allowed into the Gaza strip and at what quantities. (Gisha’s summary is here.

The ministry refused the FOI request, and Gisha took the case to court, with guidance and support from the Movement for Freedom of Information in Israel. After the Flotilla incident which occurred during the hearings and was followed by a significant ease of the closure policy, the ministry agreed to provide some documents, claiming that now that the policy has changed, their disclosure would no longer breach national security or foreign affairs. But it continued to refuse to provide the “red lines” document, which supposedly includes calculations of the most minimal consumption of food in Gaza that the closure policy will not cross.  

The ministry argued that these are sensitive security issues and that on such issues the relevant authorities should feel free to deliberate frankly. It went on to say that since this document was never adopted and never became part of the policy, public interest in its disclosure was low, because it is not part of any policy in reality. 

Justice Ruth Ronen rejected Defense Ministry arguments. She said that the fact that the document was part of internal deliberations in itself is not sufficient to justify concealment. The state would have to show that in these specific circumstances there is a fear of a “chilling effect”. Since most of the document is calculations of data and not views of individuals, she found no basis for fear of harm to deliberations. She wrote the State failed to explain why the document is so sensitive. The fact that the document deals with a sensitive issue, wrote Justice Ronen, does not entail that the document itself is sensitive. There is definitely public interest in disclosure even if at the end of the day it was basis to no implemented policy. 

The judge went on to force the state to provide names and positions of individuals mentioned in the documents already handed to Gisha. She wrote that the documents do not contain exchange of views but procedures and authorities of the individuals, and therefore here too there is no fear of a “chilling effect”.

The ministry of defense is considering whether to appeal the case to the Supreme Court.

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