Israeli Court Orders Release of Educational Test Records

27 August 2012

Israel’s Supreme Court has ordered the release of data about the scores of individual schools in national and international comparative exams.

The request was filed six years ago by a group of parents active in a nongovernmental organization concerned about education in poverty neighborhoods. The Ministry of Education denied, attempts at compromise failed, and an administrative court ruled in favor of the ministry.

 The Aug. 23 decision in Hebrow:  AA 1254/12, The Movement for Freedom of Information in Israel et al., v. Ministry of Education  (html version) (pdf version)

Key Points Summarized 

The court made some interesting points, according to Roy Peled, board member and former director of the Movement for Freedom of Information in Israel, who wrote the following description. Peled said that the court:

1. Rejected the Ministry’s argument that publications will turn the exams into “high stakes” exams which will lead teachers and principals to take dubious measures to have their students do better. The court stated that: a. There is no relevant exemption in the law; b. If the ministry claims that this will cause a “serious harm to the administration of the public authority” (the schools, and this is an exemption), there is no evidence as to the scope of the expected harm, therefore no evidence that it meets the seriousness and probability required to justify concealment; c. as long as the fear is real, there are other ways to mitigate it than denying the information request, which should be the last resort. The ministry can tighten supervision to prevent schools from using the feared dubious techniques, it can assure them its backing in cases of public pressure, etc…

2. Rejected the ministry’s claim that the criticism that misunderstanding of the data might generate against teachers and principals will harm their functioning and bring them to despair. The court this argument would have better not been made, as it goes against basic democratic notions of the usefulness of public criticism, saying that “public review is often more important than judicial review”. The idea that the public is incapable of understanding the information cannot be accepted in a democratic society. Also, the court noticed that the exams are used by the ministry to evaluate schools, teachers and principals, and there is no reason to belief that they will fear the public more than they fear those who appoint them and can fire them. 

3. Rejected the ministry’s argument that publication will deepen social gaps, as “stronger” students will opt for “stronger” schools. The court said that: a. notions of stronger and weaker schools exist anyhow and are based on perception and rumors. There is no reason to believe that real and reliable information will cause more damage than the informal and inaccurate information that currently prevails, on the contrary. b. This is a fear from the result of parents operating according to their own judgement of values. The law allows the ministry to defend its own administration from being harmed, but not to implement its social values through concealment of information. The general (groundless, the court believes) from the social outcomes does not give the ministry the authority to withhold information. The ministry is not authorized to weigh for the public what he is better of not knowing.

4. Ruled that the ministry did not accord enough weight to the individual’s “right to autonomy”. i.e. to make her own decisions on her own life. Indeed, many municipalities limits school registration according to zoning, and the court has upheld that policy, But within what parents may legally do (under various exemptions in zoning laws) it is illegal to limit their ability to choose by preventing information from them. Social policy and values can be promoted through legislation, regulations and case law, but not through concealment.

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