Case Number

AAA 9135/03

Date Decided

1-19-2006

Decision Type

Appellate

Document Type

Full Opinion

Abstract

Facts: In the first case, HaAretz Newspaper Publishing submitted a request to the Council for Higher Education for information. The Council gave HaAretz copies of decisions it had made, but refused to allow it access to the minutes of meetings. HaAretz therefore applied to the District Court to order the Council to grant it access to the minutes of the meetings.

In the second case, the Shachar Organization for the Advancement of Education in Israel applied to the Council for a licence to open an institute of higher education in Ashkelon. When the Council refused the licence, Shachar applied to the District Court to set aside the decision, alleging that certain members of the Council had a conflict of interests. In the course of that proceeding, Shachar asked the court to grant it interim relief by ordering the Council to disclose the minutes of the meeting of the Council at which it decided to refuse the licence.

In both cases, the Council argued that it should not be required to disclose the minutes of its meetings, since under s. 9(b)(4) of the Freedom of Information Law, ‘internal discussions’ are exempt from the general duty of disclosure under that law.

In both cases, the District Court ordered the Council to provide minutes of its discussions, subject to various conditions. The Council appealed on the question of the scope of the exemption in s. 9(b)(4) of the law that concerns ‘internal discussions’ of a public authority.

Held: Section 9(b) of the Freedom of Information Law does not speak of a prohibition against providing the information, but of information that the authority is not obliged to provide. Therefore, the margin of discretion that the authority should exercise before refusing to provide information of the kinds set out in s. 9(b) of the law is broader than in s. 9(a), which does speak of a prohibition.

The main reason for the exemption in s. 9(b)(4) is the concern regarding the ‘chilling effect’ that is reflected in the reluctance of members and employees of a public authority to hold frank discussions where they are not guaranteed a certain degree of protection for the opinions expressed in the course of making the decisions.

The authority may refuse to provide information concerning internal discussions, but before doing so it should take into account all the considerations that are relevant to the case, and it needs to find in the specific circumstances of each case the balancing point between the public interest in exempting the information and the public and private interest, in so far as there is one, in disclosing the information.

The decisions of the Council in which it refused the requests for information in both cases did not satisfy the test of administrative reasonableness, and therefore the District Court rightly decided to set them aside.

Keywords

Administrative Law -- Disclosure of information

Download

Share

COinS