Case Number
AAA 2975/15
Date Decided
6-6-2016
Decision Type
Appellate
Document Type
Full Opinion
Abstract
[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.]
An appeal of the decision of the Administrative Affairs Court denying the Appellants’ petition against the Respondent’s refusal to give the Appellants the list of guests who participated in a second Passover Seder that was held in the residence of the Israeli ambassador to the United States. Two questions were addressed in the Appeal. The first and primary question regarded the Respondent’s claim as to the application of the exemption for the protection of the state’s foreign relations, under sec. 9(a)(1) of the Freedom of Information Law, 5758-1998 (hereinafter: the Law), such that it could refuse to disclose the information. On the assumption that the exemption did not apply, the second question was whether the Court should permit third parties who might be harmed by the disclosure to be heard prior to the rendering of a decision, as required under sec. 17(c) of the Law.
The Supreme Court granted the Appeal in a majority opinion (per Justice D. Barak-Erez, Justice A. Baron concurring, and President M. Naor dissenting) for the following reasons:
With the enactment of the Freedom of Information Law, the basic premise is that public information is information that the public has a right to receive. In order to qualify for the exemption established under sec. 9(a)(1) of the Freedom of Information Law, which concerns the protection of information regarding the state’s foreign relations, there must be a “concern” for harm to foreign relations. In this regard, it has already been held that a fear that is a remote possibility is not sufficient, but rather there must be a significant concern relative to the severity of the risk and the likelihood of its realization.
The primary concern pointed out by the Respondent was that of creating a chilling effect that would compromise the ability of the officials of the Ministry of Foreign Affairs to meet with representatives of states and foreign organizations that do not wish that the fact of the meeting be revealed. In the opinion of Justice Barak-Erez, this chilling-effect argument does not constitute a “real concern” that would tip the scale toward the non-disclosure of information by establishing the blanket rule the Respondent seeks. The Freedom of Information Law sought to establish disclosure as the starting point. In order to realize the purpose of the Law, the authority must consider whether there is a real concern for harm to the state’s foreign relations in the concrete case. As long as the authority has not presented a good reason for non-disclosure of the desired information, other than concerns of a general nature, the reason for the request to disclose the information is not, in itself, material.
The Respondent made only a general argument that the disclosure of the guest list might harm the foreign relations of the State of Israel, but did not indicate concrete circumstances that would justify non-disclosure. In the opinion of Justice Barak-Erez, “we cannot accept the Respondent’s argument for an exemption as broad as the sea in regard to meetings in the ambassador’s residence, whatever their nature and the identity of their participants … an exemption as broad as the one claimed might create an enclave entirely concealed from public view.” The facts of the case before the Court could not be considered “borderline” at all. In this regard, it was noted that there were also journalists among the attendees, various guests publicly discussed their participation in internet posts, all the attendees were citizens of the United States or of Israel, and none of them was promised that the identities of the event’s participants would be kept secret. In fact, every one of the participants in the event could have anticipated, at any time, that their participation in the event might be mentioned on one social network or another. On the other hand, the Respondent did not point to any concrete circumstances that might indicate that there was a real concern that disclosing the information would lead to any harm to the state’s foreign relations. Therefore, the Respondent failed to demonstrate that the exception for non-disclosure of information established in sec. 9(a)(1) of the Law applied.
In the opinion of Justice Barak-Erez, the facts of the case, as detailed above, are of double significance. First, there is no need to ask participants in such an event in advance for their position in regard to disclosure in accordance with the mechanism established under sec. 13 of the Freedom of Information Law. Second, the Court is not required to join them in the proceedings and hear their arguments in accordance with the provisions of sec. 17(c) of the Law prior to ordering the disclosure of their names, for the very same reason. This, as opposed to situations that concern small events that are not held in public.
Section 17(c) of the Law provides: “The Court shall order delivery of information that is liable to harm a third party's rights only after it has given the third party an opportunity to present his arguments in the manner in which the Court shall prescribe”. In the opinion of Justice Barak-Erez, where a request for disclosure of the names of participants in an event is concerned, the question of harm to third parties focuses upon their right to privacy, and in the instant case, there is no fear of an infringement of that right. In her opinion, in the case of an event held by an authority, including a formal dinner, a party or a large reception, the assumption of the participants ought to be that their names will not remain secret, and thus, in any case, it cannot be said that exposing their names causes them harm. In effect, it could be said that there is a presumption that participants in a publically held event of an official or formal nature consent to the disclosure of their participation. This, of course, according to the nature of the event. An event to which only a few people are invited, or where it was made clear that only “cleared” participants would be invited, would be an event for which such consent would not be presumed.
Justice Barak-Erez therefore held that there is no such concern that the rights of the participants in the event might be harmed as a result of the disclosure of the information, and therefore there is no requirement to obtain their position under sec. 17(c) of the Law.
The Appeal was, therefore, granted. The Respondent was ordered to provide the Appellants with the names of all the participants in the dinner, with the exception of any minors, within 30 days of this decision.
With a view to the future, Justice Barak-Erez added that it would be proper that the Respondent establish its own criteria for distinguishing between events that are “disclosable” and events that are not, which would apply in the future where requests for disclosure of this type may be submitted. Relevant factors may include, for example, the number of participants in the event, their countries of citizenship, the nature of the participants (diplomats or people from the private sector), the presence solely of “cleared” participants in the meeting, the location of the meeting, and so forth. While these criteria would not exempt the Respondent from examining each request for disclosure on its merits, the existence of such advance classification would facilitate handling similar requests submitted in the future, to the extent that they are submitted, and would also make clear to participants in such events in which circumstances they may assume that their participation will be kept secret.
President M. Naor, dissenting, was of the opinion that the view of Justice D. Barak-Erez that the Respondent in this matter had not demonstrated that the exception under sec. 9(a)(1) of the Law applied has its merits. However, she was of the opinion that a final decision as to the disclosure of the information should be made only after the relevant third parties be permitted to voice their arguments on the matter before the Court, inasmuch as, in her opinion, there was some doubt as to whether there was implicit consent for publication in the instant case. In addition, in her view, even upon the assumption that there is a presumption that attendees at an event give consent to disclosing their participation, that presumption of consent appears to have been refuted, and there is no justification for denying them the right to a hearing. From the material presented by the Respondent, there is, at the very least, a concern that such parties may be harmed by disclosing the information. In this context it was noted, inter alia, that sec. 17(c) of the Law does not require certain harm to third parties as a condition for its application, but rather possible or probable harm suffices.
Keywords
Constitutional Law -- Freedom of Information Law
