Case Number

HCJ 844/06

Date Decided

5-14-2008

Decision Type

Original

Document Type

Full Opinion

Abstract

Facts: The petitioner employed respondents 1-3 (hereinafter – the respondents) as lecturers in the Theatre Department. Against the background of complaints concerning the management of the department, an Investigative Committee was established, which decided not to renew the employment of respondents 2-3 and to transfer respondent 1 to another department. The Regional Labour Court rejected the respondent's request to order the petitioner to provide them with all of the material relied upon by the Committee, including protocols and testimony, ruling that the material they had received sufficed to allow for an adequate response on the respondents' part to the claims. This decision was appealed to the National Labour Court, which accepted the appeal and ordered the petitioners to transfer all of the materials to the responses, while deleting the names of the witnesses and other identifying details, basing its decision on the fact that as a hybrid body the University was governed by the rules binding an administrative authority vis-à-vis anyone who may be harmed by its decisions. This included the obligation to disclose relevant documents and to allow their examination. The relevance of the documents was based on the Investigative Committee's statement that its conclusions were based on the testimony heard before it and protocols of the meetings in which the testimony was given. The National Labour Court's decision was appealed to the Supreme Court.

The petitioners claimed that its functions as a public body do not suffice to subject it to the entirety of obligations of administrative law including the obligation to allow individuals to examine its documents, especially where the imposition of these duties is not accompanied by the correlative authorities and powers conferred on an administrative authority. Furthermore, the petitioner claimed that in view of the Committee's explicit promise to the witnesses not to disclose the documents to the respondent, they should be given a privileged status. The petitioner argued that a breach of this promise violates the witnesses' right to privacy, a right which is protected on three normative levels: constitutional, statutory, and case-law. Compelling it to disclose additional material would decrease the future readiness of students and lecturers to cooperate with voluntary investigation committees at the University. Furthermore, the balance of interests weighs against issuing an order to disclose the documents. The reason for this is that the potential infringement of the witnesses' privacy and the damage to its ability to establish investigation committees in the future far outweighs the damage caused to the respondents by the failure to disclose additional documents.

The respondents claimed that receiving the material was essential for proving their claim that the Investigation Committee's Report was replete with inaccuracies that raised doubts about the authenticity of the testimony and the documents submitted to it. Furthermore, the documentation would enable them to confront the allegations against them on a personal level and prove that the Investigation Committee was established and its proceedings conducted with the express purpose of removing them from the Department. Furthermore, the petitioner's hybrid status and its intensified obligation of good faith as their employer precluded it from refusing to disclose the documents, and this obligation was applicable to the petitioner even were it not classified as a hybrid body. They claimed that no basis had been laid for the establishment of a privilege, the promise made to the witnesses contradicted public policy, and the testimony and complains before the committee did not fall within the rubric of private affairs within the meaning of section 2 (8) of the Protection of Privacy law. At all events, they argued, their right to a fair and just trial overrides the right of the witnesses to privacy.

The Supreme Court dismissed the petition and ordered the petitioners to provide respondents with the protocols while deleting the names of witnesses and other identifying particulars.

Held: As a proceeding being adjudicated by a statutory judicial tribunal, the starting point for disclosure and examination must be that of maximum disclosure and the broadest possible examination of the information relevant to the dispute.

The doing of justice is based on the disclosure of the truth, thereby serving the interest of the individual litigant and the public interest in ensuring the "proper functioning” of the entire social structure, which requires a fair hearing that accommodates the presentation of the entire factual evidentiary foundation, thus affording the party the opportunity to properly contend with the claims of the opposing party. While the overall aim of the rules of procedure is the discovery of truth, as is the rules of evidence, the principle is not an absolute one, and may be qualified by other competing rights and values which are of importance to the individual and to society and worthy of protection, even if they are in conflict with the principles of broad disclosure.

In order for a litigant in a judicial proceeding to be exempted from the obligation to disclose relevant evidence at his disposal, he must prove a privilege recognized by law or by accepted case law that allows him to withhold it. Having proved the existence of that privilege, and to the extent that the privilege is a relative one, the litigant must then show that the interest in the suppression of the evidence outweighs the need to disclose it for the purposes of doing justice.

The normative sources referred to by the petitioner, namely the constitutional and legal right of witnesses and complainants to privacy, and the public interest in a privilege of information given to voluntary examination committees in academic institutions, have not, to date, yielded any statutory or case-law privilege in Israeli law with respect to testimony or documents submitted to an investigation committee of an academic institution. In the establishment of a new case-law privilege it must be remembered that privilege is the exception and the rule is disclosure of most of the relevant evidence, and as such a party claiming privilege must prove both the existence of a legally recognized privilege and a more important consideration of public interest that justifies its application in cases in which the court has discretion.

Given that the issue concerns a voluntary investigation committee intended to examine internal university matters it would seem that the public interest in ensuring the effective operation of this kind of committee does not, per se, warrant the establishment of a high-level legal norm of privilege in relation to the testimony and evidence presented to it. Regarding the “chilling effect” of duty of disclosure upon the willingness of potential witnesses to give testimony, thus impairing the functioning of university investigation committees, this consideration is outweighed by the need to enable the employees harmed by the committees' conclusions to defend themselves against allegations leveled at them, and this is certainly the case when the procedure is conducted before a judicial forum adjudicating the question of the legal validity of a change in the employment conditions of respondent 1 and the termination of its employment of respondents 2 and 3.

Notwithstanding the constitutional status of the right to privacy, the provisions protecting it do not encompass all violations of the right to privacy, and indeed there is nothing to prevent the creation of additional protections of this kind in settled case law, which draw their justification from the right to privacy, even if the protection has not been explicitly regulated by statute. Nonetheless, the alleged infringement of the privacy of the complainants and the witnesses does not justify the creation of a high-level defense of privilege against the disclosure of the information. The gravity of the alleged infringement of privacy, to the extent that there was such, is relatively low, and at all events does not match the harm liable to be caused to the respondent's right to a fair proceeding if the protocols and complaints are not disclosed.

Neither does the promise of confidentiality given by the Committee to the complainants and the witnesses, constitute a basis for privilege, and the violation of the privacy of the witnesses and complainants involved in the breach of that promise does not establish a public interest that justifies vesting the information with a privileged status in the circumstances of this case in view of the weight of the opposing considerations.

Justice Naor: The question whether or not the names and identifying details of the complainants and witnesses should have been omitted from the copies of the minutes relayed to respondents should be left for future decision, as there is no petition of respondents before us, and as that is not the issue in this case. Insofar as the voices of the complainants and the witnesses were not heard in the proceedings before us, nor can it be said that the promise given to the witnesses should be seen as including an unwritten reservation to the effect that the promise is subject to any lawful requirement to give testimony or submit a document. The basis for compelling disclosure in this case should rather be that promise of confidentiality cannot override provisions of law requiring the giving of testimony or disclosure of documents. There is an uneasy feeling regarding the fact that the promise was not kept and the interests of complainants and witnesses were not safeguarded, nonetheless, in the current circumstances, the interest of safeguarding the respondents’ workplace and honor overrides the interest of the complainants and witnesses. Note well: if their testimony is accepted they have nothing to fear. Nevertheless, if they provided incorrect information, on the basis of the secrecy promise, there is no reason to protect them. A proper judicial proceeding reveals the truth, whatever it may be. Not having examined the disputed documents and related testimony, the court cannot make any definite finding on the question of whether there was an infringement of privacy of the complainants and witnesses. However, even under the assumption of a certain infringement of the right to privacy to the extent that it extends to court proceedings, when balanced against the harm to the respondents due to non-disclosure of the documents, the respondents would have the upper hand. The interest in preventing harm to the good names, careers and dignity of the respondents, and the public interest in revealing the truth and the propriety of the judicial process, outweigh the interest in preventing a chilling effect on witnesses and submitters of evidence to investigative committees. In view of the above, the petitioner should be left with a choice either to disclose the information in the framework of the litigation, or to cancel the dismissal. This is similar to the choice of a criminal prosecutor when it is held that he must reveal classified evidence: he can choose to reveal the evidence or to withdraw the charges. The question whether the petitioner should reveal the information due to its status as a hybrid private-public body should be left to future decision, as there was not a sufficient factual basis laid before us. There may also be differences on this issue between a committee of investigation and an appointments committee.

President Beinisch. The respondents’ consent to disclosure of the documents and protocols subject to the deletion of the witnesses’ names and other identifying details detracts from the force of the petitioners’ claims concerning the severity of the infringement of the witnesses privacy and the alleged “chilling effect”.

Without ruling on the matter it seems that in exceptional cases, the public interest might justify recognition of a case-law based privilege which would prevent the divulging of sources who testified before voluntary investigation committees, for example - committees charged with the investigation of matters in which there is a major public interest in receiving information. Such circumstances do not exist in the case of a voluntary Investigation Committee set up to examine difficulties that arose in the management of the Theatre Department from both the academic and administrative perspectives. Notwithstanding the importance of this kind of committee for enhancing the quality of instruction and streamlining of the support systems in academic institutions, they do not serve a critical public interest that supersedes the broad principle of disclosure, the reasons for which lie in the public welfare and the aspiration to expose the truth and do justice in the judicial process, and in the respondents’ personal interest in properly defending themselves against the damage to their occupation and their dignity.

The absence of a privilege however does not mean that the Investigation Committee was not permitted to make any promise regarding the disclosure of the testimonies given before it, although the nature and extent of such a promise would be dependent on the statutory conditions applicable to the matter. Under the circumstances the promise given by the Investigation Committee was not, in essence, violated, in view of the decision that the material would be given to the respondents without revealing the witnesses’ names.

Petition denied.

Keywords

Administrative Law -- Disclosure of information, Constitutional Law -- Right to Privacy, Contracts -- Promise of Confidentiality, Evidence -- Disclosure of documents

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