Case Number

AAA 3908/11

Date Decided

9-22-2014

Decision Type

Appellate

Document Type

Full Opinion

Abstract

This is an appeal on an administrative judgment, in the framework of which appellant no. 1, the Courts Administration, was ordered to deliver information for the scrutiny of the respondents—a newspaper and a journalist employed by that newspaper—under the Freedom of Information Law, concerning the number of open cases that are being deliberated in the Supreme Court and in the district courts, indicating the amount of time that has elapsed since each case was opened, and the names of the judges hearing the cases. The State agreed to publish most of the information that was requested, segmented according to judge, but without mentioning the name of the judge. The principle argument of the State is that publication of the requested data will interfere with the orderly functioning of the courts system, and therefore it is not required to make the information available under the Freedom of Information Law.

The Supreme Court, with an expanded bench of 7 justices, denied the appeal by majority opinion (Justice (ret.) E. Arbel and Justices S. Joubran, E. Hayut, Y. Danziger and U. Vogelman, as against the dissenting opinions of Justices E. Rubinstein and N. Hendel), on the following grounds:

In her judgment, Justice Arbel, who wrote the leading opinion, surveyed the purposes of the Freedom of Information Law, first of which is the right of the individual to information concerning the public authorities as part of the freedom of expression and as a condition for the realization of that freedom. She also discussed the nature of the judicial task and the extremely high professional, personal, ethical, and moral standard that the judge must meet, both inside and outside the courtroom. Justice Arbel also discussed the nature and substance of the judicial independence that judges are accorded as underlying the democratic system and constituting a guarantee of the realization of the right to due process and a condition for public confidence in the courts. At the same time, it was made clear that judges are subject to oversight and criticism at the various levels on which they conduct themselves, and the various mechanisms of oversight to which they are subject were surveyed.

It was decided, inter alia, that the Freedom of Information Law establishes a broad principle of entitlement of the public to view information that is in the hands of the public authority. In other words, the rule is that of making the information available, and if the authority wishes to refrain from disclosing the information, it may do so in the event that one of the reservations specified in the Law applies. The public interest in disclosure of the information must be considered, and the court must consider whether the balance achieved by the public authority between all the different relevant considerations was appropriate. Inter alia, the considerations that will be weighed are the public interest in the information as opposed to the anticipated harm to the interest of the authority as a result of disclosure of the information, the possibility of limiting the damage to this interest while still realizing the right to information by publishing part of the information or by omitting certain details which, so it is estimated, will cause most of the harm to the authority’s interest. All the considerations that the authority ought to have taken into account for the purpose of its decision whether to refrain from disclosing the information must be examined, as well as the balance between them and its reasonableness.

As far as our case is concerned, at the first stage, Justice Arbel found that the information that was requested by the respondents is information to which the Freedom of Information Law applies. With respect to the reservation to the delivery of information as claimed by the State—the reservation prescribed in sec. 9(b)(1) of the Freedom of Information Law, according to which the public authority is not under obligation to deliver information whose disclosure “is liable to disrupt the proper functioning of the public authority, or its ability to carry out its duties” ”—Justice Arbel ruled that in the framework of the balance between the right of the public to information, which is derived from the freedom of expression, and the public interest in the proper functioning of the judiciary, which also includes the interest of protecting the rule of law and preserving public confidence in the courts, the authority will be justified in refraining from disclosure of the information only if there is near certainty of the occurrence of the claimed disruption to the orderly activity of the courts as a result of the disclosure.

Justice Arbel examined individually each of the State’s arguments concerning interference with the functioning of the judiciary that would be caused by disclosing the requested information, and determined that although there is substance to the argument of the State that the requested information cannot create a reliable picture of the overload in the courts system or of the particular judge, and that it does not give expression to a long list of factors that can cause the handling of a case to be drawn out, the respondents have a right to receive the requested information. Justice Arbel pointed out that she was not convinced that there was a near certainty of occurrence of the claimed interference in the functioning of the courts system as a result of delivery of the information. Her reasoning was based on the purposes of the Freedom of Information Law, the characteristics of the courts system, the transparency of its activity and its public nature, the need to maintain public confidence in the system, the nature of the judicial task, and the status of the judge and the courts.

It was also explained that for the purpose of the decision, the identity of the parties is important: the judiciary is one of the authorities that has the greatest influence on the individual and on the state, and there is therefore a clear public interest in knowledge of its activities. On the other hand, those requesting the information desire it for the purpose of fulfilling their journalistic task, as part of the activity of the media, which constitutes a guarantee for the existence of a free, civilized society. It was therefore found that there exists a public interest in disclosure of the information.

Given that we are dealing with the limitation of the right to information, i.e., with the exception and not the rule, Justice Arbel found that appellants’ arguments do not assign appropriate weight to the high personal, professional, and ethical standard that a judge must meet, nor to the highest level of responsibility expected of him. This high level of responsibility also involves exposure to criticism as part of the judicial task. The internal strength of judges, and the strength of the system as a whole, will allow them to deal also with negative publications, should there be any.

At the same time, it was decided to “go easy” on the appellants by deferring the period to which the material that will be disclosed relates, until the end of the 2015 legal year, in order to allow the State to examine the appropriate preparation for implementing the judgment. On this matter, the dissenting view of Justice Y. Danziger was that an order should be given for disclosure of the most recent information held by the appellants, that is, information relating to the 5774 (2013-2014) legal year.

Justice Hendel’s opinion was that the appeal should be allowed in its entirety. According to him, it is difficult to see the marginal benefit in publishing the information together with the names of the judges. At the same time, such a publication will cause great damage: it will direct a powerful spotlight at the administrative aspect of the work of the individual judge. As a result, there is near certainty of harm being caused to the efficiency of the work of many judges and of the judicial system as a whole.

Justice E. Rubinstein was of the opinion that the appeal should be granted in part, insofar as the district courts are concerned (whereas the material relating to the Supreme Court should be made available as decided in the majority opinion). According to Justice Rubinstein, both the position of Justice Arbel and that of Justice Hendel contain substantive reasons for granting or denying the appeal. According to him, in view of the entire array of considerations, with due regard to concerns about causing shame to the judges, and because there are judges in relation to whom the harm from publication of the data is a possibility that can be dealt with and will not disrupt their work, whereas there will be others for whom the harm is a near certainty, the following intermediate solution should be adopted: with respect to the Supreme Court, in view of its seniority in the system and in order not to create even the slightest appearance of trying to prevent the presentation of data, including personal data, regarding transpires therein, Justice Rubinstein proposes that the suggestion of Justice Arbel be adopted. With respect to the district courts, Justice Rubinstein’s opinion is that one must proceed with baby steps and wait an additional period, during which time the effect of the publication of names in this Court will be reviewed, and the lessons of this move studied. In view of these lessons, the appellants will make a decision on the matter by the end of the 5776 (2015-16) legal year, and this decision will of course be subject to judicial review.

Keywords

Constitutional Law -- Freedom of Expression, Constitutional Law -- Freedom of Information Law, Courts -- Judicial oversight

Download

Share

COinS