Israel’s Freedom of Information Law is relatively new and therefore Israel’s highest court has not been afforded many opportunities to rule on its parameters. A recent 2005 petition to obtain information from the Ministry of Health pursuant to this law provided the Israeli Supreme Court with such an opportunity. Although the intention of this underused law was to encourage transparency by government bodies and free access to information by the public, the ruling on the petition by the Supreme Court has raised concern as to whether this law has been sufficiently internalized so that it can be adequately applied to achieve real significance in Israeli society.
In this instance, the Supreme Court, dismissing lower district court rulings that were designed to encourage access to information, designed a balancing test weighing the importance of the requested information to the petitioner against the right of the state body to withhold the information. By doing so, the Court ignored the test proposed by the district court which enabled free access to information unless the state agency could demonstrate that disclosure of the information would pose a “special harm or damage” to the public body.
This case is one of a few that illustrate the Supreme Court’s narrow approach to freedom of information issues. By failing to uphold the bold rulings of the lower district courts, the Supreme Court is unfortunately acting to constrain the freedom of information revolution instead of acting as its natural leader.