The Freedom of Information Law: how to get information from authorities

What does the Freedom of Information Law allow you to demand, and from which bodies?

The authority refuses to disclose what happened in your file. The municipality did not answer. The government ministry sent a vague response. This is not the end of the road. The Freedom of Information Law, 5758-1998 gives every Israeli citizen or resident the right to receive information from a public authority (section 1), and if there is no answer within 30 days, or if the refusal is not based on one of the exceptions in the Law, you have grounds for an administrative petition. The authority may not decide as it wishes: it must give reasons.

From which bodies? Section 2 of the Law defines a “public authority”, and among other bodies: the Government, the government ministries and their auxiliary units; the Office of the President of the State; the Knesset; the State Comptroller (except information that reached it for the purpose of audit and of handling public complaints); the Central Elections Committee for the Knesset (except the information in section 79A of the Knesset Elections Law [Consolidated Version], 5729-1969 (חוק הבחירות לכנסת [נוסח משולב], התשכ״ט-1969)); courts and tribunals (except the content of a legal proceeding); a local authority and a municipal company; a corporation established by law; a government company (except companies that the Minister of Justice has specified); an institution of higher education whose budget the State participates in; and other bodies that the Minister of Justice has specified, such as the health funds (kupot holim). For this purpose, a “resident” also includes a corporation incorporated under Israeli law (section 2).

How do you submit a request for information, and what reply are you entitled to?

Under section 7 of the Freedom of Information Law, a request for information is submitted in writing to the freedom of information officer at the authority, and the applicant does not have to give reasons for it. Most authorities have an online form, but you can also submit a simple letter that describes the requested information in reasonable detail. The authority must notify the applicant of its decision without delay, and no later than 30 days from receiving the request (section 7(b)). The head of the authority, or a person they authorized, may extend the period by 30 more days if necessary, by a reasoned written notice (section 7(b)), and the head of the authority may, because of the volume or complexity of the information, extend it again by up to 60 days, by a reasoned decision (section 7(c)). Not giving a decision within these periods is an “absence of a decision”, and it can be challenged by a petition.

When can the authority refuse, and what does not count as a reason to refuse?

Despite the general right to receive information, section 9 of the Freedom of Information Law sets a list of exceptions in which a public authority is exempt from the duty of disclosure, and in some cases it is even prohibited from disclosing information. Among the main categories: information whose disclosure raises a concern of harm to State security, to its foreign relations or to public safety (section 9(a)(1)); invasion of privacy within the meaning of the Protection of Privacy Law, 5741-1981, for example medical, family or financial information about another person (section 9(a)(3)); information that may not be disclosed under any law (section 9(a)(4)); a trade secret or a professional secret, or information whose disclosure may cause real harm to a person’s commercial or economic interest (section 9(b)(6)); information about the working methods and procedures of an enforcement authority, whose disclosure may harm investigation or court proceedings (section 9(b)(8)); and information about policy that is still being shaped, or about internal discussions (section 9(b)(2) and (4)). The information in section 9(a) may not be given; the information in section 9(b) the authority does not have to give. The Supreme Court made clear that before refusing, the authority must examine all the considerations and find, in the specific circumstances of each case, the point of balance between the interest in confidentiality and the interest in disclosure, and not rely on a general interest alone (AAA 9135/03 Council for Higher Education v. Haaretz Newspaper Publishing, 19 January 2006).

The proportionality test: when can a court order disclosure despite the exceptions?

When an authority relies on an exception in section 9 to refuse, it must examine whether the requested information really falls within it, in the circumstances of the specific request; a general reference to the exception is not enough. Section 10 requires the authority to consider, before refusing, the applicant’s interest in the information too, if they stated it, and the public interest in disclosure for reasons of public health, public safety or the environment, and section 11 requires it to give the parts of the information that are not confidential and to omit only the sensitive part. In court too: under section 17(d), despite the provisions of section 9, the court may order the information to be given, in full or in part and on the conditions it sets, if in its opinion the public interest in disclosure is preferable to and outweighs the reason for rejecting the request, provided that disclosure of the information is not prohibited by law. For example, when an authority argues that information about a budget overrun is a supplier’s trade secret, the court may order the information to be disclosed after the sensitive commercial details are blacked out, because the public interest in oversight of public spending outweighs the commercial harm.

A petition to the court: how to challenge a refusal

Under section 17 of the Freedom of Information Law, a decision of a public authority to reject a request, in full or in part, can be challenged by a petition to the Court for Administrative Affairs (the District Court sitting as a Court for Administrative Affairs); if a privilege certificate under section 44 of the Evidence Ordinance [New Version], 5731-1971 (פקודת הראיות [נוסח חדש], התשל״א-1971) was issued for the information, the petition is heard by the Supreme Court (section 17(a)). Under the Administrative Courts Regulations (Rules of Procedure), 5761-2000 (תקנות בתי משפט לעניינים מינהליים (סדרי דין), התשס״א-2000), the petition must be filed without delay, and no later than 45 days from the day the decision was delivered to the applicant or came to their knowledge. In the petition, the authority must present the legal reasons for its refusal, and the court may receive the disputed information and examine it (except in a petition on a rejection under section 8), and for section 9 reasons it may hear the authority’s arguments behind closed doors, without the petitioner present (section 17(b)). The authority must examine the circumstances of the specific request and not settle for a general argument, and for information that is partly confidential it must consider partial disclosure, with omissions (section 11). The outcome of the petition may be an order for full disclosure, partial disclosure (with the sensitive passages blacked out), or approval of the refusal.

Common delaying tactics, and what the law says about them

From the moment the request is received, some authorities use tactics that delay the process: repeated requests for clarification, a claim that locating the information requires many resources in order to justify an extension, or a partial answer on the 30th day itself in the hope that the applicant gives up. It is important to know the limits: section 8(1) of the Law does allow an authority to reject a request when handling it requires an unreasonable allocation of resources, but this is an argument the authority must substantiate and give reasons for, and every rejection is given by a written notice setting out its reasons (section 7(f)). Extensions are possible only within section 7 and by a reasoned notice to the applicant. A well-worded request (focused, limited in time and in the type of documents) makes it hard for the authority to hide behind the resources argument.