Challenging the hush-hush of building councils
High Court petitions argue that lack of protocols works against transparency in decision-making.
Israelis like to complain that Israel is turning into a Third World country. At least when it comes to the planning of public building, that sentiment is apparently correct, with proper procedure in a serious decline.
For years, minutes were recorded at all meetings of the National Planning and Building Council, its subcommittees and the district planning and construction committees as a matter of course. The meetings were even taped.
However, around five years ago, the Ministry of Interior decided there was no longer any need for protocols and tape recordings in which there were no invitees from outside the committee. Documentation of meetings was stopped at almost all planning agencies. The ministry calls such meetings internal discussions, but in practice, these are official meetings conducted by a public body acting under the law, where all the decisions regarding master plans and building permits are made.
The planning and building committees allocate building rights worth millions of dollars - sometimes even tens or hundreds of millions of dollars. Their every decision also determines the quality of life of hundreds, occasionally thousands, of people and has a decades-long environmental impact.
Documenting what is said in the committees' discussions is of immeasurable importance for maintaining proper procedure. It is hard to understand what prompted a government ministry to choose a lower level of transparency and stop preparing protocols. Instead of minutes, the committee makes do only with recording its decisions, how the participants voted and explanations of the decision.
Without protocols, it is much more difficult to fight planning decisions in court. One wonders how much this affected the decision to do without protocols.
It's even harder to understand the Ministry of Interior policy after the High Court of Justice last year issued the Ilan ruling in which there is a very clear guide on how to prepare protocols. In the ruling, Justice Yaakov Terkel wrote of the Tel Aviv Municipality's tenders committee: "In the absence of a real protocol, with a complete copy of the discussions and considerations - and needless to say, since there were no protocols recorded at all - the committee's decision should be considered a vague decision that cannot withstand judicial review and therefore the decision should be canceled."
Justice Mishael Cheshin states "the failure to prepare protocols is a failure that goes to the heart of the matter; it is a fundamental failure that clouds necessary transparency and bars the possibility of supervision and oversight, which are so vital." He says trying to ascertain what happened in the meeting is like being blindfolded and standing in darkness and says, "Whoever brought the darkness shall also bear the consequences."
Cheshin cites Supreme Court President Aharon Barak, who wrote in the Mordov case, also filed against the Tel Aviv Municipality and submitted to the High Court in 1992, that "all agree that a protocol must reflect the unembellished truth: even if the truth is bitter, and even if the truth is ugly. Protocol is similar to a camera - nowadays we should say: a video camera - and a camera will also perceive and record things that may not be pleasant viewing.
The move to stop documenting planning agency proceedings came when the deputy attorney general, attorney Sarit Dana, served as the legal adviser of the Ministry of Interior. The reason given was that documenting the proceedings prevented the committee members from speaking freely and contrary to their superiors.
It was not easy to get this decision passed. The head of the planning administration at the time, Dina Rachevsky, refused to stop documenting meetings of the National Planning and Building Council. "There was a debate over it toward the end of my tenure," she said, "I thought it appropriate that everything should be complete and full and if people are afraid to express themselves for fear that it will affect them, then they should not speak." According to her, the practice of not documenting meetings became entrenched after her departure in 2002.
A petition recently submitted by the Society for the Protection of Nature in Israel's (SPNI) legal adviser, Hagit Luz-On, asks the High Court of Justice to require that protocols be written up for all planning agency meetings and discussions. Luz-On quotes from the Ilan ruling that "the obligation to write up protocols is rooted... in the principal of transparency in the operations of the administration," as well as the statement that the proper procedural arrangements obligate the committee to "record protocols that will reflect the essence of the information presented to it and the decisions made in the wake of that information."
The SPNI's petition is not the only legal proceeding attacking the practice of not recording minutes. Attorney Gilad Barnea has petitioned against the approval of a commercial center in Jerusalem's Ramat Denya neighborhood. The State Prosecutor's Office argues that "the respondents' position is that there is no obligation to have a stenographer record the discussion in the internal part of the district committee's meetings and that the obligation is to reach reasoned decisions in a way that reflects the essential information presented to the agency and its explanations."
Only with complete protocols
The Ministry of Interior legal adviser, Yehuda Zameret, said that "the National Council maintains a protocol of its discussions in accordance with the requirements of the law and in a way that will enable the fulfillment of its task and included therein is ensuring the conduct of an open and comprehensive discussion on planning." The response relates to a desire to enable committee members to express themselves free of any pressure. According to him, there is also no obligation to record discussions or to use tape recordings as a way of preparing protocols.
Luz-On argues, however, in her petition that "in light of the serious ramifications of decisions made during the course of internal discussions, it is particularly important to document these discussions... the importance of complete and reliable documentation further increases given that the internal discussions of the district committees and the National Council are closed to the public."
She cites in this regard a 1998 ruling issued by Justice Mishael Cheshin in the petition of attorney Shlomo Cohen against the Israel Bar Association. Cheshin writes that especially because the meetings of the Bar Association's central committee are closed "the importance of the protocols as a tool that documents the meeting's proceedings is increased... indeed, the relation between a discussion being public and the need to maintain protocols for it is one of inverse proportion; that is: The public nature of a discussion reduces the need for complete protocols, whereas a closed meeting increases the need for a complete protocol of the meeting."
"It is fitting that the central committee's decision-making methods - including the considerations behind the decisions - should be known to the lawyer population," Cheshin clarifies. "Only full and complete protocols can provide them with the truth, the unembellished truth. That is what is required by a democratic system. That is what strict logic dictates."
Cheshin further writes that "needless to say writing down the full protocol enables a review of the decision-making process, and the central committee is after all the body that makes decisions and is subject to review of its decisions. The importance of complete protocols increases when we recall that the central committee obtained the authority to make influential decisions regarding the rights, freedoms and status of lawyers."
The report of the Beisky Commission that investigated the bank shares collapse indeed explained in 1986 why it is important that those who take part in closed meetings know that what they are saying is being recorded: "whoever reads the protocols will know from it who is present, who spoke and what he spoke about. By nature, a person relates differently to things he has said for which there is no documentation than he does to things he says that are written down. The sense of responsibility and carefulness with which the remarks are made are more weighty when the remarks are written down."