Israeli Supreme Court to Rule on Demand for Disclosure of Criminal Record

Decision applies to job applicants, tender bidders, others.

A special panel of seven Supreme Court justices will soon decide whether it is legal for an employer to demand the disclosure of a job applicant’s criminal record, and whether such disclosure can be required in other circumstances, such as a condition for bidding on a tender.

The Supreme Court ruled in February that such demands were legal, but now the new, expanded panel, headed by Supreme Court President Asher Grunis, will rehear the case. Last week Attorney General Yehuda Weinstein submitted his opinion, in which he states that such a demand - including for disclosure of an applicant’s criminal record or any open criminal investigations, including ones that never even reached the indictment stage - should be legally barred. However, Weinstein did write that an employer should be allowed to ask a candidate about any criminal past in a job interview.

In the February ruling, the Supreme Court allowed such requests for a declaration on a criminal record, even though by law the employer is not allowed access to such records. The court ruled that the right to privacy and the state's interest in rehabilitating prisoners was offset by the rights of employers and others to protect themselves and the public "from unreasonable risks."

The case being reheard involves an appeal by Rafael Dayan, who participated in a tender published by the Mifal Hapayis national lottery to choose regional distributors. Mifal Hapayis required candidates to submit a statement on legal proceedings against them, even though the lottery is not among the bodies allowed by law to receive such information. The tender committee decided Dayan did not meet the minimal criteria for the tender, as he was investigated on bribery charges relating to a previous lottery tender in 2004. After Mifal Hapayis banned Dayan, the case against him was closed in 2009 for a lack of evidence. Dayan went to court against the national lottery, asking for NIS 13 million in damages. The District Court ruled against him, as did the Supreme Court on his appeal.

The Public Defender's Office also submitted an opinion in the case, saying the court's ruling contradicts the law on the criminal database records, and causes serous damage to the presumption of innocence.

Emil Salman