Whether ancient Greece or the nascent United States, wherever one says the origins of the democratic system lie, one will find declarations about how important knowledge, information or both are in processes relating to civil life within that system. The problem with this lofty theory is, as usual, people: Since knowledge often equals power, too many people like to seize it – and too few like to share it.
This human conflict is probably more familiar to attorney Rivki Dabash than to most Israelis. In January, Dabash quit her position as director of the Justice Ministry's Freedom of Information Unit, which she helped set up seven years earlier. During those years she fought for expanding the authority and autonomy of the mechanism that was designed to increase transparency in the public sector, until she came up against a dead end, ultimately deciding to leave, to “avoid serving as a fig leaf.”
“The Freedom of Information Law is quintessentially an oppositional law,” Dabash tells Haaretz, in a conversation about the core challenges her unit grapples with. (The law, which was passed by the Knesset in 1998 and went into effect the following year, "mandates that every citizen and resident of Israel has the right to receive information from a public authority, in accordance with the provisions of the law," according to the website of the Prime Minister's Office). “Anyone in the coalition or close to power centers holds information. If he doesn’t possess it, he can easily pick up a phone and obtain it. The law represents agencies with less power.
The demand for transparency "that is not under the control of power brokers is a matter of major concern for politicians, as can be seen around the world," says Dabash.
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"Tony Blair once called himself an idiot for legislating Britain's freedom of information act, after he became prime minister. Politicians in Israel are no different. One should remember that those who originally signed off on the law were Benjamin Netanyahu, prime minister, and then-Justice Minister Tzachi Hanegbi. But something happens when you’re in power for a long time – you forget how hard it is to obtain information when you’re on the outside.”
In other words, when it comes to the right of citizens to obtain information that is in the public domain, the enemies of public interest are first and foremost the people who represent those individuals. And it's not only politicians: Public servants may also foil the effort to achieve transparency.
“Everyone intuitively likes to hold on to information," Dabash says. "We’re not naïve. When all the information on a government official’s desk becomes public knowledge, questions start popping up. As a public servant this may be irrelevant. The default option should be that the information is made public, subject to issues of privacy, security, etc., and that’s not a trivial matter.”
The idea of anchoring freedom of information in law, as is customary in many democracies, came to Israel late. The 20th anniversary of the enactment of the law is being marked now, but the unit charged with its implementation was only established by the cabinet over a decade later – in 2012. Its objective: to ensure and promote transparency in public institutions by means of guidance and monitoring mechanisms, while expanding the scope and quality of the information that was being disseminated.
Since the unit was established, the number of requests for information that have been addressed to various government agencies, based on the law, increased from 3,800 in 2012 to 8,000 in 2017. According to the unit’s last report, from 2017, 66.6 percent of all these requests received a response, while 17.5 percent were denied. The others are still under review or were halted for different reasons, such as non-payment of the requisite fee.
The speed of response has improved as well. In 2017, 60 percent of requests were addressed within 30 days, 19 percent within 60 days, and 15 percent within 120 days. Only 6 percent took longer than that. The recalcitrant offices were mainly the Prime Minister’s Office, the Culture and Sport Ministry and the Agriculture Ministry.
The ones that stood out in a positive way then were the Interior Ministry's Population and Immigration Authority, and the Ministry for Religious Services. The Finance Ministry and the Israel Police have improved their response times significantly that year. Public awareness has also increased significantly. According to a study conducted on the occasion of the 20th anniversary of the law, journalistic coverage of freedom of information issues has doubled since 2006, with Haaretz-TheMarker leading the pack in this regard.
Local authority snafus
Two key problems have overshadowed this progress, eventually leading to Dabash’s decision to quit her post. Despite many efforts on her part, she says, the unit’s authority still doesn’t cover local authorities, where transparency is particularly lacking, often requiring court intervention. In an investigation by her unit, it was found that only 50 percent of local authorities responded to requests for information, and only 9 percent provided a complete response in terms of the information conveyed.
Dery’s office responded to a query about this from Haaretz by saying that, “local authorities are autonomous agencies that are required to meet freedom of information regulations as determined by law. The ministry is taking various steps to improve transparency in local authorities. Any citizen not receiving satisfaction in this regard is invited to turn to the relevant district office of the Interior Ministry. The ministry will soon be issuing a report relating to monitoring the enforcement of these directives.”
Furthermore, the Freedom of Information Unit has no real authority when it comes to voicing an opinion relating to the content of information that local authorities refuse to release. If there is such a refusal, the issue goes to the courts.
“From the moment I took this job, it was clear that this was an enfeebled unit, which didn’t have the tools needed for succeeding. I still thought there was a hole that must be filled, so I tried to do the best I could," Dabash admits, adding, “When I discovered I could not expand the unit’s authority I realized I was done with it. I ‘stretched the blanket’ as far as possible. Now someone else will come and pull it in other directions.”
When she assumed her post, Dabash was warned by NGOs dealing with freedom of information issues that her unit could become a fig leaf.
“I was asked to stay – they said I won’t have to do too much, I could look elsewhere or write a book. This grated on me, coming from senior public servants. I have no doubt that if I’d stayed, I would have become a fig leaf,” she says.
Dabash returns to the vexing subject of the local authorities: “I think there have been significant improvements in government offices, but with the local authorities, citizens lack a tool that can really make things easier for them. A resident who can’t obtain information [from the authorities] has to go to court. That costs 20,000 shekels ($5,600). That’s not something everyone can afford.”
Indeed, the country's courts deal with many requests for information; in 2017 there were 317. An NGO monitoring this phenomenon found that 70 percent of the requests were responded to, following a legal process. According to the Freedom of Information Unit, 76 percent of requests addressed to government offices in 2017 received a positive response. In local authorities, the information demanded was provided in 97 percent of the cases. The conclusion? A person who goes through legal channels will likely get the information he or she is demanding.
The problem is not just the number of requests that are accepted or denied, says Dabash, but also with the content of the information demanded – over which the unit should be given much more authority.
“Even with these improvements, the numbers are deceptive. The information that is not released often contains more significant elements that are important for the public to know. Sometimes it’s possible to change things from the inside, but you have to realize that in the end, the position that is adopted is the government position. It’s a good question – who can establish effective regulation when it comes to government offices, and how [that should be done].
"We all know that if we don’t pay taxes and fines on time someone will deal with us, but what happens when a public authority doesn’t reply on time? If the unit had the opportunity to express an opinion or be a mediator, that would reduce the number of appeals to the courts and increase provision of information where that is possible [according to law].”
At present in Israel there are some 2,000 officials responsible for replying to requests for information, which is the number of authorities that are obliged to provide it. But all those officials, except in four ministries – the Prime Minister’s Office, the Health Ministry, the Justice Ministry and the Social Services Ministry, and soon the Agriculture Ministry as well – perform this job in addition to their other tasks. They have no status as watchdogs, something that is customary in other realms of public life that tend to be confrontational.
"You have to be a person who can talk to an authority from within – someone with a concept and a vision of what has to emerge in the end, after the complicated stages of internal conflicts over resources and worldview," Dabash argues. "You need to have a certain profile to be able to stand up in your organization and bang on the table."
It’s not by chance that Dabash mentions Netanyahu as a signatory to the original Freedom of Information Law. Over the years he has not become an enthusiastic supporter of expanding the law’s purview. The main reason, she believes, is the public focus on the expenses incurred at the Prime Minister’s Residence and by others in the premier's inner circle. The attention to details such as the ice cream and sushi purchased by the official residence has created antagonism to the concept of freedom of information among power brokers who could have promoted implementation of the statute.
“I’ll give an example relating to myself," says Dabash. "After I announced I was leaving, someone asked to see my paycheck. I obviously let them see it but it didn’t feel right. There’s no doubt that when someone wants information about you, even if it’s personal-professional, you can’t remain indifferent, especially when that happens a lot.
"There were many requests for information about the prime minister, and I’m not saying there was no reason to ask for them, but one should understand that we gain and lose in this process, since some of the antagonism arose when things became more personal – like with requests for information about the hair coloring the prime minister uses. That is allowed according to the law, but what’s the point and what’s the collateral damage that this causes?”
The Prime Minister’s Office did not respond to this claim, but Netanyahu's associates say that he’s not particular concerned with freedom of information issues, for better or worse. It’s hard even to find politicians in the opposition today who would put them at the forefront of their efforts. Dabash believes that this stems from something that was positive to begin with: "A transparency committee headed by Labor MK Stav Shaffir was created, a welcome move, but in some ways, it became a one-woman campaign. That in some ways reduced the motivation of other opposition legislators to come and fight on behalf of this issue more seriously.”
According to Dabash, the type of personal-public information whose publication is the most problematic is that written in diaries: “There are cabinet members and [company] directors who make it [revelation of such information] difficult and we can’t control that, since the information is found only in their offices. When these requests are made, public officials feel very persecuted, even if such demands are made for information about others as well.
"One thing I did before I left was to formulate a proposal aimed at changing the manner in which diaries are exposed, so that there is more on-going reporting of information,” she says, adding that she also tried, not always successfully, to convince the system that it would be better to act pre-emptively.
“What we don’t publish at our own initiative becomes a headline in tomorrow’s paper. I saw something about the expenses of the Bank of Israel, in response to a request for information. These things no longer happen in some government offices, since this information is published routinely. Everyone can delve into it as much as they like – and it becomes a non-issue. Hiding information is the issue.”
When information becomes a “non-issue,” however, another problem may arise. Since government ministry expenses have become available, there is less interest in in-depth analyses of these figures, says Dabash: “One could take this information that’s worth its weight in gold and analyze deeper trends, instead of just looking at individual purchases. This could show, for example, that 80 percent of the money spent goes to only 20 percent of the suppliers.
"You don’t hear about the deeper trends, and the impression is that all these requests are ‘sensationalist’ in nature. Some [information received as a result of] requests has led local authorities to distribute funds more fairly, or to reforms. The blame also lies with local authorities who don’t promote this process, because they're afraid that people will say they 'fixed things' after the request was made – meaning they were doing things wrong beforehand.”
'Leaving room for speculation'
Concealment of information isn’t always about power struggles, notes Dabash. There are also concerns about interpretation.
“I’ve often heard certain professionals saying the information is too complicated, so how can they release it? For example, there’s a concern that data about crimes involving Ethiopian Israelis or migrant workers will be misused, with negative social implications. People have to realize that it all comes out in the end. It’s good for an agency to release reliable information without leaving room for speculation.”
One process that was initiated last year with partial success, she says, is that ministers and directors have been told to set up public committees to explain the transparency policy of their offices or companies. Still, the work of ministerial committees often remains undisclosed, including panels that are dealing with critical issues, like criminal investigations. For her part, Dabash hopes the cabinet will re-think this issue, especially in light of the tendentious leaks that occur in any case – including those from sensitive forums such as the security cabinet.
The most common pretext for denying access to information is that “it cannot be located” – the response given in 18.4 percent of the requests submitted in 2017. The problem with that answer, says Dabash, is it reveals serious mismanagement of information, especially in the public services. She recalls one incident in which a ministry was asked for information about some important reports, “and the person responsible was in India and could not be reached.” That sounds absurd but it reflects the problems citizens have when demanding information.
“I wanted to try to combine freedom of information with the way knowledge is managed, but I failed,” says Dabash in conclusion, adding yet another challenge to the long list her unit will have to contend with in the future.