The High Court of Justice rejected a petition Thursday morning demanding the publication of the transcripts of cabinet meetings, particularly those held during the coronavirus crisis.
Justices Uzi Vogelman, Menachem Mazuz and Alex Stein ruled that the petitioners – Haaretz, lawyers Shachar Ben Meir and Yitzhak Aviram, the Movement for Freedom of Information and media outlets including Globes, Calcalist and the Kan public broadcaster – file a Freedom of Information Act request. Their decision came despite the state deciding in advance that it will not allow the publication of the minutes.
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In the short hearing, the judges cited key issues: The state already said they would not publish the minutes, meaning that the process would take months, and that the idea is that the public would know how decisions are made during the coronavirus crisis. The Freedom of Information process means that it would take a long time for the public to get this information.
The contents of all meetings held by the cabinet, all ministerial committees and the new so-called coronavirus cabinet are confidential. That means that with the exception of statements issued by participants or leaks to the media, if there are any, the media and the public have no way of knowing what actually was said in them.
That stands in contrast to the Knesset committees, for example, which are completely open, with the exception of classified defense subcommittees, and even they are recorded and broadcast.
While other government institutions have become more transparent and accessible over the years, the meetings of the cabinet and the ministerial committees have not.
The transcripts of discussions that are defined as confidential are held in the state archives and sealed for a period of at least 30 years.
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Haaretz and its fellow petitioners argue that this prevents all appropriate public debate about them.
Haaretz decided to appeal to the High Court, through lawyer Tal Lieblich, after the government secretariat refused the newspaper’s request to receive the transcripts.
The petitioners argue that the Basic Law on the Government specifies that cabinet meetings are to be confidential only if they involve state security, relations with foreign countries or other matters deemed as requiring secrecy by the government and defined as such in advance by means of a special order.
The petitioners also claim that it is particularly important to maintain maximum transparency during a pandemic that has involved the application of many emergency regulations.
The state’s representatives told the High Court that it stands behind its legal justification for keeping the documents secret, since government regulations have defined that transcripts of cabinet meetings be classified “top secret” with the support of the attorney general.
They further stated that the idea that the public had a right to information from the authorities was not absolute and it had to be balanced again the fear that a “chilling effect” would influence the discussions at the meetings if cabinet members knew they would be made public.
“There is no place to make an exception in this case,” the state said in its response to the claim that the coronavirus pandemic was not included among the topics considered confidential by law.
The petition did, however, lead to the release of a few so-called protocols: edited versions of meeting notes that do not contain full transcripts of the meetings. The published protocols relate to a cabinet resolution from March 8, cabinet meetings before that date in which the coronavirus was discussed and meetings of ministerial committees formed as part of the coronavirus emergency regulations.
A few of the documents contain brief descriptions, amounting to a few sentences each, of meetings that went on for several hours. These documents, which are ostensibly permitted for publication, are also not regularly made available to the public.
In its response, the state emphasized that the cabinet secretariat had no intention of voluntarily publishing the transcripts of cabinet meetings in which resolutions were passed from now on, since there was no law requiring their publication and that in any event, the important information – the resolutions themselves – were published.
The state said it would examine requests for background documents submitted to the cabinet in connection to meetings of the National Security Council on a case-by-case basis, with an eye toward granting the requests. It did not say why the requests had to be made individually or why they will not be released for general publication.
As for cabinet meeting agendas and the proposals placed before the cabinet, the government said that it would be difficult to publish them because the crisis entailed decision-making on an urgent timetable, often done via a phone vote.
The legal adviser to the Prime Minister’s Office, Shlomit Barnea Farago, said Monday that the cabinet has no obligation to proactively publish its resolutions, adding that when this was done by the secretariat, it was carried out “as an important service to the public.”
In a response, Ben Meir wrote that a cabinet resolution had been passed establishing that government services be made accessible to the public. “The cabinet secretary isn’t granting anyone a favor in this respect, it’s his elementary duty to citizens of the state,” he wrote.