Israel's Top Court President Doubts COVID Protocols Will Ever Be Made Public

The minutes of Israel's COVID cabinet have been classified as secret despite them not being a matter of national security or foreign relations

Chen Maanit
Chen Maanit
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Supreme Court President Esther Hayut at Israel's Supreme Court in Jerusalem, on Monday.
Supreme Court President Esther Hayut at Israel's Supreme Court in Jerusalem, on Monday.Credit: Emil Salman
Chen Maanit
Chen Maanit

Supreme Court President Esther Hayut said on Monday that she doubts the court will ever allow the publication of minutes related to the coronavirus pandemic as the participants in these discussions had assumed the transcripts to be secret and that they would not be published.

Hayut said this after hearing a petition for the release of transcripts of government meetings, committees and the coronavirus cabinet regarding the management of the pandemic. The petition was filed by The Freedom of Information Movement, Haaretz and other media organizations.

“Even should the petition be sustained, it is doubtful that the publication will apply to COVID deliberations already concluded,” Hayut said. “Over 30 ministers sat there, relying on the deliberations not being published and on lawful bylaws.”

Since the outbreak of the pandemic in March 2020, the deliberations regarding it in the government, the COVID cabinet and other ministerial committees have been classified as secret.

Such a classification fully redacts the deliberations for 30 years. According to the state's Basic Law: The Government defines “secret” to be matters of national security, foreign relations and “other types of matters for which the government has found secrecy to be necessary to the state, and announced as such by order.”

Haaretz petitioned through attorney Tal Lieblich after its request for the documents was refused by the government secretariat, although former head of the National Security Council, Meir Ben Shabbat, claimed at a Knesset hearing that they were open to all.

The petition stated that the concealment of the transcripts prevents public debate on the government’s operations transparently and in real time.

Alongside the demand to open the full transcripts to public review, the petition seeks to challenge in principle the procedure that automatically classifies all government meetings as secret, which leads to the burial of the transcripts in archives for at least 30 years.

At a hearing on the petition last June, Hayut told the state’s representative that “the law teaches the opposite of the prevailing custom. You keep transcripts, and have yet to reveal one.” She added that the government does not exercise its judgment in each case anew, “although the law allows for such judgment.”

Last October, the High Court of Justice ordered the government to explain why it refuses to hand the requested transcripts to Haaretz and other petitioners.

In addition, they asked for an explanation why they have not overturned the sections in the government’s bylaws that allow any cabinet or committee meeting transcripts to be labeled as “top secret,” even if they do not concern state security.

In response, the State Prosecutor’s Office, which represents the government in court, acknowledged that while the law says that issues involving state security and foreign affairs must be classified, that does not mean the minutes regarding all other issues, including COVID policy, must therefore be disclosed to the public.

The government took the position that under the Basic Law, it has authorization to designate additional matters as confidential, and noted that other information regarding pandemic policy deliberations, including background material, resolutions and proposals, meeting summaries and meeting agendas, are not classified.

“The principle of transparency, whose importance cannot be exaggerated, does not stand alone,” the state said. “It needs to be balanced with competing, weighty considerations including the collective responsibility of the cabinet members and concern regarding the ‘chilling effect’ that could influence the decision-making process of the cabinet and its quality.”

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