The Supreme Court on Monday accepted a petition filed by Haaretz and ordered the Foreign Ministry to provide the newspaper with the list of attendees at a Passover seder held by Ron Dermer, Israel’s Washington ambassador, within 30 days.
The Court also ruled that the state must pay 10,000 shekels to defray the costs of the trial and requested that the Foreign Ministry formally update the American administration before handing over the list.
The case involves a second seder meal held at Dermer’s residence on April 15, 2014. The most prominent guest at the event, attended by 34 people, was U.S. Secretary of State John Kerry. He had posted his intention to attend the meal earlier, on the State Department’s website. A few days later, Haaretz asked the embassy on three occasions to obtain the list of invitees, but was turned down each time.
Haaretz then appealed to the Foreign Ministry in Jerusalem, asking for the list based on the Freedom of Information Law. Sources in the ministry told Haaretz that pressure was exerted on Dermer to hand over the list but he refused. Ultimately, the ministry officially stated that it would not provide the information since the meal was a “diplomatic event” and that divulging those details could harm Israel’s foreign relations.
After receiving the Foreign Ministry’s reply Haaretz petitioned the Jerusalem District Court, demanding that the ministry be instructed to hand over the information. During the hearing Justice David Mintz sharply criticized the ministry, casting doubt on the claim that this was an issue relating to state security or foreign relations. Despite this, he decided to reject the petition.
Haaretz subsequently appealed to the Supreme Court which, in a 2-1 ruling, on Monday accepted the petition, with Justices Daphne Barak-Erez and Anat Baron in favor, and presiding Justice Miriam Naor, the Supreme Court President, in the minority.
Sources in the Foreign Ministry said that before the hearing in November there were intensive consultations between the embassy in Washington and the ministry’s legal department, out of concern that it would be very difficult to defend Dermer’s position in court. In an exceptional move, Deputy Head of Mission Reuven Azar was summoned from Washington in order to attend the hearing at the Supreme Court.
During the session, representatives of the State Prosecution and the Foreign Ministry requested that the hearing be held in-camera and with only one side present, so that classified material could be presented to the court, in an attempt to convince it that transferring the list to Haaretz could harm Israel’s foreign relations. Deputy Head of Mission Azar testified in a closed hearing, with one side present, furnishing the justices with the list.
In addition, the head of the North American desk at the Foreign Ministry provided the court with a secret diplomatic brief referring to the damage to Israel’s foreign relations that could result from publishing the list. Haaretz received a censored copy of that opinion only after the court requested it.
Justice Barak-Erez noted that during the closed session the judges received a personal letter from Ambassador Dermer in which he “explained the importance of being able to invite guests to his residence without the obligation to divulge details.”
During the session last November the judges tried to convince ministry representatives to give Haaretz a censored version of the list, which would exclude names of guests deemed to be sensitive. The Foreign Ministry refused, arguing that even partial disclosure would set a precedent and hamper the freedom of diplomatic action, imposing a “chilling effect” that would prevent foreign citizens from coming to events at the residence of Israeli ambassadors around the world, on the assumption that their visits would become public knowledge. The ministry admitted that all the guests at the Seder were Israeli or U.S. citizens, and agreed to reveal the names of four of them – Ambassador Dermer, the military attaché and their wives.
Justice Barak-Erez, who wrote the majority opinion, noted that although the petition ostensibly deals with a trivial matter, “it reflects fundamental considerations regarding freedom of information.” She added that after weighing this, as opposed to public interests that may sometimes override the need to divulge information, she was not convinced that the circumstances in this case that raise concrete concerns of harming Israel’s foreign relations.
Barak-Erez sharply criticized the Foreign Ministry and noted that the ministry “doesn’t give sufficient importance to the Freedom of Information Law and its purposes.” She emphasized that the principles of the Freedom of Information Law apply to the ministry and Israel’s embassies abroad, and that in contrast to agencies such as the General Security Service and the Mossad, the Foreign Ministry is not exempt from this law. “Thus, information relating to the Foreign Service is not automatically exempt from rules regarding freedom of information,” she wrote. “It’s reasonable to assume that some aspects of its activities warrant secrecy but this doesn’t imply that the entire service is exempt.”
Barak-Erez added that the Foreign Ministry must examine each request for information on its own merits without imposing a priori immunity and the automatic usage of the claim that foreign relations are at stake. “The law regarding freedom of information has the disclosure of information as its starting point. Israel’s representatives abroad are public servants. Their actions should be subject to public scrutiny and debate. Indeed, a veil of ensured secrecy can be convenient on occasion, but it may also hide things. This is said as a matter of principle without referring to the case before us, only to an issue that should be subject to public monitoring.”
She also wrote that one use of the law is to “expose meetings of government officials with private agents, which may reveal conflicts of interest or considerations that are inappropriate.” She added that if the court had accepted the all-embracing position of the ministry and given a wide-ranging exemption from disclosing information “this could have formed an enclave that was opaque to public scrutiny.” She wrote that she did not doubt the good intentions of the ministry but stressed that “it’s not enough to benefit from working in secrecy and non-disclosure. Public officials often feel that working outside the limelight will benefit quiet and uninterrupted discussions for the sake of promoting public interests. This feeling is insufficient.”
Barak-Erez compared the situation to that in other Western foreign offices, such as the the United States, United Kingdom, Australia and Canada. She determined that in those countries, situations in which information is classified relate to secret information received by a foreign state, business deals with foreign agents and secret ties. “The exemption there is not interpreted as applying to entire diplomatic areas. The cumulative experience indicates that exemptions related to foreign relations apply only to core issues of foreign relations, to information regarding cooperation with foreign governments in matters of security or intelligence.”
In her ruling, Barak-Erez brought an example from Britain, where it was decided to permit the release of information pertaining to defense relations with Saudi Arabia, on the backdrop of the possible involvement of British government officials in bribery, in deals that included the sale of military equipment to the Saudis. The principle was that public interest overrides considerations of secrecy. The British court distinguished between divulging information about a non-democratic country and a democratic country such as the United States, in which there is advanced legislation regarding freedom of information, and where there would be more understanding toward public disclosure.
The judge further noted that in Western countries a norm has been established, by which, in response to appeals by journalists or private persons, governments willingly divulge details relating to meals or official guests, without the issue coming to court. “The practice of asking for guest lists in different countries suggests that submission of such a request is not considered surprising”, she wrote. “Thus, it was decided to partially respond to a request regarding a meal hosted by the British Foreign Minister in honor of then-Secretary of State Hillary Clinton.” Another example she gave was the guest lists provided for meals and events held at the White House.
The justice added that these examples indicate that one doesn’t expect much secrecy in meetings that take place at the official residence of the ambassador. “This is accentuated when one examines the case before us – a meal attended only by American and Israeli citizens. I believe that these facts are not borderline at all. Among all these circumstances I wish to reiterate that among the invitees were journalists and various guests who published their attendance online. None of them were promised that the identities of the guests would be kept secret. In fact, they all could have expected that their attendance would be mentioned on social media. I believe that for events hosted by such agencies, including festive meals, parties or receptions, the assumption of participants should be that their identities will not remain a secret.”
Justice Baron concurred with Barak-Erez while the Court President Naor remained in the minority. Naor did not object to publishing the guest list and did not support the ministry’s position regarding concerns for harming state security. However, she believed that participants’ permission needed to be obtained before publishing the list, in order to respect their privacy.
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