 66th IFLA Council and General
Conference
Jerusalem, Israel, 13-18 August
Code Number: 018-160-E
Division Number: V
Professional Group: Government Information and Official Publications
Joint Meeting with: -
Meeting Number: 160
Simultaneous Interpretation: No
Access to government information in Israel: stages in the continuing development of a national information policy
Debbie L. Rabina
Rutgers University
School of Communication, Information and Library Studies
New Brunswick, NJ USA
E-mail: rabina@scils.rutgers.edu
Abstract
Israel does not have a long tradition or commitment to ensure access to government information. Historically, the contrary has always been true: no policy plan, no legislation, and no public discourse were created to encourage access to government information. Ministries and government agencies, such as the State Archive, always perceived the information gathered within their institution as their own. The first legislative steps to assure access government information came in 1981 in the form of the Privacy Protection Law, but implementation of the law was practically nonexistent until recently, and even now it is deficient. In such a reality the population never created a demand for information. The public was submissive to this approach, and no objections were voiced against censorship in the press of against withholding of information by the government.
The 1990s saw an increased demand for a more comprehensive information policy and to enhanced access to government information. This can be attributed to several factors, among them the Oslo Peace Accords, signed in 1993, the lobbying efforts of the Coalition of Freedom of Information, which brought to the passing of the Freedom of Information Law in 1998, and by the desire to join the international community and comply with standards set in international treaties. As a result, the 1990s have seen an abundance of committees, reports, web sites, and legislation meant to regulate government information. Israel is now seriously considering for the first time, the need for a comprehensive information policy, and is coping with principles of freedom of information and with government controlled databases. A lot still needs to be done, and many areas are being overlooked, among them the vital role of libraries as a channel between Government and the public.
Paper
I. Introduction
Upon gaining independence in 1948, following several decades of British Mandate Rule, Israel adopted the British legal code as the fundamental law of the country. Many of the British practices, and much of the British approach to information, are still evident in Israel today. For example, the Copyright Law in effect in Israel, is fundamentally, despite many amendments, the 1911 British Copyright Law. Another example is the slowness of freedom of information law being introduced in Israel. Since Britain did not, and still does not, have a Freedom of Information Law, Israel was slow to adopt one, and indeed, it was not until 1998 that the Freedom of Information Law passed. 1 In addition, Israel does not have a written constitution or bill of rights. In it's place are a series of "Basic Laws" that are still in process of legislation, with the intention that these Basic Laws2 will ultimately become Israel's constitution. 3 It is against this backdrop that we examine how access to government information has developed in Israel over the years, leading to plans to implement a comprehensive national information policy.
II. Setting the Foundation: Kol Ha'am v. Minister of Interior4
Lacking a written constitution or specific statutory authority assuring freedom of information in Israel, the Israeli Supreme Court, made in 1953, the first ruling in matters relating to the right of citizens to information. The case involved the closing of a newspaper of the Communist party that had published an article criticizing the Israeli government. The newspaper appealed the decision before the Supreme Court, who ruled unanimously that freedom of speech and freedom of information are the cornerstones of Israeli democracy. Kol Ha'am was one of the most influential decisions of the Supreme Court, setting the standards for civil rights is Israel, and linking them directly to Israel's Declaration of Independence. Lahav describes the important of Kol Ha'am from three aspects - historical, normative, and constitutional5. Historically, this was the first instance in which freedom of speech and of the press was brought before the Supreme Court. Justice Agranat demonstrated both courage and foresight when he ruled against the prevailing sentiments of fear and sanctity of national unity. From the normative aspect, Justice Agranat set the foundations for a democratic theory of freedom of speech, and the doctrine of 'clear and present danger' to be applied in Israel. Constitutionally, the court ruling linked freedom of speech to the Israeli Declaration of Independence, a document that previously had no legal standing.
Kol Ha'am established freedom of speech as a fundamental principle of Israeli democracy, and paved the way for later judicial, legislative and administrative measures.
III. The Middle Years: 1950s-1970s
The period up until the end of the 1970s were characterized by little activity relating directly to the evolvement of a national information policy. The judicial branch continued to hear cases regarding civil liberties, many of them relating to censorship, access to information, and freedom of speech. 6 The legislative branch passed several laws and amendments that lay the foundations for the current information policy. The most notable of these were the Copyright Order; 7 Source Name Law; 8 Archive Law; 9 Patent Law; 10 Trademark Ordinance; 11 and the Library Law. 12
These were the formative years of Israel and a time when the country was both striving to become an exemplary democracy in the Middle East, while first securing the safety of the country. Even during periods of relative calm, Israel perceived a constant threat to its well being, and thus had Defense (Emergency) Regulations, 13 in effect that allowed the administration to exercise extensive measures to guarantee security, including limitations on civil liberties. Information policy was not part of the public agenda during these years, and such activity as occurred, both legislative and judicial, does not indicate an attempt to reach a comprehensive information policy, but rather point to a piecemeal approach addressing immediate needs as they arise.
IV. New Beginnings: The 1981 Privacy Law14
In 1981, the Knesset passed the Privacy Law, the first legislative action taken with the intention of regulating information, with particular attention to the growing prominence of computers in government work. 15 Prior to the Protection of Privacy Law, protection of a person's privacy, personal space, reputation, and image was embedded in scattered legislation. Personal space was protected by laws against trespassing, 16 harassment, threats or disturbances by telephone or telegraph were covered by the Postal Ordinance, 17 a person's reputation was protected by the Defamation Law, 18 using a person's name, picture, or voice without consent became protected by law in 1974, 19 and eavesdropping was determined a criminal offense in 1979. 20
The Privacy Law, amended twice since it first passed21, is meant to guarantee consumer, data and privacy protection in Israel. The Law protects an individual's privacy in three major areas: protection from advanced technology, 22 protection from news media, 23 and protection from information gathered in databases. 24
According to the Law, anyone who manages a database must report its purpose, the use made of it, the way the data is gathered, and the measures taken to protect it. The Law adds that failing to register the database constitutes a criminal offense and subject to one year in prison.
The Law establishes a Registrar for databases,with whom any data collection containing data on individuals needs to be registered. In registering the data collection, a Database director is nominated who is responsible for data protection and privacy and who will incur the penalties of law in case of infringement. In addition to the Registrar, there is also a Council for Privacy Protection, headed by the General Manager of the Ministry of Justice, that advises on matters related to privacy protection.
While the Privacy Law affords legal protection for privacy of information in databases, to a level consistent with international standards, 25 implementation of the law has come under much scrutiny. A report of the State Comptroller26 showed that Ministry of Justice and the Registrar failed to bring to the attention of database owners the obligation to register their databases. The Registrar's office lacks procedures for examining databases and there is no plan to ensure systematic examination of government offices and local authorities that gather personal data on citizens, including sensitive data. The Registrar did not exercise the authority warranted to him by law to utilize the courts regarding violations in database registration. The Registrar's Office is currently taking extensive measures to increase registration, and hopes to achieve complete registration by the end of 2000. 27
The Privacy Protection Law of 1981 is a very restrictive and comprehensive law. It reflects a political setting that prefers concentrating powers and avoids allocating responsibility. The Law applies equally to government and private sector databases. In the old computing environment, databases were indeed more 'stationary' and easy to keep track of. In today's environment of personal computers and the wide spread availability of database software, creating databases has become far easier. Under these circumstances, the Law has proved difficult to enforce.
V. Towards a Comprehensive National Information Policy: the 1990s
The 1990s saw increased demand for a more comprehensive information policy, and for enhanced access to government information. Activity directed towards achieving these goals is evident in several areas. The Supreme Court recognized the right of citizens to receive information from the Government in the Shalit case. 28H Shalit concerned a request of citizens that Knesset members reveal to the public the coalition agreements that they signed. In a detailed ruling, the Supreme Court analyzed the importance of receiving information from public officials, and, based on several justifications, among them the right to know as an independent right, instructed Knesset members to reveal to the public the contents of the coalition agreements. The Court also addressed justifiable limits upon the right to obtain information, and determined that this right does bear some restrictions. Concerns regarding security, foreign affairs, social and economic affairs could justify limiting the degree of disclosure. 29
The legislative branch contributed to the process by passing the Freedom of Information Law in 1998. 30 The Law, which is partly a result of extensive lobbying efforts by the Coalition for Freedom of Information, 31 recognizes the importance of access to information. The Law established a principle of dissemination of information, while recognizing the necessity of keeping certain information from the public. It offers some effective remedies to assure that the exemption provisions in the Law will not be misused, such as the provision ensuring that disclosable information will not be withheld simply because it appears alongside exempt information, or the provision that provides for in camera review by the Court of exempt information. The Law offers a mechanism for independent review of decisions to refuse release of information32.
The mechanism for disseminating information to the public, mandated by the Freedom of Information Law, is laid out in an administrative report by a Knesset subcommittee. 33 Popularly known as The Eitan Report, this documents establishes the plan for implementing "direct government," allowing citizens to receive information and conduct official transaction with the government in an online environment. The report makes extensive recommendations for preparing Israel for the information age. The overall vision of the report is summarized in five points. The report calls for government information that is (1) complete and comprehensive (2) quick one-stop-shop information that can be transferred to the citizen within 24 hours (3) reliable and up to date information (4) secure information transferred on secure networks (5) information that is mutually binding to both sides. 34 The report takes into account the increased dangers to privacy rights when using computer networks, and calls for allocating special funds to secure user privacy. 35 The operational plan of the Committee relies heavily upon outsourcing and services provided by the private sector, under the supervision and instruction of government personnel. 36 The recommendations for realizing the vision of 'direct government' include sixteen measures that need to be taken to complete the task. These include establishing online information kiosks within a year, training government employees in basic technology skills, making e-mail use obligatory within government, and providing citizens, upon request, with electronic identification for conducting online transactions. 37
Additional legislative steps towards a comprehensive information policy are the recent amendments in the Copyright Law. In order to comply with its commitments under the Trade in Intellectual property and Services (TRIPS) agreement, Israel was obliged to adopt changes to its copyright legislation by the end of 1999. On December 21, 1999 Israel passed several amendments to comply with TRIPS. Articles 1-6 to the TRIPS were passed in Knesset, as well as the Integrated Circuits Protection Law. In recent years Israel has become a center for criminal piracy activities, drawing negative comments and reports from international organizations, due to what they perceive as Israel indifference to the criminal activities taking place within its borders38
VI. Public libraries as Information Providers
In democracies, libraries play a role as a channel of information between government and the public. In Israel, libraries have failed miserably in taking responsibility for disseminating government information and creating an informed citizenry. There was never any awareness of this role of libraries in the library community. None of the library schools train librarians in government information. Not only are there no courses specific to government information, it is not even a feature of general reference courses. In addition, there is no mechanism for distribution of government information to libraries, similar to the Federal Depository Library Program in the U.S. 39
Public libraries are rapidly losing their ability to provide service of any kind. In 1975, the Ministry of Education supported 50% of libraries' budget, while in 1999 the support dropped to 9%. Minutes from a Knesset committee meeting revealed the alarming deterioration in the state of public library service. This has received some recent attention following a 1999 appeal to the High Court regarding library fees. 40 The Public Library Law41 prohibits charging fees for library services, but a majority of libraries do so in order to supplement their meager resources.
The Public Library law is outdated, and fails to address some of the burning issues troubling public libraries. These include budget, user-fees, fair use practices, and general guidelines for providing service in the information age. Attempts to pass amendments to the law have failed, and librarians are back to ground zero. The Department of Libraries is the main body to be held responsible for the deteriorating state of public libraries, since over the years they have repeatedly failed to secure support for public libraries.
VII. Conclusions and Recommendations
Israel is currently just beginning to examine its various legislative and regulatory measures affecting government information and how they may be combined into a comprehensive plan for open government. As is frequently the case, implementation lags behind planning, and the barriers to achieving policy goals are not technical or practical, but social and cultural, related primarily to lack of awareness among government employees at all levels as to the importance of open government in promoting democratic principles.
The Eitan report, although setting a sound foundation for open government, overlooks several important points: difficulties associated with outsourcing; absence of a catalog of government publications; absence of a depository library system; and the continuing disregard of the role of librarians.
Outsourcing is strongly supported by the report. Since fee-based dissemination predates principles of open government in Israel, no thought has been given to the effects of outsourcing on the availability of free information to the public. A lot can be learned from the American experience about the dangers to free and open access that can result from poor outsourcing. 42
Another issue ignored by the report is the continuing role of print materials in dissemination of information to the public. At present, there is no way to locate a printed government publication, or to obtain a comprehensive listing of government documents. No remedies are offered for this problem, and it has not been raised in any forum. A simple solution would be to produce a catalog of government publications, in either electronic or print format, through the National Library, which, under the provisions of the Press Ordinance, receives all government publications and produces a National Union Catalog.
A third important way to promote open government is through the free distribution of government publications to selected libraries. Israel has not designated depository libraries, as in the United States, and since government publications are not free of charge, many libraries, all suffering from insufficient funds, refrain from purchasing them. Designating as few as three as depository libraries (north, central, and south of the country), would make a great contribution to bringing government closer to the people.
Finally, promoting principles of open government should take into account the people who are trained and skilled in providing information -the librarians. Yet, the Eitan report totally ignores the role of libraries and librarians in the new information paradigm. Post offices were preferred over libraries as access points for information kiosks, no responsibilities are allocated to librarians. This is especially troubling in light of the fact that K.M. Eitan was the initiator of the Knesset library Web site, and that several librarians served on the committee's advisory panel.
It is not too late to focus attention on these problems and to offer remedies to issues that will become more difficult to address with the passage of time.
Footnotes
1Freedom of Information Law 5758-1998
2For the text of Israel's Basic Law, see Israeli Parliament Web Site:
http://www.knesset.gov.il/knesset/engframe.htm
3For more about Israel's constitutional process read:
Yoan Dotan, "A Constitution for Israel? The Constitutional dialog following the 'Constitutional Revolution'," Mishpatim 28, no. 1-2 (1997): 149-209.
Ruth Gavison, "The controversy over Israel's bill of rights," Israel Yearbook on Human Rights 15 (1985): 113-154.
4H.C. 73/53 Kol Ha'am v. Minister of Interior, 7 P.D. 871
5David Heshin, ed., The Courts of Law: Fifty years of adjudication in Israel (in Hebrew) (S.L.: Ministry of Defense Publishing, 1999 pp. 36-38).
For more on Kol Ha'am in English, see: Pnina Lahav, Judgement in Jerusalem: Chief Justice Agranat and the Zionist Century (Berkeley: University of California Press, 1997 pp. 79-112).
6See, for examples,
Marcel Cohen v. Ministry of the Interior H.C. 146/59, 14 P.D. 283: States that the High Court is competent to intervene in the decisions of the Censorship Board and awards the Board power to censor a movie when it "offends moral values or good taste or leads to corruption"
Israel Film Studios v. Levi Geri and the Film and Theatre Censorship Board H.C. 243/62, 16 P.D. 2407: The Court rejected the Censorship Board's decision to censor part of a newsreel. Justice Landau made reference in his decision to the right of the public to receive information
Noah Films Co., Ltd. v. The Film and Theatre Censorship Board H.C. 549/75, 30(1) P.D. 757: The Court refused to support the cancellation of a previously granted license to screen a film
Electric Company and others v. Ha'aretz Newspaper and others (1977) 32(iii) 337: Justice Landau, writing for the majority, preferred the right to protect one's image, as expressed in the Defamation law, over the other rights, such as freedom of information, not embedded in law
7Copyright Order 1953, 1981
8Source Name Law 1965
9Archive Law 1955
10Patent Law 1967, 1998
11Trademark ordinance 1972
12Library Law 1975
13Defense (Emergency) Regulations, 1945 P.G. no. 1442, Supp. No. 2, p. 1055
14Protection of Privacy Law 5741-1981
15The the Kahn Committee, appointed in 1974 by the Minister of Justice, to examine the means by which the protection of privacy can be secured, concluded that computers do not present a serious problem that requires statutory control, and the issue of computers was set aside. Is was not until later amendments that the Protection of Privacy Law became concerned primarily database privacy protection.
16Civil Wrongs Ordinance 1977, sections 29-31
17Postal Ordinance, 1976, section 99
18Defamation Law, 1965
19Civil Wrongs Ordinance 1977 section 34a
20Secret Monitoring Law 1975
21March 1985 and March 1996
22sections 2(2)-2(3)
23sections 2(2)-2(3)
24chapter 2
25In particular the European Database Protection Directive
26State Comptroller, State Comptroller Report no. 42 (in Hebrew) (Jerusalem: 1992).
27Personal interview with Yosefa Tiepero, Database Registrar, August 1999
28H.C. 1601-4/90 Shalit et al. v. Peres el at., 44(3) P.D. 353
29Shalit 366
30Freedom of Information Law 5758-1998
31Debbie L. Rabina, "FOIL and FOIA Compared: A comparison between the Freedom of Information Law in Israel and the U.D. Freedom of Information Act," Journal of Government Information 26, no. 2 (1999): 89-108.
32Freedom Of Information Law, Article 17
33Israel et al., "Preparing Israel for the Information Age," ([Jerusalem]: The Knesset, 1998), [219] unnumbered.
34Ibid. Section C.2
35Ibid. Section C.1
36Ibid. Section C.1
37Ibid. Section C.5a-p
38IIPA, "Excerpt from the IIPA's 1999 Special 301 Recommendations regarding Israel," (Washington DC: International Intellectual Property Alliance, 1999)
39Federal Depository Library Program 44 U.S.C.§ 19 (1991)
40The Public Library Law, 1975
41The Court is presently awaiting to see whether of not the Knesset will pass the amendments to the Library Law, thereby solving the problem legislatively
42For more on the outsourcing debate regarding United States government information, see:
Mark K. Gordon, "Outsourcing Technology in Government: Owned, controlled, or regulated institutions," Journal of Government Information 24, no. 4 (1997): 267-284.
Paul P. Messa, "Disseminating Government Information: Appropriate roles for the Government and private sector: A viewpoint," Government Publication Review
Robert K. Stewart, Access and Efficiency in Regan-Era Information Policy: A case study of the attempt to privatize the National Technical Information Service (Ph.D. Dissertation) University of Washington, 1990.
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