Review of the Governmental Freedom of Information Unit's Authority (IL0014)

Currently the authorities of the Governmental Freedom of Information Unit are outlined in a Government Resolution rather than by law. Its authority is limited solely to government offices and only to those subjects covered by the Freedom of Information Law.
It was determined in the Government Resolution that two years from the establishment of the Governmental Unit, the Ministry of Justice would be required to examine the unit's methods of operation.
To increase the implementation and enforcement of the Freedom of Information Law. To adapt the Governmental Freedom of Information Unit's authorities to the enforcement challenges related to freedom of information.

Commitment 1. Regularizing the Status and Authorities of the Governmental Freedom of Information Unit (FOI Unit)

Commitment Text:

To adapt the Governmental Freedom of Information Unit's authorities to the enforcement challenges related to freedom of information.

Status quo or problem/issue to be addressed: Currently the authorities of the Governmental Freedom of Information Unit are outlined in a Government Resolution rather than by law. Its authority is limited solely to government offices and only to those subjects covered by the Freedom of Information Law.

It was determined in the Government Resolution that two years from the establishment of the Governmental Unit, the Ministry of Justice would be required to examine the unit's methods of operation.

Main Objective : To increase the implementation and enforcement of the Freedom of Information Law

Milestones:

1.1 To have the Ministry of Justice determine a fundamental position on this subject.

1.2 To implement the steps needed to regularize the status of the Governmental Freedom of Information Unit in accordance with the government’s position.

Responsible institution: Ministry of Justice

Supporting institution(s): NA

Start date: June 1, 2015 End date: October 1, 2017

Context and objectives

As indicated in the description of the Status Quo, the FOI Unit has limited authority. In addition, the Government had committed to review the FOI Unit’s mandate two years after its creation. However, to date, the government has failed to do so. The current Unit’s mandate greatly restricts its ability to promote the implementation of the FOI law. The Unit has no authority over local government and no authority to review officials’ refusals to release information on its merits (rather than on technicalities).  ^{See report on the objection by the interior ministry to allow the unit to supervise FOI matters in local authorities: Sharon Pulver, 'Interior Ministry Shock increasing transparency in local government' (15 Sept. 2016), http://www.haaretz.co.il/news/politi/.premium-1.3068627.}

Although increasing implementation and enforcement of the FOI law is a very important initiative and relevant to the OGP value of access to information, the commitment’s objective is vague. The commitment is to adapt the Unit's authority to 'the challenges related to FOI.' However, the commitment’s language does not determine the nature of these challenges. What kind of adaptation will be made? How will its impact be measured? Finally, the IRM researchers can only construe from the language that activities related to regularization will take place but without details of how, when or what the activity entails.

If the FOI Unit were given an adequate mandate and authority, it could have a substantial impact on implementing the access to information law. However, at this point, the commitment outlines a process to discuss regularization of the unit’s mandate. There is substantial distance between this general discussion to defining actual specific mandates, creating supporting regulations and then enforcing these laws; the potential impact of this commitment minor.

Completion

Researchers found very little evidence of the commitment’s implementation.

The first milestone is 'to have the Ministry of Justice determine a fundamental position on this subject.' The researchers question whether a general intention to determine a position is specific enough to assess. IRM researchers were informed by government officials of discussions going on within the ministry regarding its position on the matter. At the time of this report, there was no available draft of such a position presented to the public, nor could the researchers identify any evidence of such a draft through interviews with government officials. The only available testimony that IRM researchers were able to collect on this matter was a general comment made by the Director General of the Justice Ministry, in April 2016, about her intent to look into the matter in the coming year. Additionally, the Unit’s annual work plan includes the passage of a government resolution adding more authority to the Unit during Q4 2016.  ^{, http://www.justice.gov.il/Units/YechidatChofeshHameyda/Report2015/index.html.}

Given that Milestone 1.1 has yet to be completed and the regularization process is yet to be formalized, this action was not started during the first year of implementation. The commitment overall is delayed in its implementation.

Early Results (if any)

The commitment has not begun to be implemented.

Next Steps

The IRM researchers recommend that during the second year of implementation, the government take steps to prioritize the process to determine its position on the matter.

To do this, the IRM researchers suggest the following:

1. Invite the public to make comments on the Unit's scope of authority, while publishing government deliberations on this matter (including comments on draft proposals at the time of the formation of the Unit).
2. The government could designate two to four months for public consultation and response to proposals on the unit’s authority and a subsequent draft resolution. The government would therefore be in a better position to vote on a resolution that either commits the unit to regulated authority or supports the unit.

For the next action plan, IRM researchers recommend the government consider following the widely accepted practice of an independent information commission outside of the governmental hierarchy.  ^{The benefits of such mechanisms are well documented. See Laura Nueman, Enforcement Models: Content and Context, Access to Information Working Paper Series (The World Bank, 2009).}  Such independent authority should have legal powers to regulate government activities in the course of opening itself up to public scrutiny.

1. Regularizing the Status and Authorities of the Governmental Freedom of Information Unit

Commitment Text:

To adapt the Governmental Freedom of Information Unit's authorities to the enforcement challenges related to freedom of information.

Status quo or problem/issue to be addressed: Currently the authorities of the Governmental Freedom of Information Unit are outlined in a Government Resolution rather than by law. Its authority is limited solely to government offices and only to those subjects covered by the Freedom of Information Law.

It was determined in the Government Resolution that two years from the establishment of the Governmental Unit, the Ministry of Justice would be required to examine the unit's methods of operation.

Main Objective : To increase the implementation and enforcement of the Freedom of Information Law

Milestones:

1.1. To have the Ministry of Justice determine a fundamental position on this subject.

1.2. To implement the steps needed to regularize the status of the Governmental Freedom of Information Unit in accordance with the government's position.

Responsible institution: Ministry of Justice

Supporting institution(s): NA

Start date: 1 June 2015

End date: 1 October 2017

Commitment Aim

This commitment aimed to increase the effectiveness of the governmental Freedom of Information (FOI) Unit in its efforts to promote proper implementation of the FOI law. The FOI Unit was created in 2011 to promote implementation of the FOI law, but was given limited authority. The Government committed to review the FOI Unit's mandate two years after its creation, but to date, it has failed to do so. The current Unit's mandate limits its ability to promote the implementation of the FOI law. For instance, the Unit has no authority over local government even though the FOI law covers local government. Also, if a government ministry determines to have 'substantial' reason to turn down an information request (i.e. for purposes of national security and commercial interests), the FOI Unit cannot review this ministry's decision. It can only exercise review where the ministry fails to meet deadlines set out in the law, or misinterprets the fees regulations, and other such technicalities. ^{See report on the objection by the interior ministry to allow the Unit to supervise FOI matters in local authorities, http://www.haaretz.co.il/news/politi/.premium-1.3068627 [in Hebrew].} This commitment calls on the Ministry of Justice to achieve this review of the Unit's methods and indicates that further authority would be given to the Unit.

Midterm: Not Started

At the time of writing the midterm report, the Ministry of Justice was still deliberating whether to expand the Unit's mandate, and there were no decisions to report. The Ministry's Director General informally expressed a commitment to conduct a review of the Unit's existing authority and to discuss the possibility of extending this authority. However, this commitment did not materialize in practice. For more information, see the IRM midterm report. ^{Israel IRM Midterm Report, https://www.opengovpartnership.org/wp-content/uploads/2001/01/Israel_MidTerm-Progress_2015-2017_ENG.pdf, pg. 24.}

End of term: Limited

Implementation of this commitment at the end of term was limited. According to an interview with the head of the FOI Unit, the Minister of Justice decided not to grant the Unit any binding authorities or to expand the scope of authorities under its supervision due to objections from the Ministry of Interior. ^{Interview with the head of the FOI Unit, Adv. Rivki Dvash, 7 September 2017.} The head of the Unit also informed the IRM researcher that it was decided (but not implemented) that the Unit will be allowed to initiate its own investigations into alleged breaches of the FOI law in those limited procedural aspects which it has authority over (in contrast to the current situation where the Unit may only act upon a complaint received from an information requestor). The Ministry of Justice also decided to work with the Ministry of Interior to encourage it to supervise implementation of the law at the local level, but this is not to become part of the governmental Unit's authority.

Did It Open Government?

Access to Information: Did Not Change

The limited implementation of this commitment has yet to improve access to information. The commitment was designed to increase the effectiveness of the governmental FOI Unit on government authorities and to help it have a greater impact on its conduct. The failure to give the Unit any binding authorities or investigative tools, or to allow it to consider failures to disclose information when based on substantive reasons (rather than merely procedural) for shortcomings in the conduct of other government authorities restricts the potential to achieve its goals. However, as it eventually unfolded, there were only limited authorities granted to the Unit (to initiate investigations on procedural failures) and these did not have an impact on opening up government.

Carried Forward?

This commitment has not been carried forward to Israel's third action plan.