The case law for access to archival materials is still sparse and limited. Most archive users do not resort to legal procedures when denied their request to consult a particular material, whether due to lack of resources, reluctance to fall foul with institutions they rely upon to perform their job, or the typical lingering of legal procedures versus the more pressing need for materials. Yet some High Court petitions of recent years – most notably the Gorenberg and Yedioth Ahronoth affairs – were the driving force behind the necessary 2010 amendments to the Access Regulations.
Interestingly, in each of these cases, petitioners were journalists, guided by the professional ethos of the freedom of information and its importance for the freedom of expression. Also, and just as importantly – such petitioners enjoy appropriate legal representation, usually funded by their employers or by organizations advocating human rights.
Gorenberg Case
HCJ 2467/05 Gershom Gorenberg et al v. IDEA director et al
In 2005, Journalist Gershom Gorenberg and the Association for Civil Rights in Israel (ACRI) petitioned the High Court of Justice. The petitioners demanded access to restricted archival materials relevant to Gorenberg’s research, and to reform archive practices restricting freedom of information and freedom of research: to allow every person to view archival records as long as their disclosure does not present a clear and present threat to national security, to allow public access to the full catalogue of IDEA materials and publish the archive’s procedure regarding the criteria for declassifying archival holdings and granting public access to such materials.
Two months after the petition was filed, the Defense Ministry published directive 59.140, defining the practice for conferring the status of “authorized researcher” in the archive and the procedure to review a request by such researcher to assess restricted records. As the hearings continued and while regulations were redrafted (adopted at the end of 2010), directive 59.140 was altered so that it clarified that the declassification considerations must be done according to the merits of the request and not the identity of the applicant, and the “authorized researcher” status was annulled.
The petition generated additional changes in the IDEA, among them, creating a list of archive files that were available for public access (it was not updated since its 2009 creation); the unification of various directives into a public, binding “criteria document” for decisions on declassification; the removal of directives denying declassification of documents that may harm the state’s and senior officials’ public image, or may cause political controversies.
These developments and the declassification of some of the materials Gorenberg required for his research led the court to rule that the petition had been exhausted, and to reject it, obligating the state to pay the legal costs. In the ruling, the court enumerates and reminds of the pledges by the respondents in the petition to complete the catalogue of IDEA materials and to make these catalogues publicly accessible , and expresses hope that the petition respondents will change their customs and significantly shorten the periods of time of the declassification process.
Yedioth Ahronoth Case
HCJ 4081/07 Yedioth Ahronoth Ltd. et al v. The Prime Minister’s Office, ISA et al
In May 2007, concurrent to the protracted hearing in Gorenberg’s case, journalist Ronen Bergman and his employer, the Yedioth Ahronoth newspaper, filed a petition to the High Court of Justice demanding that the archives of the Shin Bet, the Mossad and the Israel Atomic Energy Commission be subject to the Archives Law, as they were all illegally conducting themselves independently of the ISA. In addition, the petitioners, who were joined by Yossi Melman and the Haaretz newspaper, claimed that the archives of the security organizations were breaking the law when they refused to allow the public access their materials, whose restricted access period (which was then 50 years) had already passed.
During the proceedings, the State Archivist issued official notice that the archives of the security organizations would be subjected to the ISA. The petition was expunged without a ruling.
The petition was part of a process that led to the modification in 2010 of the Access Regulations to their current version. At that time the intelligence organizations had for years been ignoring their obligations to declassify archival materials created over 50 years earlier. In the new regulations, the restricted access period for their materials was extended to 70 years, and included the obligation to formulate a procedure for declassifying materials that are over 50 years old.
Deir Yassin Case
HCJ 10343/07: Haaretz Group Ltd. et al v. Ministerial Committee for Permission to Access Classified Archival Records et al
In 2007, journalist Gidi Weitz and his employer, the Haaretz newspaper, petitioned the High Court of Justice together with Neta Shoshani, a student at Bezalel, against the decision by Ministerial Committee for Permission to Access Classified Archival Records. The committee rejected Weitz and Shoshani’s request to view photographs and documents located in the IDEA regarding the 1948 events in Deir Yassin. The restricted access period of the requested material – 50 years – had long since passed. The ministerial committee discussing the request decided to restrict access for an additional five years, claiming that its declassification could damage Israel’s foreign relations.
The petition was ruled in 2010. The court read through the materials and did not find cause to intervene in the committee’s decision; Still the court did point to deficiencies in its decision-making process, as one of the committee members had notified of his decision before the hearing, to which he did not show up. In addition, the court called on the committee to meet immediately and discuss the continued confidentiality of the materials, which was to expire in 2012 following the extension. However, the ministerial committee has yet to meet ever since and did not discuss further access to this material.
Line 300 Case
HCJ 3820/11: Gidi Weitz et al v. Ministry of Justice
In 2011, journalist Gidi Weitz appealed to the State Attorney to request access to restricted materials preserved in the ISA regarding the Bus 300 affair, for the purposes of producing a film on the subject. The request was denied so Weitz filed a petition with his partners to the High Court of Justice demanding to receive all the archival materials. Discussions between the two parties went on for two years, during which time the petitioners were granted access to some of the materials they requested.
The petition included a request by Weitz to declassify former prime ministers’ Shimon Peres and Yitzhak Shamir testimonies to the police. “The declassification of all the investigative materials related to the affair is critical for historical research, and they have the power to refute fabricated myths and softened versions told by its players to this day,” Weitz later wrote.
The state’s resistance to declassifying testimonies was based on two primary grounds: One, the Restricted Access Period, to which the court responded saying this could be shortened. The second reason regarded Israel’s foreign relations, and was supported by the Foreign Ministry’s official opinion.
After the High Court read through the material ex parte, it ruled that there is no justification for intervening in the Ministry of Justice’s decision not to declassify the documents, inter alia due to the fact that many of the materials were in fact made available to the petitioners during the proceedings.