RIGHT TO KNOW IN ISRAEL ENVIRONMENTAL LAW
BY RICHARD LASTER
Lecturer, Environmental Law, Hebrew University Faculty of Law
Laster & Gouldman Law Offices, 10 Hanassi Street, Jerusalem
Reprinted with permission from Environmental Quality and Ecosystem Stability, Proceedings of the Fifth International Conference of the Israel Society for Ecology and Environmental Quality Sciences, Jerusalem, June 21-26, 1992.
"Consistent with the policy that the public is entitled to the fullest information regarding the decision making processes of the federal government, it is the purpose of this part to open the meetings of the Council on Environmental Quality to public observation while protecting the rights of individuals and the ability of the Council to carry out its primary responsibility of providing advice to the President"(1).
It is easy to date the environmental revolution. It all began in the late 1960s with the official opening announced at the Conference on Environment in Stockholm, Sweden in 1972 (2). What people often forget, however, is the transition period that led up to and created the environmental revolution. This included the demise of the generalist and the creation of interdisciplinary work groups. It also included the use of computers and monitoring equipment that enabled one to determine levels of pollution in the air, water, and soil. But the most important principle that evolved in the late 1960s in the United States is that which enabled the environmental revolution to become the most important revolution of the latter half of the 20th century.
In 1966 the United States Congress passed the Freedom of Information Act which enabled the public to get information on the activities of the United States Government and its appendages. By giving the United States public the right to know about decision making in the United States, this legislation enabled the public to become aware of the decisions creating the environment in which that public lived. Without the Freedom of Information Act there would never have been the environmental revolution that occurred in the United States and spread to the rest of the world.
The ripples of the revolution have continued to flow outward. They include the requirement that the public be given notice of attempted rule making or changes in environmental regulations. Even more important they include the obligation that the initiator of any plan of major importance file an environmental impact statement which is open to the public. This device, in and of itself, has enabled the public to understand and respond to suggested changes in the ecosystem.
It is posited here that without a Freedom of Information Act, at least for those areas affecting the Israel environment, the Israel public will not take the action that the American public has taken to improve the quality of the environment. Without the knowledge of the dangers facing the public and the decisions creating those dangers, the Israel public cannot know, understand and take appropriate action. And without the government changing its attitude to supply appropriate information on its own initiative to the public, any Freedom of Information Act passed will provide only lip-service to the subject.
Israel Without a Constitution
Israel, like England, is a common law country without a written constitution. The public cannot point to a section of a constitution which guarantees the right of freedom of speech and freedom of information. As a result, the public has had to resort to the court in order to gain the right to get information when necessary. Israel has a unique system for application to the courts in cases of equity. This system is called an appeal to Bagatz (Bet Hadin Hagavoha Letzedek), which means an appeal to the Supreme Court sitting as a High Court of Justice. In this capacity, the Supreme Court hears cases by those who feel aggrieved by a government decision or who wish to attack the government when it has not acted in accordance with appropriate administrative decorum.
The Supreme Court in Israel has stated on many occasions that the Israel public has the right of freedom of expression (3). The public also has the right of freedom of assembly (4), freedom of political expression (5), freedom of organization (6), freedom to advertise (7), and the freedom to receive information (8). All these freedoms exist provided that they do not infringe upon other freedoms of the protected public.
The Importance of Providing Information to the Public
The Supreme Court has held the following principles to be true:
1) Access to information ensures the protection of adjudicative rights of the citizen who could possibly be effected by administrative act.
2) Disclosure of the information ensures administrative decorum
(9) and proper actions by public servants (10). This is true because the administration will act more carefully and more appropriately if it knows that its decisions will be reviewed by an overseeing public.
3) Disclosure itself acts as an internal criticizing mechanism on the administration, raises its standards and quality of action.
4) Only on the basis of up-to-date information in public affairs and the right to gather information from its sources can the citizen develop his own individual opinion when it comes to elections (11).
5) On numerous occasions the administration itself is interested in supplying information to the public in order to promote a positive image of itself in the eyes of the voter.
6) The recognition of the right to receive information ensures that a governmental body recognizes that the information which it receives and stores is not its own property. Subjects of policy, economics, education and law are subjects in which the public is involved and has a right to receive information. This often runs in the face of the general opinion of the governmental authorities that the information under its control is its property.
7) The willingness of governmental authorities not to make publication of information difficult simplifies matters in all forms of communication and enables them to serve as watchdogs of democracy by providing information freely to the public.
8) Elections are the mainstay of a democracy, and without free flowing information, it is very difficult to protect one’s rights and freedoms.
Information Involving Specific Knowledge
It has been said that the Supreme Court makes a distinction between knowledge that has been obtained by the individual for his needs and knowledge that is needed for the general public. Knowledge for an individual’s private needs is normally obtained through an appeal to Bagatz. The most famous case in the field is that of Petal against the City of Holon (12). In this case the appellant was charged his annual municipal tax and he filed an appeal against the charge. The Appeals Committee refused to disclose to the appellant the reasons for the change in the municipal tax. He therefore appealed to the Supreme Court for the right to review the reasons for the change in the municipal tax and the Supreme Court held that he was entitled to such information.
The right for an individual to receive information not only has been granted by Bagatz, but has also been granted by the Knesset in a list of laws. The best example of this appears in the following situations. Under the Companies’ Law, a person has the right of access to information in the Companies Registry (13). Under the Co- operatives Law, anyone is entitled to review the files of those co- operatives registered in the Co-operatives Registry (14). Under the Land Law, the files of the Land Registry are open to the public
(15) and under the National Insurance Law, there are regulations ensuring one who has filed a claim for National Insurance to review the decisions of the committees including the protocols of their meetings and the reasons on which the decisions have been based
(16). Regarding the rights of a patient who has been treated in the hospital, the Supreme Court has held that a patient has the right to review his medical file provided that the information in the file does not endanger the life of the patient (17). There is now before the Knesset a proposed law for the protection of the rights of the patient, enabling the patient access to information in his medical file.
General Right to Know
Under certain laws, the public has a general right to know. These laws include the Law for Archive, (18), the laws involving tender offers, and certain environmental laws which will be discussed below.
The Planning and Building Law promulgated in 1965 has built into the system a right to know for the general public (19). First of all, Planning Committee meetings are open to the public. Secondly, the public has the right to object to plans and make that objection heard before the Planning Committee. In 1982, the Minister of Interior promulgated regulations incorporating as part of the Planning and Building Law environmental impact statements (20). The impact statement provisions require that there be attached to a plan for significant development, an assessment of the plan’s potential environmental damage. The impact statement together with the plan are filed for public review. An interested party who feels that the proposed plan together with the impact statement may have a significant impact on the environment may file an objection.
The Water Law in Israel legislation has no general right to know for the public. Yet the Water Law does include a requirement that the Water Commissioner file, once a year, a report with the Knesset Committee on Economics which describes his activities during the year (21). This enables some right to know about what the government is doing to improve the quality of Israel’s available water resources.
Employees Right to Know
Israel adopted in 1984 a rule requiring employers to notify employees about the substances to which they are exposed (22). This rule is broad enough to require that the employer notify the employee about the levels of dangerous substances to which he is exposed and the dangers inherent in those substances. Unfortunately, the regulations did not go further and provide the employer with a standard form to fill out to properly inform the employees. This was done in the United States in a form called the Manufacturer’s Safety Data Sheet, which requires an employer to disclose to his employees the substances to which he is exposed and the dangers inherent in those substances. The Ministry of Labor has determined that there is need for a questionnaire to be attached to the regulations. Such a questionnaire is now being developed.
What is Needed
Israel needs desperately to have a public actively involved in the environmental field. In order to obtain this, the legislature must pass legislation with right to know built in. This could be done under a single right to know law, as was done in the United States.
It could also be done in individual pieces of environmental legislation as they are slowly being developed by the new Ministry of Environment.
The list of available rights to the public are too small to enable the public to be seriously involved in the environmental process in Israel. There is often criticism in Israel that the public is not active enough, but no public can be active unless it is activated. And activation requires that the public have the right to know to what is exposed, and the government decisions allowing the exposure.
1. Section 1517. 1 Code of Federal Regulations, Title Forty, Protection of the Environment, Chapter Five, Council on Environmental Quality, as revised June 1987.
2. Declaration of the United Nations Conference on the Human Environment, Stockholm, June 16, 1972.
3. Crim. App. 1/65 Radr V. Chairman of the Elections Ccommittee, 16 (3) p. 365.
4. Amnon Rubenstein, "Constitutional Law in Israel" pp. 770-784.
5. Supra note 3.
6. Supra note 4.
7. Bagatz 345/61 El Razan v. Chairman of the Broadcasting Service 15 (2) p. 364.
8. Bagatz 337/66 Petal v. Cullman 21 (1) p. 69.
9. Petal supra note 8.
10. Petal supra note 8.
11. Bagatz 243/62 Herzliya Film Co. Israel Ltd. v. Levy and others 16 (2) p. 407.
12. Petal supra note 8.
13. Companies Ordinance, (New Version).
14. Law of Co-operatives, Section 65.
15. Land Law, Section 124.
16. National Insurance Law, Sections 60-61.
17. Hirschkowitz v. International Broadcasting Service, District Court Cases 3/83.
18. Archives Law, 4715-1955.
19. Planning and Building Law, 1965.
20. Regulations for Planning and Building (Environmental Impact Statements) 1982.
21. Water Law, 1959.
22. Regulations for Supervision of Work (Providing Information and Supervision to Workers) 5744-1984.