Adv. Gill Nadel, Shai Babai
As a rule, administrative authorities, including the Taxation Authority, are subject to the Freedom of Information Act which broadly provides that every Israeli citizen or resident has the right to request and receive information from a public authority. The importance of the principle of freedom of information provided by the law is expressed at length in a number of decisions, while the principle necessarily contains within it substantial elements of a democratic society, including freedom of expression and the public’s right to know.
However, as is typical in the Israeli legal system, freedom of information is not an absolute principle, and its limitations are part of the law itself. In Section 9 of the law that sets forth various limitations to the freedom of information, including the limitation regarding the violation of privacy, that is: when the requested information may harm some person's privacy, there is no automatic right to receive it.
Recently, the District Court of Nazereth, sitting as the Court for Administrative Matters, discussed the tension between freedom of information and the need to protect the individual’s right to privacy. Even though the defendant in this case was the Municipality of Afula regarding property tax, the principles of the decision are also relevant to litigation with the Taxation Authority.
The facts of the case and the claims of the parties:
This case involved a corporation of attorney's, which petitioned against the Administrator of Freedom of Information in Afula, demanding that he provides them with information regarding all assessees holding a property larger than 300 square meters, that are defined as "businesses".Including the addresses of these assessees and specification of the size of the property owned by each assessee.
The corporation claimed that this information holds great importance to the public, since it will allow the public to examine the legality and functioning of property tax collection by the municipality, which will enable in turn, both service to residents and internal corrections in the municipality. The corporation further claimed that as far as corporations are concerned, there is no risk of violating the Law of Privacy , since they are as it is not protected by this law; also there should be no concern of violating the privacy of individual citizens, and in any case the municipality did not demonstrate such a concern.
In opposition, the municipality made two central claims: firstly, it claimed that the petition was based on outside considerations, since the corporation really only wanted to seek potential clients who had over-paid their property taxes, and that the law was not intended to serve personal interests; secondly, it claimed that in any case, it had agreed to give the corporation all the information relevant to corporations, but as far as the information related to individual persons, disclosure would be an offense under the Protection of Privacy Law, which states that providing information by a public body is forbidden, unless the information is publicized in accordance with a legal authority or with the consent of the person who information relates to .
The Court's Decision:
In discussing the case, the court accepted the municipality's harsh refusal, since the corporation itself declared that its intention was to check the legality of the municipality's actions, without presenting any private or specific interest for which it needed the requested information. However, the court did not summarily dismiss the action for this reason, but instead turned to an analysis of the legal questions.
The court ruled that under the said circumstances, and in light of its ruling that the corporation's request was, indeed, "fishing" for potential clients, the case enters the bounds of a clause in the Protection of Privacy Law, which states that "spying or following a person in a way that might harass him" is a violation of privacy.
The court further ruled that the information which disclosure was requested falls under the definition of "information" under the Protection of Privacy Law, that is "data of an individual's personhood, his personal status, the privacy of his personality, his medical condition, his financial situation, his professional training, his opinions, and his beliefs", and therefore the municipality was correct in claiming that disclosing the information was an offense under section 23b of the law, under which disclosure of information is forbidden unless the information is publicized in accordance with legal authority or the consent of the person to whom the information relates to.
Lastly, the court discussed the corporation's request, that if the court decides that the Protection of Privacy Law takes precedence in this case, the municipality ought to send notices to residents who might be harmed from the disclosure, so that if they do not register opposition, the disclosure will be permissible. The court ruled that active consent is required, and passive consent is not sufficient, and that the municipality should not be obliged to bear such a burden when it does not believe that disclosure of information should be permitted.
In light of the above, the court obliged the municipality to reveal the information relevant to corporations, and rejected the action with regards to private persons.
(Judge Ziad Havari, AP (Nazareth) 62-10 Dr. Henrik Rostovitz and Co. v. Yitzchak Shariki Administrator of Freedom of Information, decision issued 17.10.10).
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