Alongside preserving the records stored in it, the archive’s primary role is to provide the public with access to them. Akevot’s report Point of Access summarizes the findings of extensive research regarding the various barriers to access to Israel’s government archives.
The report surveys the findings and presents recommendations for improving access and having the Government Archives fulfill their legal obligations.
The report shows that due to the Government Archive’s policies, a paucity of the materials preserved in the Government Archives is accessible for public consultation: a mere one percent of all the materials in the Israel State Archive (ISA) and in the IDF and Defense Establishment Archive (IDEA). The report findings address, inter alia, the barring of public access to the lion’s share of documentation whose restricted access period has expired; routine extensions of barring viewing of archival records without legal authority; allocating limited resources for making materials accessible for viewing; failing to present complete catalogues to the public; inexplicable and nontransparent conduct by the archives in response to access requests; and the sealing of the GSS (Shin Bet) and Mossad archives.
The research on which the report is based includes interviews with numerous archive users, conversations with the state archivist, the director of the IDEA and other employees, consultation with experts in the field, information provided by the Prime Minister’s Office and the Ministry of Defense in response to requests in accordance with the Freedom of Information Law, and other sources, among them: the case-law regarding access to archival materials, State Comptroller reports on the archives and various academic and other articles.
The first chapter of the report is dedicated to surveying the pertinent legal statutes: The Archives Law and the Access Regulations, court rulings in the matter from the last decade. The next three chapters cover the state of public access to materials in the Israel State Archive (ISA), IDEA and the Shin Bet and Mossad archives. The fifth and last chapter focuses on the importance of access to government documentation for the protection of human rights, and examines specific impediments to access materials related to human rights that are routine in the Israeli Government Archives.
The report paints a bleak picture: The entities that control access to archival materials regularly disregard their legal obligations, creating a reality in which the Government Archives in Israel do not uphold their obligation to allow public access to government documentation.
The “memory” of state institutions in the form of government records – protocols, correspondences, reports and such like documents and certificates – is stored in the government archives. This information has been created, collected and held for the public’s benefit and was paid by public funds; it should be restored to the public and serve it for research and debate; it should enrich our knowledge of events and the processes that brought us so far, laying a foundation to continue building our future. Yet, this report shows a mere 1% of all these files is open for public access.
The Archives Law stipulates, “Any person may consult the archival materials deposited in the [Israel State] Archive.” Regulations on the consultation of materials in the government archives (“The Access Regulations”) draw on the Freedom of Information Law and its regulations, while also imposing Restricted Access Periods (RAPs) on material consultation. These periods range from 15 to 70 years, according to subjects and origins. However, Restricted Access Periods are not tantamount to “prohibition of access” periods. When a person request to consult a “restricted” material, regulations order that as a rule, requested material should be unclassified and made available, unless it emerges, upon reviewing the request, that one of the grounds specified in the regulations, which mainly concern the protection of state security, its foreign relations and the right of privacy, unequivocally precludes the material’s declassification. Pursuant to the orders of the Israeli administrative law, a decision to deny the requested material’s declassification must provide a reasoning that may guarantee that all necessary considerations have been weighed. Examination of the state-of-affairs at the government archives, as summarized in the findings of this report, reveals an all-together different practice.
The report reveals that the small staff assigned to archival material declassification precludes in fact any routine declassification of materials past their RAP, delaying the process of handling archive users’ requests to consult materials (partial improvement is expected at the Israel State Archive within the coming months); the report portrays a routine of extending file classification with no legal authority. Representatives of the originating government offices make decisions that deny archive users access to files past their RAP, despite this authority being conferred by law on the State Archivist alone, subjected to approval by a ministerial committee. The policy of denying access to the full catalogue of materials held therein undermines the autonomy of research at the government archives, coupled with the “criteria documents” that outline the yardsticks to exercise discretion in decisions concerning the declassification of materials, and are inconsistent with their professed purpose. The report further shows that government archives provide no reasoning for denials of requests to consult archival material, citing the ground for said denial, at best. This policy is in breach of the law, hindering review of the discretion leading to decisions denying access and making it hard to appeal them. Moreover, appeal procedures themselves are not regularized by internal procedures.
The General Security Service (GSS) and Mossad archives hold material of high importance for understanding Israeli society, as well the history of the state and the Israeli-Palestinian conflict. Alongside a sensitive intelligence material, its confidentiality a matter of consensus, it also contains additional, highly valuable material that can be cleared for public consultation. After it turned out that the GSS, Mossad and other security bodies failed to provide access to archival materials 50 years since generated, pursuant to the orders of the regulations at the time, the Access Regulations were revised. The current regulations have the RAP on specific security organizations’ materials extended to 70 years, while introducing a regulation ordering that these organizations prepare a special procedure for declassifying 50-year-old materials. The report shows that the GSS has yet to prepare a declassification procedure, thereby hindering any public access to its archival materials; and that the GSS and Mossad alike are making no preparations for the end of the 70-year-long Restricted Access Period placed on their archival material, in a few years’ time. Being as so, public access to the important materials held in these archives is expected to be denied in the following years as well.
The archive has a role to play in promoting and protecting human rights and in exposing their violations. This role is addressed by the final chapter of this report. It shows that government archives in Israel often take actions to withhold records on state-perpetrated human rights violations, particularly those associated with the Israeli-Palestinian conflict. Indeed, criteria for classification or declassifications of materials determined in government archives in the past, with the purpose of protecting the image of the state, its institutions and officials, have been revoked following the State Comptroller’s observations and High Court petitions. Still, documents that shed light on sordid affairs in the state’s history remain classified, many years after their RAPs expire. A picture emerges from this chapter that reveals an effort to conceal old documents of this kind, even those held by non-governmental archives, with no legal authority. Furthermore, documents already cleared in the past, including some extensively quoted by different publications, have been re-sealed to be withheld from the public.
The different barriers set for public access to archives that unfold in this report paint a bleak picture. Findings show that government archives betray their role of making the state’s archival materials available for public access. The archives’ conduct is out-of-step with the change occurring in recent years in the status of the public’s right to obtain information held by authorities and the corresponding 2010 revision of the Access Regulations. The main government archives appear to open their gates to the public, welcoming it to use their services, but whoever seeks to rely on them to gain access to the records held therein is set to be disappointed: the scope of archival material open for public consultation is negligible; the open archives are in fact closed. A thorough reform in the government archives is required, coupled with a deep understanding that records kept of the work done by the government and its officials is the public’s property, rather than a secret to be kept from it.
- The Israel State Archive should offer the public a complete, unabridged catalogue of its archival materials, including a catalogue of its classified materials and those under RAP. Inasmuch as some details in the catalogue may disclose confidential details, they can be redacted, so as to avoid risk to protected interests.
- The ISA should stop exercising Decision PUB/37 as a document that sets criteria for discretion in decisions on declassification. If an internal procedure is required to set yardsticks for materials declassification, it must rely on the Access Regulations and the customary balancing tests for freedom of information, and be open for public access. If another document exists besides Decision PUB/37 to instruct in decisions on requests to consult restricted archival material, it must be made public like any administrative guideline, while maintaining the protection of terms and details where protection is grounded in actual justification.
- In cases where the Declassification Department decides to deny full or partial consultation of the requested material, decision-makers shall specify in writing the reasons for their decision. The reasoning must follow the outline determined in the freedom of information procedure 3.1: “Response requirements in freedom of information request denials”, with particular attention to the ground for the restriction placed, while citing the interests examined, considerations weighed, expected outcomes of the information submission and the balancing barrier that informed the decision. Depositor-Archivist discussions on the matter should be recorded too. Records of the different decisions shall be available for public consultation. If an elaborate reasoning may in itself disclose details disqualified for disclosure, the gap should be overcome by offering the gist by way of paraphrasing.
- State Archivist should draft clear procedure for submitting appeals of decisions to deny material consultation, during or after the RAP. The procedure shall specify the elements that may discuss the appeal, which shall not include the original decision-makers, while a timetable shall be set for deciding on the appeal. The procedure should be made known as part of any reply denying on consultation request, whether full or partial.
- Section 10 (c) of the Archives Law should be amended so that a similar arrangement to that found in section 24b of the Committees of Inquiry Law is introduced: appointing a public committee authorized to extend declassification prohibition on archival material past its RAP. Until the law is revised, the orders of section 10(c) of the Archives Law should be followed.
- The State Archivist must ensure that intelligence and security organizations as a whole meet their obligations by the Access Regulations, including the obligation of publishing procedures for consulting their archival materials and preparation works for proactive declassification, by the end of the RAP, at the very latest.
- The State Archivist should order that internal criteria documents at the different government archives include clear orders that encourage the declassification of archival materials on serious violations of human rights. Procedures in the archives should guarantee rapid, prioritized processing of requests by victims of human rights violations to access archival materials pertaining to their grievances. The criteria documents and other relevant internal procedures shall include expressed orders stating that considerations of protecting the image of establishment figures, organizations and the state with its institutions are invalid when it comes to deciding on archival material declassification.
- The Ministry of Defense should assign the IDEA resources that may allow it to implement its duty of proactively declassify materials past their RAP. If this proves impossible, and given that significant material declassification was frustrated in the IDEA due to lack of appropriate budgeting by the Ministry of Defense, the State Archivist should consider systematic solutions for storing archival materials of such significant scope by a government office that avoids budgeting their restoration to the public.
- The IDEA must complete declassification of its catalogue and produce a complete and unabridged catalogue for public consultation. In cases where file titles could disclose classified information, classified expressions may be redacted, but the catalogue must reflect the file’s existence. Even independently of the full catalogue’s production, the IDEA should offer applicants who submit consultation requests the list of files corresponding to their subject, including classified files, so that they may request their opening.
- IDEA staff must inform those requesting to consult restricted access material of the scope of material available for their request, provide as many details as possible on the material, and offer their estimates regarding the existence of further relevant material which they could not track down. The information shall be made known to applicants before the committee discussion, so that applicants may direct archive staff to further materials they estimate to be held by the archive.
- The IDEA should follow the orders of the Archives Law, which stipulates that the authority to deny archival material consultation for set periods of time is the preserve of the Archivist, with the ministerial committee’s approval, and at any rate not the depositor’s to exercise.
- The criteria document of the IDEA should be updated so that the yardsticks stipulated therein do not permit a more extensive classification of materials than that allowed by the Access Regulations’ provisions. More specifically, Section 13 should be struck out of the document, along with the two additional orders, while the archive’s declassification people about should be instructed about their revocation.
- In cases where the agency committee or declassification team decide to deny full or partial consultation of the material requested, the ruling official shall specify in writing the reasons that led to their decision. The reasoning must pursue the outline determined by Freedom of Information Procedure 3.1 – “Response Requirements for Freedom of Information Request Denials”. If an exhaustive reasoning may in itself disclose details prohibited for release, the gap must be bridged by offering the gist of the matters, worded by way of paraphrase.
- A clear procedure for appealing decisions to deny material consultation should be drafted and determined, during and after RAP. The procedure shall specify the elements to discuss the appeal, which may not come from among the original decision makers. A timetable for reaching a decision on the appeal shall also be set. The existence of the procedure should be made known through clear signs at the IDEA reading room, and as part of every reply on a consultation request denial, whether partial of full.
- The IDEA and State Archivist should reconsider the fees regime, so as to remove the significant barrier in the form of high cost for obtaining archival material copies by users. The practice shall thereby be made consistent with the trend of avoiding collection of high fees for materials that are the public estate; materials that their consultation – including copying – fulfils the right for information.