Petition to the Tel Aviv District Court under the Freedom of Information Act, Petition 2744/09
To read the petition (English) »
On October 28, 2009 Gisha submitted a petition to the Tel Aviv District Court under the Freedom of Information Act of 1998, requesting that the Defense Ministry and Coordinator of Government Activities in the Territories (COGAT) disclose their policy pertaining to the transfer of food and other vital goods to the Gaza Strip. The petition sought to dispel the secrecy surrounding the procedures and criteria according to which Israel decides which goods can enter the Gaza Strip, and compel the state to publicize these criteria as required by Israeli law. Gisha's goal was to increase transparency of government policy, allow public review of government conduct, and promote respect for human rights and the rule of law.
The petition was submitted in the context of the closure Israel imposed on the Gaza Strip after the Hamas takeover in June 2007. Until June 2010, the policy, according to which "anything other than what is permitted is prohibited", was to prevent the entry of goods into the Gaza Strip except for what was deemed necessary to maintain a "humanitarian minimum". The closure of the Gaza Strip brought economic activity in the area to a standstill, shut down local production and caused near complete dependence on international aid. This was done with the declared goal of paralyzing the Gaza Strip's economy and exerting pressure on the civilian population in the hope that it would overthrow Hamas.
Adding to the hardship caused by the closure, trade, economic activity, and aid delivery were rendered nearly impossible because of the secrecy surrounding what goods could be transferred and how. Farmers, factory owners and importers from the Gaza Strip with longstanding business partners in Israel did not know which goods could be imported into the Gaza Strip and which could not. As a result, food products rotted while waiting for COGAT permits; money was transferred with nothing supplied in return; and fertile ground was created for the illegal activity of fixers and brokers who raked in profits at the expense of traders on both sides of the barricade.
For six months, Gisha tried unsuccessfully to cut through the red tape and get access to information the authorities are obligated to disclose by law, such as:the criteria for defining goods as humanitarian, lists of prohibited and permitted goods, and the procedures COGAT follows for allowing transfer of goods. Gisha's written requests went without satisfactory response, and so in July 2009, the organization made a request under the Freedom of Information Act. After many months of not receiving an answer, despite repeated reminders, Gisha submitted the aforementioned petition.
In response to the petition, the state submitted a very partial response asking the court to dismiss the petition. Gisha objected on the grounds that the state's response insufficiently addressed the fundamental questions raised in the petition. On January 21, 2010 there was a hearing on the petition at the Tel Aviv District Court. At the hearing, the court rejected the response of the state representatives, who claimed they had provided all of the information available to them, and allocated them 30 days to present the requested documents. The state requested and received two 30-day extensions.
In its response, the state admitted for the first time to the existence of documents that set forth procedures for allowing goods into the Gaza Strip, and confirmed the existence of a document that specifies which goods are allowed into the Gaza Strip. In doing so, the state admitted that its previous oral and written statements to the court in the context of the first hearing were untrue. Nonetheless, the state refused to disclose the documents in question, claiming that their disclosure could harm state security and foreign relations. In reply to the state, Gisha rejected the claim that the disclosure of the aforementioned documents could harm state security, warning the court of the excessive use of the pretext of security as a basis for confidentiality, and demanded the disclosure of all relevant information.
The second hearing, held on October 7, 2010, occurred after the easing of the closure policy following the incidents of the maritime flotilla on May 31, 2010. At the hearing, Gisha claimed that its original request for information should apply to any update of criteria and procedures, even those that occurred as a result of the change of policy. The state meanwhile waived its claims of confidentiality based on security and agreed to disclose three documents related to the policy of allowing goods into the Gaza Strip before the flotilla. This included the list of goods whose transfer into the Gaza Strip was permitted, the procedure of approval or rejection, and a "monitoring system" to check inventories in Gaza. Meanwhile, the state refused to disclose the "red lines document", a document which outlines the minimum caloric needs of the residents of the Gaza Strip, on the pretext that it was an "internal draft". Furthermore, the state refused to disclose new documents about the present policy of allowing goods into the Gaza Strip.
On October 21, 2010 the state released three documents that detail the policy of allowing goods into Gaza in the period leading up to the flotilla event. These documents reveal that the state enacted a “policy of deliberate reduction” regarding vital goods in the Gaza Strip and operated according to a paradigm that set an “upper red line”, above which all goods, including humanitarian, could be blocked and a “lower warning line” to give advance warning of expected shortages in a particular item but at the same time approved ignoring that warning. Moreover, the decision whether to permit or prohibit an item was also based on "the good's public perception" and "whether it is viewed as a luxury". In other words, items characterized as "luxury" items would be banned – even if they posed no security threat, and even if they were needed. Israel treated rehabilitation and development of the Gaza Strip as a negative factor in determining whether to allow an item to enter; goods "of a rehabilitative character" required special permission.
The procedures determine that the list of permitted goods "will not be released to those not specified!!" (Emphasis in original) ignoring the fact that without transparency, merchants in Gaza could not know what they were permitted to purchase. The list itemized permitted goods only. Items not on the list – cumin, for example – would require a special procedure for approval, irrespective of any security consideration. The documents contain a series of formulas created by the Defense Ministry to compute product inventory. The calculations are presumed to allow COGAT to measure what is called the "length of breath". The formula states that if you divide the inventory in the Gaza Strip by the daily consumption needs of residents, you will get the number of days it will take for residents to run out of that basic product, or in other words, until their "length of breath" will run out.
The disclosure of these documents alone does not respond to Gisha’s request for information, as they only shed light on the state’s policy through June 2010. On November 3, 2010 a letter was sent to the State Attorney’s Office demanding full disclosure of the procedural guidelines for allowing goods into the Gaza Strip at the time the Freedom of Information Act petition was submitted as well as regarding the current policy formulated in June 2010 following the flotilla incident. Gisha demanded that the state disclose the censored names of the specific individuals whose duties relate to the various activities in the document, citing this as information that is essential to the public, as well as reiterating the demand for the release of the “red lines” document. Gisha is presently waiting for the State Attorney’s Office to respond before submitting an update to the court.