February 13, 2017

Previous legal activity on the subject from August 3, 2016: here.

As previously reported by Gisha, the IDF Spokesperson confirmed that Israel uses planes to spray herbicides west of Gaza’s perimeter fence (that is, inside the Gaza Strip), with the purpose of destroying vegetation in the surrounding area.

The herbicides are carried by wind, reaching hundreds of meters into the Gaza Strip, and cause substantial damage to crops grown by local farmers, many of whom end up in debt as a result. Spraying took place most recently on February 2, 2017, once again with devastating consequences.

Gisha’s requests for information on this issue remained unanswered even once the Ministry of Defense had exceeded the full extension stipulated by law (120 days). Gisha was forced to file a Freedom of Information application, requesting information about how decisions to spray are reached, such as when to spray; who carries out the spraying and what chemical agents are used; the size and location of areas destined for spraying, areas sprayed de facto, and areas affected indirectly by the spraying, and;  whether the effects of the spraying on farmland are addressed and in what way.

After the petition was filed, the Ministry of Defense provided a partial answer (Hebrew), claiming that the additional information requested did not constitute “information” under the Freedom of Information Act, and that the ministry does not have it in physical form (“written, recorded, filmed, photographed or computerized”), and therefore, it cannot be provided. According to the ministry, this rendered the petition moot and precluded the need to proceed with its review. In effect, the ministry claimed that it has no records of when aerial sprayings were carried out, or of who governs the Border and Seam Zone Administration (the agency in charge of the spraying) .

On November 13, 2016, the Ministry of Defense filed a response (Hebrew) to the petition containing additional information, despite having previously alleged it had provided all of the information available to it. This response included information about one of the companies hired to carry out the spraying (Telem Aviation), and an affidavit from the head of the Planning and Maintenance Department of the Border and Seam Zone Administration (Lieut. Col. Lev Talitski), stating that the spraying takes place only above the security barrier and inside Israeli territory. The Ministry of Defense also stated, for the first time, that it had in its possession additional documents, which would be made available to Gisha once security clearance was given.

These documents were handed to Gisha several minutes before the hearing (Hebrew) on the petition began on November 29, 2016. Since the documents had been made available, the Ministry of Defense repeated its argument that the petition should be deleted as it had been exhausted. Any unanswered questions, claimed counsel for the Ministry of Defense (Adv. Noa Yaniv Michaeli from the Tel Aviv District Attorney’s Office), constituted a request for information the ministry did not “physically” have possession of.

A review of these documents raised suspicion that the facts presented by the Ministry of Defense were inaccurate or untrue, and that the ministry had possession of more information, particularly in relation to the timing of the spraying, and the size and location of the areas sprayed. The documents provided indicate that the Ministry of Defense directs the spraying companies on when and where to spray, and that it is responsible for coordinating spraying with Israel’s Nature and Parks Authority, the Open Area Enforcement Unit (known as the Green Patrol) and the Jewish National Fund, including coordination vis-à-vis Southern Command Intelligence, which is tasked with the safety of the aircrafts and the companies’ ground teams.

In addition, according to the terms of payment dictated by the Ministry of Defense, nearly half (40 percent) of the fees are paid to the spraying companies subject to the results of the spraying on the ground. The Ministry of Defense patrols the area before transferring the second payment installment, and orders corrections in certain areas if necessary. To enable monitoring, the Ministry of Defense requires the spraying companies to fill out a daily operations log, and mark the areas sprayed on aerial photos with a predetermined scale. The companies are also required to submit records of the aircrafts’ GPS systems, noting the areas and times of the spraying, as a prerequisite for receiving the remaining payment. These directives create a further trail of evidence, on top of the one created when any aircraft lifts off, simply by virtue of aviation laws and regulatory activity.

The inescapable conclusion is, therefore, that the contractual engagement between the Ministry of Defense and the spraying companies necessarily provides the Ministry of Defense with accurate information about which areas were sprayed, and when. This information is written, photographed and computerized, thereby constituting “information” under the Freedom of Information Act, in stark contrast to what the Ministry of Defense claimed in court.

On January 17, 2017, we contacted the Ministry of Defense (Hebrew) explaining that by claiming it does not have the requisite information the ministry was, in fact, saying that it does not monitor the effects of the spraying – an omission that raises concerns over possible security breaches along the barrier as well as mismanagement of public funds (seeing as spraying companies get paid regardless of whether or not they performed the task). In a response to this communication (Hebrew) from February 12, 2017, the Ministry of Defense retracted its earlier position and admitted it had possession of information pertaining to when the sprayings took place and the size and location of the areas sprayed, but that it could not divulge this information due to national security concerns (citing Section 9(a)(1) of the Freedom of Information Act).

According to the decision of the court, Gisha must give notice by February 22, 2017 of whether it wishes to pursue this petition.