Look Who’s Coming to Dinner: Diplomacy Meets Transparency at the Israeli Ambassador’s Residence in Washington

The Israeli Supreme Court on Monday ordered Israel’s Foreign Ministry to disclose the names of the participants at a seder dinner hosted by the Israeli Ambassador to the U.S., Ron Dermer, in April 2014. The Court accepted the request of the Haaretz newspaper to release those details under the Israeli Freedom of Information Law, rejecting the government’s argument that disclosure in this case would substantially impair Israel’s ability to conduct foreign relations.

Although discovering exactly who broke matzah with Ambassador Dermer more than two years ago may not seem all that important, the decision is noteworthy because it appears to restrict the ambit of the foreign relations exception under the Israeli Freedom of Information Law. It also ties in to the broader issue of judicial deference to the executive in the area of foreign affairs.

The Israeli Freedom of Information Law is similar in structure to the Freedom of Information Act in the United States. It provides that every Israeli citizen or resident has the right to receive information from public authorities upon request, even if they lack a personal stake in that information. While making disclosure the default rule, the Law carves out exceptions for information that must not be divulged, or that the government is under no obligation to share. One of those exceptions is a foreign relations exception: Section 9(a)(1) of the Law provides that public authorities shall not disclose information that, if made public, could harm Israel’s security, its foreign relations, public safety, or the safety and well-being of a person. In addition to these discretionary exceptions, the Law specifically exempts a number of security agencies (such as IDF Intelligence, the Mossad and the Israeli Security Agency) as well as other authorities. Several Foreign Ministry units are also exempted, but other aspects of the Ministry’s operations remain subject to the Law.

The government primarily relied on the foreign relations exception in arguing that it should not be compelled to reveal the identity of the Ambassador’s dinner guests. It maintained that disclosing that information would have a chilling effect on diplomatic communications with Israel, explaining that informal events that take place at the Ambassador’s residence are designed to facilitate sensitive and discreet diplomatic exchanges that depend on confidentiality to be effective. If potential foreign interlocutors know that their identities might be revealed, Israel’s ability to conduct diplomacy would be substantially impaired. The government further argued that confidentiality is the norm in diplomatic circles when it comes to gatherings such as the dinner in question, and that secrecy is particularly essential to Israel’s foreign relations because of the difficulties Israel faces in communicating with certain states and international organizations (presumably those that might not want to be publically associated with Israel).

During the legal proceedings, the government refused to accept proposals for compromise suggested by the Court, arguing that even limited and partial public disclosure of the identities of the dinner participants in this case would set a bad precedent for Israeli diplomacy in the future. The government did, however, share the names with the Court ex parte.

Writing for the majority (Chief Justice Miriam Naor dissented), Justice Daphne Barak-Erez reasoned that while protecting sensitive information related to foreign relations is undoubtedly an important public interest, information that touches upon foreign relations is not automatically exempt from disclosure. The government interest in protecting foreign relations, she continued, should be balanced against the public interest in transparency and oversight of government action, including the work of diplomats where appropriate. Consequently, not every claim of potential harm to foreign relations should trigger the foreign relations exception. A public authority that wishes to avoid disclosure must demonstrate that, in the particular circumstances of the case at issue, the potential harm to Israel’s foreign relations would be significant.

The opinion draws inspiration from other jurisdictions, citing similar foreign relations exceptions to freedom of information legislation in the U.S., the U.K., Canada and Australia. The Court observed that foreign relations exceptions are generally invoked in matters that touch on core aspects of foreign relations, such as security issues and intelligence cooperation, and that courts and freedom of information policies in other jurisdictions have assigned weight to factors like the type of the information, the circumstances under which it was received by the public authority, the nature of the relationship between the states involved and so forth. Broad and unspecified government claims about potential harm to foreign relations, the Court found, have generally not been deemed sufficient to prevent disclosure. Among other examples, the Court pointed out that the White House voluntarily discloses records of White House guests, excluding purely personal guests and small groups of particularly sensitive meetings.

Applying those standards, the Court determined that the government’s chilling effect argument failed to justify invoking the foreign relations exception to categorically block disclosure of information about diplomatic gatherings that take place at ambassadors’ residences and other informal diplomatic exchanges. Although a guarantee of secrecy would undoubtedly be convenient for diplomats, the Court noted, expediency alone does not outweigh the public interest in transparency and oversight.

Turning to the specific event at issue, the Court found that there is no reason to deny disclosure under the foreign relations exception, because the government had failed to demonstrate that revealing the names of the Ambassador’s guests would harm Israel’s foreign relations. The Court noted that it had reached this conclusion considering, among other things, the publically available facts about the event: journalists were in attendance; several guests, including U.S. Secretary of State John Kerry, publically acknowledged their participation; only U.S. and Israeli citizens were present; and none of the guests were promised that their attendance would be kept secret. In light of these facts, the Court observed, there could not be any reasonable expectation of secrecy on the part of the participants.

The Court clarified, however, that future requests for information about similar events should be reviewed based on the specific features of the event in question (such as the identity and number of the participants and the nature of the exchange), and that the foreign relations exception would apply in some cases. The Court encouraged the Foreign Ministry to develop criteria for handling future requests.

While it is difficult to see how disclosing the names of the Ambassador’s seder guests would harm Israeli foreign relations, considering that some of them can be found online, the government’s chilling effect argument is not entirely without merit. The default of disclosure set by the Court might make it more difficult for diplomats to guarantee the confidentiality of future exchanges. The Court seems to acknowledge this in recognizing that in some cases, foreign relations considerations would prevent disclosure of records about participants in informal diplomatic exchanges. But this caveat might not be enough to alleviate potential concerns of foreign diplomats ex ante, because of the possibility that courts will order disclosure after the fact. In any event, the extent of this potential chilling effect is ultimately an empirical question, and it will be interesting to see how it plays out in diplomatic practice.

Perhaps more interesting are the normative aspects of the decision. The decision signals that even central features of the conduct of foreign relations like diplomatic exchanges, which have traditionally enjoyed increased deference from the courts, should generally be subject to public and judicial scrutiny. It represents the approach that courts should not automatically defer to the executive on foreign relations, and that this area of government action is not beyond the reach of the law. Without making any direct comparisons, this approach is reminiscent of what Ganesh Sitaraman and Ingrid Wuerth recently described as a process of “normalization” of U.S. foreign relations law, whereby the U.S. Supreme Court increasingly treats foreign relations cases as ordinary cases suitable for judicial review under conventional legal standards.