As a result of the pressure applied by the Supreme Court in response to an appeal submitted by ACRI, and in accordance with the directions of the Attorney General, the state agreed to make a large part of the tender documentation for the first private prison in Israel, public. Thereby allowing public scrutiny of the conditions of the tender and an evaluation of its ability to protect the rights of prisoners that will be interned within it. The documents, as determined by an agreement that was signed under the auspices of the court, between the state and ACRI, will be made public no later than 1.8.05, with the exception of documents that in the view of the state are not included in the Freedom of Expression Law. However, Justices Edmond Levy, Dorit Beinisch, and Edna Arbel did not sanction ACRI’s request that the date for the final tender bids be delayed, the date has been set for 9.8.05.
The appeal which is still pending, was submitted by ACRI Attorney Dori Spivak, a member of ACRI`s board and the Tel-Aviv University`s Human Rights Program, in response to the ruling of the Tel-Aviv administrative court which rejected ACRI’s petition calling for the contents of the tender to be made public, and claimed that the Freedom of Expression Law is not relevant to tenders that have not yet been completed. The appeal emphasizes that it is extremely important to the general public that the procedure undertaken to choose a commercial body to run the private prison next to Beersheba, be transparent, as well as the details of the agreement to be signed with the successful bidder This is even more significant when one consider the precedent-setting nature of the tender, and the not unfounded fear of potential human rights violations of the prisoners as a result of the privatization.
The petition to the Tel-Aviv Administrative Court that was rejected by Judge Avraham Tal, was submitted in November 2003 against the Ministry of Finance, The Ministry of Public Security, and The Israel Prison Service (IPS), after a series of fruitless attempts by ACRI to gain access to the over 1000 page tender documentation. Attorney Spivak emphasizes in the petition that state authorities are attempting to prevent public scrutiny of their activities, and are trying to create “facts on the ground” as to the method to be employed to choose an appropriate candidate and the agreement to be signed with them. All this is slated to happen before the public has had the opportunity to realize its right to examine the details of the tender, or to take whatever action necessary to improve or amend it conditions.
The appeal states that the public’s right to know is recognized as a basic right, whose importance is primary. This right, the appeal continues, takes on even more significance when one considers that the government is currently undertaking the unprecedented action of privatizing a prison, an act that raises a series of complicated and weighty legal and legislative questions, a clear public interest exists in accessing information relating to the minimal internment conditions that the successful candidate will demand from its suppliers, to the range of services that will be supplied to prisoners, the type of government supervision of the prison industry, and the state’s methods of dealing with the potential violations of the terms of the tender by the successful candidate. The appeal also claims that the utilization of a private commercial bodies for vital services (in this case for a period of 15 years at least) is a step that is very hard to reverse, and further illustrates the importance of holding a public debate on the details of the proposed contract, before it is signed. Thus, Attorney Spivak emphasizes, the administrative court was mistaken in its rejection of ACRI’s petition.
ACRI wishes to verify that the contract that will be signed with the successful bidder will include an effective mechanism for overseeing its functioning, and that the state will retain a real option, as required by law, to cancel the agreement in the event that prisoners’ rights are violated, or the contract is breached in any other form. In order to ensure such supervision, it is extremely important that the contract is open to anyone as a means of guaranteeing effective public scrutiny of the tender and its contents. Attorney Spivak also presented a precedent-setting Australian court ruling before the Supreme Court related to the same question, in which the Australian court ruled that the details of the tender must be open to the public.
The disclosure of the tender’s contents, the appeal states, is required both by the Freedom of Information Law, and the obligatory regulations governing tenders. The state’s claim that details of the tender cannot be disclosed for fear that public safety may be undermined, is generalized and baseless. In many cases, stresses Attorney Spivak, the free flow of information guarantees security. A state that acts under the cover of darkness loses the faith of the public and undermines the rule of law and public security. Spivak also wishes to clarify that he is not asking for information on the intelligence and security systems of the prison, areas which, and only which, do not come under the auspices of the Freedom of Information Law. In light of the aforementioned, ACRI requested that a copy of the documentation be sent in a computerized format in accordance with the provisions of Freedom of Information Law which stipulates that information in this format must be provided if required.
last updated : 21/07/05
