Human Rights Alert (NGO) ‫סייג לזכויות האדם‬

Joseph Zernik, PhD ‫ד"ר יוסף צרניק‬

PO Box 31440, Jerusalem 91313, Israel; jz12345@earthlink.net ; 91313 ‫ ירושלים‬31440 ‫תד‬

Public access and integrity of court records in the digital era

The denial of public access to court records, to inspect and to copy, the failure to define the
authority and duties of the Office of the Clerk, implementation of an invalid case
management system in the courts, combined with other changes in Israeli society in recent
decades, raise serious concerns regarding the future of justice in Israel.
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________

Dana Weiler’s report “Court decision in a detainee’s case appeared in the court file prior to holding
proceedings”, and even more so, the response by the spokesperson for the Ministry of Justice, exposed
matters, which need to be addressed, pertaining to records, judges, clerks, and computers in the Israeli courts.

Clear definition of court records, their validity and transparency are at the foundation of Human Rights in
general, Fair Hearings and Protection of Rights in particular.

The definition of court records and court procedures have been thoroughly transformed with implementation
of case management systems in the courts. Such transformation required respective legislation, promulgation,
or rules of courts. For example, the most recent Rules of the Supreme Court of the State of Israel, published
by Chief Justice Dorit Beinish state that such Rules were in force and effect “prior to the implementation of
“Net Ha-Mishpat” (the Israeli courts’ case management system). Therefore, the Chief Justice clearly
recognized that different Rules would be required once the system is implemented in the Supreme Court.

Ambiguity in the nature of court record, as exposed in Weiler’s report, undermines the foundation of the
justice system. Such ambiguity originated in fundamental failure to establish the nature of court records and
court procedures following the introduction of Net Ha-Mishpat. Such failure pertains both to the certification
by judges and attestation by clerks (digital signatures, authentication) of the records themselves, and to
validation (authorities, functional logic verification) of the system as a whole.

Validity of court records, even prior to implementation of Net Ha-Mishpat, depends on clear establishment of
the duties and authority of judges and clerks relative to certification and attestation of court records. However,
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the law in Israel established the Office of the Clerk relatively late, and the duties and authority of the Office
have not been clearly established. A glaring deficiency in the law is the failure to require an Oath of Office by
the clerks of the courts, similar to that is required by judges. Conditions in the Israeli courts stand as an
exception in this matter, relative to courts of other nations, which originated in English law. Following the
introduction of computerized case management systems in the courts, such matters gain higher significance
than before.

Transparency of court records is grounded in the common law right of the public to access court records, to
inspect and to copy, known in the United States as part of the First Amendment. This right is part of the
Human Right for Fair Hearing and Due Process. The most significant court records, which fall under this
right, are the “Books of Court”: Index of All Cases, Calendars of the Courts, Dockets, Minutes, and Book of
Judgments (Index of Judgments). Construction, Validity, and transparency of these records is the primary
duty of the clerks of the courts.

Examination of conditions in the courts in Israel demonstrated that in fact, public access is denied even to the
most basic records – Index of All Cases. Moreover, the case, which was documented in Weiler's report,
demonstrated the lack of validity and honesty of the latter four of the five Books of Court in the Detainees'
Court in question.
The victim in the Weiler’s report was a foreign citizen in a case of a Detainees’ Court. However, the basic
failure of the system, which was documented in the report, pertains to all courts in Israel, where Net Ha-
Mishpat has been implemented. The detainee’s attorney in this case exposed alleged court misconduct in this
case. However, it is unreasonable to assume that in other cases attorneys would be willing to confront the
courts.

Examination of Net Ha-Mishpat leads to the conclusion that the system is materially deficient in the definition,
validity, and transparency of court records. Therefore, the system undermines the foundations of justice and
Human Rights in Israel, as documented in Weiler’s report.

Examination of similar case management systems in the United States courts, documented that invalid systems
enabled serious violations of Human Rights in the United States.

Prior to the publication of Weiler’s report, following preliminary examination of Net Ha-Mishpat, the State of
Israel’s Ombudsman and the Assistant Director of the Courts Judge Alon Gilon were approached in this
matter. The Ombudsman never responded at all, and Judge Gilon’s response was inadequate.

There is no doubt the computerized case management system could enhance the clarity, validity, and
transparency of court records. There is no doubt, either, that in Israel some of the world’s best experts are
available in the areas of database design, security, encryption, and system validation.

The public at large, and computer experts in particular, should exercise their civil rights and perform their
civic duties and monitor the conduct of the courts in Israel in this matter, which lies at the foundation of a
democratic society.

The denial of public access to court records, to inspect and to copy, the failure to define the authority and
duties of the Office of the Clerk, implementation of an invalid case management system in the courts,
combined with other changes in Israeli society in recent decades, raise serious concerns regarding the future of
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justice in Israel.

Joseph Zernik, PhD

See links to related records at the bottom of the Hebrew original.