Once again she was asked: "If I remove Libiki's data from this case, from the court, from this world, please confirm to me that you don't have an opinion, not you, not Rodriguez, nothing. There is nothing," and she replied:
I think I've answered this question three times already, so the fourth time I'm saying it, it's not true. First of all, there is no reason not to use Dr. Libicki's data, because these data are very good and there is nothing that points to flaws in her analysis but even if there were such flaws, there are other sources for the data such as the World Health Organization and there are a lot of analyses in all three reports, including some that indicate that the scientific evidence does not support the opinion of the prosecution's experts, Opinions that are invalid and cannot be relied upon (pages 2448-2449).
- Even with regard to this testimony and after I have considered the summaries of the parties, I have not found that the applicants have been able to undermine its professional credibility and what is stated in its opinion.
Documents of Prof. Itamar Grotto [Appendices 4 and 4.1]
The Documents at Issue
- An expert opinion or an affidavit of testimony by Prof. Itamar Grotto, who served as the head of the Public Health Department at the Ministry of Health, during the relevant period, were not submitted on behalf of the applicants.
- In paragraph 101 of the amended application for approval, the applicants referred to a letter from Prof. Itamar Grotto from 2012. To the best of our ability, the letter was not attached to the request for approval and was not submitted to the file. Therefore, no weight will be given to the claim there.
- The following documents were attached to the amended request as appendices, as detailed in sections 103-106 therein:
- Letter from Prof. Itamar Grotto dated April 12, 2015 to Ms. Shlomit Chen, National Appeals Officer in the National Planning Institutions Division, regarding the request to present cancer morbidity data, to the Appeals Subcommittee [Appendix 4].
- A position paper dated December 15, 2015 prepared by Prof. A. Grotto and four others, entitled "Position Paper, Ministry of Health on Morbidity in Haifa Bay" [Appendix 1].
- In the letter Appendix 4 – and with reference to three articles – Prof. Grotto detailed the data on excess morbidity in the Haifa district, stating, among other things, and in summary, that the incidence of cancer in all age groups in the Haifa district was significantly higher than in the rest of the country, that during the ten years between 1998 and 2007, the risk ratio for all types of cancer in the Haifa district was 16% higher, for lung cancer by 29%, and for bladder cancer by 26%.
- The position paper Appendix 1 states in its executive summary network, among other things, that it is intended to provide decision makers with "...The broadest possible scientific basis in order to examine the existing knowledge regarding morbidity that may be explained by air pollution in Haifa Bay."
- Later in the summary and in light of its findings, a number of recommendations were made, among other things, to continue to act to reduce air pollution in Haifa Bay, while formulating a plan that would address the following aspects:
- An action plan to reduce air pollution from all sources (industry, transportation, electricity generation).
- Expanding monitoring in places and materials where a clearer picture of air quality is required.
- Collection and spatial analysis of morbidity and mortality data at the national level, for the purpose of examining over-morbidity in the Haifa area.
- Expanding epidemiological knowledge through conducting studies at the individual level , including receiving up-to-date data on morbidity in Haifa Bay.
- In the background chapter No. 3, it is written, inter alia, that "...Age and smoking are major risk factors for cancer and cardiac morbidity. The population of the Haifa district is older than the national average."
- Chapter No. 4, which relates to "Factories and Other Sources with the Potential for Air Pollution in Haifa Bay," states, among other things, that the industrial zone in the Gulf includes various factories from the chemical and petrochemical industries and energy producers, which are "required an emission permit under the Clean Air Law."
- The document relates, inter alia, to morbidity and mortality data in the Haifa district in various aspects, such as cardiac disease data (section 6.2), cancer morbidity data (section 6.3), cancer morbidity by age groups and nationality (section 7), to epidemiologists who examined the relationship between industrial air pollution, air pollution other than residential buildings near roads and fuel tanks, and morbidity (section 8), the document refers to morbidity mapping and marine epidemiological studies (section 9), The Haifa Bay Development Plans (Section 10) and Chapter 11 deal with "Summary and Policy Recommendations".
- In the concluding chapter, it is stated, inter alia:
- The monitoring picture of air pollution is insufficient and there is a need to expand the monitoring and sampling of volatile organic substances in Haifa Bay in order to get a better picture of the current state of air quality. Also; In the Haifa Bay area, there are a large number of air pollutants at the same time. The interaction between them may be a significant risk factor for morbidity, both the standards and most studies treat one substance separately at a time. The outline of exposure in Haifa is a unique mixture of industrial and transportation pollution that does not exist anywhere else in the country, and some of which has not been measured at all. As of today, there is no way to predict with certainty, based on the available scientific literature, how the combination of these substances affects the health of the population in the region, even though each individual substance is measured below the value of the environment" [ibid., p. 38].
The nature and legal nature of the documents
- The Applicants referred to the aforementioned appendices and their significance within the framework of paragraphs 27-31 of their summaries. It was not claimed by the applicants that the aforementioned appendices are a 'public certificate'.
- According to the Applicants, reference should be made to the 'position paper' (Appendix 1), which establishes the position of the Ministry of Health as an institutional record and alternatively as a substantive government document (ibid., paragraph 27 in the middle) [see also: paragraph 10 of the summaries of the reply; paragraph 15, paragraph 62 in the middle, and paragraph 74].
- In paragraph 10 of the summaries of the reply, it is also argued that Appendix 4 is an 'institutional record' based on data from the Ministry of Environmental Protection and new studies [see also section 56 Risha].
- An "institutional record" is defined in section 35 of the Evidence Ordinance [New Version], 5731-1971, and is a document, including a computer output, prepared by an institution in the course of its regular activity, and it constitutes an exception to the rule that disqualifies testimony from hearsay, and is admissible as evidence of the veracity of its content, when certain conditions set forth in the Evidence Ordinance are met.
- An institutional record will be admissible for the authenticity of its content, if all the cumulative conditions as set forth in section 36(a) of the Ordinance are met:
- The institution customarily, during its regular management, to make a record of the event that is the subject of the record close to its occurrence
- The way the data is collected and the way the record is edited attest to software veracity
- If the record is an "output" (as defined in the Computers Law), it must also be proven that the manner in which the record was produced attests to its reliability, and that the institution regularly takes reasonable protective measures against penetration of computer material and disruption of the computer's work.
- These provisions do not apply to a record prepared by an investigative authority or a criminal prosecution and filed in a criminal proceeding by such authority.
- Proof of these conditions is done by the testimony of someone who knows about the matter personally, or by means of an affidavit, when the declarant may be required to cross-examine.
- In Criminal Appeal Authority 3981/11 Sharvit v. State of Israel (published in Nevo, July 5, 2012), it was held, inter alia, that:
An "institutional record" is defined as "a document, including an output, prepared by an institution in the course of the ordinary operation of the institution" (section 35 of the Ordinance). Such a document establishes a presumption of credibility and falls within the scope of an explicit exception to the rule that disqualifies hearsay testimony. There are two requirements for bringing the document within the framework of the aforementioned exception: first, that it must be a document that meets the definition of "institutional record"; Second, that the conditions listed in the Ordinance (in section 36) for the admissibility of the record as evidence must be met. The conditions that need to be proven – by virtue of this provision – are that the institution customarily, in the course of its regular management, to make a record of the event that is the subject of the record close to its occurrence, and that through the collection of the data that is the subject of the record and the manner in which the record is edited, they attest to the veracity of its content. [....]