Central Information Commission
CIC/AD/A/X/2009/000121
Dated August 17, 2009
August 28, 2009
Pronounced on: Sep 14, 2009
Name of the Appellant : Sh. Balendra Kumar
Name of the Public Authority : Ministry of External Affairs
Adjunct to order dated 18.05.09
1. In the captioned matter, upon considering detailed submissions from both the
parties, the Commission by its order dated 18.05.2009 directed as hereunder:
"........After hearing both sides and on perusal of all documents provided in
support of their arguments, the Commission takes this opportunity to
highlight the fact that the "RTI Act is an Act to provide for setting out
the practical regime of Right to Information for citizens to secure
access to information under the control of Public Authorities, in order
to provide transparency and accountability in the working of every
Public Authority". The Commission holds that while 'Transparency' promotes
accountability and provides information for citizens about what the Public
Authority is doing, including efficient spending of Public money and making all
decisions in the open and on record, 'Accountability' is the key requirement
for good governance, with public interest as one of its major principles. In the
light of this argument, the Commission holds that there is no merit in the
CPIO's denial of information as 'personal information' while invoking Section
8(1)(j) of the RTI-Act, since the public interest in this case far outweighs any
harm done to protected interests. The Commission, accordingly, directs the
CPIO to provide all the information sought in the RTI request to the Appellant
by 15 June, 2009 under intimation to the Commission....."
2. Subsequently, the Commission received a letter dated 15.06.2009 from the CPIO,
MEA seeking review of the order in view of objections raised by the "Third Party"
(Ambassador Ms. Chitra Narayan) in question, against disclosure of information
pertaining to her. Accordingly, the MEA sought review of the matter, invoking the
provisions of Section 11 of the RTI Act 2005.
3. Hence the Bench of Mrs. Annapurna Dixit, Information Commissioner scheduled
another hearing on 17.08.2009 and the parties including the Ambassador, were
intimated accordingly vide CIC's notice dated 29.07.2009.
4. Sh. Debraj Pradhan, CPIO, Ms. Parvati Sen Vyas, Appellate Authority/Secy. (ER)
and N. Ram Prasad, US [Vig.] represented the Public Authority.
5. Sh. Brijesh Kumar, the authorized representative on behalf of the Applicant, was
present during the hearing.
6. During the hearing on 17.08.2009, the representatives of the Respondent Public
Authority i.e. MEA made oral submissions and also submitted a communication
dated 10.08.2009 from the concerned “Third Party” expressing her objections to
the disclosure of the information as sought by the Appellant, seeking protection of
her privacy under Section 11 of the RTI Act 2005. The Respondent Public
Authority also submitted another communication dated 10.08.2009 informing the
CIC that the concerned “Third Party” was presently posted as an Ambassador and
hence expressed her inability to attend the hearing while sending her
comments/views on the case as per directions of the CIC. It was further pointed
out by the Respondent Public Authority that the concerned “Third Party” will be in
Delhi the following week and accordingly sought another hearing at the
Commission. In view of the sensitivity of the information sought and the gravity
of the allegations involved including misappropriation of public money by a Public
office and the objections of the “Third Party” to the disclosure of the information,
it became imperative that the Ambassador be heard. Accordingly, the Commission
rescheduled another hearing of the appeal on 28.08.2009 so as to allow the
Ambassador to appear and submit her objections. In the light of the facts and
circumstances of the case and of the contention of the Respondent that the
Enquiry report prepared by the CVO, MEA has sensitive information and also
information that is “personal”, the Commission further directed the Respondent
to produce the Enquiry Report and relevant documents, as sought by the
Appellant, in a sealed cover on 25.08.2009, for inspection of the same by the
Commissioner in order to ascertain the exact nature of the information existing in
the file and to decide as to whether the information was actually “sensitive” and
more specifically “personal information” with respect to the Ambassador.
Intimation for production of the file for inspection before the Commission was
duly conveyed to the concerned parties by CIC notice dated 18.08.2009.
7. The CVO file containing the Enquiry Report and other relevant
documents/communication was brought in a sealed cover to the office of the
Commissioner by Mr. N Ram Prasad US(Vig) on 25.08.2009, inspected by the
Commissioner and returned to the representative of MEA.
8. Sh. Debraj Pradhan, CPIO, Ms. Parvati Sen Vyas, Appellate Authority/Secy. (ER)
and N. Ram Prasad, US [Vig.] represented the Public Authority at the hearing
scheduled for 28.8.09. Ms. Chitra Narayanan, the Ambassador, earlier posted at
Ankara, Turkey, i.e. the “Third Party,” as contended by the Public Authority was
also present during the hearing.
9. Sh. Brijesh Kumar and Sh. Jitendra Kumar Sharma, the authorized
representatives on behalf of the Applicant were present during the hearing.
DECISION
10. The Ambassador present during the hearing was heard while she also produced
few documents before the Commission clarifying the various charges against her
and the outcome of the investigation.
11. During the hearing, the representative for the MEA contended that the
information sought related to a case which had been closed after completion of
enquiry, the disclosure of information with respect whereof would indicate lack of
confidence in the investigations conducted by the MEA & the CVC. The CIC,
however, is unable to consider the “lack of confidence” aspect, while deciding
whether information in this case shall be treated as exempt, since such argument
does not fall within the purview of the RTI Act 2005. Moreover, it is a known fact
that neither the RTI Act 2005 nor any other law in force in India states that
information pertaining to a closed case cannot be disclosed. It may be noted in
this connection that information pertaining to even cases which are sub judice are
available in the public domain on the various websites of the Courts. Hence this
argument of the Respondent is found untenable.
12. As already indicated earlier, the Commissioner inspected the CVO file containing
the Enquiry report in respect of the allegations made against the Ambassador. The
documents which the Ambassador submitted during the hearing were found to be
a part of the inspected CVO file. In fact, the inspection of the Enquiry Report and
file notings from the file of the CVO, MEA had revealed that each of the allegations
of misappropriation of Government money by the Ambassador had been dealt
with by the CVO. As per the documents placed on record in the file, specifically
the enquiry report ( file notings ) including the noting dated 09.08.07 and the
MEA’s letter dated 15.6.09 addressed to the CIC, most of the allegations had been
found to be baseless (the clarification in respect of the remaining were invited
from the Ambassador by the CVO and responses were immediately furnished by
the Ambassador and her Office) and hence with the approval of the Foreign
Secretary and in view of the categorical report from the CVO, MEA the CVC
concurred in not pursuing further investigation in the matter. The documents in
the file also state that the inadvertent misrepresentation of facts based on
unverified conclusions by the supervisory official (as admitted by the concerned
official in his communication dated 11.06.2007) had led to overpayment of
allowances to the extent of US $ 4603/- [Rs. 1,88,401/-], which have since been
recovered and deposited in the Embassy account on 25.06.2007. (Documents
elaborating the above mentioned points have already been submitted on record
and appear in the Commission’s Order dated 18.5.09). The detailed Enquiry
Report summarized the investigation while concluding that the allegations of
misuse of Government money, fraud and corruption had been found to be
baseless. According to the Enquiry Report, there were administrative procedural
lapses, which had not led to loss of Government money; nevertheless, the same
had been noted by the concerned officials for rectification and future compliance.
The MEA’s submissions further revealed that the Ministry was in the process of
further streamlining various accounting processes in order to eliminate recurrence
of such inadvertent lapses and procedural lapses. (All the points mentioned in the
para hereinabove, while being part of the Enquiry Report, were also part of the
oral submissions of the Respondent Public Authority during the three hearings
held).
13. The CVO file was once again perused by the Commission for a second time on
28.08.09 and returned on 02.09.09 [Since the Commission wanted to peruse the
CVO file for an hour or so, the representative appearing for CVO suggested to
keep the file in the custody of the Commission]. The contents of the CVO file
inspected by the Commission clearly indicate that the information therein are not
by any stretch of imagination “personal information” pertaining to the
Ambassador. The allegations cast as well as the inquiry/investigation conducted
were related to the Ambassador in her “official capacity” and dealt with alleged
complaints about misappropriation of Government money. The transactions with
respect to Government money is anyway liable for a Government Audit, which has
been noted even during the investigation by various officials, so there can be no
confidentiality and/or secrecy in divulging such information since the expenditure
of Government money by a Government official in the official capacity as office
expenses cannot be termed/categorized as “personal information”. In this regard
it is pertinent to note that even the President of the country does not enjoy any
such immunity from disclosure of information which relates to and/or involves any
action by his/her office in the exercise of regular official functions.
14. The Respondent while arguing as to why the information sought should not be
disclosed stated that failure of the Appellant to substantiate the “public interest”
involved in such disclosure of information, despite directions of the CIC, as also
the furtive conduct of the Appellant, fuelled the belief of the Respondent that the
real intent behind seeking the information was merely an attempt to malign the
reputation and jeopardize the career of a senior official by casting aspersions on
the Country’s Representative. It was further submitted by the Ministry that the
information relating to vigilance cases are treated as “classified” and that “the
disclosure of such classified information could adversely impact the morale of the
members of the Ministry”. The Respondent expressed his apprehension that the
distortion and/or improper reporting of the order declaring such disclosure of
information, by the media, in order to make the same sensational, may damage
the image and reputation of such a senior official as well as the Ministry. Hence
the Ministry sought exemption from disclosure of the information categorizing the
said information as “personal information”. In the light of these submissions of
the Ministry, the Commission notes that the contents of the CVO’s report do not
divulge any information in the nature or character of personal information related
exclusively to the personal life of the Ambassador. Contrary to the argument of
the Respondent, the Commission is of the considered opinion that in the instant
case the disclosure of information relating to alleged charges of corruption and
misappropriation of Government money, wherein after a detailed
investigation/inquiry, the name and reputation of the Public official concerned,
had been declared unblemished, is actually crucial in strengthening the public
faith in the functioning of the Ministry and the CVC. Since the allegation and/or
complaint, Vigilance Enquiry and the Enquiry reports were in respect of the
Ambassador in her official capacity and related to her office and acts/omissions
therein and also because all the information sought by the Appellant exists in
official records already, hence the information cannot be classified as personal nor
exemption be sought on that ground. In so far as distortion of the CIC’s order in
the hands of media is concerned, the same is best left to the wisdom of the
scribes since it is a known fact that in view of the Constitutional right to freedom
of expression discussed in many a celebrated case, no legal restraint can be
extended on the freedom of press. It is only the sense of social and moral
responsibility of the media which can at best be expected from such a vital
component of democracy.
15. The Respondent also expressed strong objection and doubts about the
bonafide/identity as also modus operandi of the Appellant in the instant case. It
was contended by the Respondent that the information is sought by the Appellant
merely with the intent of harassing the Ambassador by attempting to malign and
tarnish her reputation for vested and malicious interests. In this connection, the
Commission observes that it is a settled position of law that all citizens of India
are entitled to obtain information which exists in official records and is not directly
and specifically exempt under provisions of the RTI Act 2005. It can be
interpreted as to mean that it is immaterial who is requesting for the information
and information will be provided to any citizen of India as long as it remains
outside the ambit of the exemptions under Section 8(1) and 9. The provisions of
the Section 6 (2) of the RTI Act 2005 further state that the Applicant seeking
information shall not be required to furnish any reason for seeking the
information. Thus, as per the provisions of law, the bona fide, intent, modus and
conduct of the Appellant cannot be challenged atleast before the CIC as long as
the appropriate procedure of law has been adopted by the Appellant, as in this
case, in seeking the information.
16. It is important to remember again at this stage that the CVO’s Enquiry report was
sought by the Appellant and that disclosure of the same was denied by the MEA.
In this connection, the Commission would like to quote two judgments of Central
Information Commission to highlight the Commission’s position with regard to
disclosure of Reports :
The Commission in its decision dated 30.12.2006 in case
CIC/WB/A/2006/01033, had held that information about FIR/Closure
Report/ Report furnished to Department by CBI in a particular case, to be
furnished by the CBI to the Appellant, using the Severance Clause, if
required.
In a more recent decision dated 06.08.2009 in Appeal No.
CIC/WB/A/2008/00060 the Commission has held that “….the
investigation on which information has been sought involved a
decidedly public activity. In this case what is sought is only a copy of
the disciplinary authority’s recommendations to CVC and a copy of CVC’s
advice meaning that not even proceedings for any offence alleged to have
been committed, the disposal of such proceedings or indeed a copy of the
original enquiry report has been called for. Clearly this is not a case where
disclosure will amount to invasion of privacy….”
17. It is evident that the Central Information Commission has even directed the CVC
and CBI in appropriate cases to furnish information pertaining to enquiry report/s,
investigation reports etc. In the light of the foregoing facts and circumstances and
the decisions discussed hereinabove, it is accordingly observed that none of the
arguments of the Respondent fall within the provisions of the Section 8 and/or 9
of the RTI Act 2005 whereby the information may be considered to be exempt
from disclosure. No specific ground except a rather weak contention about
information being sensitive and of personal nature has been addressed. However,
as discussed already hereinabove, the information sought does not qualify for
exemption either as being “sensitive” or as being “personal” by any chance.
18. The Appellant on his part submitted that the invoking of the objection under
Section 11 of the RTI Act 2005 and seeking that the “Third Party” be heard, by
the Public Authority after a considered decision of the CIC was an afterthought
and clearly illegal. He further contended that the CPIO’s order denying information
on the ground that the “concerned Division of the Ministry has denied the
information” was also illegal since as per the law, the CPIO is the only officer
empowered to decide on the disclosure of information, with no provision of
delegating the authority. In this connection, the necessity of allowing the
Ambassador to appear before the Commission and make her submissions has
already been discussed in the foregoing paragraph and needs no further
elaboration at this stage. In so far as the illegality in the order passed by the CPIO
is concerned, the moment the Appellant had filed Appeals, the said order has
already been challenged and hence merits no separate deliberation. The Appellant
also argued during the hearing that the information sought by him relates to
misappropriation of Government money which is nothing but public money and
being a member of the public, he has every right to acquire information about the
same.
19. On perusal of the records and after hearing the contentions of all the parties, the
Commission decides that the information as sought in the Application cannot be
classified as personal information because the information exists in official records
and is about the public exchequer as also a public office which represents the
country. The argument of the Respondent Public Authority that no public interest
angle could be substantiated by the Appellant had also been heard. However, in
this connection it is important to remember that the public interest has to be
established in case the information sought otherwise merits non disclosure, falling
within one of the exempted categories and not vice versa. It has amply been
discussed in the foregoing paragraphs that since the information sought relates to
allegations of misappropriation of government money, public money being at
stake, the information cannot be considered as personal information and hence
the information does not fall under provisions of Section 8(1) (j) of the RTI Act
2005. Accordingly, the Commission directs that the information as sought by the
Appellant be provided by 5 October 2009, while using the severance clause 10(1)
of the RTI Act , if required, to severe parts exempted from disclosure in the
enquiry report, under intimation to the Commission.
20. The appeal is accordingly disposed of.
Decision in the matter was reserved and pronounced in open Court on 14
September 2009.
(Annapurna Dixit)
Information Commissioner
Authenticated true copy:
(G. Subramanian)
Assistant Registrar
Cc:
1. Mr. Balendra Kumar
Advocate
V-Chhilora, P Abdullapur
Meerut
UP
2. Mr. Debraj Pradahan-, Jt. Secretary & CPIO(RTI)
Ministry of External Affairs
South Block
New Delhi
3. Mrs. Parbati Sen Vyas
Secretary (ER) & Appellate Authority(RTI)
Ministry of External Affairs
South Block
New Delhi
4. Ms. Chitra Narayan
Indian Ambassdor to Berne
Ministry of External Affairs
South Block
New Delhi
5. Officer in charge, NIC
6. Press E Group, CIC