Central Information Commission
Mr.Saikat Datta vs Ministry Of External Affairs on 23 May, 2011
In the Central Information Commission
at
New Delhi
File No: CIC/AD/A/2011/001121
Date of Hearing : May 13, 2011
Date of decision : May, 23, 2011
Parties:
Appellant
Mr. Saikat Datta
C/o Outlook,
AB10, Safdarjung Enclave,
New Delhi
Represented by: Appellant in person alongwith Sh. Shekhar Singh and Ms. Anuradha Raman
.
Respondent
1. Public Information Officer
Ministry of External Affairs
Room No. 619,
Akbar Bhawan
Chanakyapuri
New Delhi
2. Appellate Authority
Ministry of External Affairs
South Block,
Room No. 183A,
New Delhi
Represented by: Mr. Debraj Pradhan, JS (RTI); Mr. Sandeep Sood, SO (RTI) and Mr. Onkar
Sarup, Dy. Secretary (WA), MEA.
Information Commissioner : Mrs. Annapurna Dixit
_______________________________________________________________
Decision Notice
As given in the decision
In the Central Information Commission
at
New Delhi
File No: CIC/AD/A/2011/001121
Date of Hearing : May 13, 2011
Date of Decision : May, 23, 2011
Background
1. The Applicant filed an RTI Application dated 01.11.2009 with the CPIO, Ministry of External Affairs, seeking inspection of all files, records, correspondence and all information held by the Ministry relating to five specific DGFT notifications issued between January 2008 and June 2009 regarding the export of Non Basmati rice to West African nations. The Applicant also requested the CPIO to transfer the file to the relevant CPIO under provisions of Section 6(3) of the RTI Act 2005. The CPIO transferred the RTI application to the Jt. Director General of Foreign Trade & CPIO, Ministry of Commerce and Trade on 09.12.2009 stating that the information sought related more closely with the said Ministry, with a copy to the Applicant by way of an interim reply. This was followed by another communication from the PIO, MEA dated 17.02.2009 . By the said communication, the PIO, MEA denied disclosure of any information under provisions of Section 8 (1)(a) and Section 8 (1)(f) of the RTI Act 2005 since the information included letters received in confidence from foreign Governments and notes etc. on file, disclosure whereof would prove harmful to India's relations with the countries concerned.
2. Following the first response of the CPIO, the Applicant preferred a First Appeal dated 22.12.2009 before the First Appellate Authority. The Applicant did not receive any response from the First Appellate Authority but by this time he received the CPIO's later response dated 17.02.2009 whereby information had been denied to him. Therefore, the Applicant filed another First Appeal dated 10.03.2009 challenging the second order dated 17.02.2010 passed by the CPIO. He stated in this appeal that a reminder enclosing detailed annexures had been sent by him on 18.11.2009 pointing out that the Ministry of Consumer Affairs , Food & Public Distribution had already allowed him file inspection of their files related to the EGOM proceedings specific to the same DGFT notifications and had provided him with 341 copies of documents inspected. He pointed out that it is wrong to state that letters from foreign countries will affect foreign relations since these very same letters have already been disclosed by the Ministry of Food and Consumer Affairs. The Appellate Authority however, by the order dated 09.04.2010 upheld and reiterated the decision of the CPIO as conveyed by order dated 17.02.2010. Furthermore, the Appellate Authority clearly distinguished as to why the CIC decision relied upon did not apply in this case and upon them, particularly.
3. Being aggrieved by the denial of information by the Public Authority, the Appellant filed the instant Second Appeal dated 16.06.2010 before the Central Information Commission reiterating his earlier contentions in detail. In his appeal the Appellant has put forth his arguments as to why neither provisions of Section 8 (1) (a) of Section 8 (1) (f) of the RTI Act 2005 are applicable to deny information in this case. The Appellant in his Second Appeal annexed a copy of the communication dated 13.08.09 received from the Republic of Ghana by the Indian Government seeking investigation of the role of various Indian officials in the discrepancy in the transaction of export of rice. In support of his claim that copies of some letters of request are already available with him, he enclosed request letters for aid from Minister of Foreign Affairs, Sierre Leone to the then Foreign Minister of India dated 31.3.09 and a letter dated 15 April, 2008 from the Ministry of External Relations and Cooperation in Charge of the Diaspora, Antananarivo to the Embassy of India. The Second Appeal also includes a statement of the Union Minister for Commerce & Industry in the Lok Sabha on 30.07.2009 admitting the corruption in the said transaction and assuring that "......inquiries will be held; responsibilities will be fixed and remedial action taken....." . Based on the documents placed on record, and also in view of the fact that the Ministry of Food had already shared all the files relating to the same case under RTI, the Appellant contended that sufficient information was already in the public domain about the corruption. While mentioning his grounds for his appeal he stated that, "this matter of corruption has already affected the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the state, relations with foreign state . In fact, by refusing to disclose the information sought, the CPIO's actions are helping cause further harm to relations with foreign states." He further added that "none of the letters received from foreign governments requesting quotas for 25% broken, nonbasmati rice was received in confidence , and in fact were marked to several public authorities". The Applicant further averred that the Republic of Ghana has actually sought an investigation of the role of Ministry of External Affairs and its officers in this particular issue through a letter dated August 13, 2009 and that the Ministry of Food has already shared all the files related to this case with him under RTI and has provided copies of all the documents sought by him including letters received by the MEA from foreign Governments and had not sought any exemption. The Appellant alleged that the act of the CPIO in denial of the information therefore indicates deliberate attempt to hide the matter of corruption.
4. The Commission took cognizance of the matter and a hearing was scheduled on 05.05.2011 and notice/s intimating the parties accordingly were issued on 18.04.2011.
Hearing
5. During the hearing, the parties reiterated their submissions and contentions. The Appellant contended that the letters received from the Foreign Governments in fact are not even marked "Secret" as is evident from the documents already available in public domain. The Appellant in fact argued that even if there is any confidential information among the letters and documents, the same may be treated under Section 10 (1) of the RTI Act 2005 by severing the confidential/sensitive part therein and not by completely denying the entire information under Section 8 (1) (f) of the RTI Act 2005.
6. On the other hand the Respondent submitted that the information sought by the Appellant comprised of communication at the highest level between the Prime Minister/s and/or President/s of the countries, which though not labeled as "Secret" are treated as confidential and are conducted only through special channels. In this case, according to the Respondent some of the letters may expose the weakness and vulnerability of that nation, and hence such information is classified as "Secret" and treated with utmost confidentiality. Some information may seem accusatory and some may bring to light the political skirmishes taking place in a particular country, the disclosure of which may be resented by that country. The Respondent also stated that in so far as supporting or providing aid and assistance to some foreign nation is concerned, it is decided by appropriate levels of the Ministry , based on international relations and strategy. Being very sensitive in nature, such decisions which have a direct bearing on international relations are not to be divulged in national interest. As far as the Report of Inquiry conducted in relation to the charges of corruption in the export of the rice is concerned, he stated that the same is available with the Ministry of Commerce and Industry and that the Ministry of Commerce is at liberty to decide whether or not to divulge the information therein. The Appellant at this stage rebutted the statements of the Respondent stating that out of the five notifications as specified by them, dealing with the export of Non Basmati rice to 22 different countries, not all correspondence could be categorized as confidential simply because the same had been exchanged between the top leaders or Heads of respective State/s. This kind of exemption is not provided under the RTI Act also. He reiterated that he is already in possession of copies of such letters obtained by him under RTI. The Appellant maintained his stand that most of the information about food supply by India to various countries facing crisis is also already in public domain and so are the notifications. It is also a known fact, as stated by the Appellant, that the DGFT ban on export of rice was lifted only for humanitarian aid. The Appellant also pointed out that details of allocation of Non Basmati Rice to the various nations through the DGFT notifications issued by the Ministry of Commerce and Industry, are already available in the public domain and therefore, there was no confidentiality in this regard.
7. The conflict of opinions of the parties despite a prolonged hearing made it inevitable that the files be inspected by the Commission to decide on the issue of sensitivity of the information. Hence it was directed orally, in the presence of the Appellant, that the Respondents should remain present with the relevant files on 09.05.2011 for inspection in the Chamber of the Information Commissioner at 04:30pm.
Decision
8. The files brought and produced in original by the Respondent were divided into eleven volumes. Broadly, the files dealt with the subject of supply of Non Basmati rice to West African and other nations and included guidelines for allocation, correspondences between dignitaries as also memoranda regarding the quantity and quality of the product to be exported to different countries. They contained position notes on food situation in different countries prepared by Indian Embassy officials and officials from MEA and information about Contract Nos., and mode of dispatch and other such details, letters referring to the dates of the consignment dispatch and notes regarding the quantity of the non basmati rice to be exported besides letters giving details of the banks through which the consignment of the product was to be exported. There were also letters of thanks from various dignitaries to the PM, Ministers and other senior officials in India and minutes of meetings held by the Empowered Group of Secretaries containing suggestions/recommendations for export of nonbasmati rice while giving briefly the prevailing situation (political, food etc. ) in these countries .
9. Seven of the 11 files which were considered important including the file dealing with policy matters and that containing information about rice export to Ghana were perused by the Commission. A cursory glance through the remaining files by the Commission revealed that they contained similar information as in the other files perused. The Commission found that almost all the documents in the files perused rather innocuous in nature, containing very little sensitive information, which was contrary to the contention of the Respondents. In fact, most of the information available in the policy file is already available with the Appellant as is evident from the documents already enclosed by him (Appellant) along with his appeal. It was, however, noted that there were a few position notes prepared by Indian Embassy officials and by officials of MEA and minutes of meetings of Empowered group of Secretaries besides a few file notings which indeed contained some lines/ a paragraph or two only wherein assessments of prevailing situation (political, on the food front etc,) in different countries have been made and recorded . There is no doubt that these documents can be treated under Section 10(1) of the RTI Act and the sensitive portions therein can be severed before providing the remaining information contained therein. The undersigned also found letters written by various dignitaries of countries to the Indian Prime Minister/Ministers requesting for aid in a standard format containing one paragraph containing therein just one line giving an account of the food situation in their countries while seeking aid. (As already stated in different paras hereinabove, it was noted by the Commissioner that some of these request letters are already in the possession of the Appellant as is evident from two letters enclosed by him (see para 3). These letters as admitted by the Appellant, have been provided by the Ministry of Consumer Affairs, Food & Public Distribution, Govt. of India, under RTI to the Appellant ). Although most of most of these letters from Heads of States are admittedly available in the public domain already, giving due regard to the apprehensions expressed by the Respondent from MEA, such request letters, as available with MEA may be disclosed by the CPIO, MEA, after severing, if required, the 'sensitive' line, if any, which exposes the vulnerability of that country, under Section 10(1) of the RTI Act. The 'policy' file also contained the guidelines for the export of non basmati rice, the position and status of implementation of various notifications on the export of non basmati rice, some notes relating to the prevailing situation in different countries, file notings by Ministry officials requesting for supply of the commodity, with only some of them, as pointed out several times hereinabove, containing personal assessments of the internal situation in different countries. It is the Commission's opinion that such assessments/comments may be withheld by severing these portions under Section 10(1) of the RTI Act. There are also several egrams which need to be carefully looked into as some of them once again contain personal records of situation in countries, by Indian Embassy officials parts of which may be withheld from the Appellant while invoking Section 10(1). The draft and final minutes of the meetings dated 05.08.2008 and 04.11.2009 indicated as meetings between the Empowered Group of Secretaries contain, in the opinion of the Commission not more than two paras in each wherein some assessments of internal situations have been recorded. The minutes, once these personal assessments are severed are innocuous in nature and may be disclosed. The CPIO, MEA is advised to apply the provisions of the Section 10 (1) of the Act judiciously and appropriately while assigning reasons for such severance of information. Similar logic and reasoning was directed to be used while reviewing the few files not perused in detail by the undersigned since as already explained hereinabove, a cursory glance through them revealed that they contained similar information as those already inspected . An email from the Indian Embassy at Antananarivo, Madagascar to MEA containing information about the perceptions of locals about India may be completely severed as it is exempted from disclosure u/s 8(1)(a) of the RTI Act .
10. The Commission, after perusing the files produced by the MEA before her and after careful consideration of the submissions of both sides, submissions on record and taking cognizance of the Appellant's submission that the matter pertains to corruption in various Ministries, broadly holds that ONLY information containing personal assessment and records of food/political situation in another nation which show the nation in a poor light, any derogatory comments in position notes against other nations and only parts of all letters or file notings or minutes of meetings which expose the vulnerable position of any country and any piece of information which does not relate at all to the subject matter are exempt from disclosure and directs the CPIO, MEA to handle these records judiciously and to remove , if required, any sensitive information therein u/s10(1) of the RTI Act while legally and appropriately explaining the reasons for such severance of information.
11. Inspection to be completed and the Appellant to be provided with copies of documents required by him by 30 June, 2011. The Appellant may be provided 100 pages of information free of cost and may be charged @Rs.2/ per page as photocopying charges for pages beyond this number.
Decision announced in open court of the Information Commissioner, Mrs. Annapurna Dixit on 23 May, 2011.
(Annapurna Dixit) Information Commissioner Authenticated true copy (G. Subramanian) Deputy Registrar Cc:
1. Mr. Saikat Datta C/o Outlook, AB10, Safdarjung Enclave, New Delhi
2. Public Information Officer Ministry of External Affairs Room No. 619, Akbar Bhawan Chanakyapuri New Delhi
3. Appellate Authority Ministry of External Affairs South Block, Room No. 183A, New Delhi
4. Officer in Charge, NIC