Central Information Commission
.P.C George vs Ministry Of External Affairs on 11 July, 2011
In the Central Information Commission
at
New Delhi
File No: CIC/OK/C/2008/00897
Date of Hearing : June 24, 2011
Date of Decision : July 11, 2011
Parties:
Applicant
Shri P.C. George
(Poonjar)
Member, Kerala Legislative Assembly
Plathottam
Brattupetta - 2
Kottayam
Kerala
The Applicant was represented by Shri Vinod Yadav during the hearing
Respondents
The Public Information Officer Ministry of External Affairs Akbar Bhawan New Delhi Represented by: Shri Debraj Pradhan, CPIO Shri Suresh Babu, Director (ERS) Information Commissioner : Mrs. Annapurna Dixit _________________________________________________________________ Decision Notice The MEA has not brought forth any additional and/or substantial argument justifying the non disclosure of information till date. In the absence of any specific reason there seems to be no reason to interfere with the original decision. Information is directed to be provided by or within 16th August 2011. It is also observed that no tangible reason has been provided by the CPIO either for the delay or for not bringing the new facts to the Commission earlier. Despite repeated opportunities being granted, the Respondents have not been able to justify the delay. the Commission imposes a penalty of Rs.25,000/ on the then PIO for misleading the Commission with incorrect averments from time to time thereby obstructing the furnishing of information and also delaying the response to the RTI Application within the stipulated time. The Appellate Authority, MEA is directed to recover a sum of Rs.25,000/ in five monthly installments of Rs. 5000/ and send the same in the form of a Demand Draft drawn in favour of PAO, CAT and send the same addressed to Shri G. Subramanian, Deputy Registrar, Central Information Commission, Club Building, Old JNU Campus, New Delhi 110 067. The first installment should reach the Commission by 16.08.2011 and the last installment should reach by 15.12.2011.
In the Central Information Commission at New Delhi File No: CIC/OK/C/2008/00897 Adjunct to CIC Decision dated 09.05.2011
1. The Commission passed the captioned order dated 9th May 2011 based on the contentions of the parties, relevant part whereof is as hereunder:
"........4. The Respondents in their defence submitted that in their process of procuring information as directed by the Commission, the MEA had in fact approached the Department of Economic Affairs, Ministry of Finance with a communication dated 17.02.2010 seeking the required documents. The DEA, MoF by its communication dated 19.02.2010 had enclosed copies of the said documents forwarding the same to the JS (ERS) MEA. The JS (ERS) MEA sought the opinion of MEA's Legal & Treaties Division, being unable to comment on the political and legal angle on releasing of the said documents. The L&T Division in response stated that sensitivity of the issue needs to be determined by the concerned administrative Ministry since the documents essentially involve financial issues. If there is any specific legal question relating to these agreements then that can be flagged for the L&T Division to be examined.
5. All of the averments by the Respondents establish clearly that all of the exercise undertaken by the Public Authority after receiving the Commission's Order dated 12.1.10, was belated and irrelevant as far as compliance with the Commission's order is concerned and proved to be ineffective in furnishing the information to the Complainant within the time as prescribed by the Commission. Accordingly, the Commission issues a Show Cause notice calling upon the CPIO from the Public Authority to explain the cause of the delay and why a penalty to the tune of Rs 25,000/ not be imposed upon them. Reply to the Show th Cause to reach the Commission by 25 May 2011. Furthermore, in view of the fact that the Public Authority (MEA) had orally submitted during the hearing that they were in fact inclined to provide the information as sought by the Complainant as already discussed, therefore, there remains no ground to delay the dissemination of the information any further. Hence, the Commission directs that the information as sought by the Complainant be th provided to him within 25 May 2011. ..."
2. The Commission received a letter dated 25.05.11 from Shri Debraj Pradhan, CPIO in response to the Show Cause notice stating that following the decision dated 12.01.2010 passed by the CIC, the MEA decided to take a fresh look at the issue and hence had requested DEA to provide copies of the two documents, for examination. The DEA while providing the documents had left it to MEA to decide the release of the two documents to the Complainant. Considering that the two documents sought by the Complainant were communications between high dignitaries of India and of a foreign country, the officials of MEA deemed it appropriate to seek comments from the Legal and Treaties (L&T) Division of MEA. The L&T Division recommended that the concerned Territorial/Administrative Division, i.e. Eurasia Division in the Ministry make a judgment on whether or not to release the document under the RTI Act, 2005. MEA in its submissions further elaborated that the Eurasia Division of the Ministry felt it appropriate to obtain the consent of the Russian Government before proceeding with its recommendation in favour of the release of the documents. Hence, the Ministry took up the issue with the Russian Government through the Embassy of India, Moscow on multiple occasions with a view to obtaining the consent of the Russian side. However, despite considerable delay no response had been obtained by the MEA till recently when the Russian Government in an informal verbal communication responded to the Indian side's formal request stating that all correspondences between the Soviet Union/Russia with foreign Governments are as a rule considered 'confidential', and that correspondences with foreign governments dealing with financial matters (including interest payments, loans, credit lines etc.) are always treated as "secret" documents. The MEA states that this implies that Russia does not favour releasing its correspondences with foreign governments in the public domain unless it receives written consent from the foreign government and it expects in reciprocity, the foreign government to follow the same practice.
3. The MEA has submitted that the Embassy of India, Moscow has filed another formal request seeking Russian concurrence, response to which is awaited. The Ministry has expressed that the Russian side's response now places Eurasia Division's position as regards this RTI query in a complicated situation, apprehending that the unilateral release of the contents of the documents as instructed by the CIC may lead to breach of trust with Russia, India's strategic partner and violate a legal understanding given that India is also a signatory party to all bilateral documents. The MEA further submitted that the RTI application under question, was given priority by Eurasia Division with the objective of providing timely reply as stipulated under RTI Act, 2005, and best attempts were made to seek a logical conclusion to the RTI query. But the nature of the Complainant's query being such that information could not be arranged with routine approvals since the very scope of such information stretched beyond the realm of MEA and into the Government of India's legal limits and entailed international juridical matters, the contents in question being intergovernmental bilateral documents.
4. The PIO, MEA concluded that due to such constraints, certain degree of oversight, as pointed out by the CIC in this particular RTI case, did occur as a result of the combination of aforementioned factors. However, the PIO denied any negligence and malafide on the part of the officials of the Ministry in serving the national interest and in full reverence to their constitutional obligations under the RTI Act, 2005. The PIO therefore sought additional time so that the matter can be pursued with the Russian Government with a view to obtaining their written consent for the release of the documents as sought by the Complainant.
5. It is noted that new facts have been brought before the Commission such as the consent of the Russian Government to be obtained which was not brought to the notice earlier during the previous three hearings which were held during the span of over two years. Hence, it was decided to hold a hearing before the Commission on 24.06.2011 and the Respondents were sent notices dated 26.05.2011 to appear alongwith all the relevant files/documents while the CPIO was directed to explain as why he should not be penalized for his failure to provide correct information and for not bringing this fact to the notice of the Commission, by 22.06.2011.
6. In response to the said Show Cause notice dated 26.05.2011 issued by the CIC, the Commission received a letter dated 21.06.2011 from Shri Debraj Pradhan, CPIO stating that since the filing of the RTI application in May 2008, the Eurasia Division of the MEA has been taking measures to comply with the RTI query. The PIO placed reliance on the contents of the Ministry's earlier letter dated 25.05.2011 discussed hereinabove while explaining the actions taken by the Division with Russia with which India has strategic partnership and there is, interalia, an informal mechanism of interaction in practice. It was stated that in view of the extremely guarded and closed system of functioning in Russia when it comes to relations with foreign partners, the Division in the MEA generally liaise with their Russian colleagues in a number of issues of sensitive nature, as in the case of RTI, by using informal channels expecting that the formal response would be generally either 'nil' or 'negative'. The MEA has stated that in the past two years among other vital information the Ministry has been informally trying to secure the consent to placing texts of all bilateral intergovernmental agreements including the RupeeRouble Debt Fund Agreement in the public domain in India, though such informal communication remain undocumented though they were intended to comply with the RTI queries. It is further submitted that the information, on issues like the bilateral agreements involving a foreign Government or territory, it is a convention to seek the consent of that foreign Government. The RupeeRouble Debt Fund is an intergovernmental agreement that binds both parties legally. It was implicit that contents of this agreement, especially since they are financial in nature, shall require formal consent of the other legal signatory. The CPIO further stated in his letter that in view of the above and anticipating a formal consent of the Russian Government to release the text of the RupeeRouble Debt Fund Agreement, a decision to be preceded by an informal signal, the Ministry has not been able to bring this to the notice of the CIC earlier. Thus according to the CPIO the intention of the Eurasia Division of the Ministry was actually to divulge the information as is clear from its anticipation and has been emphasised by the MEA and not to either delay or undermine the significance of complying with the provisions of the RTI Act, 2005. In fact the MEA expressed their sincere regret for the delay in communicating the above facts.
Decision
7. During the hearing, the Respondents submitted that formal request was sent on April 2011 and no response has been received from the Russian Government till now.
8. Upon perusal of the various documents and communications exchanged so far, including the replies dated 25.05.2011 and 21.06.2011 from the Respondents, it has been noted that the Respondents have at no point of time during the preceding three hearings spanning over last two years have mentioned that information sought requires formal approval from the Russian Government for its disclosure. It has been recorded in each of the three earlier decisions dated 19.12.2008, 12.01.2011 and 19.05.2011 that despite opportunities being given to the PIO, MEA, vague reasons have been cited justifying the denial of information. It is also noted that only after the CIC directed the Respondent to provide the information on 12.01.2010, that the MEA has approached the DEA and L&T Division of the MEA seeking their consent. Even at that time the consent of the Russian Government was not sought. The MEA has therefore been passing the "consent obtaining" part bringing one agency after the other in their realm of consenting authority in complete disregard of the repeated directions of the CIC. None of the authorities/agencies in India seemed to have objected to the divulging of information in this case. Thereafter, it was only in the instant fourth hearing after being directed and Show Cause notice being issued by the CIC, that the Respondents came up with the argument that the consent of the Russian government is essential for disclosure of information in this case, although they were not able to provide any documents indicating such necessity of the consent of the Russian Government before disclosing the information neither have they relied on any secrecy/confidentiality clause between the nations. In fact it is their own submission in the letter dated 21.06.2011, as noted in the preceding paragraph number 6, that the MEA has been trying for the past two years to obtain the consent of the Russian Government of placing among others, the Rupee Rouble Debt Fund Agreement in the public domain in India. No categoric denial or objection from the Russian Government so far has been obtained or placed on record over the last two years thereby implying the neutral approach of the Russian Government.
9. The Commission at this point finds it relevant to mention the recent judgment of the Apex Court in the case of Ram Jethmalani & Ors. versus Union of India wherein the information about the black monies of Indians stashed away abroad were directed to be disclosed to the Petitioner. Even in the face of the Union of India's argument that it was ".....proscribed from disclosing such names, and other documents and information with respect to such bank accounts under the Double Taxation agreement with Germany.....", the Hon'ble Supreme Court upon examining the relevant clause of the said Double Taxation Agreement held that : ......"It is disingenuous for the Union of India, under these circumstances, to repeatedly claim that it is unable to reveal the documents and names as sought by the Petitioners on the ground that the same is proscribed by the said agreement. It does not matter that Germany itself may have asked India to treat the information shared as being subject to the confidentiality and secrecy clause of the double taxation agreement. It is for the Union of India, and the courts, in appropriate proceedings, to determine whether such information concerns matters that are covered by the double taxation agreement or not."
It was further discussed by the Apex Court that ".....Withholding of information from the petitioners by the State, thereby constraining their freedom of speech and expression before this Court, may be premised only on the exceptions carved out, in Clause (2) of Article 19, "in the interests of sovereignty and integrity of India, security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence" or by law that demarcate exceptions, provided that such a law comports with the enumerated grounds in Clause (2) of Article 19, or that may be provided for elsewhere in the Constitution.
71. It is now a well recognized proposition that we are increasingly being entwined in a global network of events and social action. Considerable care has to be exercised in this process, particularly where governments which come into being on account of a constitutive document, enter into treaties. The actions of governments can only be lawful when exercised within the four corners of constitutional permissibility. No treaty can be entered into, or interpreted, such that constitutional fealty is derogated from ..."
Thus while the Supreme Court exempted the disclosure of names and particulars with respect to the individuals who held accounts in banks in Liechtenstein, with respect to whom investigations/enquiries are still in progress and no information or evidence of wrongdoing is yet available, the information pertaining to names and documents relating to the accounts of those individuals with bank accounts in Liechtenstein, as revealed by Germany, with respect of whom investigations have been concluded, to be disclosed either partially or wholly.
10. In the light of the findings of the above discussed decision wherein the Apex Court directed disclosure of information which was withheld since long in secrecy by the Union of India citing reference to international agreement etc., we find the premises on which the information in the instant case have been withheld as being somewhat similar though there is neither a specific agreement nor any clause which has been cited for such secrecy by the PIO, MEA in the instant case. The MEA in this case has not brought forth any additional and/or substantial argument justifying the non disclosure of information. In the absence of any specific reason it seems a deliberate dilatory tactics laced with afterthought in this case to keep the information under wraps and hence there seems to be no reason to interfere with the original decision. The Commission therefore directs the information to be provided by or within the 16th August 2011.
11. With regard to the reply given to the Show Cause notice, it has been noticed that no tangible reason was given by the CPIO, Mr. Debraj Pradhan either for the delay or for not bringing the new facts to the Commission earlier except that "...Russia follows a closely guarded system". It does not appear to be a reasonable explanation despite numerous opportunities provided to him. Hence, the Commission imposes a penalty of Rs.25,000/ on the then CPIO for misleading the Commission with incorrect averments from time to time thereby obstructing the furnishing of information and also delaying the response to the RTI Application. The Appellate Authority, MEA is directed to recover a sum of Rs.25,000/ in five monthly installments of Rs. 5000/ from the CPIO and send the same in the form of a Demand Draft drawn in favour of PAO, CAT to Shri G. Subramanian, Deputy Registrar, Central Information Commission, Club Building, Old JNU Campus, New Delhi 110 067. The first installment should reach the Commission by 16.08.2011 and the last installment by 15.12.2011.
12. The Complaint is disposed of on the above terms.
Pronounced in open Court on 11th July 2011.
(Annapurna Dixit) Information Commissioner Authenticated true copy (G. Subramanian) Deputy Registrar Cc:
1. Shri P.C.George (Poonjar) Member, Kerala Legislative Assembly Plathottam Brattupetta - 2 Kottayam Kerala
2. The Public Information Officer Ministry of External Affairs Akbar Bhawan New Delhi
3. The Appellate Authority Ministry of External Affairs South Block New Delhi
4. Officer in charge, NIC