R Deepak vs Directorate General Of Audit on 16 December, 2022

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Central Information Commission

R Deepak vs Directorate General Of Audit on 16 December, 2022

Bench: Saroj Punhani

                               के   ीय सूचना आयोग
                        Central Information Commission
                            बाबागंगनाथमाग , मुिनरका
                         Baba Gangnath Marg, Munirka
                          नई द ली, New Delhi - 110067


File No : CIC/DIROA/A/2021/121934

R Deepak                                                ......अपीलकता /Appellant


                                      VERSUS
                                       बनाम
CPIO,
O/o the Director General of
Commercial Audit, Hyderabad,
RTI Cell, AG's Office Complex,
Saifabad, Hyderabad-500004,
Telangana                                          .... ितवादीगण /Respondent

Date of Hearing                   :   12/12/2022
Date of Decision                  :   12/12/2022

INFORMATION COMMISSIONER :            Saroj Punhani

Relevant facts emerging from appeal:

RTI application filed on          :   05/01/2021
CPIO replied on                   :   05/02/2021
First appeal filed on             :   14/02/2021
First Appellate Authority order   :   08/04/2021
2nd Appeal/Complaint dated        :   24/05/2021

Information sought

The Appellant filed an RTI application dated 05.01.2021 seeking the following information:

1. "Copies of Audit Inspection Reports in Visakhapatnam Port Trust (VPT) for the Years 2017-2018, 2018-2019, 2019-2020 and 2020-2021.

2. Copies of audit objections in VPT for the Years 2017-2018, 2018-2019, 2019-2020 and 2020-2021.

3. Copies of all replies given by VPT as to audit objections for the Years 2017-2018, 2018-2019, 2019-2020 and 2020-2021.

4. Copies of entire correspondence exchanged in between O/o the Deputy Director of Commercial Audit, Visakhapatnam under the control of Indian Audit and Accounts Department and other public authorities on the above reference cited.

5. File notings on movement of this RTI petition."

The CPIO replied to the appellant on 05.02.2021 stating as under:-

Point Nos. 1 & 2:- "For the years 2017-18 to 2020-21, one inspection Report was issued to VPT. The Inspection Report containing audit findings can be furnished excluding Part IIA paras and paras which are likely to be developed into Draft Paragraphs as the same are confidential till they are placed before the Parliament. As the Inspection Report consists of 16 pages, the same can be furnished on remittance of an amount of Rs.32/-@ Rs.2/- per page) through IPO.

Point No. 3 & 4:-Communication exchanged between auditor and audited entity is confidential as information received is in a fiduciary capacity and as such exempt under section 8 (1) (e) of RTI Act. In view of this, the same cannot be furnished.

Point Nos. 5:- Replies to point wise information sought have been given above. File notings on this application under RTI Act are in- process/intermediary internal documents of the Department. In view of this, the same cannot be furnished."

Being dissatisfied, the appellant filed a First Appeal dated 14.02.2021. FAA's order dated 08.04.2021 upheld the reply of CPIO.

Feeling aggrieved and dissatisfied, the appellant approached the Commission with the instant Second Appeal.

Relevant Facts emerging during Hearing:

The following were present:-

Appellant: Present through video-conference.

Respondent: A Paventhan, Deputy Director & CPIO present through video- conference.

The Appellant expressed his dissatisfaction with the CPIO's reply on the following arguments -

"......In fact, the applicant's right defined by the RTI Act and is not subject to the impugned decisions and the whims and fancies of the CPIO. The CPIO has given vague and evasive reply which is unjustified with respect to point No.2 and 5.

It is submitted that in the case of Rednam Deepak Vs. Ministry of Shipping, Date of Decision 05-12-2016, the Hon'ble Central Information Commission (CIC) held that "the larger public interest outweighs & marginalizes any other conflicting personal interest since every of these cases relate to charges of corruption. The officials under enquiry were discharging public functions and thus, the collective right of citizenry to lift the veil and look inside the functions of VPT, assumes paramount significance. It is thus, in larger public interest that the Commission is inclined to direct disclosure of the information".

...... the CPIO that the desired information as to audit correspondence in between two public authorities should not be disclosed is untenable with regard to item No.3 and 4. The correspondence pertains to audit related information enjoys no specific immunity from disclosure under RTI Act.

In the instant case, the audit correspondence related information sought by the applicant does not attract the exemption provisions of the RTI Act. Therefore, it is wholly erroneous to invoke exemption under Section 8 (1) (e).

xxx I submit that the audit correspondence and replies given by Visakhapatnam Port Trust (VPT) with regard to audit objections is obviously a matter of public interest. It is unquestionably a matter in the larger public interest. Public interest demands that all audit activities and transactions should have been done in a transparent, unbiased and just manner...."

In support of his arguments, the Appellant quoted various case laws of the CIC and Hon'ble High Courts.

The CPIO at the outset reiterated his earlier reply and further submitted that upon receipt of hearing notice a revised point wise reply was furnished to the Appellant on 08.12.2022, relevant extracts of which are as under -

SI. No. Information Sought Decisions with Reasons

1. Copies of Audit Inspection Copy of the Inspection Report in respect of VPT Reports it Visakhapatnam Port for the years 2017-18 to 2020-21 was already Trust (VPT) for the years 2017- furnished excluding portion of Part HA pans 2018, 2018-2019. 2019-2020 vide this office letter dated 23.02.2021. and 2020-2021.

The CPIO is directed to furnish copy of the Part IIA pares of the Inspection Report also unless they are being/going to be developed as draft pares or other material for the C&AG's Audit Report as such paras/material would become subject to parliamentary privilege and exempt under Section 8(1) (c) of the RTI Act.

2. Copies of audit objections in The Information sought is not clear. Audit VPT for the above period objection is a generic term and not a formally recognized document. The audit observations approved by the competent authority find place in the Inspection Report. Before the approval of the Inspection Report. the audit observations and any related correspondence would be mere in process or intermediary documents. The appellant has already requested for copies of Audit Inspection Report, which was dealt with at SI. No. 1 above. In addition, the CPIO is directed to provide the copies of the published observations on the Visakhapatnam Port Trust for the aforesaid period to the extent the relevant Audit Reports are already placed in Parliament and do not constitute breach of privilege of the Parliament. It is believed that this would meet the appellant's requirements.

3. Copies of all replies given by The appellant contends that all relationships VPT to the audit objections for usually have an clement of trust. but all of the same period. them cannot be classified as fiduciary.

According to him, information provided in discharge of a statutory requirement cannot be considered to have been given in a fiduciary relationship. The contention of the appellant cannot be accepted in the present case since the relationship between the auditor and 4 audited entity cannot be categorized as normal relationship. Every communication exchanged between auditor and audited entity statutory authority/body cannot be considered to be a part of the public domain. Moreover, before the stage of inspection Report. any communication between the auditor and auditee would be mere in process or intermediary document.

The Port Trust is not merely a statutory body. It is also a commercial organization with substantial revenues and expenses.

Communications between the Auditee (Port Trust) and the Audit arc fiduciary in nature and would attract exemption under Section 8 (1) (c) of the RTI Act.

Moreover, according to C&AG's Regulations on Audit and Accounts (which have statutory force). information about an auditable entity acquired during the course of audit shall not he used for purposes other than the discharge of C&AG's audit mandate (Regulation 20(3)).

Considering every communication exchanged between auditor and the Port Trust as disclosable can also have the effect of adversely affecting the auditor-auditee interaction and vitiating the free flow of information from the audited entity to the Audit. The appellant could have sought this information directly from the Auditee (i.e. Visakhpatnam Port Trust) itself. The information sought does not appear to serve any larger public or societal interest. In view of the above. the information sought would be exempt under Section 8(1) (e) of RTI Act.

Hence. the decision of the CPI0 is upheld.

4. Copies of correspondence The appellant's request is broad and general.

exchanged between 0/o Audit objection is not a formally recognized Deputy Director. document. The reasons already stated against Visakhapatnam and other SI.No.3 above would be equally applicable to 5 public authorities on the above correspondence exchanged between the Office reference cited. of the Deputy Director and other public authorities. The information sought does not appear to serve any larger public or societal interest.

For the reasons already stated above. the information sought would be exempt under Section 8 (1) (e) of RTI Act.

Hence. the decision of the CPIO is upheld.

5. File notings on movement of Under the procedure envisaged by the RTI Act.

this RTI petition. an applicant can seek information from the CPIO. The CPIO either provides or does not provide the information. The applicant has the right of appeal to the Appellate Authority and a further right of appeal to the Central Information Commission. Thus, the applicant/appellant can get the information provided by the CPIO and/or as ordered by the Appellate Authority/CIC. However, while submitting the RTI application. the Appellant is seeking the copies of the file notings on the movement of this RTI petition itself.

File notings on this application under RTI Act arc in-process/ intermediary internal administrative documents of the Department. Information sought does not appear to serve any larger public or societal interest. It also does not appear to be useful to the appellant in particular as he will be receiving the information/responses from the CPIO and Appellate Authority as per the provisions of the RTI Act.

Hence, the decision of the CPIO is upheld.

xxx

(i) Copy of the Inspection Repo( for the years 2017- 18 to 2020-21 on VPT, excluding the paras which are being/going to be developed as draft paras or other material for the C&AG's Audit Report as they would become subject to parliamentary privilege and exempt under Section 8(l)(c) of the RTI Act......"

Decision:

The Commission upon hearing submissions of both the parties and perusal of records observes that main premise of instant Appeal by the Appellant was non- receipt of desired information by the CPIO in response to five points as mentioned in RTI Application. In response to it, the CPIO furnished a reply to the Appellant at first instance and also upon receipt of hearing, he further provided a revised point wise reply to the Appellant with new factual position and claims.

The Commission is of the considered opinion that while providing an elaborate response , the Public authority clearly explained as to why certain portions of the audit inspection report cannot be shared, as once these get finalized into the audit paragraphs, they become part of the CAG audit report, which is made public only after it has been placed before the Parliament .Hence, the Commission does not find any infirmity in the reply .

The appeal is disposed of accordingly.

Saroj Punhani (सरोज पुनहािन) हािन) Information Commissioner (सूचना आयु ) Authenticated true copy (अिभ मािणत स#यािपत ित) (C.A. Joseph) Dy. Registrar 011-26179548/ [email protected] सी. ए. जोसेफ, उप-पंजीयक दनांक / 7

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