Central Information Commission
Shri Arun Agrawal vs Prime Minister’S Office (Pmo) on 15 September, 2008
CENTRAL INFORMATION COMMISSION
Appeal No. CIC/WB/A/2007/00417 dated 19-3-2007
Right to Information Act 2005 - Section 19
Appellant: Shri Arun Agrawal
Respondent: Prime Minister's Office (PMO)
ORDER
By an RTI application of 2.9.06 Dr. Arun Agrawal of Eagleton Golf Resort, Bangalore had applied to CPIO, Ministry of Law & Justice seeking the following information:
"Entire file containing papers along with notings etc. relating to "the appointment, scope of his brief of special envoy Mr. Virendra Dayal to obtain papers relating to Volcker report and his/her report to the Ministry after meeting the UN officials."
This application was transferred to Ministry of External Affairs and then to Prime Minister's Office and Ministry of Finance, Dep't. of Revenue. Whereas CPIO Shri Kamal Dayani, Director PMO, in his letter of 16.11.'06 provided information regarding appointment of Shri Virendra Dayal as Special Envoy, the request for a copy of his report to the Ministry after meeting the UN officials was turned down u/s 8(1)(a) of the RTI Act. This response was upheld in the first appeal in his order of 8.12.06 by Shri Sanjay Mitra, Joint Secretary & First Appellate Authority, PMO. Appellant's prayer before us in 2nd appeal is as follows:
"It appears reasonable to conclude that the Special Envoy and the Enforcement Directorate deliberately did not collect the documents for contract no. M/9/35, M/10/17 and M/11/25 by which allotments were made to Reliance Petroleum on payment of illegal surcharge It is for this reason that the documents are sought and it is for this reason that the government has invoked the provisions of Clause 8(1) (a) of the RTI Act 2005. "
The appeal was heard on 9.7.2008. The following were present:
Appellant at NIC Studio Bengaluru Dr. Arun Aggarwal Respondents at NIC Studio, New Delhi.1
Sh. Kamal Dayani, Director, PIO Sh. Amit Agrawal, Director & CPIO, PMO Sh. Kshitish Kumar, Section Officer Appellant Dr. Aggarwal made a detailed recapitulation of his reasons for seeking information. This he has already described in a written statement in which he has stated as follows:
"Documents from the Volcker report establish that Reliance was a non contractual beneficiary for lifting five times more oil than that shown to have been lifted by Congress and Natwar Singh combined. It figures in every table of the oil for food programme report of the U.N., in which the name of the Congress and Natwar figure (Annexure A - the five tables in which Indian entity figures). The contract no. for Reliance Petroleum in which it figured as non contractual beneficiary and paid illegal surcharge were M/09/35, M/10/17 and M11/25.
The government deliberately did not refer the contracts No. M09/35, M10/17 and M11/25 in which Reliance Petroleum was the non contractual beneficiaries (according to the Volcker Report) while referring the non contractual beneficiary contract No. M10/57 of Congress Party and contract No. M09/54 of Natwar Singh, to the Pathak Inquiry Authority for reasons well known."
This he has sought to support with copies of documents downloaded from the report of the Independent Enquiry Committee into United Nations Oil for Food Programme and has pointed out that whereas former Foreign Minister Shri Natwar Singh has been proceeded against for alleged involvement, as a non-contractual beneficiary, Reliance Petroleum Ltd., a much larger beneficiary who also paid illegal surcharge, has escaped mention and, therefore, action. He has, therefore, argued as follows:
"The plea of confidentiality by the government that protecting the commercial interests of a corrupt corporate is to national interest cannot be accepted. If that plea is to be accepted then it should have protected the reputation of its Foreign Minister which it rightly did not do.
The applicant is producing documents of the U.S.A. government, wherein it successfully prosecuted and jailed an oil tycoon who was similarly involved in using illegal means to benefit under the oil for food programme 1 . The American government applies the 1 This refers to the sentencing of Texas oilman Oscar B Wyatt of Houston TX, in November 2007 2 law uniformly irrespective of the person involved, which is not the case in India."
Then CPIO, Shri Kamal Dayani submitted a copy of a letter from Shri E. Barua Jt. Secretary & CPIO, Ministry of External Affairs from whom the application of Shri Aggarwal had been received. This letter of 12th Oct., 2007 clearly states as follows:
"A copy of order of appointment of Special Envoy Shri Virendra Dayal issued by the Ministry of External Affairs is enclosed. The other details/file particulars may be available with PMO as the decision was made there. We are forwarding a copy of this letter along with application to PMO."
He, therefore, submitted that while that part of information which had been forwarded to the Ministry of External Affairs has been replied to, it is for the Ministry of Finance, Department of Revenue to reply to the second part regarding the report submitted by Shri Virender Dayal, which is held not by the PMO but by that Ministry. From the perusal of this record, it is quite clear that a reference u/s 6(3) sub-section (i) has been made to the Ministry of Finance Department of Revenue, which has not been responded to. It was, therefore, necessary to hear that Ministry also before a decision can be arrived at regarding the disclosability of the information sought. The hearing was, therefore, adjourned to 7.8.2008 at 4.00 p.m. through Video Conferencing. The CPIO, Department of Revenue, Ministry of Finance would also be required to be present. A copy of the written submission of Shri Arun Kumar Aggarwal before us together with a copy of the statement of the PMO of July 8, 2008 was also sent to that Ministry to enable them to prepare a response.
The adjourned appeal was heard again on 7-8-2008 following were present at Appellant at NIC Studio, Bengaluru Shri Arun Agrawal.
Respondents At NIC Studio, CGO Complex, New Delhi.
Shri S. G. P. Verghese, US, CPIO Dep't of Revenue.
At NIC Studio, PMO, New Delhi.
Shri Kamal Dayani, Dir, PMO, then CPIO.
CPIO Shri Amit Agrawal, Dir, PMO.
3CPIO Shri S. G. P. Verghese, US, Dep't of Revenue submitted that he has examined the records. The original application was received on transfer from Ministry of External Affairs on 19.10.2006. Thereafter on 23.10.2006 the matter was referred back to the MEA with a copy to appellant informing him that the matter pertained to that Ministry. Subsequently, on 20.11.2006 Dep't. Of Revenue informed the MEA that they do not hold any report from Shri Virender Dayal.
Shri Arun Agrawal, appellant submitted that whereas he had asked for the report of Special Envoy Shri Virender Dayal his principal interest was in noting whether there was a report on Reliance Petroleum and whether this was not asked for by the Government thus protecting what he alleged was the corrupt corporate entity. This, he submitted, was the only issue. Appellant Shri Arun Agrawal reiterated the argument that he has submitted in the earlier hearing that the plea of confidentiality by the Government in this case will not stand in view of section 8 (2) of the RTI Act.
We find from the original application that what information Shri Arun Agrawal has sought specifically papers is relating to the report to the Ministry of Special Envoy Shri Virender Dayal after meeting UN officials. This has been reiterated in his 2nd appeal before us. The basic question is to determine whether this report can be released or not taking into account its other ramifications such as whether a report of a particular party has been excluded or not. Such a decision can only be taken once it is determined as to which is the public authority holding the report or under whose control the report is at present. It is only after this that the concerned public authority can be directed either to disclose the report u/s 2(J) or to confirm exemption under any relevant sub-section of section 8 (1) of the RTI Act. read with section 8(2).
After examining the documents and reflecting on the issue we came to the conclusion that the only two questions remaining to be answered are as follows:
41. Whether in the Dayal Report, there was a report on Reliance Petroleum Limited and
2. Whether this was not asked for by Govt. either in the Prime Minister's Office, in Ministry of External Affairs or in the Ministry of Finance.
To be able to determine this, we decided that it will be necessary for us to examine the Virender Dayal Report. However, whereas, Ministry of External Affairs has intimated that this report will be available with PMO, the PMO in the hearing of 9.7.08 has submitted that this report is not held by the PMO but by the Ministry of Finance, Dep't. of Revenue, which has disowned any such possession.
As will be clear from the above, however, the Department of Revenue had informed the Ministry of External Affairs that they do not hold any such report. Before proceeding any further in the matter, we therefore, needed to determine, who hold this report. CPIOs, PMO, MEA & Dep't. of Revenue were, therefore, summoned before us on 11.9.08 at 12.00 noon together with a complete copy of the report of Shri Virender Dayal, if available with any one of these, and if not, with the report as to where this can be accessed. A decision for its disclosure or otherwise was to be taken only after that. Reserved in the hearing, this decision was announced in open chamber on 29.8.08.
The following, thereafter, appeared before us on 11.9.08:
Respondents Shri Pratap Singh, Joint Secretary, MEA Shri Kamal Dayani, Director, PMO Shri Kshitish Kumar, Section Officer Shri S.G.P. Verghese, Under Secy., P.M.O. Whereas Shri Kamal Dayani, Director, PMO submitted that he had rechecked the papers in the PMO, but found only notings and no copy of the report of Shri Virender Dayal, Shri Pratap Singh, Jt. Secretary, similarly submitted that they have never received the report after issuing the order of 5 appointment of the Special Envoy. Shri S.G.P. Verghese Under Secretary, Revenue on the other hand, bashfully submitted that the information provided by him in the last hearing could have caused confusion. Although he did indeed confirm that the Department of Revenue did not confirm holding the required documents and that in fact he had also asked Directorate of Enforcement to informed him whether such documents were held by them, he submitted that what he had received was neither confirmation nor denial from the Directorate of Enforcement, which has simply informed him that they fall under the 2nd Schedule of the Right to Information Act thereby exempting them u/s 24(1) from application of the Act. However, they further volunteered the information that the matter is under investigation and, therefore, exempt u/s 8(1) (h).
The question that is now to be determined is as to whether an exemption claimed under Section 24(1) in this manner can be acceptable by a quasi judicial authority acting under a Statute?
From what is available on record, it appears that there is no affirmative statement coming from any of the public authorities that the information, which is the subject matter of this appeal, is held by or under the control of an organization exempted under Section 24(1) of the Act. The Directorate of Enforcement, which is, undoubtedly, an organization included in Second Schedule, is exempt under Section 24(1) of the RTI Act. But even in regard to an organization included in the Second Schedule, information pertaining to allegations of corruption and human rights violation is not excluded under first proviso to Section 24(1). An allegation of corruption is in this case the thrust of the appeal before us. The Commission is not going to determine this issue at this stage as to whether the case is covered by the first proviso to Section 24(1). Before deciding that question, the Commission has first to determine -
(i) as to whether the information is held by the Directorate of Enforcement? and
(ii) whether the Director of Enforcement is invoking exemption clause by virtue of its being included in Second Schedule of the Act?6
Under the circumstances, the Commission decides to call for a report from the Directorate of Enforcement which has to be submitted within 7 days from the date of receipt of this order affirming -
(i) as to whether the information asked for by the applicant, i.e. entire file containing papers along with notings etc. relating to "the appointment, scope of his brief or special envoy Mr. Virendra Dayal to obtain papers relating to Volcker report and his/her report to the Ministry after meeting the UN officials" is held by them or not ?
(ii) to file their written submissions as to why this Commission should not order its disclosure under the First Proviso to Section 24(1) of the Act?
In (ii) above, if the plea is taken that the information cannot be disclosed under Sec 8(1) (h) the Directorate will submit reasons for the same as required by the Delhi High Court in cases of this nature in W.P.(C) No.3114/2007 - Shri Bhagat Singh Vs. Chief Information Commissioner & Ors Reserved in the hearing this Decision is announced in open chamber this fifteenth day of September 2008. Notice of this decision be given free of cost to the parties.
(Wajahat Habibullah) Chief Information Commissioner 15.9.2008 Authenticated true copy. Additional copies of orders shall be supplied against application and payment of the charges prescribed under the Act to the CPIO of this Commission.
(Pankaj K.P. Shreyaskar) Joint Registrar 15.9.2008 7