Central Information Commission
Mr.Mallikarjuna Raot V L N vs Department Of Legal Affairs on 13 December, 2011
Central Information Commission
2nd Floor, Room No. 305 B-Wing,
August Kranti Bhawan
Bhikaji Kama Place
New Delhi
Case No. CIC/SS/A/2011/901196
Name of Appellant : Sh. T.V.L.N. Rao
(The Appellant was not present)
Name of Respondent : D/o Legal Affairs
(Represented by Sh. Nirmal Singh, CPIO
& Sh. Jagdish Kumar, S.O.)
The matter was heard on : 14.11.2011
ORDER
Sh. T.V.L.N. Rao, the Appellant vide his RTI application dated 31.03.2011 had sought requisite information in connection with the legal opinion given on the judgment of the Hon'ble Bombay High Court in W. P. No. 441/2003. The Appellant was replied to by the PIO on the basis of information furnished by the Advice Section of the Department of Legal Affairs vide letter dated 16.05.2011, whereby the Appellant was informed that the information sought by him is neither specific nor clear as no date and file number in respect of which information is being sought has been given. It was also stated that as per the general practice files were received by the Department of Legal Affairs from various Ministries/Department seeking opinion and after examination the files are returned in original to the concerned Ministry/Department. The Appellant was therefore informed that he may request the concerned Ministry/Department for the information. However, the appellant was informed that advice so tendered is confidential and in fiduciary relationship and therefore he may approach the concerned Ministry in this regard.
2. Aggrieved with the reply, the Appellant filed an appeal before the First Appellate Authority (FAA). Sh. M. A. Khan Yusufi, the FAA vide his order dated 5.07.2011 held that the reply furnished by the CPIO is legally tenable.
3. The Appellant in his second appeal filed before the Commission submits that the PIO could not refuse the information by stating that no date and file number is given. Moreover, the Law Department which tendered the advice cannot claim that the advice tendered is confidential and in fiduciary relationship. As per section 2(f) of the RTI Act, "information" means information in any material form as held by the PIO.
4. The Commission observes that present case the PIO has clearly informed the Appellant that the general practice observed in the department of Legal Affairs is that file received from various Ministry/Department seeking opinion are returned in original to the concerned Ministry/Department after such examination by the department of Legal Affairs. This implies that opinion tendered by the Department of Legal Affairs is provided to the concerned Ministry/Department in their file and is not retained by the Department of Legal Affairs. This being the general practice, the DLA cannot be expected to provide information which is not held by them in their records.
5. In so far as the stand taken by the respondent that the opinion tendered by them is in fiduciary relationship, the Commission thinks it appropriate to refer to CIC decision in appeal No.CIC/SS/A/2011/ 000886 dated 27.7.2011, wherein the Commission, in para 1014 of its order, held as follows :
"10. .... The Commission shall take this opportunity to clarify that the records of any advice / opinion tendered by the Respondent Ministry to other Government Departments do not fall under the category of information available to the Law Ministry in fiduciary capacity. Section 8 (1) (e) is not attracted with respect to such opinion /advices in any manner whatsoever.
11. The reasoning behind the above observation can be best understood in light of the following illustration. The Department of Legal Affairs of the Respondent Ministry is principally concerned with advising the various Ministries of the Central Government. Thus, there exists a twoway channel connecting the Law Ministry with any other Department of the Central Government, that is to say, on one way, the File seeking opinion travels from the Department concerned to the Law Ministry and on the other way, the opinion tendered on that File travels from the Department of Legal Affairs, Law Ministry to the concerned Department.
12. For the sake of argument, even if the stand of the Law Ministry is accepted, then the twoway channel through which the File travels between Law Ministry and the Department concerned will per se become a sacrosanct channel containing such information which will never be disclosed in any contingency under Section 8 (1) (e) of the RTI Act. Thus, in such a hypothetical situation, the opinion / advice tendered by the Law Ministry to any Department of the Central Government will per se become exempted from disclosure under the RTI Act and even if the concerned Department is more than ready and willing to disclose such advice / opinion which is held by or under the control of that Department, still it will be unable to do so because the information in the nature of such opinion / advice will per se be exempted under Section 8 (1) (e) of the RTI Act. That is certainly not the position warranted by the letter and spirit of the RTI Act.
13. Thus, the Commission is of the view that the decision as to whether the legal opinion / advice tendered by the Law Ministry to the concerned Department of the Government of India be disclosed or not under the RTI Act, has to be made by the Department seeking that advice and it shall be open to that Department / Ministry to invoke the relevant clause of Section 8 (1) of the RTI Act if it chooses not to provide the information sought under the RTI Act.
14. Therefore, such an argument of the CAPIO of the Respondent, even if made in the form of a passing reference, that the opinion / advice tendered by the Respondent Ministry to the concerned Department is in fiduciary capacity due to which such advice / opinion cannot be furnished under the RTI Act, cannot be accepted at all."
6. In the present case, the course open to the appellant is to approach the concerned Ministry or Department for the information. Since the appellant has not identified the Department/Ministry which was a party in Writ Petition No.4441/2003, filed before the Hon. Bombay High Court, the Commission is unable to direct the Department of Legal Affairs to transfer the RTI application to the concerned Ministry/Department.
7. With these observations the matter is disposed of on the part of the Commission [ ( Sushma Singh ) Information Commissioner 13.12.2011 Authenticated copy:
(D. C. Singh ) Deputy Registrar Sh. T.V.L.N. Mallikarjuna Rao, Block No. 121, Quarter No. 7, CPWD Quarters, GPRA, KK Nagar, Chennai - 600 078 The CPIO, Ministry of Law & Justice, Department of Legal Affairs, Implementation Cell, Shastri Bhawan, New Delhi The First Appellate Authority, Office of the Joint Secretary & Appellate Authority, Ministry of Law & Justice, Department of Legal Affairs, Shastri Bhawan, New Delhi