Central Information Commission
Shri Milap Choraria vs Central Bureau Of Investigation (Cbi) on 12 November, 2009
CENTRAL INFORMATION COMMISSION
Appeal Nos.CIC/WB/A/2008/00876, 877 & 1575 dated 13.5.2008, 13.5.2008 & 22.9.2008
Right to Information Act 2005 - Section 19
Appellant - Shri Milap Choraria
Respondent - Central Bureau of Investigation (CBI)
Decision announced : 12.11.2009
Facts:
These are three appeals received from Shri Milap Choraria of Rohini, Delhi, against the information received from CPIO Shri Ramnish, SP, Anti Corruption Unit, CBI.
File No. CIC/WB/A/2008/00876 In this case, by a request of 28.2.08 Shri Choraria sought the following information:
1. "Certified copies of all the documents, examined by CBI, to conduct its preliminary enquiry relating to the disinvestment of Centaur Airport Hotel, Mumbai;
2. Certified copy of the Preliminary Enquiry Report, along with file noting and case diary etc;"
To this, Shri Milap Choraria received a response dated 11.3.08 refusing the information u/s 8(1)(a) of the RTI Act, as follows:
"Regarding point No. (i), it is informed that all the documents examined by CBI during enquiry have been returned to concerned Ministries/ Departments. You are, therefore, requested to collect the same, if required, from the concerned Ministries/ Departments.
Regarding point No. (ii), it is informed that PE report/ self contained note have been filed in the Hon'ble High Court of Mumbai in sealed cover. As the matter is subjudice, hence, the same cannot be provided at this stage.
Regarding file notings and case diaries, it is informed that the same cannot be provided u/s 8 (1) (h) of RTI Act."1
Shri Milap Choraria has then moved an appeal on 173.08 with the following plea:
"That with regards to the aforesaid first count, appellant is submitting that his application should have been transferred to respective Ministries/ Departments under section 6 (3) of RTI Act, 2005 by above named CPIO. While count number 2 is concerned subject matter would be raised by the appellant in an appeal to be filed before CIC in respect of similar Order against earlier application.
That with regards to count three this is surprise reply from the CPIO that disclosure may impede the process of Investigation or which may cause any apprehension or prosecutions of offenders, in spite of the fact according to news reports CBI did not consider any offence. Therefore, this reply claiming exemption under section 8 (1) (h) of RTI Act, 2005 was not correct on the part of CPIO of CBI."
Upon this, in his order of 11.4.08, Shri D. C. Jain, DIG, CBI AC-1, New Delhi has ordered as follows:
"I find merit in the contention of the appellant that the CPIO should have transferred his application u/s 6 (3) of RTI Act 2005 to respective Ministries/ Departments where the documents have been returned by CBI. Simply informing the appellant about return of documents to the concerned Ministries/ Departments does not meet the requirements under the RTI Act. Appellant may even not know from which Ministries/ Departments CBI had collected the documents. Letter as well as spirit of the RTI Act, therefore, requires that CPIO himself should have forwarded the application to the concerned Ministries/ Departments for necessary disposal under the RTI Act. CPIO is, therefore, directed to forward the application of the appellant to the concerned Ministries/ Departments for disposal under the RTI Act within 5 days of receipt of this order.
I have read the provisions of section 8 (1) (h) of the RTI Act in view of exemption sought by the CPIO in refusing disclosure of file notings. Section 8 (1) (h) exempts disclosure of all information, which would impede the process of investigation or apprehension or prosecution of offenders. This is an admitted fact that the enquiry has been closed by CBI and as on date no investigation or prosecution is pending. I therefore, find merit in the contention of the appellant that section 8 (1) (h) does not apply to file notings of the subject matter. Having said this, it is necessary to examine the nature of file notings before it is decided whether to provide the 2 same in the instant case or not. The subject matter involved file notings pertaining to a Preliminary Enquiry, which involves opinions, recorded by various officers. Various officers record their free and frank opinion of file notings under the belief and good faith that confidentiality of the same would be maintained and this would not be disclosed. I am, therefore, of the opinion that the contents of the file notings comprise of opinions recorded by various officers who cannot be disclosed as these are in the form of fiduciary relationship. As such this would attract exemptions from disclosure under section 8 (1) (j) of the RTI Act. The copies of file notings, therefore, cannot be provided to the appellant."
However, in his prayer before us, in his second appeal, Shri Choraria has pleaded as follows:
"Hon'ble Information Commission should admit the Complaint under section 18 (1) of the RTI Act, 2005 and pass the following directions:-
a) Upon the respondents to ensure supply of the information sought by the appellant at free of charges in compliance of the section 7 (6) of the RTI Act, 2005;
b) Impose penalty upon the respondents for the delayed period per day Rs. 250/- per day with the maximum limit of Rs. 25,000/- ;
c) Pass any other order as may be deem fit and necessary for the ends of justice.' File No. CIC/WB/A/2008/00877 In this case, through a request of 10.1.08 received by CPIO Shri Ramnish, SP on 10.1.08, Shri Choraria has sought the following information:
"I am filing a fresh application, under section 6 (1) of the RTI Act, 2005 for the Certified copy of the aforesaid Report prepared by the CBI which they also submitted before the Mumbai High court since in view of the Judgment of Delhi High court in Writ Petition (C ) No. 3114/2007 dated 3rd December, 2007 in the matter of Bhagat Singh vs Chief Information commissioner and Ors., this is mandated to supply information even during the pendency of investigation, if the same is sought by one to provide his charge s of crime or corruption, as I want to prove may charges of scam in the disinvestment of Centaur Airport Hotel, Mumbai."
To this, Shri Milap Choraria received a response on 17.1.08 refusing the information, as follows:
3"It is informed that the report which is confidential document was filed by the CBI in a sealed cover and is still subjudice.
Therefore, the requested 'Report' submitted by the CBI in Bombay high Court cannot be provided."
Shri Choraria has then moved an appeal before the DIG, CBI, AC-I on 29.1.08 with the following plea:
"That Delhi High court in Judgment dated 3rd December in Writ Petition (C ) No. 3114/07, in the matter of Bhagat Singh vs Chief Information Commissioner and Ors., decided that even during the pendency of an Investigation, disclosure is mandated unless Public Authority show the reasonable grounds in writing that how disclosure may impede the investigation.
Therefore, appellate authority after considering aforesaid facts and circumstances, should direct the CPIO/ Respondent to supply information sought by the appellant."
Upon this, Shri Milap Choraria received the following orders of Dr. M. M. Oberoi, In-charge DIG, CBI, AC-1 dated 13.2.08.
That on the orders of Hon'ble Chief Justice of Bombay High Court, copy of the said report was submitted in sealed cover. The report is yet to be considered by the Court and has not ye been made public. The matter is still pending before the Hon'ble Court for disposal.
Therefore, the said report by the CBI in the Bombay High Court cannot be provided at this stage, as the matter is sub-judice"
Appellant prayer before us in his second appeal is as below:
"Information Commission should admit the Complaint under section 18 (1) of the RTI Act, 2005 and pass the following directions: -
a) Upon the respondents to ensure supply of the information sought by the appellant at free of charges in compliance of the section 7 (6) of the RTI Act, 2005;
b) Impose penalty upon the respondents for the delayed period per day Rs. 250/- per day with the maximum limit of Rs. 25,000/-;
c) Pass any other order as may be deem fit and necessary for the ends of justice.' 4 Both these appeal were heard together on 17.9.09.The following are present:
Appellant Shri Milap Choraria Respondents Shri Rakesh Aggarwal, DIG, CBI In his two responses to the Appeal Notices of 15.9.09, Shri Rakesh Aggarwal, DIG, CBI has submitted as follows:
FILE NO. CIC/WB/A/2008/00876 "It is reiterated that the file notings contain free and frank opinion of various officers regarding the progress and findings of the enquiry and their directions and recommendations. This practice promotes a healthy debate amongst officers for evaluation of various issues in a case or enquiry without fear of any attribution of motives on a Post Mortem. Hence, the ground taken by appellate authority for exemption of same u/s 8 (1) (j) and also 8 (1) (c) of RTI Act is justified. The relevant arguments out of these file notings do get reflected in the Enquiry Report. Based on the recommendations of the competent authority, a Self Contained Note incorporating the result of the enquiry has been sent to the Department of Disinvestments, Ministry of Finance. The Govt. Has claimed privilege over the report and it is not known whether the report has been accepted by the Govt. and the matter reported back to the Parliament. The disclosure of the file notings would in effect mean disclosure of the enquiry report which h is exempted from the disclosure under section 8 (1) (c) of RTI Act, 2005.
Hence it is prayed that as far as the Enquiry Report is concerned, the CBI is ready to give a no objection u/s 11 (2) to the Department of Disinvestments if a copy of the Preliminary Enquiry Report is provided to the applicant. Thereafter, the decision whether to disclose the report or not can be taken by CPIO, Department of Disinvestments, Ministry of Finance, depending on the existence of Parliamentary privilege at this point of time.' FILE NO. CIC/WB/A/2008/00877 "Whereas the Enquiry stands disposed off from CBI, it is not known whether the Govt. has taken a final view on the CBI report or not? Therefore, while the CBI has no objection if the report is shared with the applicant, however, in order to guard itself from accusation 5 of breach of Parliamentary privileges, it seeks exemption from disclosure under section 8 (1) (c) of RTI Act, 2005, until disclosure of enquiry report is cleared by the Government of India."
The key issue here is the disclosure of the enquiry report. We inspected the relevant file to find that as contended by respondents Shri Rakesh Aggarwal, DIG, the enquiry report is in fact comprised of he file noting. Hence the disclosure of file noting on its own will amount to disclosure of the enquiry report and, therefore, Shri Aggarwal has pleaded exemption u/s 8(1)(c) in both appeals.
During the hearing appellant Shri Milap Choraria also submitted a copy of another appeal submitted before us, which he states is related to the present two appeals and has been registered in File No. CIC/WB/A/2008/01575. Shri Milap Choraria also submitted a copy of a letter received from CPIO, Ministry of Civil Aviation Shri S. K. Chhikara dated 20.5.09 with which is attached a copy of the definition of Assurances contained in Chapter-VIII of the Manual of Parliament Procedures published on the website of the Ministry of Parliamentary Affairs. On this basis, he contended that the CBI enquiry in this case was only conducted on an assurance and, therefore, cannot claim exemption u/s 8(1)(c).
Shri Rakesh Aggarwal submitted a copy of the letter of 7.8.08 received from the Dep't. of Disinvestments, Ministry of Finance in which Dy. Secretary Shri S. K. Nag has advised the Director, CBI, as follows:
"In view of this, it may not be appropriate to make the report public till it is accepted by the Government and matter reported back to Parliament.' From the above, it becomes clear that the CBI holds the information sought in confidence for the Dep't. of Disinvestments. The Dep't. of Disinvestments becomes 'third party' in this case and before any decision is taken regarding its disclosure, a further hearing is required. The hearing was adjourned to 16.10.2009 at 12.00 noon, when the CPIO, Department of Disinvestments would also be present. Copies of the CBI responses of 15.9.09 6 would also be endorsed to the CPIO Dep't. of Disinvestments to enable them to present their submissions before us on the due date.
We also decided that on this date we would also hear the appeal in File No. CIC/WB/A/2008/01575, which is a third inclusion.
File No. CIC/WB/A/2008/01575 In this case the request of applicant Shri Milap Choraria was also as below:
(1) Certified copies of all the documents, examined by CBI, to conduct its preliminary enquiry relating to the disinvestment of Centaur Airport Hotel, Mumbai;
(2) Certified copy of the Preliminary Enquiry Report, along with file noting and case diary etc;"
In this appeal in his decision of 11.4.2008 Shri D. C. Jain, DIG, CBI AC-I has held as follows:
"I find merit in the contention of the appellant that the CPIO should have transferred his application u/s 6 (3) of RTI Act 2005 to respective Ministries/ Departments where the documents have been returned by CBI. Simply informing the appellant about return of documents to the concerned Ministries/ Departments does not meet the requirements under the RTI Act. Appellant may even not know from which Ministries/ Departments CBI had collected the documents. Letter as well as spirit of the RTI Act, therefore, requires that CPIO himself should have forwarded the application to the concerned Ministries/ Departments for necessary disposal under the RTI Act. CPIO is, therefore, directed to forward the application of the appellant to the concerned Ministries/ Departments for disposal under the RTI Act within 5 days of receipt of this order.
I have read the provisions of section 8 (1) (h) of the RTI Act in view of exemption sought by the CPIO in refusing disclosure of file notings. Section 8 (1) (h) exempts disclosure of all information that would impede the process of investigation or apprehension or prosecution of offenders. This is an admitted fact that the enquiry has been closed by CBI and as on date no investigation or prosecution is pending. I therefore, find merit in the contention of the appellant that section 8 (1) (h) does not apply to file notings of the subject matter. Having said this, it is necessary to examine the nature of file notings before it is decided whether to provide the same in the instant case or not. The subject matter involved file 7 notings pertaining to a Preliminary Enquiry that involves opinions recorded by various officers. Various officers record their free and frank opinion of file notings under the belief and good faith that confidentiality of the same would be maintained and this would not be disclosed. I am, therefore, of the opinion that the contents of the file notings comprise of opinions recorded by various officers who cannot be disclosed as these are in the form of fiduciary relationship. As such this would attract exemptions from disclosure under section 8 (1) (j) of the RTI Act. The copies of file notings, therefore, cannot be provided to the appellant."
This appeal is therefore identical with that in File No. CIC/WB/A/2008/00876, and therefore requires disposal together with that appeal. In pursuance of our decision of 17.9.09, the following appeared before us on 11.11.09:
APPELLANT Mr. Milap Choraria RESPONDENTS Mr. S. K. Nag, Dy. Secy. / CPIO, DOD Mr. T. Thiagarajan, Under Secy, DOD Ms. Abha Shukla, Director, C.A. Mr. S. K.Chhikara, Under Secy., C.A. Mr. Rakesh Aggawal, DIG, CBI Shri S. K. Nag, CPIO, DOD submitted that although preliminary investigation report has indeed been received, the matter is still under investigation. Appellant Shri Milap Choraria who stated that all he had asked for was a copy of the investigation that has been completed i.e. preliminary enquiry report disputed this. On the other hand Shri S. K. Nag submitted that even though the preliminary enquiry report has been submitted the investigation cannot be said to be complete or over. In this he was supported by DIG, CBI Shri Rakesh Aggarwal, who submitted that in case the administrative Ministry finds any cause of further investigation, disclosure of the information sought would certainly impede such investigation.
Shri S. K. Chhikara, Under Secretary, Civil Aviation, submitted that the disclosure of certain documents related to this case impinges on a report of M/s 8 J.P. Morgan, who had been authorized to investigate this matter and assist with the disinvestments, which is part of another case in File No. CIC/OK/A/2006/00164, last heard on 9.7.09, is pending decision before a Full Bench.
CPIO Shri S. K. Nag also invited our attention to the submission made on 27.3.09 by the Dep't. of Disinvestments in another case on the same subject namely File No. CIC/MA/A/2009/000095 of 6.4.2009 in which after detailed submission he concludes as follows:
"CBI submitted Preliminary Enquiry Report in respect of these two hotels to the Department of Disinvestments in September, 2007 which was examined by government. Some matters pertaining to Centaur Airport Hotel were noted for further looking into and clarifications from CBI were again referred to CBI in January 2008. The comments of CBI were received in February 2008. There was further examination of the matter by the Ministry of Finance and some issues on both the hotels were again referred to CBI in June 2008 for their comments and the CBI were reminded in the matter. The response received from CBI in November 2008 is under active consideration by the Government.
Hence the Government has been actively examining the reports, making due references to CBI wherever required. However, the process would involve several agencies like CVO and administrative Ministry concerned etc. Since the reference of the case to CBI by the Government arose out of Parliamentary matter and CBI report is still under examination by the government, the enquiry process not being complete and over, it is humbly prayed that the Second Appeal filed by Shri Milap Choraria in the Hon'ble Commission w.r.t. Documents of Department of Disinvestments does not merit consideration."
We have also examined the preliminary enquiry report in the hearing. We are informed by CPIO Shri Nag that In response to calling attention motions in Parliament in 2004 & 2005, the Minister had given a suo moto statement following which enquiry by the CBI was decided upon, which was referred to that organization on 8.7.05. This preliminary enquiry report was received on 11.9.07 from Shri D. C. Jain, DIG, CBI, AC-I, New Delhi, running into 12 pages in conclusion of which no 'criminality' has been found and no malafide by the 9 Officers of the Ministry of Disinvestments or Civil Aviation. The conclusion / recommendations also do not contain names of any individuals.
DECISION NOTICE We have examined File No. CIC/OK/A/2006/00164 pending decision of Full Bench. In this case, the Commission made the following decision on 31.7.07:
"While taking note of this clause and also in light of Section 22 of the RTI-Act (the provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923, and any other law for the time being in force for in any instrument having effect by virtue of any law other than this Act), the Commission gives give the party, Colliers Jardine time till the time of the compliance of these Orders of the Commission to provide whatever disclaimer they wish to do, which the Respondents will include before disclosure of the Report to the Appellant.
The Commission, therefore, now directs the Respondents in the case, that is the Ministry of Civil Aviation, to disclose the entire report to the Appellant. In case, they do not have the report with them, they may obtain a copy either from the CBI or from the Department of Disinvestment. This must be done by 20 August 2007."
M/s J.P. Moran filed a Writ Petition against Central Information Commission in the High Court of Delhi which in turn stayed operation of this Commission's decision and in its order of 4.8.09 directed the Commission to re- examine the matter and pass appropriate orders on Shri Milap Choraria's appeal after giving M/s J.P. Morgan and Shri Choraria a fresh opportunity of hearing. The order of the High Court of Delhi in Writ Petition (Civil) No. 6094/2007 of 8.4.2009 is as follows:
"The ground on which the present writ proceeding is preferred is principally that the Central Information Commission had directed disclosure of the entire report pertaining to the applicant, to the fifth respondent Mr. Milap Choraria, who had applied for information. It is submitted that the order should have been preceded by notice to the petitioner who should have been afforded an opportunity to participate in the proceedings before the CIC.10
After hearing the petitioner and the fifth respondent, who is present today, the Court is of the opinion that the CIC should re-examine the matter and pass appropriate orders on the fifth respondent s appeal after affording the present petitioner as well as the fifth respondent a fresh opportunity of hearing. The present order shall not be considered as expression on the merits of the case; all rights and contentions of the petitioner and the fifth respondent on the merits of the appeal are hereby reserved. The CIC shall endeavor to complete the hearing and pass orders as early as possible, preferably within three months from today."
On 29.6.2009, the Commission came to the conclusion that in view of the issues raised by the parties i.e. alleged corruption in disinvestment of Government Property and the claimed exemption u/s 8 (1 & Section 9, the case should be heard by a large bench. The Commission also decided that clarification from respondents including CBI and Parliament Sectt., whether the disclosure of information would tantamount breach of privilege of the Parliament, be sought. This matter is now before the Full Bench of this Commission Ministry of Civil Aviation vide its rejoinder dated 29.6.2009 informed the Commission that the report of CBI is still under consideration of the Government and in fact some of the issues have been referred back to CBI to furnish conclusive evidence. The response of CBI is still awaited. The reference of the case to CBI by the Government arose out of a Parliamentary matter and because the CBI report is still under examination by the Government, the enquiry process is thus not complete. They further state that since the valuation report sought by the applicant is among the documents examined by CBI, it is not appropriate to disclose these until CBI enquiry is accepted by the government and report back to Parliament.
The CBI vide its letter dated 23.7.2009 has intimated that the enquiry stands disposed of by CBI and they have no objection if the report is shared with the applicant. But they suggest that it would be appropriate if the views of the Ministry concerned were taken in the matter as CBI is not aware whether the 11 Govt. has taken a final view on its report. No replies from either Rajya Sabha or Lok Sabha Sectts. have been received.
From the above, it will be clear that the issue before the Full Bench, insofar as that case is concerned, is concerned only with the writ of M/s JP Morgan India P. Ltd. whereas the request made in the present three cases is much wider namely seeking the following information:
1 "Certified copies of all the documents, examined by CBI, to conduct its preliminary enquiry relating to the disinvestment of Centaur Airport Hotel, Mumbai;
2 Certified copy of the Preliminary Enquiry Report, along with file noting and case diary etc;"
Nevertheless, Q. No. 1 in which copies of all the documents examined by CBI have been sought will clearly fall within the ambit of the present appeal before the Full Bench. On the other hand with regard to Q. No. 2, what is sought is a copy of Preliminary Enquiry Report, which has now been completed. This Preliminary Enquiry Report contains a number of names together with the details of how the investigation was conducted. In our view, disclosure of this information at this stage, when as pled by respondent CPIO Shri K. S. Nag, Dy. Secretary, DOD, the case is still in process, would have the potential of impeding this process by alerting any accused or disclosing methodology which has to be taken into consideration in concluding the investigation. On the other hand, the final two chapters, which contain the conclusion and recommendations suffer none of these infirmities. For this reason while we leave it to the Full Bench to decide the matter with regard to Q. No. 1, on Q. No. 2, since this is a query regarding an enquiry report which is complete albeit preliminary, to the disclosure of which the investigating agency the CBI has stated that "the CBI is ready to give a no objection u/s 11 (2) to the Department of Disinvestments if a copy of the Preliminary Enquiry Report is provided to the applicant" may be disclosed in keeping with the principle of severability contained in Sec 10 (1) to the extent of information contained under the headings "Conclusion" and "Recommendations".
CPIO Shri Nag, DS (DoD), will provide certified copies to appellant Shri Choraria 12 within ten working days of the date of receipt of this Decision Notice. The appeal is allowed to this extent. There will be no costs.
Reserved in the hearing, this Decision is announced in open chambers on this 12th day of November 2009. Notice of this decision be given free of cost to the parties.
(Wajahat Habibullah) Chief Information Commissioner 12.11.2009 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.
(Tarun Kumar) Additional Registrar 12.11.2009 13