2012 (11) TMI 650 - HC - Indian Laws

Information retained in the form of file notings - whether or not the file notings and the opinion of the JAG branch fall within the provisions of Section 8(1)(e) of the RTI Act? - Held that - Section 2(f) of RTI Act inter alia defines information to mean any material contained in any form including records, documents, memo, emails, opinions, advises, press releases, circulars, orders, log books, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body, which can be, accessed by a public authority under any other law for the time being in force. The scope and ambit of the right to the information to which access may be had from a public authority is defined in Section 2(j). Therefore, information which is available in the records of the Indian Army and, records as indicated hereinabove includes files, is information to which the respondents are entitled to gain access. An over-view of the Act would show that it mandates a public authority, which holds or has control over any information to disclose the same to a citizen, when approached, without the citizen having to give any reasons for seeking a disclosure. And in pursuit of this goal, the seeker of information, apart from giving his contact details for the purposes of dispatch of information, is exempted from disclosing his personal details as per Section 6(2). Thus notes on files and opinions fall within the ambit of the provisions of the RTI Act. The possessor of information being a public authority, i.e., the Indian Army it could only deny the information, to the seeker of information who are respondents in the present case, only if the information sought falls within the exceptions provided in Section 8 of the RTI Act. Therefore, the argument of the petitioners that the information can be denied under Army Rule, 184 or the DoPT instructions dated 23.06.2009 are completely untenable in view of the over-riding effect of the provisions of the RTI Act. First proviso of Section 8(1), which categorically states that no information will be denied to any person, which cannot be denied to the Parliament or the State Legislature. Similarly, sub-section (2) of Section 8, empowers the public authority to over-ride the Official Secrets Act, 1923 and, the exemptions contained in sub-section (1) of Section 8, of the RTI Act, if public interest in the disclosure of information outweighs the harm to the protected interest. Thus exemption under Section 8(1)(e) is conditional and not an absolute exemption. Thus the contentions of the petitioners that the information sought by the respondents (Messers V.K. Shad & Co.) under Section 8(1)(e) is exempt from disclosure, is a contention, which is misconceived and untenable. The writ petitions are dismissed. The impugned orders passed by the CIC are sustained. The information sought by Messers V.K. Shad and Ors will be supplied within two weeks from today, in terms of the orders passed by the CIC.

Summary

Issues Involved:
1. Obligation to furnish information under the RTI Act.
2. Interpretation of fiduciary relationship under Section 8(1)(e) of the RTI Act.
3. Applicability of Army Rule 184 and DoPT instructions vis-`a-vis the RTI Act.
4. Consistency in decisions by the Central Information Commission (CIC).

Issue-wise Detailed Analysis:

1. Obligation to furnish information under the RTI Act:
The central question was whether the petitioners were obliged to provide information, including file notings and opinions of the Judge Advocate General (JAG), under the RTI Act. The court affirmed that the information sought by the respondents, such as file notings and JAG opinions, fell within the ambit of the RTI Act. It was held that the expansive definitions of "information" and "record" under Sections 2(f) and 2(i) of the RTI Act include opinions and file notings. Therefore, the Indian Army, being a public authority, is required to disclose such information unless it falls under the specific exemptions provided in the Act.

2. Interpretation of fiduciary relationship under Section 8(1)(e) of the RTI Act:
The petitioners argued that the information sought was exempt under Section 8(1)(e) of the RTI Act, which protects information available in a fiduciary relationship. The court examined the concept of fiduciary relationships as discussed in the Supreme Court judgments in CBSE vs Aditya Bandopadhayay and ICAI vs Shaunak H. Satya. It concluded that the relationship between officers generating notes and the Army does not constitute a fiduciary relationship. The court emphasized that fiduciary relationships involve trust and confidence where one party acts for the benefit of another. In this case, the officers generating the notes or opinions do not benefit personally from the information, and thus, the information cannot be withheld under the fiduciary exemption.

3. Applicability of Army Rule 184 and DoPT instructions vis-`a-vis the RTI Act:
The petitioners contended that under Army Rule 184 and DoPT instructions, only certain documents should be provided. The court rejected this argument, stating that the RTI Act, with its overriding effect as per Section 22, prevails over any conflicting rules or instructions. The court clarified that the RTI Act mandates disclosure of information unless specifically exempted under its provisions. Therefore, the Army Rule and DoPT instructions cannot limit the disclosure obligations under the RTI Act.

4. Consistency in decisions by the Central Information Commission (CIC):
The petitioners pointed out that the CIC had taken a different stance in previous cases, such as Col. A.B. Nargolkar's case, and argued that the matter should have been referred to a larger bench. The court acknowledged the inconsistency but decided not to remand the matter back to the CIC. It reasoned that the CIC, being administered by individuals not necessarily trained in law, might not have had the benefit of legal guidance. Moreover, remanding the matter would only delay justice. The court advised the CIC to refer matters to a larger bench in the future when there is a conflict in decisions.

Conclusion:
The court dismissed the writ petitions, upheld the CIC's orders, and directed the petitioners to provide the requested information to the respondents within two weeks. The court emphasized the importance of transparency and accountability, as envisioned by the RTI Act, and reiterated that exceptions to disclosure must be narrowly construed. The court also directed the release of deposited sums to the respondents for incidental expenses.