CIC: Previous orders are not binding per-se in entirety as every case has to be seen in relation to the circumstances of that particular case; Only the ratio decidendi is binding while deciding questions of law based on identical issues and facts

Information Sought:

In reference to IHQ of MoD (Army), MS Branch (MS 11) letter No. 02014/IC61055/MS-11 dated 09 Aug 2021, the appellant has sought the following information:

1. With reference to para 1 of the above mentioned letter, provide copies of file notings, orders, instructions, directions, Minutes of Deliberations held with MS Branch pertaining to DO letter No. 60155/KCJ/DO dated 03 Aug 21 addressed to Military Secretary.

2. With reference to para 2 of the above mentioned letter, provide the name, rank and designation of the “Competent Authority”.

3. With reference to para 2 of the above mentioned letter, provide the following information:

(a) Provide copy of the policy or rule under which, controlling MS decided upon the release period even before the premature retirement was processed / approved by MS PR.

(b) Provide copies of file noting, orders, instructions, directions, Minutes of Deliberations wherein the decision to endeavour to release the appellant within 45 days was taken and conveyed to the originator of the letter under reference for promulgation.

c. And other related information.

Grounds for filing Second Appeal:

The CPIO did not provide the desired information

Submissions made by Appellant and Respondent during Hearing:

The appellant in his second appeal had requested to direct the CPIO to provide the certified copy of the file noting, orders, instructions, directions, minutes of deliberations, etc. w.r.t. letter dated 09.08.2021 as sought for in point no.1. He however remained absent for the hearing despite proper service of the notice of hearing sent to him vide speed post no. ED914796473IN.

The CPIO while referring to his written submissions dated 31.03.2023 stated that the sought for information in point no.1 was exempted from disclosure under Section- 8(1)(a) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign State or lead to incitement of an offence; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign State or lead to incitement of an offence; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign State or lead to incitement of an offence; of the RTI Act, 2005. He placed on the record of the Commission his additional written submissions dated 05.04.2023 and the copy of the previous order of the Commission in File Number CIC/LS/A/2010/000652 to support his plea of exemption under Section- 8(1)(a) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign State or lead to incitement of an offence; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign State or lead to incitement of an offence; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign State or lead to incitement of an offence; of the RTI Act, 2005 .

He stated that that the direct notings of the case at hand were not available in the records of the respondent and the internal notings could not be disclosed due to sensitive nature of information contained therein.

Observations:

Keeping in view the facts of the case, the Commission observed that the appellant had sought for the file notings, orders, instructions, directions, minutes of deliberations, etc. w.r.t. a letter dated 09.08.2021. The CPIO denied the sought for information by placing reliance on Section- 8(1)(a) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign State or lead to incitement of an offence; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign State or lead to incitement of an offence; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign State or lead to incitement of an offence; of the RTI Act, 2005 and the decision of the CIC in File Number : CIC/LS/A/2010/000652. The Commission perused the contents of the said decision and found that there has been no adjudication on the applicability of Section- 8(1)(a) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign State or lead to incitement of an offence; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign State or lead to incitement of an offence; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign State or lead to incitement of an offence; of the RTI Act, 2005 in the said order. The Commission clarified during the hearing the previous orders are not binding per-se in entirety as every case has to be seen in relation to the circumstances of that particular case. It is only the ratio decidendi part of the order which is binding and taken into consideration while deciding questions of law based on identical issues and facts. Therefore, in the absence of the discussion on the question of law, the decision referred to cannot be relied upon by the Commission.

The Commission rejected the contention of the CPIO that the file notings etc. as sought for in points no. 1 and 3(b) being internal and sensitive in nature cannot be provided to the appellant. In this regard, the Commission referred to the observations of CIC in its order dated 01.05.2013 in File no. CIC/SM/A/2011/001771 wherein it was held as follows:

“ 20. The appellant herein is seeking file nothings about his own case. He is not seeking information about any third party. It has been the consistent view of this Commission in a catena of its decisions that file notings are disclosable to the information seekers unless they are non-disclosable under any specific provision of the RTI Act. We are unable to accept the contention of the UPSC that the requested information is covered under clause (j) of section 8(1). As held by the bench of Shri Wajahat Habibullah, former CIC, the file notings are a public activity, they are not personal information. Hence, the contention of the UPSC has to be rejected. Another contention of the UPSC that file notings are barred from disclosure u/s 8(1) (e) also has to be rejected on the same ground. If the file notings are held to be maintained by UPSC in a fiduciary relationship, then the very purpose of RTI Act would be defeated in as much as all sundry notings by all Departments of the Government would be attempted to be covered under this clause. This does not seem to be in conformity with the legislative intent. Disclosure is the rule and non-disclosure an exemption, as held by the Delhi High Court in Bhagat Singh case. Information can be denied only under a specific provision of the Act. The provisions invoked by UPSC in denying information to the appellant, however, cannot be upheld in the facts and circumstances of the case.

21. In sum, we are of the considered opinion that the file notings relating to the matter in hand are disclosable to the appellant. Even so, we give liberty to the UPSC to obliterate the names and designations of the officers of UPSC who made notings in the file(s) u/s 10(1) Where a request for access to information is rejected on the ground that it is in relation to information which is exempt from disclosure, then, notwithstanding anything contained in this Act, access may be provided to that part of the record which does not contain any information which is exempt from disclosure under this Act and which can reasonably be severed from any part that contains exempt information. of the RTI Act. We hope that on the supply of file notings, the queries raised by the appellant in the RTI application would stand answered.”

Therefore, the CPIO was directed to provide a revised reply on point no. 1 and 3(b) of the RTI application, keeping in mind the aforementioned observations.

Decision:

For the reasons recorded above, the Commission directs the CPIO to provide a revised reply on point no. 1 and 3(b) of the RTI application. While furnishing the revised reply, the CPIO shall ensure that only such information which is disclosable under the RTI Act, 2005 is given to the appellant. In case the CPIO is denying information for any point, he must clearly state the exemption clause and justify how the exemption clause applies to the facts of the case at hand. The directions of the Commission shall be complied with within 10 days from the date of receipt of this order.

The instant appeal, therefore, stands disposed of accordingly.

Vanaja N. Sarna

Information Commissioner

Citation: Kapil C Jodh v. IHQ of MoD Army, File no.: - CIC/IARMY/A/2022/628840; 05/04/2023