Denial of info on security ground

Provisions of Section 8 (1) (exemption from disclosure on national security grounds) have to be read with Sections 8(2) and 10(1). Section 8(2) permits the public authority to give the information if public interest in disclosure outweighs the harm to the protected interest caused by disclosure. Section 10(1) deals with doctrine of severability, which means information that can be given be separated from information cannot be given

Section 8(1)(a) of the RTI Act says: “Notwithstanding anything contained in this Act, except as otherwise provided herein, the following information shall be exempted from disclosure, namely:

(a) information, the disclosure of which would - (i) prejudicially affect

• the sovereignty and integrity of India,
• security,
• strategic, scientific or economic interest of the State,
• relation with foreign State ; or (ii)
• lead to an incitement to commit offence;

This section imposes no obligation to disclose information relating to combat readiness or capabilities of the armed forces, safety precautions at a nuclear establishment, premature disclosure of intentions of the government contained in the budget, registration number of unmarked police vehicles etc. These are just some of the examples where this exception can work.

In Nusli Wadia v Ministry of External Affairs (CIC/OK/A/2007/001392 decided by MM Ansari, AN OP Kejariwal and Wajahat Habibullah, CIC) it was held in 2008 that provisions of Section 8 (1) have to be read with Sections 8(2) and 10(1). Section 8(2) permits the public authority to give the information if public interest in disclosure outweighs the harm to the protected interest caused by disclosure. Section 10(1) deals with doctrine of severability, which means information that can be given be separated from information cannot be given.

Shri Nusli Wadia of Mumbai sought information relating to the claim of the appellant’s mother to Jinna House from the CPIO, MEA such as documents, notes of meeting and file notes relating to letter dated July 06, 2001 sent by Mrs. Dina Wadia to Prime Minister of India including notes of or documents relating to the discussion between the Prime Minister of India and the External Affairs Minister including inter-ministerial notes, advice sought or given including all approvals, proposals, recommendations and legal advice.”

Some of the documents were given but some were denied. CPIO said: “.. the matter of Jinnah House has been subject of discussion at the inter-governmental level between India and Pakistan from time to time. Issues concerning our relations with Pakistan are involved,” and claimed that disclosure of the contents of some of the documents would prejudicially affect the relation of India with a foreign State.

Appellant argued that on the matter of Jinnah House, the then Attorney General of India opined on Mrs. Wadia’s status in law as heir of Mr. Jinnah, and as such her entitlement to his properties including Jinnah House. The Second Opinion of the Attorney General dated sometime in October 2002 in response to the note of the Foreign Secretary dated 20.02.2002 which expresses disagreement with the first opinion of the Attorney General. The note of the Foreign Secretary has been disclosed, but neither the Attorney General’s response nor the first opinion with which He disagrees, has been disclosed.”

The Commission called for relevant record. The MEA official stated that what has been withheld is actually sensitive in nature and any disclosure thereof would affect relations of this country with a foreign State, thus attracting exemption under Section 8(1) (a) of the RTI Act. He narrated the chronology of the events and also reiterated the Ministry’s view that in their opinion the noting of the then External Affairs Minister and the Attorney General should not be disclosed.

Although it was agreed that some portions of the documents held may not transgress this view on applying exemption u/s 8(1) (a), it was decided in the public interest that specific correspondence not be edited as this will lead to unwarranted conjecture. A copy of the will of the late Shri MA Jinnah dated 30th May 2009 was also produced before us, which bequeaths no part of the property in question to Shri MA Jinnah’s daughter, who is mother of appellant Shri Wadia, except to set apart Rs 200,000 which would at 6% bring an income of Rs 1,000/- payable to her. It was also submitted that the claim of the appellant is still sub-judice in the Hon’ble High Court.

The CIC said: “We also have on record a communication from then External Affairs Minister Shri Jaswant Singh that he had indeed made certain recommendations on the basis of the report of AG, which had been approved by then PM, Shri AB Vajpayee, and that he would be willing to swear as much on oath. The material already in the public domain therefore, has already negated MEA’s conclusion that specific correspondence not be edited as this will lead to unwarranted conjecture.”

It was held by a full bench (in para 22): “It is for the concerned public authority, which is the authorised agency for the purpose, and not for this Commission to take a view as regards applicability of the provisions of Section 8(1) (a) in this case and the Commission is of the view that there will be no obligation on the part of a public authority to provide information if disclosure of the same prejudicially affects relations with a foreign State, maintenance of relations with which is the responsibility of the MEA.

However, the provisions of Section 8(1) have to be read with Section 8(2) and Section 10(1). Under Section 8(2), a public authority may allow access to exempted information if public interest in disclosure outweighs the harm to the protected interests. Bench referred to Section 10 (1) which said ‘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.’”

The full bench reiterated: “it is not for us to substitute our judgment on the applicability of exemption to that of the agency duly authorised to determine such issues. In this case the duly constituted authority responsible for administering relations with foreign states, is the Ministry of External Affairs. It is therefore for the concerned Public Authority to determine as to which part is sensitive and cannot be disclosed and which part even though sensitive can still be disclosed without prejudicially affecting relations with a foreign state.”

It further explained: “The Commission acting under the RTI Act is, however, only required to determine as to whether the information asked for by the appellant is disclosable or as to whether it is exempted from disclosure. The Commission is also required to see as to whether the doctrine of severability enshrined in Section 10(1) of the RTI Act can be applied and such part of the information, which is unlikely to be covered by Section 8(1) (a), could be disclosed to the appellant”.

This means the jurisdiction of the IC is limited to the extent whether doctrine of severability was considered or Section 8(2) was considered. The CIC full bench said that it cannot substitute its decision to the decision of the public authority. It is true that the CIC cannot decide for public authority, but it has to examine whether it was properly reasoned and justified.

The Information Commission has a duty to examine the decision of the public authority within the provisions of the RTI Act. The very purpose of second appeal before the independent quasi judicial adjudicatory body is to decide whether the public authority was right and justified in denying the information invoking this exemptions. If the public authority fails to justify, the IC has power to direct disclosure.

By:Madabhushi Sridhar