CIC decision on list of classified files in PMO on Subhas Bose

CENTRAL INFORMATION COMMISSION

Appeal No.CIC/WB/A/2007/00129 dated 8.2.2007

Right to Information Act 2005 - Section 19

Appellant - Shri Anuj Dhar
Respondent - Prime Minister's Office (PMO)

Facts:

By an application of 3.9.06 Shri Anuj Dhar of Vikas Puri New Delhi applied to the CPIO, PMO seeking the following information:

"I gathered that the Prime Minister's Office (PMO) and the Research and
Analysis Wing (R&AW), which reports to the Prime Minister, hold
several classified records on Subhas Chandra Bose.

1. Would you kindly let me know whether this information is true or not.

2. If yes, please provide me with a descriptive list of all records and
materials (classified and unclassified) on or related to Subhas Chandra
Bose the PMO and R&AW are holding, or are in control of; and;

3. Whether the PMO has any plan to transfer these records/ materials to the National Archives?"

To this he received a response on 3.11.06 from Shri Kamal Dayani Director PMO and CPIO as follows:

1. "There are 11 unclassified files in PMO relating to Shri Subhas
Chandra Bose. To obtain a copy of the list, you may deposit an amount
Rs. 2/- with Cashier, PMO (to be deposited in person)/ or through DD/
Banker's cheque/ Postal Order drawn in favour of Section Officer, PMO.

2. As regards classifieds files held by PMO on the subject an exercise
is being undertaken to review them for declassification. Files which
are declassified after review would then be sent to National Archives
of India.

3. As regards records held by Research and Analysis Wing your
application is transferred to them for appropriate action. You may
contact them for further information in the matter."

While thanking CPIO for his response, Shri Anuj Dhar has nevertheless
moved a first appeal on 8.11.2006 before Shri Javed Usmani, Jt.
Secretary and First Appellate Authority, PMO pleading that the CPIO
Shri Dayani has dealt with unclassified records but has not responded
to the portion about classified records/materials. Upon this Shri
Sanjay Mitra, Jt. Secretary and First Appellate Authority, PMO in his
order of 15.12.'06 directed as follows:

"On verification of the classified files held by PMO, it is held that
their disclosure will prejudicially affect relations with foreign
countries. In view of this, there is no obligation to disclose the
information under Section 8(1)(a) and (f) read with Section 8(2) and
8(3) of the RTI Act. No further action is, therefore, called for on
your appeal and it is accordingly disposed of."

Shri Anuj Dhar's prayer before us is as below:

"The Central Information Commission may kindly direct the Prime Minister's Office to provide me with a descriptive list of all classified records and materials on or related to Subhas Chandra Bose the PMO is holding, or is in control of."

In his response to the appeal notice Shri Kamal Dayani, CPIO has reiterated the process described above concluding that "the information which was not claimed exemption under Section 8(1)(a) and (f) of the RTI Act has already been furnished to the applicant."

The appeal was heard on 24.1.08. The following are present:

Appellant
Shri Anuj Dhar

Respondents
Shri Amit Agrawal, CPIO & Director PMO
Shri Kshitish Kumar, S.O.,PMO

Appellant Shri Anuj Dhar presented a copy of the statement of documents submitted before the Mukherjee Commission, a description of which indicates that some of them were indeed classified, but nevertheless submitted with nomenclature and description before that Commission. He has, therefore, argued that since partial disclosure already stands made of the description of such classified documents, the complete list may now be provided to him.

He also cited the Decision of Full Bench of this Commission dated 5.7.2007 in the case of Mr. Sayantan Dasgupta vs. Ministry of Home Affairs, in File No.CIC/AT/C/2006/00087 of 26.06.2007 .

DECISION NOTICE

This case differs from the case concerning the Sayantan Dasgupta vs Ministry of Home Affairs case cited by appellant Shri Anuj Dhar in that in the MHA case the plea taken by respondents in not disclosing information was that disclosure would prejudicially effect the integrity and security of the State, hence recourse to Section 8 (1) (a). Since the information sought relates to occurrences, events and matters which have taken place twenty years before the date on which the request of appellant Shri Anuj Dhar was made, as per Section 8 sub-section (3), exemption u/s 8 (1) (f) will not apply. However, the plea taken by PMO In the present case is that the disclosure would prejudicially affect "relation with foreign state" also u/s 8(1) (a), but under different clause. The moot question at issue, therefore, is simply whether the disclosure of a descriptive list of records and materials of such classified material would have that effect and whether public interest in access thereto will outweigh the harm to the protected interest as submitted by appellant Shri Anuj Dhar, in this case the interest of relations with a foreign State, for which Sec 8 (2) would have to be invoked, since Sec 8 (3) will not apply to exemptions u/s 8 (1) (a).

As explained to the parties in the hearing, this Commission does not arrogate to itself the authority to adjudicate on matters concerning foreign relations, an issue to decide upon which the authorised agency competent so to do is the Ministry of External Affairs. In this matter a reference may be made to our Decision in Appeal No.CIC/OK/A/2007/001392 of 16.1.'08 in Nusli Wadia vs MEA, wherein we have held that "it is not our practice to substitute our judgment on the applicability of exemption to that of the agency duly authorised to determine such issues." However to satisfy ourselves whether or not PMO has exercised due diligence in arriving at its conclusions in regard to the above on verifiable grounds, CPIO Shri Amit Agrawal, Director PMO will present to us in sealed cover a list of such classified documents together with their description on 15.2.2008 at 4.00 p.m. After our perusal he will return with this material, again in sealed cover.

Notice of this decision be given free of cost to the parties.

(Wajahat Habibullah)
Chief Information Commissioner

25.1.2008

CENTRAL INFORMATION COMMISSION
Adjunct to Appeal No. CIC/WB/A/2007/00129A dated 8-2-2007
Right to Information Act 2005 – Section 19

Appellant: Shri Anuj Dhar
Respondent: Prime Minister’s Office (PMO)

Decision

In our decision of 25.1.2008 we had directed as follows:

“To satisfy ourselves whether or not PMO has exercised due diligence in arriving at its conclusions in regard to the above on verifiable grounds, CPIO Shri Amit Agrawal, Director PMO will present to us in sealed cover a list of such classified documents together with their description on 15.2.2008 at 4.00 p.m. After our perusal he will return with this material, again in sealed cover.”

Accordingly Shri Amit Agrawal appeared before us with the sealed envelope required, the contents of which were examined by us. From this it transpires that there are 33 classified files on this subject with two files having been recently de-classified. Of these seven are classified “top secret”, three “confidential” and the rest “secret”. In four of these files there is reference to foreign states. We have held in our Decision Notice of 25.1.’08 in this case, “As explained to the parties in the hearing, this Commission does not arrogate to itself the authority to adjudicate on matters concerning foreign relations, an issue to decide upon which the authorised agency competent so to do is the Ministry of External Affairs.” We will therefore not address the issue of whether such reference will “prejudicially effect relation with a foreign state” and accept the plea of respondents that disclosure of the file names will so do. Under the circumstances Sh Amit Agrawal, CPIO, PMO will provide a list of the 29 remaining files in addition to the two recently declassified listing their title to appellant Shri Anuj Dhar, within 10 working days of receipt of this decision.

The appeal is thus, partly allowed. Announced.

Notice of this decision be given free of cost to the parties.

(Wajahat Habibullah)

Chief Information Commissioner
18-2-2008

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