M/S Ogilvy & Mather ... v. Dr. Rafeeq Masoodi, ...

August Kranti Bhawan, Bhikaji Cama Place, New Delhi-110066 F.No. CIC/YA/A/2014/001689 Date of Hearing : 08.06.2015 Date of Interim Decision Date of Final Decision 18.06.2015 27.11.2015 Complainant/Appellant : M/s Ogilvy & Mather Pvt. Ltd. Through Shri Kapil Arora Gurgaon Respondent : Dr. Rafeeq Masoodi, DDG Shri Avinash Kumar Gupta, EE(Vig.) Shri E.S. Isaac, Consultant (Sports) Shri R.P. Talwar, Associate Prasar Bharti DD New Delhi Information Commissioner : Shri Yashovardhan Azad Relevant facts emerging from complaint/appeal: RTI application filed on : 09.09.2013 PIO replied on : 11.10.2013 First Appeal filed on : 18.11.2013 First Appellate Authority (FAA) order on : 26.12.2013 Complaint/ Second Appeal received on : 16.06.2014 Information sought: The appellant sought certified copies of entire correspondence of file no. 2/29/2009-P.X., certified copies of correspondence of file no.1(2)HB-CWG Cell/2010/Games Promotion/09-10 and certified copies of entire correspondence concerning Ogilvy & Mather Pvt. Ltd. w.r.t. creating animated Digital Doordarshan character and 30 event vignettes for Commonwealth Games. Relevant facts emerging during hearing: Both parties are present and heard. The appellant is represented by Shri Vikram Ahuja, President, M/s Ogilvy & Mather Pvt. Ltd. and Shri Gaurav Sarin, Advocate. The appellant filed an RTI application dated 09.09.2013, seeking the above information. CPIO (Sports) vide reply dated 11.10.2013 denied information invoking exemption under section 8(1)(h) of the RTI Act, stating that the subject matter of information being sought is under investigation and disclosure of information/records would impede the process of investigation. The FAA vide order dated 26.12.2013 upheld the decision of the CPIO to deny information u/s 8(1) (h) & 8(1)(g) of the rti act and observed that the relevant records contain internal notings and decision making process on the issue, which is the subject matter of investigation, the disclosure of which at this stage of ongoing investigation, would impede the process of investigation. Not satisfied with the response of the public authority, appellant filed the present appeal before the Commission. The appellant stated that w.r.t. another RTI application, he had received the noting portion of the said file but the correspondence part has not been provided to him till date. He further stated that the case pertains to civil claim relating to non-payment of dues raised by him for services rendered to Doordarshan/Prasar Bharti in 2010. He averred that the allegation of delay in service provided was false and disclosure of the correspondence part of the said file would demonstrate the falsity of this allegation by the respondent authority. He stated that the exemption sought by the public authority is wholly unjustified and non-applicable, rather the exemption under section 8(1)(h) is clearly not applicable in the instant case. The Section 8(1) (h) uses the term offender which in common parlance means a term constantly employed to indicate persons implicated in the Commission of a crime Therefore, evidently the application of section 8(1)(h) is not a valid ground for rejection of providing information to him as he is not an offender nor has committed any crime. The justification or rationale for denial of information is therefore malafide and contrary to law. Mere reference to or reliance by FAA on the advise by the Vigilance Dept. is insufficient in law to deny the information to him. Denial of information has to be based on definite reason which can be explained and merely refusing information by claiming exemption without any explanation is an unwarranted denial of citizens fundamental right. He drew attention of the Commission to various decisions of the High Court such as Union of India Vs. O.P. Nahar [WP(C) 3616/2012 and 405/2014], Adesh Kumar Vs. Union of India & Ors. [WP(C) 3543/2014], Bhagat Singh Vs. Chief Information Commissioner [146 (2008) DLT 385], Union of India Vs. R.S. Khan, [173 (2010) DLT 680], wherein the Honble Court has observed that the holder of information can only withhold the information if, it is able to demonstrate that the information would impede the process of investigation or endanger the life or physical safety of any person and not just on the basis of mere apprehension. The respondent stated that he is not concerned with the reply of the other CPIO as to what has been provided to the appellant and he only replied as per the provisions of the RTI Act. He further stated that the standard procedure has not been followed while processing, evaluating and costing of proposal received from a single agency and no committee was formed which could have carried out the processing of the proposal. He stated that there were some objections in audit also. He strongly objected to the disclosure of information as it will impede the process of ongoing investigation and there is also threat to the officials involved in the matter. Interim Decision Notice: After hearing both the parties and on perusal of records, the Commission directs the respondent to submit a written submission to the Commission (endorsing a copy to the appellant) regarding the pending inquiry(s) in the instant case, along with explanation as to how disclosure of information would impede the process of investigation as to invoke the exemption u/s 8(1)(h) of the RTI Act and the present status of the case. The submission shall be submitted to the Commission within four weeks of receipt of this order. If the appellant desires, he may file his counter submission within two weeks of receipt of submission from the respondent. The matter be placed before the Commission for final order after four weeks of receipt of the written submission from the respondent. DECISION The Respondent sent their written submissions to the Commission by a communication dated 23.10.2015 justifying the denial of information. In their submissions the Respondent have reiterated their contentions that discrepancy has been noted by the Fact Finding Committee in the processing, evaluating & costing of the proposal received from only a single agency without any comparison and completely overlooking the competitive perspective. It has also been stated by the Respondent that no committee was formed which could have carried out the processing of the proposal and in view of audit objections and the consequential investigation, the Respondents are apprehensive of parting with any information. It has clearly been stated by the Respondents that they strongly believe providing copies of documents pertaining to file no.1 (2) HB-CWG Cell/2010/Games Promotion/09-10 and F. No. 2/29/2009-PX will reveal the persons associated with investigation and even the probable witnesses in this case. It is apprehended that the witnesses can be influenced and in such event the investigation will definitely be impeded. The Commission notes that the file notings are already in possession of the Appellant. However, the correspondence obviously reveals the name/s of the officials/persons associated with investigation. Hence the apprehension of the Respondent cannot be overlooked. The Full bench decision of the Commission in its order dated 28.11.2014 in File No. CIC/SM/A/2012/001020 also held as under: ..14. This Commission in its decision dated 10.7.2007 in Appeal No. CIC/AT/A/2007/0007, 10 & 11 (Shankar Sharma & Others Vs. DGIT) observed that the term investigation used in section 8(1)(h) of the Act should be interpreted broadly and liberally and that no investigation could be said to be complete unless it has reached a point where the final decision on the basis of that decision is taken. This Commission In CIC/AT/A/2007/007/00234 K.S. Prasad vs SEBI, observed that as soon as an investigation or an enquiry by a subordinate Enquiry Officer in Civil and Administrative matters comes to an end and, the investigation report is submitted to a higher authority, it cannot be said to be the end of investigation. ... which can be truly said to be concluded only with the decision by the competent authority. This Commission in CIC/DS/A/2013/000138/MP Narender Bansal vs Oriental Insurance Co. Ltd., has held that the investigation in the matter was complete but further action was under process, and hence it attracted section 8(1)(h) of the Act.

15. In the present case, final orders are yet to be passed by the competent authority under the SEBI Act. Therefore, the process of investigation against the RIL is still pending before SEBI and it cannot be said the same has reached its conclusion. Hence, the requested information falls under exemption under Section 8(1) (h) of the Act.. In another decision of the CIC [F. No. F.No.CIC/SS/A/2013/001758-YA and F.No.CIC/SS/A/2013/001768-YA decided on 16.03.2015] a similar issue was thus decided:

......Further, the appellant has sought for all note- sheets/correspondence of file relating to the case of Ruchi Soya Industries Ltd. before the Gujarat High Court. The Commission is of the view that the same cannot be provided as the further investigation after the High Court's order is still pending, disclosure of which would impede investigation. Moreover, the appellant has sought date-wise details of decision taken for disciplinary action against Members of the Committee, disclosure of which will not serve any public interest..

Thus the Commission is of the considered opinion the ratio of the aforementioned cases is squarely applicable in the instant case also. Providing of information at this stage, which is intrinsic to the investigation, is likely to impede the investigation and would not serve any public interest. Hence the Appeal is dismissed. (Yashovardhan Azad) Information Commissioner 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. (B.D. Harit) Deputy Secretary & Deputy Registrar Copy to:- Central Public Information Officer under RTI Deputy Director, Prasar Bharati (Broadcasting Corp. of India), Directorate General Doordarshan, Doordarshan Bhawan, Copernicus Marg, New Delhi-110001. First Appellate Authority under RTI Additional Director General-(Sports), Prasar Bharati (Broadcasting Corp. of India), Directorate General Doordarshan, Room-1022, Tower-B, Doordarshan Bhawan, Copernicus Marg, New Delhi-110001. Central Public Information Officer under RTI Deputy Director, Prasar Bharati (Broadcasting Corp. of India), Directorate General Doordarshan, Prasar Bharati Secretariat, PTI Building, Parliament Street, New Delhi-110001. Shri Kapil Arora 6th Floor, Tower-A, Global Business Park, Mehrauli Gurgaon Road, Gurgaon-122002 (Haryana). Shri Gaurav Sarin Advocate & Principal Attorney, Sarin Associates, A-8, Sujan Singh Park (Adjacent to Hotel Ambassador), New Delhi-110003.