WAHEED SHAHZAD BUTT, TAX RESOLUTION SERVICES COMPANY, LAHORE VS CHAIRMAN, F.B.R.,, 2013 PTD-FEDERAL-TAX-OMBUDSMAN-PAKISTAN 1293 (2013)

Freedom of Information Ordinance (XCVI of 2002)---

----Ss. 3, 8, 10, 15, 16, 17, 18 & 19(2)---Income Tax Ordinance (XLIX of 2001), S.216---Constitution of Pakistan, Art.19-A---Refusal to provide requested information---Commissioner Inland Revenue refused to provide the requester/complainant information pertaining to specific aspects of the Federal Board of Revenue's working---Commissioner had declined to provide requested information, contending that under S.216(1) of Income Tax Ordinance, 2001, such information being confidential could not be disclosed---Validity---Freedom of Information Ordinance, 2002, enabled citizens to ask for publicly held information as a matter of right andenabled citizens to have access to public records---Purpose of the said Ordinance was to ensure transparency and promote good governance by making the Government more accountable and open and was meant to make Government more efficient and citizen friendly delivering public services---Access to information was a sine qua non for a constitutional democracy---Public had a right to know everything done by the Public Functionaries, subject to any restriction imposed by law---In the present case, the data/documents requested by the requester did not fall within any of the exemptions provided under Freedom of Information Ordinance, 2002---No exemption could be claimed on the basis of any other law---Provisions of the Freedom of Information Ordinance, 2002 also had overriding effect over the provisions of Income Tax Ordinance, 2001 as given in its S.3 (a non obstante provision)---Article 19-A of the Constitution enshrined the right to information as a Fundamental Right, subject to regulation and reasonable restriction---Authorities were bound to disclose information requested by the requester---Federal Tax Ombudsman directed that, Federal Board of Revenue would ensure that the provisions of the Freedom of Information Ordinance, 2002, were implemented in letter and spirit and with minimum delay; that Board would collatethe requisite data and forward a consolidated report to the requester; that Board would appoint a "designated official" under S.10 of Freedom of Information Ordinance, 2002, if not already done and that submit compliance report within 30 days.

ORDER UNDER SECTION 19(2) OF THE FREEDOM OF INFORMATION ORDINANCE, 2002

This complaint is filed under section 19 of the Freedom of Information Ordinance 2002 (FIO) against the respondents' refusal to provide the requested information to the Requester.

2.The, Requester, a practicing tax consultant, approached the respondents for providing information pertaining to the following specific aspects of the FBR's working:

(i)Total number of cases in which appeals were filed before the first appellate authority from July 2011 till date;

(ii)Revenue involved in cases referred to in (i) above;

(iii)Number of appeals cases (from July 2011 till date) in which written arguments/comments were furnished and/or the departmentalrepresentativeappearedbeforetherespectiveCIR (Appeals) to defend the cases before the first appellate authority;

(iv)Revenue involved in cases referred to in (iii) above;

(v)Reasons for selecting certain cases for departmental representation, with or without written arguments, before the first appellate authority (required under section 24A of The General Clauses Act, 1997); and

(vi)Reasons for not selecting certain cases for departmental representation, with or without written arguments, before the first appellate authority.

3.The Requester sent a Letter No.TRSC/GEN-RTO-II/1112-440 dated 28-5-2012 to respondent No 3. The CIR declined to provide the required information contending that under section 216(1) of the Income Tax Ordinance, 2001 (the Ordinance), such information being confidential could not be disclosed. A complaint was then lodged under section 19 of the FIO before the Chief Commissioner Inland Revenue (CCIR) vide No.TRSC/GEN-RTO-II/1112-440-A dated 7-6-2012. A copy thereof was also forwarded to the Chairman FBR and Member FATE, through email dated 7-6-2012. However, all attempts by the Requester failed to elicit a response.

4.The Requester contends that the respondents'apathyinthematter was a violation of sections 3, 4, 5, 6, 9, 10, 11, 12 and 13 of the FIO.

5.When confronted, the Deptt. filed a reply, contending that the data requisitioned pertained to privileged/confidential information regarding the taxpayers and thus attracted the mischief of section 216(1) of the Ordinance. The words "Not Admitted," were recorded against the Requester's contentions in paragraphs 12, 14, 16 and 17.

6.Both sides have been heard and their arguments considered.

7.From the reply as filed by the Deptt. it appears that the respondents are not aware that the present complaint has been made under section 19 of the FIO and not the FTO Ordinance. Any citizen when denied information requested by him from FBR or its subordinate offices can approach the Hon'ble Federal Tax Ombudsman and seek his intervention.

8.The Departmental contention that access to information requested by the requester was denied as it was confidential / privileged has been examined and found to be misconceived. The information sought does not relate to any taxpayer's declared / assessed income or his wealth statement. It simply relates to an assessment's fate generally while it is in appeal before the first appellate authority with and without a Departmental Representative.

9.Freedom of Information Ordinance enables citizens to ask for publicly-held information as a matter of right. It enables citizens to have access to public records. Its purpose is to ensure transparency and promote good governance by making government more accountable and open. It is also meant to make government more efficient and citizen-friendly in delivering public services. Globally, many countries have enacted freedom of information laws. Sweden was the first country to enact such a law. Pakistan became the first such country in South Asia, when the Freedom of Information Ordinance was promulgated in 2002.

10.It goes without saying that access to information is a sine qua non for a constitutional democracy. The public has a right to know everything done by the public functionaries, subject to any restriction imposed by law. The responsibility of public functionaries to disclose works against both corruption and highhandedness. Though this right has its limitations, the routine business of a public functionary cannot be allowed to be cloaked in the veil of secrecy or privilege. As a rule, information of public interest must be disclosed with minimum delay when a valid reason for its disclosure is given. Only as an exception should privilege be claimed on justifiable grounds permissible under the law. Under section 3 of the FIO, the provisions of the FIO are to be so interpreted as to facilitate prompt disclosure of information at minimal cost. Section 3 also contains a non-obstante clause which provides that notwithstanding anything contained in any other law for the time being in force, no person is to be denied information contained in any official record. The only limitations to this right are the immunities described in sections 8, 15, 16, 17 and 18 of the FIO.

11.When an exemption is claimed from making a disclosure, the scales of justice have to tilt a bit towards permitting disclosures in order to balance the public right to information against narrowly construed interests of a government agency. No doubt where there are two competing interests involved, the Federal Tax Ombudsman is expected to perform a balancing act by weighing both interests and deciding how much and when to tilt.

12.In the present case, the data/documents requested by the Requester do not fall within any of the exemptions provided under the F10. No exemption can be claimed on the basis of any other law. The provisions of the Freedom of Information Ordinance, 2002 also have overriding effect over the provisions of the Income Tax Ordinance, 2001 as given in section 3 of the FIO (a non-obstante provision).

13.Finally, Article 19-A of the Constitution of Pakistan enshrines the right to information as a Fundamental Right, subject to regulation and reasonable restriction. The Income Tax Ordinance is not only a piece of legislation that is superseded by Section 3 of the FIO but is an organic law as compared to the Constitution. Even otherwise, none of the provisions of Section 216(1)(a), (b) and (c) of the Income Tax Ordinance are attracted to the instant request for information.

14.It is abundantly clear that as per FIO and the Constitution the respondents are bound to disclose information requested by the Requester. The disclosure of the requested information cannot be denied without being in violation of the law and the Constitution.

Intervention Order

15.FBR to--

(i)ensure that the provisions of the Freedom of Information Ordinance, 2002 are implemented in letter and spirit and with minimum delay;

(ii)collate the requisite data and forward a consolidated report to the requester;

(iii)appoint a "designated official" under section 10 of Freedom of Information Ordinance, 2002, if not already done; and

(iv)submit compliance report within 30 days.

HBT/88/FTOOrder accordingly.