The FTO here on issued first order in the history of Freedom of Information Ordinance, 2002 (FIO) on a complaint filed under section 19 of the FIO. The order says access to information is a sine qua non for a constitutional democracy. The public has right to know everything done by the public functionaries, subject to any restriction imposed by law. The responsibility of public functionaries is to disclose works against both corruption and highhandedness.
Sources told Business Recorder, a complaint was filed by a Lahore-based tax lawyer Waheed Shahzad Butt under FIO with the understanding Freedom of Information meant to ensure transparency and to make the government more accountable and ensure that the citizens have access to public records. It also meant to enable the citizens to demand their rights, establish good governance through the enforcement of rule of law, eliminate corruption and make the government more effective in delivering social and economic public services, which require constant monitoring and attention.
The complaint has been accepted by Dr Suddle and the FTO Office has issued an order saying that 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 The Income Tax Ordinance is not only a piece of legislation that is superseded by Section 3 of the FIO but is an organic law as compared to the Constitution.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.
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 if not in violation to the law and the Constitution, FTO maintained.
The FTO said that the departmental contention about 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. The FIO 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.
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.
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, FTO said.
In the present case, the data/documents requested by the requester do not fall within any of the exemptions provided under the FIO. 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.
The requester, a practicing tax consultant, approached the FBR for providing information pertaining to the following specific aspects of the FBR's working including total number of cases in which appeals were filed before the first appellate authority from July, 2011 till date; revenue involved in cases; number of appeals cases (from July 2011 till date) in which written arguments/comments were furnished and/or the departmental representative appeared before the respective CIR (Appeals) to defend the cases before the first appellate authority; revenue involved in cases; reasons for selecting certain cases for Departmental representation, with or without written arguments, before the first appellate authority (required u/s 24A of The General Clauses Act, 1997) and reasons for not selecting certain cases for Departmental representation, with or without written arguments, before the first appellate authority.
The Commissioner Inland Revenue 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 u/s 19 of the FIO before the Chief Commissioner Inland Revenue (CCIR). A copy thereof was also forwarded to the Chairman FBR and Member FATE. However, all attempts by the Requester failed to elicit a response.
From the reply as filed by the department it appears that the FBR is 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 FTO and seek his intervention.
The FTO has directed the FBR to ensure that the provisions of the Freedom of Information Ordinance 2002 are implemented in letter and spirit and with minimum delay; collate the requisite data and forward a consolidated report to the requester; appoint a "designated official" under Section 10 of Freedom of Information Ordinance 2002, if not already done and submit compliance report within 30 days.