Bolo Bhi sends RTI requests to FIA

On July 03, 2018, Shumaila Hussain Shahani, currently a Research Associate on Law and Gender at Bolo Bhi, filed seven requests under the Right of Access to Information Act, 2017 with the Federal Investigation Agency (FIA). The following requests were made to the FIA under the Act:

  1. Please provide total number of cases registered to date under Prevention of Electronic Crimes Act, 2016 with their FIR numbers?
  2. How many cases are registered under Section 20 of Prevention of Electronic Crimes Act, 2016. Provide FIR numbers?
  3. How many cases are registered under Section 21 of Prevention of Electronic Crimes Act, 2016. Provide FIR numbers?
  4. How many cases are registered under Section 24 of Prevention of Electronic Crimes Act, 2016. Provide FIR numbers?
  5. How many people have been arrested under Prevention of Electronic Crimes Act, 2016? Provide case numbers?
  6. How many people have been granted bail under Prevention of Electronic Crimes Act, 2016? Provide case numbers?
  7. How many cases are pending under Electronic Transactions Ordinance, 2002?

Under Section 14 of the Act, a public body has 10 days to respond to requests, which in this case is FIA. When no response was received from the FIA, an appeal was filed against the non-provision of information with the Chief Information Commissioner. Six of the RTI requests were converted into the following appeals:

  1. Appeal 015-03/19
  2. Appeal 018-03/19 
  3. Appeal 019-03/19 
  4. Appeal 020-03/19
  5. Appeal 021-03/19 
  6. Appeal 036-03/19

Letters were issued by the Chief Information Commissioner’s office to the FIA to respond to the RTI requests. Bolo Bhi was informed of two hearings held on July 29, 2019 and October 29, 2019. FIA representatives did not appear at either hearing. 

On October 30, 2019, FIA wrote a letter to the Chief Information Commissioner citing Section 16 of the  Right of Access to Information Act, 2017 as the reason for non-disclosure and non-provision of information for three of the requests: Appeals 015-03/19, 018-03/19 and 020-03/19.

Bolo Bhi then wrote to the Pakistan Information Commission (PIC) on November 12, 2019, expressing dissatisfaction with FIA’s response on the following grounds:

The RTI requests pertain to information regarding the number of cases registered under Prevention of Electronic Crimes Act 2016 (PECA). When cases are registered and go to trial, they become a part of public record. Proceedings conducted in courts are open to the public. Therefore, the information requested is public record. The RTI requests made to FIA are as follows:

  1. Please provide total number of cases registered to date under Prevention of Electronic Crimes Act, 2016 with their FIR numbers?
  2. How many cases are registered under Section 20 of Prevention of Electronic Crimes Act, 2016. Provide FIR numbers?
  3. How many cases are registered under Section 21 of Prevention of Electronic Crimes Act, 2016. Provide FIR numbers?
  4. How many cases are registered under Section 24 of Prevention of Electronic Crimes Act, 2016. Provide FIR numbers?
  5. How many people have been arrested under Prevention of Electronic Crimes Act, 2016? Provide case numbers?
  6. How many people have been granted bail under Prevention of Electronic Crimes Act, 2016? Provide case numbers?
  7. How many cases are pending under Electronic Transactions Ordinance, 2002?

The data requested should already be available on their website under Section 5 (i) of the 2017 Act. 

  1. Access to information is a statutory right under the Right of Access to Information Act 2017. The Act can only be interpreted so as to advance its purposes as set out in the preamble, to promote the right of access to information and facilitate and encourage promptly the disclosure of the information. The purposes of the  Right of Access to Information Act, 2017 set out in the preamble include improved access to records held by public authorities and promotion of the purposes of making the Government more accountable to its people. (see Section 3(2) of the Right of Access to Information Act, 2017 and its preamble)
  2. Statutory right to access to information is further endorsed and bolstered by Article 19-A of the Constitution of Pakistan. This must be liberally construed to afford maximum right or benefit to citizens to expand the right to information.
  3. The purpose of Section 6 of the Act is clear: to ensure that as much information kept by a public body as possible is brought into the ambit of ‘public record’ so that public body remains accountable to the citizens of Pakistan and that the later have access to all information and data which is of public importance and /or has a bearing on public’s interests or rights. The information requested through the RTI requests made pertain specifically to Section 6(a) and 6(d) of the Act: (a) Policies and guidelines (d) final orders and decisions, including decisions relating to members of public.
  4. Denial of information has to be “subject to reasonable restrictions under the law.” While Section 16 lists certain restrictions, it is to be interpreted strictly and not used arbitrarily to defeat the Act. The FIA, in its letter, has not mentioned any section of the law under which it believes the information to be exempt from disclosure. Section 16 of the 2017 Act provides a list of exemptions. Assuming the FIA believes the requested information to fall within this list, it must cite the specific section and provide cogent  reasoning.  
  5. Furthermore, the Federal Government must have declared the said material as ‘classified’ as per Article 99(3) of the Rules of Business (1973), which states that the Cabinet Division is responsible for declaring material as classified. In issuing the declaration for information to be deemed classified, the federal government must under Section 24-A of the General Clauses Act 1897 provide justifications for the declaration.
  6. Only in limited circumstances where disclosure may cause more ‘harm than good’ can such non-disclosure be justified. Nothing has been provided by the FIA in this regard to assume that the information can cause any harm. Further, when citing greater harm than good as a reason for non-disclosure, the public body must provide justifications and cogent reasoning.

Reliance is placed on Indus Batteries Industries (Pvt) Ltd v/s Federation of Pakistan and Others before the Sindh High Court (2008 PTD 246)


7. In order for public record to fall within the exclusions stipulated in Section 16, it must be declared as classified by the competent authority under the Act read together with the Rules of Business. The competent authority, in exercising rightful authority under law will have to provide valid and cogent justifications for its decision for curtailing a fundamental right of the citizens of Pakistan. In view of the Rules of Business, only the Cabinet Division or for limited purposes the Interior Division and Defence Division, have the authority to declare information as “classified,” not any other division or department of the Federal Government. The FIA does not fit the criteria of the competent authority; an order or exercise of executive discretion leading to denial of access to information would arguably be ultra vires of the law.

Click here for Interpretetion of Section 8 of Freedom of Information Ordinance2002 with respect to Non-provision of Information.


In view of the above, it was argued, there is no reason to withhold information requested through RTI requests by Bolo Bhi via requests dated July 03, 2018 and appeals dated January 08, 2019. The information falls under Section 5(i) of the Act and should already be available to the public. The information falls under Section 6 sub sections (a) and (d) of the Act and has been declared to be public record. Section 16 has to be interpreted strictly and not used arbitrarily to defeat the Act. When denying information, it must be done subject to reasonable restrictions under law and procedure laid down by the law, not arbitrarily. The application of the restriction and denial of information must be qualified with cogent reasoning, which the FIA’s response fails to do.

Allowing Bolo Bhi’s appeals, the PIC held on November 25, 2019  that the FIA must provide the appellant in Appeals no.s 015-03/19, 018-03/19 and 020-03/19 with the information requested by the appellant and a compliance report must be submitted by the FIA with the Commission by December 26, 2019. On November 26, 2019 PIC allowed another appeal no. 019/03/19 and directed the FIA to provide the appellant with the information requested by the appellant and to submit a compliance report by December 27, 2019.

TIMELINE

July 3, 2018Seven requests under the Right of Access to Information Act, 2017 were made to the Federal Investigation Agency (FIA)
January 8, 2019When no response was received from the FIA, appeals were filed against the non-provision of information with the Chief Information Commissioner. Six of the RTI requests were converted into appeals.
July 11, 2019Pakistan Information Commission issued a notice to the FIA to provide the requested information to the applicant within five working days or appear for a hearing at the PIC office to be held on July 29, 2019 to explain the reasons for not providing the requested information for the following appeals:Appeal 015-03/19Appeal 018-03/19Appeal 019-03/19Appeal 020-03/19Appeal 021-03/19Appeal 036-03/19
July 29, 2019FIA failed to provide the requested information to the applicant within five working days.
Hearing at the PIC for the following appeals:Appeal 015-03/19Appeal 018-03/19Appeal 019-03/19Appeal 020-03/19Appeal 021-03/19Appeal 036-03/19
FIA failed to attend the hearing.
October 11, 2019PIC issued a second notice to the FIA for a hearing at the PIC office to be held on October 29, 2019 for the following appeals:Appeal 015-03/19Appeal 036-03/19
October 29, 2019Hearing at the PIC for the following appeals:Appeal 015-03/19Appeal 036-03/19
FIA failed to attend the hearing.
October 30, 2019FIA responded to the appeals no. 015-03/19, 018-03/19 and 020-03/19 saying they are not bound to provide any information in the abovementioned appeals to the applicant under Section 16 of the Right of Access to Information Act 2017.
November 12, 2019Letter sent to the Information Commission expressing dissatisfaction with FIA’s response. (click here for the document)
November 25, 2019PIC allowed in Appeals no.s 015-03/19, 018-03/19 and 020-03/19 holding   that the FIA must provide the appellant with the information requested by the appellant. The FIA has also been directed to share through their website all categories of information mentioned in Section 5 of the Right of Access to Information Act 2017. FIA has further been directed to submit a compliance report with the PIC by December 26, 2019.Click here for the document.
26 November 2019PIC allowed another appeal i,e Appeal no. 019/03/19 and directed the FIA to provide the appellant with the information requested by the appellant. The FIA has also been directed to share through their website all categories of information mentioned in Section 5 of the Right of Access to Information Act 2017 through this order as well. FIA has further been directed to submit a compliance report with the PIC by December 27, 2019

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