Orders passed under FOI shall be final -
Pakistan Press Foundation

Orders passed by Federal Ombudsman and FTO under FOI shall be final, rules LHC

Pakistan Press Foundation

The orders passed by Federal Ombudsman (FO) and Federal Tax Ombudsman (FTO) under Freedom of Information Ordinance, 2002 (FOI) shall be final and no further appeal has been provided by the legislature in the Right to Information cases under FOI, the Lahore High Court (LHC) ruled in a latest judgement.

It is learnt that the LHC has observed in a recent order that very purpose for which the FOI Ordinance was promulgated was thus defeated by the Federal Board of Revenue and the President and that too without application of mind and, it appears, for improper motives.

The Federal Ombudsman is an appellant authority against all federal government bodies except for revenue department, whose cases are dealt by the Federal Tax Ombudsman.

The LHC further observed that the United States Supreme Court in National Labour Relations Board V. Board of Robbins stated the basic purpose of the Freedom of Information Act to “ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.” Similarly, the Supreme Court of Canada in Dagg v. Canada (Minister of Finance) described the objectives of the Access to Information Act as follows it is concerned with securing values of participation and accountability in the democratic process. The overarching purpose of access to information legislation is to facilitate democracy by helping to ensure that citizens have the information required to participate meaningfully in the democratic process and that politicians and bureaucrats remain accountable to the citizenry…Rights to state-held information are designed to improve the workings of government; to make it more effective, responsive and accountable.

The LHC delivered the landmark judgement while hearing a petition filed by an advocate. Earlier, he was refused information by the FBR and an appeal before the FTO had won him a favourable order. However, the FTO’s decision was partially modified by the President when the FBR filed a representation before him under Section 32 of the FTO Ordinance, 2000. The LHC, while interpreting the authority of the Ombudsman in Pakistan and the intervention by the President, focused on their powers with regard to the matters pertaining to the Freedom of Information matters. The Federal Ombudsman is an appellant authority against all federal government bodies except for revenue department, whose cases are dealt by the Federal Tax Ombudsman. Similarly, in all complaints, the Ombudsman gives its opinion in the form of recommendations, except for in the Freedom of Information cases, in which he is finally authorised to issue order. The Freedom of Information Ordinance 2002 does not mention any appellant forum beyond the Ombudsman.

The Freedom of Information Ordinance was promulgated in 2002, and the President has been deciding representations in the cases pertaining to the Freedom of Information applications since then without having any lawful jurisdiction to do so. This exercise went on as neither any one challenged nor the Presidency surrendered this usurped authority. The LHC said the President is authorised to take up a representation, filed by any aggrieved party against the recommendation of the Ombudsman; not when the direction is issued under Freedom of Information. This difference between recommendation and directions must not be lost sight of as it brings into sharp focus the type of jurisdiction being exercised by the Tax Ombudsman under Section 19 of the FOI Ordinance. The petitioner, had filed a request demanding of the FBR to provide information regarding recommendations, issued by the Alternate Dispute Resolution Committee and the orders passed by the FBR on the said recommendations. As the FBR declined to pass on the information citing Article 8 of the Freedom of Information Ordinance that deals with exempt of information, he filed a complaint before the FTO, who ordered for releasing the requested information. The FBR, instead, went into a representation under Section 32 of the FTO Ordinance, 2000 before the president, who partially accepted it and modified the FTO verdict. The complainant filed a petition before the LHC, raising very important questions. Among other questions, he asked whether the FBR was competent to file a representation against a decision (not recommendation) and how come the declined information fall under the scope of Article 8. The court, in its detailed verdict, discussed the case in detail and held that the President had no jurisdiction to entertain and pass a decision on the representation, filed by the Board against the decision of the Tax Ombudsman. The FOI Ordinance was clearly intended to cast aside the era of closed government and to transform the culture of secrecy to one of openness. Unnecessary secrecy in government and public bodies undermines good governance and the public administration,” the LHC order added.

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