Stereo. H C J D A 38.

IN THE LAHORE HGIH COURTLAHORE

JUDICIAL DEPARTMENT.
JUDGMENT:
W.P. No.28180 of 2014.
Waheed Shahzad Butt
VERSUS
The Federation of Pakistan and another.
Date of hearing…30.11.2015.
Petitioner by: Mr. Waheed Shehzad Butt Advocate
for petitioner.
Respondent by: Ch. Liaqat Ali Advocate for respondents.
Mr. Javed Athar Advocate for FBR.
Ms. Hina Hafeez Ullah, learned standing
counsel.

Shams Mehmood Mirza, J:-This writ

petition raises an interesting point regarding the availability of
the power with the President to entertain and adjudicate upon
representation filed against the decision of Federal Tax
Ombudsman passed as an appellate authority in terms of section
21 of the Freedom of Information Ordinance, 2002 (the FOI
Ordinance). The other issue for determination in this writ
petition is whether the recommendations of Alternate Dispute
Resolution Committee are excluded documents in terms of
section 8 of the FOI Ordinance.
2. The petitioner by having recourse to the provisions of the
FOI Ordinance applied to the Chairman, Federal Board of
Revenue (the Board), respondent No.2, through letter dated
09.08.2012 seeking information and access to record pertaining
to the recommendations issued by Alternate Dispute Resolution
Committee (ADRC) constituted under section 134A of the
Income Tax Ordinance, 2001 and section 47A of the Sales Tax
Act, 1990 and the orders passed by the Board on the said
recommendations. As the Board declined to pass the decision
on the information sought for, the petitioner lodged a complaint
with the Federal Tax Ombudsman (the Tax Ombudsman)
W.P. No.28180 of 2014. ~2~

under section 19 of the FOI Ordinance. The Tax Ombudsman

vide order dated 10.01.2013 directed the Board to provide
information/record requested for to the petitioner with a period
of 21 days. The Board filed a representation before the
President of Pakistan through the Ministry of law on
14.02.2013 under section 32 of the Federal Tax Ombudsman,
2000. The President partially accepted the representation on
14.10.2014 by holding that the record relating to the
recommendations of the ADRC will not be provided to the
petitioner. The order of Tax Ombudsman was accordingly
modified by the President on the following terms.
The upshort of the above discussion is that the subject
representation of Agency has been allowed only to the
extent of non providing the record relating to
recommendation of the respective committees
constituted in terms of the above mentioned provision of
the tax status. In these circumstances the impugned
decision of the learned F.T.O. is modified in the following
manner:
(i) FBR is ordered to provide the requester
with the information but excluding
therefrom the record of recommendations
of the said committee, in the format given
by him, within 21 days from the date of
receipt of this order and
requester/complainant should also specify
the description of court(s) case in which
the information requested is required;
(ii) It is further clarified that
requester/complainant does not need to
file a fresh application and that an
additional application will form part of the
original application of August 09, 2012
wherein case details are to be mentioned.”

3. Learned counsel for the petitioner, inter alia, argued that

the representation filed by the Board before the President was
not valid as no such remedy was provided for by the FOI
Ordinance. On merits it was stated that there was no prohibition
in the FOI Ordinance for providing the necessary
information/documents to the petitioner. Learned counsels for
the respondents, on the other hand, stated that representation to
the President was permissible in terms of section 32 of Federal
Tax Ombudsman Ordinance, 2000 and that that right was
W.P. No.28180 of 2014. ~3~

reaffirmed in section 14 of the Federal Tax Ombudsman

Institutional Reforms Act, 2013. The learned Standing Counsel
representing the Federation also took a series of objections by
stating that the complaint to the Tax Ombudsman was filed by
the petitioner alleging mal-administration under section 3 of the
Federal Tax Ombudsman Ordinance, 2000 and that by virtue of
section 23 of the Ordinance, the representation before President
was thus competent in terms of sections 32 and 37 of the
Federal Tax Ombudsman Ordinance, 2000 and sections 14 and
24 of the Federal Tax Ombudsman Institutional Reforms Act,
2013. In this regard reliance was placed on judgments reported
as Muhammad Hussain and others v. Islamic Republic of
Pakistan PLD 1991 SC 385 and S.M. Rahman & Co. v.
Motabar and others PLD 1981 SC 282. It was also urged that
the record sought by the petitioner fell in the exclusions
contained in section 8 (c), (g) and (h) of the FOI Ordinance and,
therefore, the Board was justified in not providing the said
record to the petitioner.
4. From the arguments advanced by the learned counsels for
the parties, the following issues of law have arisen requiring
decision by this Court.
(a) Whether representation by the Board before the
President against the decision of the Tax
Ombudsman was competent in terms of section 32
of Federal Tax Ombudsman Ordinance, 2000?
(b) Whether the information/documents sought for by
the petitioner fall in the exclusions mentioned in
section 8 of the FOI Ordinance?
5. The various parts of the FOI Ordinance relied upon by
the parties to provide guidance towards its true construction,
scope and intent need reproduction in whole or in summary
form. The object of the FOI Ordinance is conveyed by its
preamble, which states that
WHEREAS it is expedient to provide for
transparency and freedom of information to
ensure that the citizens of Pakistan have
W.P. No.28180 of 2014. ~4~

improved access to public records and for the

purpose to make the Federal Government
more accountable to its citizens, and for
matters connected therewith or incidental
thereto;

The right of access is given by section 3 of the FOI

Ordinance which declares that no requester shall be denied
access to any official record except for the exemptions provided
in section 15, which relate to international affairs, and that the
FOI Ordinance shall be interpreted so as to facilitate and
encourage, promptly and at the lowest reasonable cost, the
disclosure of information. Under the FOI Ordinance, both the
existence and the access rights attach to “information” and
“public record”. Section 2 (h) and (i) of the FOI Ordinance
provides the definitions of “public body” and “record”. Sections
7 thereof is relevant and is reproduced hereunder
7. Declaration of public record.- Subject to the
provision of section 8, the following record of
all public bodies are hereby declared to be the
public record, namely:-
(b) transactions involving acquisition and
disposal of properly and expenditure
undertaken by a public body in the
performance of its duties;
(c) information regarding grant of licenses,
allotments and other benefits and
privileges and contract and agreements
made by a public body;
(d) final orders and decisions, including
decisions relating to members of public;
and
(e) any other record which may be notified
by the Federal Government as public
record for the purposes of this
Ordinance.

In recognition of the delicate balance between the

public's interest in knowing and in expressing its opinion and
the need in some cases to protect confidentiality and privacy,
FOI Ordinance provides a wide range of
exemptions/exclusions, as mentioned in section 8, which reads
as under
W.P. No.28180 of 2014. ~5~

8. Exclusion of certain record.- Nothing contained

in section 7 shall apply to the following record
of all public bodies, namely:-
(a) nothing on the files;
(b) minutes of meetings;
(c) any intermediary opinion or
recommendation;
(d) record of the banking companies and
financial institutions relating to the
accounts of their customers;
(e) record relating to defence forces,
defence installations or connected
therewith or ancillary to defence and
national security;
(f) record declared as classified by the
Federal Government;
(g) record relating to the personal privacy
of any individual ;
(h) record of private documents furnished
to a public body either on an express or
implied condition that information
contained in any much documents shall
not be disclosed to a third person; and
(i) any other record which the Federal
Government may, in public interest,
exclude from the purview of this
Ordinance.

Similarly, section 19 of the FOI Ordinance in the context

of the first issue identified by this Court is most relevant and is
reproduced hereunder
19. Recourse of the Mohtasib and Federal
Tax Ombudsman.- (1) If the applicant is not
provided the information or copy of the record
declared public record under section 7 within
the prescribed time or the designated official
refuses to give-such information or, as the case
may be, copy of such record, on the ground
that the applicant is not entitled to receive
such information or copy of such record, the
applicant may, within thirty days of the last
date of the prescribed time for giving such
information or, as the case may be, of such
record, or the communication of the order of
the designated official declining to give such
information or copy of such record, file a
complaint with the head of the public body and
on failing to get the requested information
from him within the prescribed time may file a
complaint with the Mohtasib and in cases
relating to Revenue Division, it subordinate
W.P. No.28180 of 2014. ~6~

departments, offices and agencies with the

Federal Tax Ombudsman.
(2) The Mohtasib or the Federal Tax
Ombudsman, as the case may be, may, after
hearing the applicant and the designated
official, direct the designated official to give the
information or, as the case may be, the copy of
the record or may reject the complaint.

6. The examination of the above provisions show that the

citizens have been granted a right to access to official/public
record and that an applicant (requester) need not provide any
reason for seeking such record and it is for the designated
official to determine whether the record sought for does not
constitute public record or that the record sought for is excluded
under section 8 of the FOI Ordinance. Section 19 of the FOI
Ordinance itself provides a three tier process and is a complete
code for processing the application of a requester with self help
remedies in case of denial of his request. Down the chain is the
designated official to whom the application is made in terms of
section 13 of the FOI Ordinance. In case of denial by the
designated official to provide the information or the record, as
the case may be, the requester has the remedy to approach the
head of the public body with the complaint. In case the
requester fails to get the information or record from the head of
the public body, he can approach the Tax Ombudsman or the
Mohtasib, as the case may be. For all intents and purposes, the
Tax Ombudsman or the Mohtasib under the provisions of FOI
Ordinance is the last appellate forum to entertain the complaint
and redressal of grievance of a requester. Another important
distinction that needs to be brought to light is that section 19 of
FOI stands on a different footing in comparison to other laws
which create the office of Mohtasib in that the Tax Ombudsman
under the FOI passes a decision on the complaint of a requester
rather that making recommendation on mal-administration of
the delinquent officials. This difference must not be lost sight of
as it brings into sharp focus the type of jurisdiction being
W.P. No.28180 of 2014. ~7~

exercised by the Tax Ombudsman under section 19 of the FOI

Ordinance.
7. Keeping in view the three tier process provided for in
section 19 of the FOI and the fact that no further appeal was
provided against the decision of the Tax Ombudsman, it
appears that FOI Ordinance intended finality to be attached to
the orders of the Tax Ombudsman passed as on appellate
authority under section 19 of the FOI Ordinance. It is an
elementary principle of law that is well settled by now that
appeal is a creature of statute and unless provided it cannot be
resorted to by recourse to the right of appeal provided in
another law. Which brings us to the submissions made by the
learned counsels for the respondents that the right of
representation, which is akin to that of an appeal, provided in
Federal Tax Ombudsman Ordinance, 2000 and Federal Tax
Ombudsman Institutional Reforms Act, 2013 is available to the
department against the decision of Tax Ombudsman. The
learned counsel for the petitioner relied upon judgments
reported as Mst. Bibi Chazala v. Member, Board of Revenue,
Punjab, Lahore and others 2011 SCMR 749, Capital
Development Authority through Chairman v. Raja Muhammad
Zaman Khan and another PLD 2007 SC 121 and Mst.
Tabassum v. Waqar Hussain and another 2011 MLD 351 to
argue that appeal is a creature of statute and unless available in
the relevant law cannot be invoked by resorting to the other
laws even if they be of similar nature and that in the absence of
a right of further appeal, the only remedy available to a person
is to invoke the writ jurisdiction under Article 199 of the
Constitution of the Islamic Republic of Pakistan, 1973 (the
Constitution). This position was controverted by the learned
Standing Counsel who relied upon case law to the contrary.
8. In Muhammad Hussain and others v. Islamic Republic of
Pakistan PLD 1991 SC 385 relied upon by the learned Standing
Counsel, the issue was with regard to the availability of revision
with the Labour Appellate Tribunal against the decision of the
W.P. No.28180 of 2014. ~8~

Labour Court passed in appeal under section 17 (1) of the

Payment of Wages Act, 1936 as there were conflicting opinions
on the issue by the Lahore High Court and the learned Sindh
High Court. The Lahore High Court relying upon a judgment
reported as Pakistan v. Maqsood Ali 1981 PLC 307 held that
the Labour Appellate Tribunal was concerned only with matters
arising out of proceedings taken under Industrial Relations
Ordinance and that the appeal heard by the Labour court under
Payment of Wages Act fell outside its revisional jurisdiction.
The learned Sindh High Court, however, came to a totally
opposite conclusion by holding that the disputes under the
Payment of Wages Act and the Industrial Relations Ordinance
bear such close resemblance that there is no reason to hold that
the Legislature did not intend to make available the remedy of
revision against the decisions of the labour court delivered
under the Payment of Wages Act. Relying upon section 35 (5)
(d) of Industrial Relations Ordinance, it was thus held by the
learned Sindh High Court
In our opinion, when a matter under any special
law is transferred to the Labour Court under a
statutory provision its adjudication and
determination by the Labour Court becomes a
proceedings under the I.R.O. by virtue of
subsection (5) (d) of section 35 so that it is
amenable to the revisional jurisdiction of the
Appellate Tribunal.
When the matter reached up to the Hon’ble Supreme
Court relying upon the ratio of S.M. Rahman & Co. v. Motabar
and others PLD 1981 SC 282, it also came to the similar
opinion by holding that
In our opinion, the provisions of clause (d) of
section 35 (5), Industrial Relations Ordinance
should put an end to the controversy. It will appear
from this clause that the performance of functions
under other laws is a part of the normal duties of a
Labour Court. That being so, even when it
exercises jurisdiction under other laws it does not
act as a special forum outside the ambit of the
Industrial Relations Ordinance, but, on the other
W.P. No.28180 of 2014. ~9~

hand, it is performing a function specifically

provided for by the Ordinance.

9. Pakistan Fisheries Ltd., Karachi and others v. United

Bank Limited PLD 1993 SC 109 was a case in which the
Hon’ble Supreme Court, however, took a contrary view. In the
said case, the issue was whether an appeal lies under section 15
of the Code of Civil Procedure (Amendment) Ordinance, 1980
against the interlocutory orders passed by High Court in suits
under Banking Companies (Recovery of Loans) Ordinance,
1979. It was held that
The jurisdiction conferred on the High Court
under the Ordinance is a special jurisdiction and
while exercising such jurisdiction the High Court
bears the fictional character of a special court as
deemed in the Ordinance. It is a fundamental rule,
that where an enactment creates a new
jurisdiction, prescribes the manner in which that
jurisdiction is to be exercised and further specifies
the remedy, such remedy is exclusive and the party
aggrieved of an order made in the exercise of that
jurisdiction must seek only such remedy and no
other.

The judgment in Pakistan Fisheries case, it would thus

appear, was in stark contrast to the judgment in Muhammad
Hussain’s case and also to S.M. Rahman’s case. The latter case,
incidentally, was relied upon by the appellants in Pakistan
Fisheries case but was distinguished by the Hon’ble Supreme
Court. The ratio of the judgment in Pakistan Fisheries case, it
may be stated, has ever since been accepted to have laid down
the correct law that special law confines the party to the
remedies provided therein without taking recourse to other
laws. The ratio of Pakistan Fisheries case has never been
deviated ever since by the Courts in this country. Also being
later in time, the judgment in Pakistan Fisheries case is binding
on this Court and according to its ratio, the decision of Federal
Tax Ombudsman on a complaint filed by a requester under FOI
is final with no further remedy available to the Board.
W.P. No.28180 of 2014. ~ 10 ~

10. There are other features in this case on the basis of the
applicable law that distinguish the judgment render in
Muhammad Hussain’s case and makes it ratio inapplicable. In
Muhammad Hussain’s case, as is apparent from the excerpt
quoted above, what clinched the issue in favour of the
appellants was clause (d) of sub-section (5) of section 35 of
Industrial Relations Ordinance, which stipulated that a Labour
Court shall
exercise and perform such other powers and functions as
are or may be conferred upon or assigned to it by or
under this Ordinance or any other law.

Based on the afore-mentioned clause, the Hon’ble

Supreme Court found the decision of the labour court passed
under section 17 (1) of the Payment of Wages Act to be
amenable to revisional jurisdiction exercised by Labour
Appellate Tribunal under section 38 of the Industrial Relations
Ordinance. In the present case, however, there is no comparable
provision in Federal Tax Ombudsman Ordinance, 2000. Section
37 of the said Ordinance was referred to by the learned counsels
for the parties to find support for the premise that finality
attached to the decision of the Federal Tax Ombudsman would
yield to the remedy of representation to the President provided
for in section 32 thereof. The argument is misplaced and the
basis thereof is not free from difficulties in as much as section
37, in the language it is couched, merely grants effect to the
provisions of the Federal Tax Ombudsman Ordinance over
other laws for the time being in force but no more. The purpose
of a non-obstante clause of the nature found in section 37 is
nothing more than to point out that it shall have precedence
over anything contrary in any other law in force. The object
appears to prevent reliance on any other law to the contrary.
However, FOI having been promulgated in the year 2002 and
also being a special law, its provisions cannot be made
subservient to the Federal Tax Ombudsman Ordinance, which
was an earlier law. Both being special laws, the later in time
W.P. No.28180 of 2014. ~ 11 ~

shall prevail. In Sheikh Khalid Mahmood v. Banking Tribunal,

NWFP, Peshawar and another 1997 CLC 1812, while faced
with reconciling inconsistencies between two special laws, it
was held that
It is a settled proposition of law that if two
provisions of two different enactments are in
clash with each other and cannot be
reconciled, then the latter in date shall prevail.

Similarly, in Solidaire India Ltd. v. Fairgrowth Financial

Services Ltd. and Others (2001) 3 SCC 71, it was held that
It is clear that both these Acts are special Acts.
This Court has laid down in no uncertain terms
that in such an event it is the later Act which
must prevail.

Be that as it may, on a careful examination of the scheme

of both FOI Ordinance and Federal Tax Ombudsman
Ordinance, it becomes apparent that there is nothing
inconsistent or contradictory between the two enactments
inasmuch as the subject matter of both the enactments is
different and distinct. FOI Ordinance is specially designed to
provide access to the citizens to the information and public
record and deals, inter alia, with the procedure for providing
documents/record of the public bodies to a requester subject to
the exclusions contained in section 8 thereof. In fact it is a
complete, self-contained, exhaustive code in regard to a
person’s right to access to information/record of public bodies.
The legislative intent thus is apparent that any person desirous
of obtaining information/record of public bodies must have
recourse to the procedure provided for in FOI Ordinance. The
Federal Tax Ombudsman Ordinance, as is clear from its
preamble and other provisions, deals, inter alia, with the
investigation and redressal of injustices done to a person on
account of maladministration by the officials of the revenue
department. Both the enactments by the plain reading of their
text, thus, have nothing in common. When the object and aim
of a statute is clearly expressed in its provisions, the scope and
intent thereof cannot be restricted or rendered nugatory by the
W.P. No.28180 of 2014. ~ 12 ~

provisions of another statute particularly when the other statute

does not contain any provision inconsistent with it. The Courts
cannot ignore the express language and the plain meaning of the
various provisions of a statute in attempting to find the object of
the law and the goals fixed by the legislature. By section 19 of
the FOI Ordinance, a final remedy of approaching the Tax
Ombudsman has been provided to a citizen who has been
denied information or public record. The FOI Ordinance does
not provide any further appeal beyond the forum of Tax
Ombudsman and as such finality must be attached to its
decisions subject to the challenge made to its decisions in the
Constitutional jurisdiction of this Court. By providing the
forum of Tax Ombudsman for lodging complaints by a person
denied access to information or public record does not mean
that the remedy of representation to the President provided for
in section 32 of Federal Tax Ombudsman Ordinance, 2000 also
becomes available to the public bodies. This interpretation
would be in violation of the ratio of the Pakistan Fisheries case
and is not borne out from the provisions of Federal Tax
Ombudsman Ordinance, 2000. The Federal Tax Ombudsman
Institutional Reforms Act, 2013 too stands on no better footing.
Its section 2 (b) provides the definition of “Ombudsman” to
mean Ombudsman appointed under the “relevant legislation”.
The Freedom of Information Ordinance, as defined in section 2
(c), is not included in the definition of “relevant legislation”.
Recourse to section 14 of the said Ordinance is, therefore, of no
avail to the respondents.
11. Even otherwise, section 32 of the Federal Tax
Ombudsman Ordinance by its terms provides the remedy of
representation before the President against the recommendation
of the Tax Ombudsman. It was alluded to in the earlier part of
this judgment that unlike other laws pertaining to Ombudsman,
the Tax Ombudsman passes a decision on the complaint of an
aggrieved person under the FOI Ordinance whereas while
exercising jurisdiciton under the Federal Tax Ombudsman
W.P. No.28180 of 2014. ~ 13 ~

Ordinance, he merely makes recommendations. The two

expressions “decision” and “recommendation” have different
connotations. A decision is a binding adjudication of rights and
claims between two or more persons whereas recommendation
denotes something in the nature of a suggestion. It is, therefore,
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.
12. This Court has on merits also come to the conclusion that
the respondents have made out no case for interference in the
order passed by the Tax Ombudsman and that the President was
wrong in modifying the order of the Tax Ombudsman. The
petitioner requested for the record of the recommendations
issued by the ADRC constituted under section 134-A of the
Income Tax Ordinance, 2001 and section 47-A of the Sales Tax
Act, 1990. The said provisions envisage the formation of an
ADRC by the Board upon the application of an aggrieved
person in regard to a matter which is pending before an
Appellate Authority and which involves a dispute or a hardship
case. The Board may appoint an ADRC consisting of an officer
of Inland Revenue and two persons from a panel comprising of
a chartered accountant, advocate, income tax practitioner or
reputable tax payer. ADRC is required to make its
recommendations within a period of 90 days to the Board
whereupon the Board may pass an order as it may deem
appropriate. The order passed by the Board on the
recommendation of ADRC shall finally be submitted before the
authority, tribunal or court where the matter was subjudice for
its consideration and passing appropriate orders. The afore-
mentioned provisions in the Income Tax Ordinance, 2001 and
Sales Tax Act, 1990 provide a wholesome procedure for the
constitution of ADRC and the follow up measures to be taken
upon its recommendations.
13. The learned Standing Counsel contended that the
exclusions contained in section 8 of the FOI Ordinance were
W.P. No.28180 of 2014. ~ 14 ~

very much applicable to the recommendations of ADRC. In this

regard reference was made to section 8 (c) of the FOI according
to which “any intermediary opinion or recommendation” of a
public body does not form part of the public record and cannot
be made available to a requester. The expression “any
intermediary opinion or recommendation”, according to the
learned Standing Counsel, included the recommendations made
by ADRC. It was also submitted that such record pertained to
the individuals and that its publication would infringe upon
their privacy, which is prohibited by the FOI Ordinance.
Recourse was also made to the clause (h) of section 8 of FOI
Ordinance to state that record of private documents furnished to
a public body on an express or implied condition that
information contained in any such document shall not be
disclosed to a third person places restrictions on the Board from
making a disclosure of the documents requested for. It was
further the case of the respondents that record submitted to
ADRC and its recommendations are not public record
14. The arguments advanced by the learned standing counsel
encounter a number of formidable obstacles. First, section 3 (2)
of FOI Ordinance provides the guidelines for interpreting the
statute. In order to understand the scheme of FOI Ordinance, it
is necessary to reproduce section 3 thereof.
Access to information not to be denied. (1)
Notwithstanding anything contained in any other law
for the time being in force, and subject to the
provisions of this Ordinance, no requester shall be
denied access to any official record other than the
exemptions as provided in section 15.
(2) This Ordinance shall be interpreted so as to
facilitate and encourage, promptly and at the lowest
reasonable cost, the disclosure of information.

The Court’s approach in terms of section 3 obligation is

to interpret and apply FOI Ordinance so as to further its objects,
bearing in mind that while FOI Ordinance gives a legally
enforceable right to every person to be given access to public
record held by the Government, that right is subject to an
exemption contained in section 15 thereof relating to the
W.P. No.28180 of 2014. ~ 15 ~

international relations. It would, therefore, be proper to give to

the relevant provisions of the Ordinance a construction which
would further, rather than hinder, free access to information. In
addition to section 15, certain exclusions in relation to public
record are provided for in section 8 of the FOI Ordinance which
makes the documents mentioned therein not to constitute public
record. Second obstacle in the way of the respondents is that
subsequent to the passing of the FOI Ordinance, Article 19-A
was inserted in the Constitution through eighteenth amendment
which gives every citizen the right to have access to
information in all matters of public importance subject to
regulation and reasonable restrictions imposed by law. In
addition to the FOI Ordinance, the citizens now have the
constitutional guarantee of freedom of access to information.
After the introduction of Article 19-A of the Constitution, the
exclusions contained in section 8 of the FOI Ordinance shall
have to be strictly construed justifying the denial of access of
public record to the citizens.
15. The critical question is how to interpret the exclusions
contained in section 8 of the FOI Ordinance by creating the
correct balance between the competing public interest and the
proper administration of the Government for which these
exclusions are sometimes reasonably necessary. Before
proceeding any further, it may be stated that the exclusions
contained in section 8 of the FOI Ordinance are quite loosely
worded, open-ended and in abstract form without prescribing
the circumstances and criteria on which the application of a
requester may be turned down for their supply. In short, the FOI
Ordinance has not set any standards for determining which
record or portions thereof should or may be withheld from
disclosure. To take the example of the exclusion contained in
section 8 (c) of the FOI Ordinance, what does the expression
“any intermediary opinion or recommendation” mean and under
what circumstances will the application for its supply rejected?
It is not every opinion or recommendation in a file which is
W.P. No.28180 of 2014. ~ 16 ~

excluded being not a public document. Section 15 of the FOI

Ordinance grants absolute exemption to such information the
disclosure of which is likely to cause grave and significant
damage to the interests of Pakistan in the conduct of
international relations. The standard of “likely to cause grave
and significant damages to the interests of Pakistan” thus would
trump the right of the requester seeking information regarding
the international relations. In regard to section 8 exclusions,
however, the FOI Ordinance explicitly specifies [section 13 (2)
(d) & (e)] that it is for the designated official to form an opinion
that he is excused from disclosing/providing the
information/record requested on the ground that the same does
not constitute public record under section 7 and is excluded in
terms of section 8 of the FOI Ordinance. The designated official
furthermore is required to record his decision in writing and
inform the applicant about the same within twenty-one days of
the receipt of the application. This forming of opinion per se
makes the section 8 exclusions qualified and not absolute as it
is dependent upon the subjective opinion of the designated
official. The onus is on the designated official to make out a
case for exclusion of a document based on the scheme of FOI
Ordinance which obligates disclosure. The forming of opinion
or expressions of like nature on their face appear to confer on
the public official unlimited power, or at least the power to
choose from a wide range of alternatives, the purpose being to
free them of judicial interference. The Courts, however, do not
readily defer to the finality and conclusiveness of an
administrative body’s decision as to the existence of a question
of fact upon which the validity of its exercise of power rests.
Exercise of powers couched in subjective terms is still to be
made in good faith and on relevant considerations. The Courts
have always insisted and rightly so that such seemingly
unconstrained power is limited by the purpose of the statute.
Where the purpose of the statute is clearly defined, the Courts
would require the public official to take into account the
W.P. No.28180 of 2014. ~ 17 ~

specified considerations and ignore the irrelevant. As was said

by Lord Upjohn in Padfield v Minister of Agriculture Fisheries
and Food [1968] A.C. 997, even if a statute were to confer
upon a decision maker an ‘‘unfettered discretion’’;
[T]he use of that adjective [unfettered], even in an Act
of Parliament, can do nothing to unfetter the control
which the judiciary have over the executive, namely,
that in exercising their powers the latter must act
lawfully and that is a matter to be determined by
looking at the Act and its scope and object in
conferring a discretion upon the minister rather than
by the use of adjectives.

The FOI Ordinance casts a duty on the designated official

to make a determination whether the documents requested for
fall in the exclusions contained in section 8. Taking into
account the purpose of FOI Ordinance as mentioned in its
preamble and section 3 (2) obligation, it is apparent that the
object of FOI Ordinance was to provide improved access to
public record and to make the Government more accountable to
the citizens and to facilitate and encourage the disclosure of
information. The basic scheme of FOI Ordinance and the
language employed suggests that the public’s right of access
and the public interest in disclosure of information/record is the
primary interpretative tool to be employed in making a
determination regarding the section 8 exclusions. The duty of a
public body to disclose and provide the information/record is
thus displaced by the section 8 exclusions only if the public
interest in maintaining exclusions is outweighed by the public
interest in disclosing and providing the information/record
sought. Merely because the record falls in the section 8
exclusions does not necessarily mean that its disclosure would
harm the interest protected by that exclusion. Accordingly,
where exclusion under section 8 is relied on by the public body,
it is for the public body to justify/demonstrate that that stance is
supported (with sufficient particulars and by demonstrable
factual basis) by weighing of the relevant aspects of the public
interest.
W.P. No.28180 of 2014. ~ 18 ~

16. The research conducted by this Court shows that statutes

pertaining to freedom of information in different countries also
exclude the recommendations and opinions received by the
Governments from various quarters/persons/experts during its
deliberative process in the run up to formation of the policy or
any other decision. For example, Section 36 of the Australian
Freedom of Information Act, 1982 provides the necessary
standards designed to protect deliberative process documents in
appropriate cases. Its key portions are reproduced hereunder.
36 (1) Subject to this section, a document is an
exempt document if it is a document the
disclosure of which under this Act-
(a) would disclose matter in the nature of,
or relating to opinion, advice or
recommendation obtained, prepared or
recorded, or consultation or deliberation that
has
taken place, in the course of, or for the
purposes of the deliberative processes involved
in the functions of an agency or Minister or of
the Government of the Commonwealth;
(b) would be contrary to the public interest.
…………………………………………………………………………
……………………………
(5) This section does not apply to a
document by reason
only of purely factual material contained in the
document.

From the reading of the above provision, it is clear that

documents including those prepared by an officer, a minister or
a member of Council which relate to the deliberative processes
of the agency or Government attract exemption if the release of
those documents would be contrary to the public interest.
Examples of documents which may attract this exemption
include Ministerial briefs, internal memoranda, consultants’
reports, drafts. This exemption of course does not apply to
documents containing purely factual material. One purpose of
such exemption is to safeguard the deliberative policymaking
process of government, which encourages open discussion of
policy matters between officials. The exemption thus allows
W.P. No.28180 of 2014. ~ 19 ~

certain pre-decisional, deliberative documents to be withheld

from public disclosure. Another purpose of this exemption is to
protect against premature disclosure of deliberations before
final adoption of the policy or position of an agency. It is,
however, not enough to establish exemption under section 36, it
is also to be shown that their disclosure would be contrary to
the public interest. The following passage from Jordan v
Department of Justice [1978] USCA DC 317; 591 F (2d) 753
neatly sums up the position regarding the documents forming
part of the deliberative process and the purpose for their non-
disclosure:
…………..The privilege attaches to inter and intra-
agency communications that are part of the
deliberative process preceding the adoption and
promulgation of an agency policy. There are
essentially three policy bases for this privilege. First, it
protects creative debate and candid consideration of
alternatives within an agency, and, thereby, improves
the quality of agency policy decisions. See NLRB v
Sears Roebuck & Co, 421 US at 151; [1975] USSC 81;
95 S Ct 1504; Montrose Chemical Corp v Train, [1974]
USCADC 40; 160 US App DC 270, 273; [1974] USCADC
40; 491 F 2d 63, 66 (1974). Second, it protects the
public from the confusion that would result from
premature exposure to discussions occurring before
the policies affecting it had actually been settled
upon. See Grumman Aircraft Eng Corp v Renegotiation
Board, note 77 supra, 157 US App DC at 129; 482 F 2d
at 718; Sterling Drug Inc v FTC, [1971] USCADC 275;
146 US App DC 237, 245-246; [1971] USCADC 275; 450
F 2d 698, 706-708 (1971). And third, it protects the
integrity of the decision-making process itself by
confirming that "officials should be judged by what
they decide not for matters they considered before
making up their minds". Grumman Aircraft Eng Corp v
Renegotiation Board, supra. See Boeing Airplane
Co v Coggeshall, 108 US App 106, 112; 280 F 2d 654,
660 (1960); Carl Zeiss Stiftung v VEB Carl Zeiss Jena,
note 77 supra, 40 FRD at 325-326'.

17. If it were the documents containing opinion, advice,

recommendations etc relating to the internal processes of
deliberation of an agency/department/authority before arriving
at a policy decision that are potentially shielded from disclosure
through the exclusion contained in section 8 (c), the FOI
W.P. No.28180 of 2014. ~ 20 ~

Ordinance does not say so. Keeping in view section 3

obligation to interpret and apply the FOI Ordinance to facilitate
and encourage the disclosure of information coupled with
Article 19-A guarantee to the citizens for giving access to
information/documents held by Government and its agencies,
this Court is not ready to accept that every intermediary opinion
or recommendation on a departmental file will fall into the
category of excluded documents. The method for discerning the
purpose of a statute or group of provisions contained therein
has aptly been laid down in Ealing London Borough Council v.
Race Relations Board [1972] 1 All ER 105 as follows
In the absence of [looking at the legislative history
and preparatory works] the courts have principal
avenues of approach to the ascertainment of the
legislative intention: (1) examination of the social
background, as specifically proved if not within
common knowledge, in order to identify the social or
juristic defect which is the likely subject of remedy; (2)
a conspectus of the entire relevant body of the law for
the same purpose; (3) particular regard to the long
title of the statute to be interpreted (and, where
available, the preamble), in which the general
legislative objective will be stated; (4) scrutiny of the
actual words to be interpreted in the light of the
established canons of interpretation; (5) examination
of the other provisions of the statute in question (or
of other statutes in pari material) for the light which
they throw on the particular words which the subject
matter of interpretation.

The expression “Intermediary opinion or

recommendation” has to be interpreted in a manner so as to
confine its scope to the deliberative process during the
formation of policy of a department/agency/authority i.e. a
process involving deliberation, consultation and
recommendation that occurs prior to a decision, or before or
while undertaking a course of action. Thus, any intermediary
recommendation or opinion given to an agency/department/
authority during a process which involves weighing up or
evaluating competing arguments or considerations that may
W.P. No.28180 of 2014. ~ 21 ~

have a bearing on a course of action, decision, proposal or

policy may be excluded from the public record in terms of
section 8 (c) of the FOI Ordinance. Section 8 exclusions can be
seen as an attempt to protect the integrity and viability of the
decision making process. If the release of record of
Government/public bodies would significantly harm and
prejudice the decision making process and on balance there is
no benefit to the public which outweighs that impairment then
it would be contrary to the public interest to grant access to
such record.
18. The expression “any intermediary opinion or
recommendation” thus interpreted does not include the opinion
given by ADRC to the Board under a dispute resolution
mechanism, which is otherwise statutory in nature and
recognized in various enactments. Under the scheme of Sales
Tax Act and Income Tax Ordinance, finality is attached to the
opinion rendered by ADRC as upon its submission to the Board
the role of ADRC comes to an end. The afore-mentioned
enactments do not envisage any further act on the part of
ADRC after rendering its opinion to the Board. After the
opinion of ADRC, the decision on the opinion rests with the
Board or the Appellate Authority where the matter was pending
before it was sent to ADRC. The expression “any intermediary
opinion or recommendation” means a step in the deliberative
process which is made basis of formulation of a policy or other
decision of like nature. The proceedings of ADRC and its
recommendation, though not binding on the Board, have no
nexus with the policy making or the kind of policy bases
referred to in the judgment Jordan v Department of Justice
[1978] USCA DC 317; 591 F (2d) 753. The recommendations
of ADRC, which are made under a statutory arrangement, are
not covered by the exclusion contained in section 8 (c) of the
FOI Ordinance.
19. The learned standing counsel also sought help from
section 8 (g) and (h) of the FOI Ordinance to contend that the
W.P. No.28180 of 2014. ~ 22 ~

record of ADRC pertains to the personal privacy of the

individual and this record pertains to the private documents
furnished on the express or implied condition that the
information contained in any such document shall not be
disclosed to a third person. On a plain reading of section 8 (c)
of the FOI Ordinance, this Court does not find the interpretation
placed on it by the learned standing counsel to be valid. Firstly,
in order for a matter to be referred to ADRC it has to be
pending before the Appellate Authority, which essentially
means that the matter is under litigation between the Revenue
and the tax payer and pending before an adjudicatory forum.
The record of such litigation can by no stretch be termed as
private record. Secondly, the alternate dispute resolution
mechanism as the name implies is a system for resolving the
disputes between the parties out of the court, which system
operates alongside the normal adjudicatory mechanisms and
thus cannot be allowed to be shrouded in mystery. The
recommendations of the ADRC can potentially form basis for
an out of court settlement between the tax payer and the
Revenue pertaining to matters of liability of duties, taxes,
additional duties/taxes, admissibility of refund or rebate, waiver
or fixation of penalty or fine, confiscation of goods and
relaxation of time limitations, procedural and technical
conditions. As the matter pertains to payment of taxes etc,
which has been taken outside the normal adjudicatory
mechanisms by virtue of ADRC, it is of utmost importance.
Accordingly the general public has an interest and a right to
know about the same. It is with this background in mind that
this Court now turns to consider the two particular exemptions,
which were urged by the learned Standing Counsel. The dispute
between the Revenue and the tax payer, which is already
pending in a court/tribunal/authority, and which has been
referred to ADRC cannot be said to contain record relating to
the personal privacy of an individual. ADRC has to give its
recommendations on the dispute between the parties in regard
W.P. No.28180 of 2014. ~ 23 ~

to which the relevant documents are already on the record

before the Appellate Authority and therefore accessible to
public. It would take quite a leap of logic to grant the status of
exemption to the recommendation given by ADRC when the
documents underpinning it are available to general public. As
stated earlier, alternate dispute resolution is merely an
adjudicatory mechanism functioning alongside the normal
adjudicatory procedures. The decision of the Appellate
Authority on the same set of documents would be public
property but the recommendation of ADRC would stand
exempted, if logic of the argument advanced by the learned
standing counsel is to be accepted. This line of reasoning would
be invalid were it to be made basis for a decision. Furthermore,
the phraseology used in section 8 (g) indicates that the
legislature had in mind only a natural person as having, for the
purposes of the section, personal affairs and not a corporation.
It is significant to note that no provision of the Ordinance deals
with the need to preserve privacy of business/tax documents be
that of an individual or a corporation. The right of individual
privacy urged by the learned standing counsel, therefore, has no
application to the proceedings of ADRC. Moreover, the
composition of ADRC is such that the privacy of the individual
cannot be retained not that that is the case here. The other
exclusion urged by the learned Standing Counsel contained in
section 8 (h) of the Ordinance is also of not much help to the
respondents. The assertion that documents before the ADRC
are submitted either on express or implied condition that
information contained therein shall not be disclosed to a third
person is not rooted in law and, therefore, does not merit
serious consideration.
20. Before parting with this judgment, it must be stated that
no judgment under the FOI Ordinance from our jurisdiction was
brought to the notice of this Court and as such much reliance
was placed upon foreign law and judgments. Be that as it may,
the FOI Ordinance was clearly intended to cast aside the era of
W.P. No.28180 of 2014. ~ 24 ~

closed government and to transform the culture of secrecy to

one of openness. Unnecessary secrecy in Government and
public bodies undermines good governance and public
administration. The United States Supreme Court in National
Labor Relations Board v. Board of Robbins Tire & Rubber Co
(1978) 437 U.S. 214 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) [1997] 2 S.C.R. 403 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 principles propounded in the above judgments very

much underlie the objects for which FOI Ordinance was
promulgated. The application by the petitioner was not
responded to by the Board contrary to the command of the FOI
Ordinance, which prompted him to approach the Tax
Ombudsman. The Board instead of complying with the
direction of Tax Ombudsman rushed to the President to get its
decision set aside even though the President had no authority to
entertain the said representation under the applicable law. The
Board and its Chairman did not pass any order on the
petitioner’s application and the President did not furnish any
reasons in his impugned order for claiming section 8 exclusion
on the recommendations given by ADRC. The very purpose for
which the FOI Ordinance was promulgated was thus defeated
 W.P. No.28180 of 2014. ~ 25 ~

by the Board and the President and that too without application
of mind and, it appears, for improper motives.

21. In the result, this writ petition succeeds and the decision
passed by the President (impugned herein) is declared to be
without lawful authority and of no legal effect. The respondents
are accordingly directed to forthwith provide the requisite
information/documents to the petitioner.

(Shams Mehmood Mirza)

Judge

Announced in open Court on 18.01.2016.

Judge.

Approved for reporting.

Judge.

*Ihsan*