Compiled and edited by N. C. Browne APIO/HQ/ CR
It has been observed that many information seekers as well as officers/staff are approaching RTI cell for clarification guidance on the various aspect of the RTI act 2005, including whether their queries or replies are in consistence with the provisions of the RTIA. A strong need had therefore been felt to provide some guidelines which will serve the interest of both parties. The matter was discussed with AGM/Appellate Authority and PIO/DGM and it was decided that guidelines in the form of some landmark decisions of the CIC during first year of the RTIA are summarized in a simple manner for easy understanding. Accordingly, an attempt has been made to compile and circulate these decisions for better appreciation of the provisions of RTIA. For details of the relevant decision, readers may like to peruse them in website http://www.cic.gov.in/ as per case reference given at the end of each case.
Many Public authorities are denying file notings on the basis of information placed on the DoPT website http://www.righttoinformation.gov.in/ despite the fact that the RTIA does not exempt file notings from disclosure. The commission therefore directed the public authorities (PAs) to furnish the file notings and the concerned ministry to remove the said portion from its website.
(Ref: CIC/OK/A/2006/00154 of 13.07.2006.)
Language under Section 2 (f):
Jai Kumar applied to Delhi Development Authority asking for information in Hindi as he has applied to the PIO in Hindi. The CIC directed the DDA to provide the requested information in Hindi within 25 days of the issue of its decision. (CIC/WB/A/2006/00117 – 13 June 2006)
Citizen under Section 3:
PIO can decline information under section 3, if the applicant applies as a Managing Director of a company and not a citizen if India. (CIC/OK/A/2006/00121 – 27 June 2006)
Address of the Requester:
The Commission could not agree with the PIO’s contention that the information was sought on behalf of an institution. The Appellant has applied in his own name and has only given his address and that of an NGO for the purpose of correct delivery of post. Thus merely giving the address of an NGO does not imply that the institution was asking the information. (CIC/OK/A/2006/00050 – 3 July 2006)
Fee paid to postal Dept. is not Application fee:
An information seeker is required to deposit the fee of Rs.10/- with the CPIO, as prescribed by the Government. In the instant case, the appellant had paid an amount of Rs.10/- to the Department of Post towards the costs of postage and transmission of his application to the CPIO of IOCL. This amount does not represent the prescribed fee for obtaining information, as this money is not paid to the concerned CPIO. Thus, the appellant has not paid the requisite fee for seeking the information. The valid instruments for seeking information under the RTI Act are: Cash payment or banker’s cheque/bank draft or IPO. Payments in any other forms would not be acceptable.
Applicant Seeking Opinions of the Authorities:
The PIO is required to ‘provide information’ which is available in any form with her office rather than giving her personal opinions on the questions asked by the requester. (CIC/MA/A/2006/00150 – 19 June 2006)
Drafting an application:
Appeal should be drafted in a simple and direct manner and must be brief. It must not be unnecessarily long, too details and couched in legalese with several repetitions.
No fresh grounds for information can be allowed to be urged at appellate levels unless found to be of a nature that would warrant their admittance, if the same has not been brought up at the primary level i.e. PIO level. (CIC/Ok/A/2006/00 069 of 18.05.2006 & CIC/AT/A/2006/00128 of 13.07.2006)
Life and liberty under section 7 (1):
Matter to be treated as one of life and liberty would require the following:
– The application be accompanied with substantive evidence that a threat to life and liberty exists.
– Agitation with use of Ahimsa must be recognized as a bonafied form of protest, and therefore even if the claim of concern for life and liberty is not accepted, in a particular case by the public authority, the reasons for not doing so must be given in writing in disposing the application. (CIC/WB/C/2006/00066 of 19.04.2006.)
Review of a decision: A review is permissible only if
– There is a technical error in the decision
– There was an omission to consider certain material facts relevant for the decision
– Appellant was not given opportunity to be heard
– PIO has not enclosed relevant supporting documents in his comments to CIC. (1/2006- 16.5.06)
Order appointing the examiners:
PIO of the Delhi University was directed to supply the certified copies of the orders appointing the examiners and of the files dealing with his application re-totaling of marks of the applicant. (CIC/OK/A/2006/00051 of 04.07.2006.)
Gr. C/ Ministrial staff liable of penalty:
It is clear from the above that the errant officials are functioning at the clerical level in the office of the PIO, Shri Meena. Whereas under Section 5(5), an officer does not himself have to be designated as a PIO/APIO to be liable for penalty for contravention of the provisions of this Act, officials functioning even at the clerical level and above category of Class-IV will be deemed to be “officers” in the application of this Act. In the normal course, therefore, they would be liable to penalty under Section 5(5) if their assistance had been sought under Section 5(4) of the Act. In this case, therefore, as already held, they cannot plead exemption from application of this provision. (Adjunct to CIC/ WB/C/2006/00018 of 28.9.2006)
Reasons for rejection of requests:
Through this order the commission now wants to send the message loud and clear that quoting provisions of section 8 (1) of the RTIA ad-libitum to deny the information without giving any justification or grounds as to how these provisions are applicable is simply not acceptable and clearly amounts to malafied denial of legitimate information attracting penalties under section 20(1) of the act. (CIC/Ok/A/2006/00163 of 07.07.2006.)
Personal Discussion with the Requester:
If there was general confusion regarding the kind of information that has been called for and that could have been supplied, it could have been easily resolved by a personal sitting between the appellant and the respondents. (CIC/WB/A/2006/00180 – 5 July 2006)
Due diligence under section20 (1):
If the time limit could not be adhered to by CPIO, then applicant should be taken in to confidence and periodical progress be apprised to him. (CIC/AT/A/2006/00031 of 10.07.2006.)
It may have been lot better if the CPIO had kept the complainant periodically informed about the stages of the processing of his case and taken him into confidence about the possibility of some delay. CIC/AT/A/2006/00066- 4 July 2006
In case of evaluated answer papers the information is available in fiduciary relationship with the PAs & is exempted under section 8(1) (e). in addition when a candidate seeks for the copy of his /her own or others, it is purely a personal information which has no relationship with any public interest or activities and exempted under section 8(1)(j) of the act. We, as a commission, are not satisfied that larger public interest justifies disclosure of such information. As a matter of fact, we are of the opinion that furnishing copies of the evaluated answer papers would be against the public interest and supply of them would compromise the fairness and impartiality of the selection process. (ICPB/A-2/CIC/2006 of 06.02.2006.)
The commission has directed the Staff Selection Commission to furnish the mark sheets (for written examination as well as interview) to the candidates along with cut-off marks for different categories of candidates. (180/IC (A)/2006 of 17.08.2006)
Marks secured by the candidates:
A division bench has decided that the conduct of examinations are for identifying and short listing the candidates in term of technical competence, the right attitude is highly confidential activities and therefore answer sheets should not be disclosed. But the marks secured by candidates are not to be kept secret and should be disclosed. (11/53/2006-CIC of 2.5.2006)
Annual Confidential Report and Privacy under section 8 (1) (j):
It is our view that what is contained in ACRs is undoubtedly personal information about that employee/ officer. The ACRs are protected from disclosure because arguably such disclosures seriously harm interpersonal relationship in a given organization. Further, the ACRs notings represent an interaction based on the trust and confidence between the officers involved in initiating, reviewing or accepting the ACRs. These officers could be seriously embarrassed and even compromised if their notings are made public. There are thus reasonable grounds to protect all such information through a proper classification under the OSA.
No public purpose is going to be served by disclosing this information. On the contrary it may lead to harming the public interest in terms of compromising objectivity of assessment, which is the core and substance of the ACR. This may even result from the uneasiness of the reporting, reviewing or accepting officers from the knowledge that their comments were no longer confidential. These ACRs are used by the PAs for promotions, placements and gradings etc. of the officers, which are strictly house keeping and man management functions of any organization. A certain amount of confidentiality insulates these actions from competing pressures and thereby promotes objectivity.
We, therefore, are of the view that apart from being personal information, ACRs of officers and employees need not be disclosed because they do not contribute to any public interest. It is also possible that many officers may not like their assessment by their superiors to go into the hands of all and sundry. If the reports are good, these may attract envy and if these are bad, ridicule and derision Either way it affects the employee as well as the organization he/she work for. On balance, therefore, confidentiality of this information serves a larger purpose, which far outstrips the arguments for its disclosures. (CIC/AT/A/2006/00069 of 13.07.2006)
Investigating Officer and Privacy
A citizen requested from the RBI certain information relating to the findings of an inspection of the Memon Cooperative Bank Limited, Mumbai, which was conducted on the basis of a complaint filed by him and a copy of the inspection report along with the name(s) of the investigating officers.
The CIC directed the RBI to furnish a copy of the inspection report after the due application of section 10(1) of the Act. Alternatively, the appellant should be provided a substantive response, incorporating major findings of the inspection report and indicating the action taken on the findings of the report. However, the names of the investigating officers may not be revealed as it would not serve any public interest. (177/IC (A)/2006 – 17 August 2006)
Bio Data and Medical Records under Section 8 (1) (j)
Bhagwan Chand Saxena asked for copies of the bio data submitted by four candidates at the time of their appointment as Assistant Directors and also copies of their medical reports submitted by the medical authorities declaring these candidates fit or unfit.
The CIC held that when a candidate submits his application for appointment to a post in a public authority, the same becomes public document and he can not object to the disclosure on the ground of invasion of privacy and directed the PIO to provide copies of the bio data.
As far as medical reports are concerned, they are purely personal to the individuals and furnishing of the copies of medical reports would amount to invasion of privacy of the individuals and need not be furnished. However, the PIO will disclose to the requester the information whether all four candidates had been declared medically fit or not. (ICPB/A-9/CIC/2006 – 3 April 2006)
Travel expenses were charged to the public account. Disclosure of information can not be denied on the ground of this being personal information and not a public activity and serves no public interest, etc. Travel has been performed as a part and in discharge of official duties and the records related the same are public records and therefore, a citizen has the right to seek disclosure of the same. (63/IC (A)/2006 – 30 March 2006)
Income Tax Returns
Income Tax Returns filed by an assessee are confidential information, which include details of commercial activities and that it relates to the third person. These are submitted in fiduciary capacities. There is no public action involved in the matter. Disclosure is exempted under section 8 (1) (j). (22/IC (A)/2006 – 30 March 2006.
Annual property Returns:
Information in annual property return shall be covered by section 8(1) (j) & (h) as well as under section 11 (1) of the act in some cases and can not be routinely disclosed. However, the PAs are advised to devise a new format so that only such transaction which may not violate the right to privacy can be separated and disclosed. (CIC/AT/A/2006/00134 of 10.7.2006)
Period prior to Twenty Years Under Section 8 (3)
Section 8 (3) is part of section 8, which deals with ‘exemption from disclosure of information’. Section 8 (1) specifies classes of information which are exempted from disclosure. What section 8 (3) stipulates is that the exemption under section 8 (1) can not be applied if the information sought related to a period prior to 20 years except those covered in section clauses (a), (c) and (i) of sub-section 8 (1). In other words, even if the information sought is exempt in terms of other sub-section (1) of section 8, and if the same relates to a period 20 years prior to the date of application, then the same shall be provided. (37/ICPB/2006 – 26 June 2006)
The Third Party Information
The RTI Act does not give a third party an automatic veto on disclosure of information. The PIO and AA are required to examine the third party’s case in terms of provisions of section 8 (1) (j) or section 11 (1) as the case may be and arrive at the findings by properly assessing the facts and circumstances of the case. A speaking order should thereafter be passed. (CIC/AT/A/2006/00014 – 22 May 2006)
There is no provision in the act disallowing videography (if an applicant wishes to meet the expenses at his own) and therefore can not be excluded unless it violates the parameters of any information sought and agreed to be provided. (CIC/WB/A/2006/00051 of 04.07.2006)
Generating/ Creating Information:
In its oft-repeated decisions, the Commission has advised the information seekers that they ought not seek the views and comments of the CPIO on the questions asked by them. Yet, in the garb of seeking information mainly for redressal of their grievances, applications from requesters are filed. The CPIO’s in turn, have also ventured to answer them. Thus, the information seekers as well as providers have erred in interpreting the definition of informa-tion. A CPIO of any public authority is not expected to create and generate a fresh, an infor-mation because it has been sought by an appellant. The appellant is, therefore, advised to specify the required information, which may be provided, if it exists, in the form in which it is sought by him. (278/IC/(A)2006 of 18.09.2006)
Seeking view/opinions of CPIO:
All the concerned parties were heard and it was noted that there was no question of denial of information. The appellant was however not satisfied because he sought ‘opinion’ of the CPIO through a long list of queries, which is not covered under the definition of information. However, the information, which was clearly specified, was provided to him. (69/IC (A)/2006 of 20.06.2006.)
Seeking interpretation of rule/ Law:
Before parting with this appeal, it must be pointed out that this is the first time a party has come up to the Commission asking for interpretation of a given law / rules as well as the interpretation of the powers of a quasi-judicial body. As I stated in the first appeal, the proper Forum to test the order of a Tribunal is as laid down under the appropriate Act or as provided in the Constitution. It would be wholly inappropriate to invoke the provisions of the RTI Act for the interpretation of laws and rules. It should be made clear that the laws and rules are themselves ‘information’ and being in public domain are accessible to all citizens of the country. (CIC/AT/A/2006/00185 of 18.09.2006)
Form of Access under Section 2 (f):
If the requested information is not available in electronic form as requested by the requester, if does not have to be created for the appellant. (CIC/MA/A/2006/0002 – 27 June 2006)
If the information is not available in the particular form requested, the citizen may be allowed, if he desires, to inspect the original records at the office and information specifically asked for provided in the form of printouts and photocopies of original documents and records duly certified. (10/01/2005-CIC – 25 February 2006)
Information held under Section 2 (j):
In this case records of the court martial trial were destroyed after a retention period of 10 years under the Army Rule 146. Information did not exist, it was physically impossible to provide it. There is no liability under the RTIA on a public authority to supply non-existent information. (CIC/AT/A/2006/20 – 23 March 2006)
Voluntary Disclosure under Section 4 (1) (b):
A public authority, is required to make pro-active disclosure of all the relevant information as per provisions of section 4 (1) (b) unless the same is exempt under the provisions of section 8 (1). In fact on information regime should be create such that citizens would have easy access to information without making any formal request for it. (24/IC (A)/2006 – 16 April 2006).
Record Management under section 4 (1) (a):
Record management system ought to be improved such that information which are to be disclosed could be easily provided after delineating those that is exempted. (CIC/OK/A/2006/00016- 15.6.06)
Consultation between the President and the Supreme Court:
The CIC concluded that the entire process of consultation between the President of India and the Supreme Court under article 124(2) is exempted under section 8(1) (e) and 11(1) of the RTIA. (Ref: CIC/AT/A/2006/00113 of 10.07.2006)
Public Interest and Environmental Protection
Shri Piyush Mahapatra made two applications on 5 December 2005 at the reception of the Ministry of Environment and Forests seeking information relation to research and testing of a number of GM Crops and studies and allergy/toxicity tests conducted on some GM crops.
The CIC held that the CPIOs of Ministry of Environment and Forests and Department of Biotechnology, both public authorities being part of the regulatory regime are directed to cooperate to supply information sought by the applicant. Both the Ministry of Environment and Forests and Department of Biotechnology have an informative website. Information on research, testing and studies being of public interest may be placed on these as available in conformity with section 4 (1) to ensure ease of access. (CIC/WB/C/2006/00063 and CIC/WB/C/2006/00064 – 30 May 2006)
Public Interest and Consumer Protection
Appellant has made the case of public interest on the grounds of adulteration in distribution of diesel and petrol. He has however not substantiated his point as to how he would prove his allegations on the basis of disclosure of income tax returns filed by the third party. Apparently there is no direct relationship between malpractices of petrol and diesel and income tax returns, which is mainly the basis for seeking information. (37/IC (A)/2006 – 12 May 2006)
Delhi High Court’s stay on the CIC’s Decision
For the first time after the enactment of the RTI Act, Delhi High Court issued stay on a decision taken by the CIC. Delhi High Court on 22 August 2006 stayed the CIC decision directing the government to make available to it copies of the late President K. R. Narayanan’s letters written to the then Prime Minister Atal Bihari Vajpayee relating to 2002 communal violence in Gujarat. Justice Anil Kumar stayed 8 August 2006 order till 11 January 2007 on an application moved by the Union Government saying that the letters could not be made available to the CIC as it would impinge on the national security and integrity. (CIC/MA/A/2006/00121 – 8 August 2006)
Compensation to the Applicants:
Misbehavior with applicants approaching public authorities under the RTI is not acceptable and is violative of section 5 (3). In this case the PIO will invite Ms. Dasharathi to visit his office and identify members of his staff who refused to provide her the information. Under section 19 (8) (b) the public authority will pay Rs. 100 as damages suffered to the applicant Ms. Dasharathi. This may be either directly or through recovery from the erring officials, as deemed appropriate by the PIO. (CIC/WB/C/2006/00145 – 10 August 2006)
Compensation under Section 19(8) (b):
For the first time, the CIC in its decision directed the Central Government Health Scheme, Pune to pay a sum of Rs. 5,000 to the appellant Ms. M. N. Trival as compensation and refund her the sum of Rs.60 paid by her as fee for non-application of mind by both the PIO and AA resulted in the appellant’s having to interact with PIO and CIC repeatedly causing mental harassment to her.
Decision number 30/ICPB/2006, 13 June 2006
Penalty Under Section 20(1):
For the first time, Shri Wajahat Habibullah, Chief Information Commissioner imposed a penalty of Rs. 25,000 on a PIO for a complaint number CIC/WB/C/2006/00040, 5 June, 2006. PIO has failed to appear before the commission on due date and time despite a telephone reminder. Because the burden of proving that he acted reasonably and diligently is on the PIO under Provision II to Sec 20(1), it is assumed that he has no reasonable cause to show why penalty should not be imposed. Under the aforementioned section of the Act, penalty shall be imposed on any of the following grounds, if the PIO has
– refused to receive an application
– not furnished the information within the time frame specified in section 7 (1)
– malafidely denied the request for information or knowingly given incorrect information
– obstructed in any manner in furnishing the information
by not supplying some of the information sought by the applicant as found by us in the Decision Notice of 23 May 2006, the PIO is in violation of (b) above, and by evading his responsibility to provide the information sought also obstructed the complainant’s. he will therefore pay a penalty of Rs. 250 for every day subject to a maximum of Rs. 25,000.
CIC/WB/C/2006/00040, 5 June 2006
HOD’s failure to assist the Commission:
The Commissioner of Municipal Corporation Delhi has failed to assist the Commission, which he was legally bound to do, and he also failed to explain as to why the orders of this Commission were not executed. It also appears that he has thereby caused an interruption to the proceedings. He has, therefore, committed offences punishable under section 176, 187, 188 and 228 of Indian Panel Code. Now therefore, it is ordered as follows:
That the commissioner, MCD shall appear in person on 18 August 2006 at 10:30 AM and show cause (a). as to why he be not prosecuted for committing the said offences and (b). as to why appropriate action be not recommended against him under section 20(2) of the Right to information Act; and (c). as to why such further action or actions be not taken as this commission may deem fit and proper.
He further directed to furnish the names and address of the concerned CPIO(s) who were responsible for not furnishing the information to the appellant so as to enable initiation of appropriate proceedings against them. CIC/WB/C/2006/00040, 9 August 2006
Penalty under Section 20(1):
Commission imposed a penalty of Rs. 13,750 on professor Akthar Majeed, registrar, Jamia Hamdard, New Delhi. The commission further authorized and requested the Vice Chancellor, Jamia Hamdard, New Delhi to cause the recovery of the amount of penalty from the salary of Professor Akhtar Majeed and remit the amount by demand draft or banker’s cheque drawn in favour of Pay and Account Officer, DP&AR, payable at New Delhi, to Shri Pankaj K.P. Shreyaskar, assistant Registrar, Central information Commission, 4th Floor, Block No. IV, Old J.N.U. Campus, New Delhi-110067, by 15 September 2006. CIC/OK/C/2006/00042-28July 2006
Penalty of Rs. 25000 imposed:
In exercise of powers conferred by Sec. 20(1) of the RTI Act 2005, the Commission imposes a penalty of Rs.25,000/- (Rupees twenty five thousand only) on Shri N. Sundaram, Registrar, BHU for denial of information despite the Commission’s clear directions and directs him to remit the penalty by D.D. in favour of the Pay & Accounts Officer, DP&AR, payable at New Delhi, to Shri Pankaj KP. Shreyaskar, Assistant Registrar, CIC, within 15 days of issue of this order. In case of failure, the VC has been authorized to recover the amount from the salary of Shri Sundaram, and deposit the amount with CIC on or before 15.11.2006. (CIC/OK/A/2006/00163 of 19.10.2006.)
Disciplinary Action under Section 20(2):
The CIC recommended disciplinary action against an appellate officer. The appellate authority is not covered under the penal provisions of the Act. But in this case, he clearly failed to uphold the act in the public interest. It was observed that this decision may be sent to public authority to consider disciplinary action under their service rules. CIC/EB/C/2006/00040-24 April 2006
Commercial Secrets Protected by Law under Section 8(1) (d) and 11(1)
A request was received by the Chief Commissioner of Customs for the names of importers and exporters in daily list of import and export which are being published from the custom houses. But a notification No. 128/2004-Cus (NT) dated 19 November 2004 forbids the disclosure of the names requested.
The CIC held that the notification containing rules are in the nature of subordinate legislation is appropriate under section 8(1) (d) of the RTIA. CIC/MA/A/2006/00012-10 March 2006
Contract Under Section 8(1)) (d):
Ramesh Chand applied to National Institute of Science Communication and Information and sought information on terms of the conditions and their implementation regarding a contract with another firm. The CIC held that a contract with a public authority is not confidential. Offer, completion, quotations, bid, tender, prior to conclusion of a contract can be categorized as trade secret, but once concluded, the confidentiality of such transactions con not be claimed. Any public authority claims exemption must be put to strictest proof that exemption is justifiably claimed. Therefore, this public authority was directed to disclose the list of employees. CIC/WB/C/2006/00176-18 April 2006