EXCERPTS FROM SELECTED ORDERS OF
CENTRAL INFORMATION COMMISSION ON SOME CONTENTIOUS ISSUES
ISSUE-1 : WHETHER FILE NOTINGS CAN BE DISCLOSED UNDER RTI ACT ?
Appeal No.ICPB/A-1/CIC/2006, RTI Act – U/S 6/18, Order Dt:30.1.2006
Name of Appellant : Satyapal
Name of Public Authority : CPIO, TCIL
x x x x x x
“In the system of functioning of public authorities, a file is opened for every subject/matter dealt with by the public authority. While the main file would contain all the materials connected with the subject/matter, generally, each file also has what is known as note sheets, separate from but attached with the main file. Most of the discussions on the subject/matter are recorded in the note sheets and decisions are mostly based on the recording in the note sheets and even the decisions are recorded on the note sheets. These recordings are generally known as “file notings”. Therefore, no file would be complete without note sheets having “file notings”. In other words, note sheets containing “file notings” are an integral part of a file. Some times, notings are made on the main file also, which obviously would be a part of the file itself. In terms of Section 2(i), a record includes a file and in terms of Section 2(j) right to information extends to accessibility to a record. Thus, a combined reading of Sections 2(f), (i)&(j) would indicate that a citizen has the right of access to a file of which the file notings are an integral part. If the legislature had intended that “file notings” are to be exempted from disclosure, while defining a “record” or “file” it could have specifically provided so. Therefore, we are of the firm view, that, in terms of the existing provisions of the RTI Act, a citizen has the right to seek information contained in “file notings” unless the same relates to matters covered under Section 8 of the Act. Thus, the reliance of the CPIO, TCILO on the web site clarification of the Department of Personnel to deny the information on the basis that ‘file notings’ are exempted, is misplaced.
“Direction :
“Since we have held that file notings are not, as a matter of law, exempt from disclosure, the CPIO, TCIL is directed to furnish the information contained in the file notings, on or before 15.2.2006 to the appellant.
“Let a copy of this decision be sent to CPIO, TCIL and the appellant.
(Padma Balasubramanian), Information Commissioner
(Wajahat Habibullah), Chief Information Commissioner
ISSUE 2: WHETHER AN APPLICATION FORM CAN BE MADE COMPULSORY?
Review Application No CIC/C/I/2006 Dt: 30.1.06 RTI Act – Section18, Order dt 8.2.06.
Name of Applicant: Ms.Madhu Bhaduri ,
Name of Public Authority:Director(LM), DDA, Delhi
x x x x x x x x x
“In the RTI Act, no Department is proscribed from designing an application form that facilitates identification and therefore ease of access to information sought. It cannot be treated as a substitute for a simple application as laid down in Sec 6 (1). Since a standard application cannot be mandated, it is not covered by prescription of Rules but is to be treated simply as an easing of processes. Its absence cannot be grounds for rejection of an application.
“In its statement of Object & Reasons the RTI Act is "to promote transparency and accountability in the working of every public authority" Hence it is incumbent upon any public authority prescribing a format that it remain simple and comprehensible as well as accessible to common folk.”
(Padma Balasubramanian) Information Commissioner
(Wajahat Habibullah), Chief Information Commissioner
ISSUE 3: WHETHER THE PIO OF SUPREME COURT CAN SIMPLY SIT BACK INFORMING THE APPLICANT THAT THE INFORMATION SOUGHT WAS LYING WITH A HIGH COURT?
Appeal No.CIC/A/3/2006, Dt: Dec. 12, 05 RTI Act – Section 19, Order dt. 7.2.06
Name of Appellant:Subhash Chandra Agrawal,1775, Kucha Lattushah, Dariba, Delhi
Name of Public Authority: Supreme Court of India
The appellant appeared before the Commission on 7/2/’06 together with Ms Madhu Moolchandani Counsel for Additional Registrar and CPIO of the Supreme Court of India (Vakalatnama on file)
The appellant averred that the response of the CPIO to his application for information on details of action taken on a petition filed by him before the Chief Justice of India together with information on the movement of the file was “meaningless and evasive”. The Appellate Authority held that these amounted to providing adequate information and dismissed the appeal. Hence the appeal to the Commission.
While the appellant argued before the Commission that the orders of the CPIO gave him no actionable information, Counsel for the CPIO stated that the information asked for fell within the jurisdiction of the High Court, a separate public authority not answerable to the Supreme Court. This was the information given.
The papers have been examined and both parties heard. The order of the CPIO reads as follows:
“I am directed to inform you that the aforesaid complaint has been kept on record in the relevant High court file.”
This is not a speaking order and provides little information on the disposal of the application although it meets in narrow terms the requirement of Sec 6(3) dealing with information held by ‘another public authority’ that in the present case is the High Court. The order does not mention when and under what reference the application was transferred to the High Court making it impossible for the appellant to find ways to seek further information.
It is therefore decided that the CPIO of the Supreme Court will now inform the applicant of the Reference and Date of the orders transferring the application to the High Court to enable the applicant to make a suitable application to that public authority to access the information sought.
It is also observed that under the Proviso to section 6 (3) transfer of an application pursuant to this Sub-section is to be made in no case later than five days from the date of receipt of the application. In the present case the letter informing the applicant of the transfer was made on November 22, in excess even of the thirty days mandated under Sec 7(1) of the Right to Information Act, 2005 for the disposal of the application. Since this is a case of October 2005, when the Act had only just come into force, and no claim for damages has been made, no penalty is imposed making allowance for the formative structure of the machinery for entertainment of applications under this Act. However, this may be taken note of in deciding cases in the future.
(Padma Balasubramaniam) Information Commissioner
(Wajahat Habibullah) Chief Information Commissioner
ISSUE 4: CAN A PERSON KNOW THE REASONS OF REJECTION OF A TENDER?
Appeal No.ICPB/A-4/CIC/2006 dt10.2.06 Under Section 6/18 of RTI Act
Name of appellant: Shri Rajesh Pandita, Regional Manager, M/S Neptune Equipment Private Ltd.
Name of public authority: CPIO, Department of Post
Direction:
X x x x x Any rejection of request for information has to be in terms of the provisions of the RTI Act. In the present case, the CPIO has not relied on any of the exemption provided in the RTI Act to reject the request for supply of information sought for by the appellant except that in terms of Clause 7 of the NIT, the DG Posts has the right to reject an offer without assigning any reason. The main theme of RTI Act is that there should be transparency in decision making and therefore, the appellant is entitle to know the reasons for cancellation of the tender. In her comments furnished to the commission on the appeal, the CPIO has furnished elaborate information from which we find that there are no justifiable grounds to reject the information sought for by the appellant. Therefore, we direct the CPIO, Department of Post to give factual information relating to the reasons for rejection of the tender within 15 days from the date of this order. (Padma Balasubramanian) Information Commissioner
( M. M. Ansari ) Information Commissioner
[ A similar order was subsequently passed by CIC vide Appeal No.ICPB/A-6/CIC/2006, dated 27.206 in the case of appellant Udai K.Nath Executive Director, Precision Testing Machines Pvt Ltd versus CPIO, Department of Post in the matter of Section 6/18 of RTI Act, under the judgeship of Padma Balasubramanian, Information]
ISSUE 5: CAN THE FILE NOTINGS BE INSPECTED BY AN APPLICANT?
Appeal No.ICPB/A-5/CIC/2006, Order dt 17.2. 2006 U/S 6/18 RTI Act
Name of appellant: Maj. J. S. Kohli (Retd.).
Name of public authority: CPIO, TRAI.
DECISION
Grounds of Appeal The appellant applied to the CPIO, TRAI, by a letter dated 28.11.2005 seeking for inspection/go through/take copies of certain documents including file notings in relation to a certain letter of TRAI. He had also sought for certain other information. By letter dated 14.12.2005, while furnishing various information sought for by the appellant, the CPIO declined the request of the appellant for “file noting” on the ground that as per clarification by the government “file noting” is not included in “information”. The appellant filed an appeal before the appellate authority on 29.12.2005, which according to him, has not been disposed of till date and hence this appeal dated 13.2.2006 to this Commission
Commission’s decision: However, in view of the decision of this Commission on “file noting”, in its decision No.ICPB/A-1/CIC/2006 (copy enclosed), the appellate authority TRAI is directed to dispose of the appeal dated 29.12.05 filed by the appellant within 10 days of receipt of this order, in light of the above decision. The appellant is at liberty to revive the present appeal in case the appellate authority failed to dispose of the appeal as directed.
Let a copy of this decision be sent to the appellant and the CPIO.
(Padma Balasubramanian) Information Commissioner
(Wajahat Habibullah ) Chief Information Commissioner
ISSUE 6 : CAN THE MASTER PLAN UNDER PREPARATION BY A PUBLIC AUTHORITY LIKE DDA BE DISCLOSED?
Appeal No.10/1/2005-CIC, Order dt 25.2.06, Right to Information ACT – Sections 18 /19
Name of Complainant: Er. Sarbajit Roy
Name of Public Authority: Delhi Development Authority
x x x x x x x x x
“FACTS
x x x x x x x x x
“12. The DDA argued that disclosing the information sought by Complainant would interfere with the Delhi Master Plan process and liable to be misused.
………………. In DDA’s subsequent written statement in further reply of 12.01.2006 from Mr.Mahashabdey at Para 1.7 he stated as follows “It may be observed that the process of Plan preparation / modification is being followed as per the procedure laid down in the Act / Rules in this regard. Sharing of any information in the form of studies, reports, objections / suggestions received from various individuals, departments etc., details and summaries of these and minutes of the Board’s meetings etc. demanded by the complainant at this stage, will hamper and affect the Plan preparation. It is also apprehended that the information may be misused. Therefore, the request for providing the information in the desired format by the complainant was rejected vide this office letter dated No.Dir MPD-2021/DDA/05/F585/4 dated 21.11.2005 under the provisions of sub-section-9 of Section 7 of the RTI ACT 2005 on the grounds of diverting theresources of this office disproportionately. ”. This stand was again reiterated by both Ms.Neemo Dhar and also Mr.Mahashabdey at the second hearing on 08.02.2006 where they had both stated that the Board of Inquiry’s ongoing proceedings would be affected, as would also the Master Plan, if the information sought as detailed above was disclosed, and also that the Board’s proceedings were confidential.
13. . . That in the instant matter there are clear indications in law that the specific information sought by Mr. Roy concerning MPD-2021 may be disclosed to citizens desirous of obtaining such information. Not sufficient reasons were advanced to satisfy the Commission that the information was exempted from disclosure under any of the provisions of Sec 8 of the Act, including provisions relating to invasion of privacy or third party interest that could invoke Sec 11. Therefore the information requested by the applicant connected with a public activity viz. the formulation of Master Plan by DDA and not exempted u/s 8 of the ACT cannot be denied. Hence we hold that in the instant matter the information must be provided to the applicant.
DECISION:
2. The CPIO of DDA Ms.Neemo Dhar is directed to provide the information sought by the Applicant within 15 days. The information shall be provided to the applicant in the particular form requested to the extent it is available within DDA in such form. Where the information is not available in the particular form requested, the applicant may be allowed if he desires to inspect the original records at DDA and information specifically asked for provided in the form of printo uts / copies of original documents or records etc. of DDA duly certified. . . . . Sec 7(9) of the ct does not authorize a public authority to deny information. It simply allows the authority to provide the information in a form easy to access. We gree that providing the information on all responses to the public notice of the Board of Enquiry and Hearings, even if they number only 7000 as claimed by the DDA and more than 10,000 according to the complainant, in the form of certified copies will attract the provisions of Sec 7 (9) as averred by DDA. But this provision does not exempt disclosure of information, only adjustment of the form in which it is provided. … Providing the complainant an opportunity to examine the responses giving him certified copies of those identified by him, will meet the provisions of the Act.
. . . . . . . . . .
4. Since the DDA has failed to provide the information requested to the applicant within the time limit prescribed under Sec7, the information sought shall be provided free of charge to the applicant Mr. Roy as per Sec 7(6).
(Padma Balasubramanian) Information Commissioner
(Wajahat Habibullah) Chief Information Commissioner
ISSUE 7: WHETHER THE PARTICULARS OF THE PANEL AND OF THEIR RECOMMENDATION AFTER CONDUCTING THE INTERVIEWS FOR SELECTION/RECRUITMENT OF CANDIDATES CAN BE DISCLOSED, AND MORE SO WHEN THE SAID MATTER IS SUB-JUDICE ?
Application No CIC/WB/A/2006/00006, Order Dated: March 2,2006
In the matter of Right to Information Act – Section19
Name of Applicant: PK Rout, Name of Public Authority: Indian Rare Earths Ltd
Facts:
Shri PK Rout ,Senior Security Officer of Indian Rare Earths Ltd. asked for the
following information from the CPIO, India Rare Earths:
i. Copy of a notification published in the Employment News Nov 2002
ii. Recruitment & Promotion Policy, 2002
iii. Panel of names of interviewees and merit list
iv. Copy of recommendations of selection committee and approval.
This application was refused both at the PIO and appellate levels since it concerned matters that are sub-judice in case WP(C)26233/2005 pending in the High Court of Kerala.This view was upheld by the appellate authority. During the hearing CPIO Prasantha Kumar was present. Appellant had chosen to stay away. CPIO presented a detailed written reply which is on the file. In his arguments, Shri Kumar stated that the information was refused only as a measure of ‘abundant caution’ as mentioned in his reply to the appeal, in light of the matter being sub-judice. Otherwise the Organisation had no objection to release of the information sought.
On examination of the file we find that there is nothing in the information sought that would be violative of exemptions under Sec 8 (b) or 8(h), as it is public information disclosure of which can hardly impede investigation, or prosecution
The information applied for may be made available to the appellant within ten days of the issue of this decision.
Let a copy of this order be sent free of cost to the parties.
(Padma Balasubramanian), Information Commissioner
(Wajahat Habibullah), Chief Information Commissioner
ISSUE 8: CAN A PIO LODGE AN APPEAL OR A COMPLAINT AGAINST THE INFORMATION SEEKING CITIZEN?
Appeal No. 06/IC(A)/CIC/2006 Order Dated, the 3rd March, 2006
Name of the Appellant : K.K. Shrivastava, CPIO, Commissioner, Central Excise, Mumbai.
Name of Public Authority: Prem V.P. Singh, The Appellate Authority, Chief
Commissioner, Central Excise, Mumbai Zone-II.
DECISION
The CPIO, Commissioner, Central Excise, Mumbai-III has filed an appeal on 26thDecember, 2005 against the Order No. 01/2005 (RTI) dated 29.11.2005 passed by the appellate authority of his own organization, Chief Commissioner, Central Excise, Mumbai, Zone-II. An information seeker filed her appeal before the first appellate authority, against the decision of the CPIO, on the matter relating to recovery of cost of providing information from the applicant. The appellate authority overruled the order of CPIO. The information seeker was however provided information sought by her.
This appeal before the Commission is from the CPIO against the decision of his own appellate authority. CPIO is the information provider, and not the seeker of information. There is no question of denial of information. As such, there is no provision in the RTI Act to consider such appeals/complaints. Hence, the appeal is not maintainable and therefore dismissed.
(M.M. Ansari) Information Commissioner
ISSUE 9: CAN A PIO DENY THE INFORMATION ON THE GROUND THAT HIS OFFICE HAS DESTROYED THE INFORMATION AS PER LAW, AND THE SAID INFORMATION WAS AVAILABLE IN THE OFFICE OF THE PARENT MINISTRY?
Complaint No.ICPB/C1/CIC/2006 Order dt 6 March, 2006
In the matter of Right to Information Act-Section 18(1)
Name of the Complainant : Shri P. Rajan,
Name of Public Authority: Ministry of Company Affairs
. . . . . . .
COMMISSION’S DECISION:
. . . . . . .
Before I deal with the appeal, it is necessary to clarify certain aspects of the provisions of the RTI Act, in view of the stand taken by the Ministry of Company Affairs that each CPIO is a separate public authority and information within his jurisdiction has to be obtained only from him by an applicant. Even though, in terms of Section 5(1) & (2) of RTI Act, a public authority could designate as many CPIOs/ACPIOs, the Act does not confer any specific jurisdiction in respect of each such officer either in terms of geographical or subject wise or the like. The Act also does not prescribe that each CPIO is a separate public authority by himself. He is only a part of the public authority which has designated him as such. The object of designation of many CPIOs/ACPIOs is only with the view that the citizens have a proximity of approach. Once a citizen applies to a CPIO of a public authority, irrespective of where and with whom the information is available within the same public authority, it is the duty of that CPIO to furnish the information sough for in relation to that public authority, if necessary by obtaining the same from the concerned CPIO with whom the information sought may be available. There is no scope to either ask the citizen to approach another CPIO within the same public authority or send the request for information to another CPIO with in the same public authority. Only in a case, where the information sought is held by another public authority, other than the one which has designated him as CPIO, he can transfer the request to that public authority for furnishing information to the applicant direct (Section 6(3)).
……………………………..
In so far as the appeal portion of the complaint is concerned, since the Regional Directorate had sent a copy of the inspection report to the Ministry, even if the same had been destroyed in the office of RD subsequently in terms of the existing procedure, the CPIO should have ascertained about the availability of the same in the Ministry before deciding the application of the complainant. Even the appellate authority has failed to do so. Therefore, if the inspection report is available in the records of the Ministry, then the decision of the CPIO and the appellate authority that the inspection report is not available with the public authority could be deemed to be a misleading information.
……..
DIRECTION
If the records relating to the inspection report sought for by the complainant are available in the Ministry of Company Affairs, the CPIO of the Ministry is directed to supply a copy of the same to the complainant along with a note on the action taken on the inspection report, within 21 days of receipt of this Decision. If the records are not available in the Ministry, also having been destroyed, the CPIO may inform the complainant accordingly.
( Padma Balasubramanian) Information Commissioner
ISSUE 10: CAN AN ENQUIRY REPORT, EVEN PENDING BE DISCLOSED UNDER THE RTI ACT TO A COMPLAINANT ON THE BASIS ?
Appeal No.ICPB/A-8/CIC/2006 March 22, 2006
In the matter of Right to Information Act, 2005 - Sections 6/18
Name of the Appellant : Ms. Navneet Kaur, Assistant Director, ESC
Name of Public Authority: CPIO, Department of Information Technology (DIT)/ Electronics & Computer Software Export Promotion Council (ESC)
……………………..
FACTS OF THE CASE:
By an application dated 28.11.2005 and 20.12.2005 respectively to the above mentioned public authorities, the appellant sought for all documents and records of the sexual harassment complaint committee on the complaint of the appellant against two officials alleging sexual harassment. By a communication dated 4.1.2006, the CPIO of DIT informed the appellant that a clarification has been sought from the Department of Personnel as to whether a copy of the report of the committee could be furnished to the appellant before the disposal of the same by the disciplinary authority and on the advice of that Department, the matter has been referred to the Department of Women & Child Development and response of that department was awaited.
…………………………………………….
COMMISSION’S DECISION:
……………………………………………
In so far as the applications of the applicant are concerned, no satisfactory justification has been given by DIT for not furnishing the information other than stating that a reference has been made to Department of Women & Child Development and their response is awaited. It was also informed that the inquiry report has been sent to ESC. In the absence of any justifiable reason given for denying the information to the appellant, we direct ESC to furnish to the appellant a copy of the inquiry report and also copies of minutes of the working committee relating only to the inquiry report and action taken thereon within 15 days of the receipt of this direction.
( Padma Balasubramanian) Information Commissioner
( Prof. M.M. Ansari ) Information Commissioner