SOME NOTABLE DECISIONS OF CIS

SOME NOTABLE DECISIONS OF

CENTRAL INFORMATION COMMISSION

1) Security and Intelligence Agencies have to set up PIO and AA to handle applications under RTI Act.

CIC’s DIRECTION to Cabinet Secretary(R ) on setting up PIO and AA

Appeal No: CIC/WB/C/2006/00039 Dated: 6/6/’06

Right to Information Act – Section 19

Name of Appellant: Dr. S.K. Agarwal

Name of Public Authority: Cabinet Secretariat

Facts of the case:

Dr. S.K. Agarwal, of Kalkaji, New Delhi, in the absence of a PIO in the Cabinet Secretariat (R) filed an application on 08.03.2006 to Secretary (R), Cabinet Secretariat seeking information pertaining to his tenure of over eight years… .. In his response dated 24/5/’06 to the Appeal Notice, Director, Cabinet Secretariat reports that he had responded to the appellant on 28.03.06 citing provisions contained in section 24(1) read with Second Schedule of the RTI Act, 2005 where under nothing contained in the Act shall apply to the Cabinet Secretariat (R&AW).

Decision Notice

Being a security organization listed at No. 2 of exempted organizations under the Second Schedule, RAW is indeed not covered by the Act except if information sought pertains to allegations of corruption and human rights violations under Proviso to Sec 24(1). ….. Because the concerned organization has not set up a mechanism for dealing with RTI, presumably because of its exemption u/s 24 (1), the appeal has been submitted without resort to the usual process of appeal. We therefore treat this as a Complaint u/s 18 (1) (a). … Cabinet Secretariat (R) is advised to designate officers at the appropriate level as PIOs and AAs to facilitate dealing with requests from citizens including where necessary in areas covered by the first proviso to Sec 24 (1). ..

(Wajahat Habibullah)

Chief Information Commissioner

2) Provision for compensation under Section 19(8b) of RTI Act

Appeal No.30/ICPB/2006 June 13, 2006

In the matter of Right to Information Act, 2005 – Section 19.

Appellant: Ms. M.N. Trivel, Pune

Public Authority: Central Government Health Scheme, Pune

Shri J.P. Gupta, CPIO Dr. G.T. Thawani, Appellate Authority.

7. Considering the fact that non-application of mind by both the CPIO and the appellate authority has resulted in the appellant’s having to interact with CPIO and this Commission repeatedly, causing mental harassment to her, I consider that it is a fit case, wherein, in exercise of the powers conferred on this Commission under Section 19(8)(b) of the Act, the appellant should be compensated. Accordingly, I direct CGHS, the public authority, to pay a sum of Rs.5,000 (five thousand) to the appellant as compensation. It will also refund to her, the sum of Rs. 60/- paid by her as fee and towards supply of copies of information. The total amount of Rs.5060/- should be paid to her by 30th June 2006 under intimation to this Commission. In so far as the medical claim of the appellant is concerned, this Commission has no jurisdiction to deal with the same.

3) BREAKUP OF TOTAL AMOUNT PAYABLE HAS TO BE PROVIDED

Appeal: No. CIC/PB/A/2006/00063 Dated, the 19th June, 2006

Name of the Appellant Shri Kailash Mishra

Name of the Public Authority : Bharat Sanchar Nigam Limited, 36 Janpath, New Delhi

ORDER

Brief Facts:

Shri Kailash Mishra of Bhopal applied to PIO, BSNL on 17 June 2006 seeking information about the projects completed by Switching and Installation Wing of the BSNL in the Bhopal circle. BSNL wrote back to him asking him to deposit Rs.9810/- which included Rs.9732/- for the man hours utilized to collect the information to be supplied. The first Appellate Authority to whom Shri Mishra applied on 20 February 2006 communicated to him on 18th March 2006 that the additional fee was justified. Thereafter the Appellant filed an appeal with this Commission.

4. After pursuing the provisions of Section 7 of the RTI Act and the fee rules prescribed thereunder the Commission concluded that such action of the department was only a subterfuge for avoiding supply of information to the Appellant. Since all the information was available at one place, there was no reason for deployment of extra manpower for supplying the information. It also regretted that the BSNL had not responded to the Appellant’s request for providing details of computation whereby the Department had arrived at the above figure.

5. The Commission hereby orders the Respondent to show all the files/records relating to the information asked for by the Appellant vide his letter dated 17.1.2006 and provide him copies of the documents he desires at the fee prescribed under the Act. There was no doubt in the Commission’s mind that calculating and demanding the fee from the applicant showed an utter disregard for the letter and spirit of the Act and was obviously a malafide attempt on the part of CPIO, BSNL for denial of information. The Commission directs him to explain within 15 days of the issue of this Order why the penalties envisaged in Section 20 of the RTI Act be not imposed upon him.

(M.M. Ansari) Information Commissioner (O.P. Kejariwal) Information Commissioner

4) PIO TO PROIDE INFORMATION EVEN IF IT IS IN PUBLIC DOMAIN

Appeal No.37/ICPB/2006 June 26, 2006

In the matter of Right to Information Act, 2005 – Section 19.

Appellant : Shri S.R. Pershad, Dy. Director of Supplies, DGS&D.

Public Authority : Directorate General of Supplies & Disposals

Ms. Asha Makhijani, CPIO

Shri Subodha Nath Jha, DG – Appellate Authority.

GROUNDS OF APPEAL:

2. The stand of the DGS&D that the information sought for is available only in the Cabinet Secretariat is wrong. Without the initiative/ involvement of DGS&D and its administrative ministry, on its own the Cabinet Secretariat does not initiate any proposal for reallocation of business relating to DGS&D. Therefore, copies of the notifications should be available with DGS&D and as such, the CPIO should be directed to furnish the same.

DECISION :

4. In terms of RTI Act, it is the responsibility of the designated CPIO to furnish the information sought for by a citizen, if the said information is in the custody of the public authority. It is quite possible that the information sought for may not be available with the CPIO himself/ herself, but if it is available within the public authority, it is the responsibility of the CPIO to collect/gather the said information from the concerned person/section of the public authority and furnish the same to the information seeker. In the present case, neither the CPIO nor the appellate authority has categorically stated whether copies of the notifications are available within DGS&D or not. If they are not available, a simple communication to the appellant to that effect could have sufficed. The observation of the appellate authority that the appellant could get copies of the notifications from libraries/shops is uncalled for as in terms of the RTI Act, a citizen is entitled to get information from the public authority which is in its possession/custody even if the same is in the public domain.

6. I dispose of this appeal with the direction to the CPIO to furnish copies of the notifications as sought for by the appellant, if available within DGS&D, within 15 days of receipt of this decision. If not available, an affidavit to that effect should be filed before the Commission and the appellant should be informed accordingly within the said period.

Sd/-

(Padma Balasubramanian)

Information Commissioner

5) CIC’s ORDER ON DOPT’S NOTE ON FILE NOTINGS

Appeal No.35/ICPB/2006 June 23, 2006

In the matter of Right to Information Act, 2005 – Section 19.

Appellant: Shri Mahendra Gaur, Jaipur.

Public Authority: Department of Consumer Affairs

Shri C.S. Khurana, Deputy Secretary & CPIO.

Ms. Rinchen Tempo, Joint Secretary – Appellate Authority.

FACTS:

1. A short question that has arisen in this appeal is whether “File Notings” are exempt from disclosure under RTI Act. In December 2001, the appellant had filed a complaint before the Department of Consumer Affairs, alleging mal-practices in the sale of 2T oil in Rajasthan. In connection with that complaint and also a similar complaint made earlier, the appellant filed an application on 21.2.2006, seeking for inspection of records maintained by the Department of Consumer Affairs, Controller of Legal Metrology relating to the decision making process on his complaints. While he was given inspection of the related files, the CPIO declined to allow the appellant to inspect the file notings.

DECISION:

2. It is true that the DoPT is the nodal authority in respect of RTI Act and in the usual course, placing reliance on the contents of the Website of that Department would be justifiable. However, the question whether file notings are exempt or not has been put to rest by this Commission in its Decision in Satyapal Vs TCIL (ICPB/A1/2006) and this decision is in the website of this Commission. Further, the appellant has also cited this case in his appeal. In terms of Section 19(7) of the said Act, while the decision of this Commission is final and binding on the parties in that case, in the matter of interpretation of the provisions of the Act, the said interpretation is binding on all the public authorities. Therefore, when the Appellate Authority found contradiction in the decision of this Commission and that of the website of DoPT, she should have referred the same either to this Commission or to the DoPT for clarification. Curiously, in her decision, she has ignored to refer to the decision of this Commission even though the appellant has referred to the same in his appeal. Instead by recording “As such, till such time as the nodal Department does not indicate otherwise, we would perforce have to continue to exclude file notings from public domain” the appellate authority appears to have made up her mind to continue to ignore the decision of this Commission. This does not commensurate with the position that she holds. For the benefit of the Appellate Authority, I extract the decision of this Commission in Satyapal case :

“As is evident from the Preamble to the RTI Act, the Act has been enacted to vest with the citizens, the right of access to information under the control of public authorities in order to promote transparency and accountability in the working of any public authority. Conscious of the fact that access to certain information may not be in the public interest, the Act also provides certain exemptions from disclosure.

Whether file notings fall within the exempted class is the issue for consideration.

Section 2(f) defines information as “Any material in any form, including records, documents, memos, e-mails, opinion, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law or the time being in force”.

Section 2(j) reads : “Right to information means the right to information accessible under this Act which is held by or under the control of any public authority and includes the right to (i) inspection of work, documents, records; (ii) taking notes, extracts or certified copies of document or records; (iii) …… (iv) …. “. In terms of Section 2(i) “Record” includes (a) any documents, manuscript and file;

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.”

3. In view of the above, I direct the CPIO to allow the appellant to inspect the file notings as sought for by him free of cost. The appellant has sought for compensation on the ground that he had to incur expenditure to visit Delhi from Jaipur a number of times. I would have found justification in his claim but for the fact that the decision of the appellate authority was based on the website information of the DoPT, even though wrongly, and not with the view to intentionally deprive the appellant of the information sought.

4. It is not the first time that after the decision of this Commission in Satyapal case, a public authority has denied access to file notings on the basis of the website information of DoPT. A few other public authorities have also done so, due to which this Commission has to reiterate again and again its decision that information includes “file notings”. Therefore, to avoid unnecessary appeals which subject citizens to suffer cost and time, I enjoin upon the DoPT to immediately remove its clarification on “file notings” from its web site.

5. Let a copy of this Decision be forwarded to the Secretary, DoPT, by name drawing his attention to para 4 of this decision.

Sd/- (Padma Balasubramanian)

Information Commissioner

6) 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

7) 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