The Right To Information

For BCAJ February 2007

Narayan Varma

The Central Information Commission has decided 602 appeals in the quarter October-December 2006. The appeals pending are still of large number and have been increasing month after month. In April 2006, appeals pending were 644, which by November 2006 have increased to 2604. Some of the interesting appeals decided in January 2007 are :

· In Appeal No. 259/ICPB/2006 decided on      4-1-2007, the grievance of the applicant was that he had not been shown noting portion of the files. Apart from that he had stated that a few of the files which he had requested have not been provided to him.

Readers may note that the disclosure or otherwise of ‘file noting’ has become a very controversial issue under the Right to Information Act. The Ministry of Personnel, Public Grievances & Pensions, under which administration of RTI vests is of the opinion that ‘file noting’ is not the ‘information’ covered under the definition in the RTI Act, while CIC and all RTI Activists are of the opposite view. Hence, the following decision of CIC in this appeal is interesting.

“The appellant himself has stated that he has perused most of the records and he has not been shown only the noting portion on account of certain instructions available on the subject. I hereby direct the CPIO to furnish the noting portion to the appellant connected with his application within 15 days of receipt of this decision. Secondly, I also observe that the appellant has been taking up grievances relating to service matters under the RTI Act. There is no provision under the RTI Act for redressal of grievances of employees on service matters. In future, the appellant is directed to take up the service matters with relevant forum and not under RTI.”

A similar case is decided on 22-12-2006 (No. 462/16(A)/2006).

The appellant had also asked for inspection of ‘file notings’, which he was denied by the CPIO on the ground that ‘file notings’ do not fall under the definition of ‘information’. Decision :

“The CPIO is unjustified insofar as interpretation of ‘information’ in the context of ‘file notings’ is concerned. He is, therefore, directed to allow inspection of ‘file notings’ after due application of S. 10(1) of the Act.”

· Shri Rohtas v. Ministry of Human Resource Development (HRD) decided on 5-1-2007.

The decision is interesting. The reply given by the PIO contained difference between the information supplied by the Ministry of HRD and the National Bal Bhavan (NBB), which was passed on to the appellant.

The respondents from the Ministry of Human Resource Development while admitting this stated that this difference was due to the time lapse between the supply of information to the appellant by the Ministry and the NBB which was an autonomous organisation with its own PIO.

The appellant stated that he would be satisfied if both the HRD and the NBB reconciled their records and gave him the correct information. The Commission, therefore, directed both the respondents to look into their records and after reconciling them, directed the Ministry of HRD to pass on the information to the appellant.

Facts of such an appeal show how carelessly sometimes the replies are given.

· Shri R. K. Potdar, Indore v. The Oriental Insurance Co. Ltd., New Delhi : decided on 10-1-2007.

 This decision also witnesses negligence in the working of the Government Departments & PSUs.

 The decision records the finding :

“The Right to Information Act, 2005, came into existence in October 2005 and has completed more than one year in implementing this particular legislation. In spite of that, the Appellate Authority has not understood the requirement of the legislation when an appeal has been preferred by the appellant. The main reason for the appellant to prefer first appeal is that he is not satisfied with the information furnished by the CPIO. The AA has got quasi-judicial power to go into the aspects like whether CPIO has given correct reply, whether he has applied all the provisions of the RTI Act and he has to take a judicious decision while disposing the appeal by passing a speaking order. In this particular case, the AA has failed to exercise his quasi-judicial power.”

Based on the above, the decision is :

“I hereby direct the Appellate Authority to go through the RTI application, the CPIO’s reply and the first appeal preferred by the appellant and pass a speaking order within 15 days of receipt of this decision, with a copy to this Commission. In this context, I would also direct the Appellate Authority to go through the Commission’s decisions which are available in the Commission’s website [www.cic.gov.in] on the particular subject, so that he will be able to apply the provisions properly. With this direction, the appeal is disposed off.”

· One decision dated 22-12-2006 is interesting, as it clarifies that RTI is not meant to resolve any grievance one may have against any PIO or the concerned department. The decision in Shri S. P. Goyal, 103A, Krishna Chambers, 59 New Marine Lines, Mumbai-400020 v. Office of the Commissioner of Customs, Custom House, Kandla (Gujarat) reads as under :

“The appellant had certain grievances on account of export of certain goods from the Port of Kandla in the year 1991. The respondents have issued a show-cause notice, which is a matter of the quasi-judicial proceedings under the relevant provisions of the Customs Act. There is no provision under the RTI Act for redressals of grievances relating to the disputes under any Act. However, specific information, if identified, should be given to the appellant for effective defense in the case. The appellant is therefore advised to specify the required information, and if necessary, he may seek inspection of documents, subject to the provision of S. 10(1) of the Act.”

This case will be very useful to cite in the context of request for any information connected with reopening of assessment or raid or survey conducted by the Tax Department.

The RTI Act :

To continue the study . . . . .

S. 20 prescribes for penalty. Both the Central & State Information Commissions at the time of deciding any complaint or appeal have been given power to impose a penalty on the PIO of Rs.250 for each day till the application is received or information is furnished. The upper cap is Rs.25,000.

Penalty can be levied if without any reasonable cause PIO has

· refused to receive an application for information

· not furnished information within the time specified under Ss.(1) of S. 7

· mala fide denied the request for information

· knowingly given incorrect, incomplete or misleading information

· destroyed information which was the subject of the request

· obstructed in any manner in furnishing the information.

Though the Section uses the words to say that the Commission ‘shall’ impose a penalty, I believe that it really means ‘may’. In my earlier article, I have discussed that in fact there is a big controversy on the subject of whether power under this Section be used more frequently or not.

The Section provides that the PIO shall be given a reasonable opportunity of being heard before any penalty is imposed on him. The Section also provides that burden shall be on the PIO to prove that he acted reasonably and diligently and thus to say that he is not liable for levy of penalty.

Ss.(2) of S. 20 provides that if the PIO has com-mitted any of the six offences as noted above, without reasonable cause and persistently, the Commission shall recommend for disciplinary action against the PIO under the service rules applicable to him.

Other News :

· At the BCAS Foundation RTI Clinic, maximum cases that come for advice or action are related to Brihanmumbai Municipal Corporation (BMC). The Times of India reports that “Several departments appear to have perfected a system to stonewall queries, delay applicants by quibbling over trivial details, or simply divert the inquiry into a maze of government procedures”. The record of appeals disposed of by the State Information Commission in last one year shows that out of 600 appeals, 120 were for BMC refusing to provide accurate records or denying information altogether, etc.

· Mr. Suresh Joshi, State Information Commis-sioner reports :

“Along with the Civic Corporation, the State’s Education Department has the dubious distinction of having the second-highest number of appeals — 82 — filed against its officers. There are a number of educational institutions regulated by charitable trusts and NGOs which are not willing to open up to scrutiny. Recently, I imposed a penalty of Rs.25,000 against an educational trust for not providing information.”

· IITians at the three-day PAN IIT 2006 meet in the last week of December, 2006 have decided to scale up the Right to Information campaign. IITians will also lobby for including civilians in an auditing process on RTI. Impressed by a move to install a special phone line in Bihar that allows citizens to register RTI requests for Rs.11, IITians will also work towards scaling it up in other States.

· The Maharashtra Government has finally cleared four names to act as State Information Commissioners, one each for districts of Pune, Nagpur, Aurangabad and Mumbai.

· Sonia Gandhi has asked Congress cadres in Gujarat to make effective use of the Right to Information Act to keep track of various Central schemes being implemented by the State. She said : “Huge funds have been allocated to Gujarat under various Central Government schemes, but they are not being spent properly (by the State). The Right to Information Act, a new law introduced by the UPA Government, is a very strong tool. Congress workers across the State should use this Act effectively to know whether the money given to the State Government by the Centre is being properly used or not.”

· Editorial of The Times of India on 16-1-2007 states :

Implementation of the Right to Information (RTI) Act is now regarded as one of the success stories of last year. It injected an element of transparency to governance in a way that would have been unimaginable earlier. RTI has become a weapon in the hands of citizens to badger and make government babus respond to their queries and problems. Unfortunately, this was too good to last. A host of government institutions have now sought exemption from RTI. These include the Supreme Court, UPSC, CBI and Delhi Metro. The reasons for immunity, according to the Central Information Commission which is the nodal body for RTI, are varied.

· After my article appeared in the December issue giving information on my getting Income-tax refund through Right to Information application, number of CAs have started using this medium to obtain refunds. One CA informs me that when he showed my article to one Assessing Officer, he replied, “It is only because he is Narayan Varma, it worked”. This is not true. I am informed by many that they have successfully received their long overdue refunds on making Right to Information application. Even some citizens who were helped at the Right to Information Clinic also have so received. Hereunder is text of one letter of thanks received by the BCAS Foundation :

“I am very much thankful to you for your kind advice and guidance for getting my Income-tax Refund for year 2002-03, under the Right to Information Act.

I have already received my Income-tax Refund of Rs.2,189 for A.Y. 2002-03 on 14-12-2006, which please note.

I once again thank you for kind help”.