The Right to Information

The Right to Information

For BCAJ April, 2007

Narayan Varma

Disclosure of medical records of an individual :

In the articles under this feature in the past, I have been reporting on decisions of the Central Information Commission. In the article for this month, I report on an interesting order of the State Information Commission, Maharashtra. It is interesting because for the first time in Maharashtra, the appeal is heard by four State Information Commissioners including the Chief Information Commissioner and the order is signed by 4 SICs.

An application was made by Shri Shailesh Gandhi, RTI Activist, on 27-5-2006 u/s.6 of the RTI Act to the PIO of J.J. Hospital, seeking copies of certain medical reports pertaining to Shri Surupsinh Naik, Ex. Minister during his hospitalisation in J.J. Hospital. Mr. Gandhi neither received the information requested from the PIO, nor from the first Appellate Officer. Hence the second appeal u/s.19(3) of RTI Act to the Commission. The Chief Information Commissioner heard the appeal on 27th & 29th September 2006, but did not pass any order. Again the matter was heard by a Full Bench of the Commission on 5-3-2007 when the Dean and Superintendent of J.J. Hospital and the applicant were present.

Facts and background of the case are :

Shri Surupsinh Naik was imprisoned by the order of Supreme Court for contempt of Court. While undergoing imprisonment, he was transferred to J.J. Hospital because of his ill-health. The applicant wanted the medical reports including ECG and other reports pertaining to Shri Surupsinh Naik during his stay in J.J. Hospital and at the time of his discharge. The Dean of the J.J. Hospital during his argument gave the extract from the book titled ‘The Essentials of Forensic Medicine and Toxicology’ by Dr. K. S. Narayan Reddy. The extract states “that the medical records of a patient (in-patient or out-patient) should not be given to any person without the consent of the patient. The police do not have a right to demand medical records except when there is statutory provision for such requisitions. The patient’s record cannot be used in educational or diagnostic conferences or clinics or for publications, without the patient’s consent.” The Medical Authorities of J.J. Hospital having regard to the provision of S. 11 under the RTI Act did seek the consent from Shri Surupsinh Naik to give the intended information on 3rd July 2006. However, there had been no response from his side.

This is a case where two contradictory points — right to privacy vis-à-vis right to know — came for consideration and needed to be weighed to arrive at a decision.

The argument on behalf of the respondents was that the reports of medical examinations are quite personal to the individual and this privacy has to be respected. The hospital authorities are also governed by the ethics of their professions. The applicant argued that disclosing these records would clear doubt in the mind of public whether the stay of Shri Naik in the hospital instead of in the prison was justified or otherwise.

The four-member Bench recorded its reasons in the order and ruled as under :

“People generally feel that those in high places have money power and when imprisoned they get shifted to hospitals under one pretext or the other and spend their jail term in the hospitals. However, there could be genuine requirement also for the imprisoned person for specialised medical supervision. To remove the veil of secrecy and let people know the actual position in this regard, we feel, would do justice to all the parties concerned, jail authorities, medical authorities at J.J. Hospital and also to Shri Surupsinh Naik who has not responded to the request of consent to give this information. We think that larger public interest would be better served by disclosure of information, rather than continuing doubts in the public mind.”

“One more point to be considered is that u/s.8(j), the proviso contemplates that the information which could be revealed to State Legislature, such information should not be denied to the public. The PIO admits that the information in question could not be denied to the Legislature. Therefore, we think it would be unjustified to deny this information to the applicant. We, therefore, are of unanimous opinion that the information asked by Shri Shailesh Gandhi should be given to him. We only expect that information thus received will be used in a responsible manner”.

Order :

Appeal is allowed. PIO of J.J. Hospital is directed to provide the asked information to Shri Shailesh Gandhi the applicant, within a period of seven days free of cost.

This is like a Full Bench decision of Income-tax Tribunals having higher weightage. This is also a landmark decision on a very sensitive exemption clause (j) of S. 8(1) of the RTI Act which reads as under :

(j) information which relates to personal information, the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual, unless the Central Public Information Officer or the State Public Information Officer or the Appellate Authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information.

Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person.

The above Order is challenged by Mr. Naik in a petition filed in Bombay High Court. The Court asked J.J. Hospital to send the relevant records to the Court which are delivered. In a landmark Order, the Bombay High Court has ruled that “Medical records of a patient, especially of a convict who avails of treatment at a government hospital, is open for public scrutiny. The Court further said :

“In this case considering that the petitioner was convicted for contempt and was sent to jail and thereafter spent a large part of his prison term in hospital, the right of the public to be informed would normally outweigh the right of the petitioner (Naik) to hold on to his medical records”

However, the Court set aside the Order of SIC and directed SIC to give Naik an opportunity of being heard and then finally decide the matter within 30 days.

(For full copy of the order, visit www.bcasonline.org)

Prime Minister’s Relief Fund :

Another landmark decision is delivered by the Central Chief Information Commissioner on 15-3-2007, in the matter of application made by Shri Shailesh Gandhi in regard to the information on the Prime Minister’s National Relief Fund (PMNRF). Information asked by Shri Gandhi are :

(a) Total amount disbursed in the last two years from the Prime Minister’s Relief Fund.

(b) Total number of institutions to whom funds have been given.

Information preferably in the following format :

Sr No.

Name & address of institution

Purpose for which funds are given

Amount given

……………………………………

…………………………………..

……………………………………

(d) Copies of the Income and Expenditure statements for the last two years and the balance sheets.

As the facts of the case and the reasons for Shri Gandhi furnishing a complaint to CIC are long, the same are not being reproduced here, readers may view them on BCAS website www.bcasonline.org. To some extent the facts, etc. are covered in the decision, which is reproduced hereunder, the readers would find it interesting.

Decision Notice :

“The issues before us are two :

(1) Whether the Prime Minister’s National Relief Fund is an organisation that falls within the definition of Public Authority u/s.2(h), and

(2) Whether the complainant is entitled to get the information requested by him under the RTI Act from the Office of the Prime Minister.

On perusal of the documents on record and submissions made before us, together with information on the Fund provided by the Prime Minister’s Office (PMO), we find that in this case the PMNRF came into existence on the basis of an appeal issued by the Prime Minister in 1948. It is neither a trust, nor has it acquired any legal entity. However, information concerning this fund is under the control of the Prime Minister’s Office. The Joint Secretary to the Prime Minister is Secretary of the Fund. He is assisted by an officer of the rank of Director. The Joint Secretary and the Director discharge their duties concerning the Fund in addition to their other duties. At the lower level of hierarchy, the Fund is maintained by a Section which is a part of PMO. The fund is operated by the Office of the Prime Minister. Initially, there was only one savings bank account with the Central Bank of India, Janpath, New Delhi, which was opened in 1948, but collection accounts have subsequently been opened with various banks to facilitate contributions towards the Fund.

In view of this, it stands established that PMNRF is not an organisation or a legal entity, and as such it cannot be categorised as an independent public authority. We appreciate that the Fund is a discretionary fund with the Prime Minister. But since the information is held by the PMO as the public authority, they are obliged to make it accessible to a citizen under the RTI Act, unless such disclosure is exempted u/s.8. This issue is disposed of accordingly.”

“On the question of disclosure of names of beneficiaries, however, these are third parties in this matter. Whereas information regarding these third parties may be disclosed with their acquiescence u/s.11(1), unless the need for disclosing information can be demonstrated to be in the public interest, such beneficiaries will be eligible for exclusion u/s.8(1)(j). In this case, the information sought is only with regard to Institutions. Such information is not excluded under any sub-section of S. 8(1). But being third parties such institutions are to be given the benefit of being so treated. While this information may, therefore, be provided taking into account the procedure prescribed u/s.11(1), it is clarified that this decision will in no way impinge on any personal information held by the PMNRF with regard to any person. This issue is disposed of accordingly”

Donation to the Prime Minister’s Relief Fund, Chief Minister’s Relief Funds and many other (more than 25) funds listed u/s.80G(2)(a), (c) and (d), entitles the citizens and others 100% deduction from gross total income. I believe that it is ethically expected that these funds become accountable to the public and they need to give voluntarily all information and audited accounts of these trusts. It may be noted that in response to similar request made to the Maharashtra Chief Minister’s Relief Fund, information is denied and the appeal is pending before SIC.

The RTI Act :

To continue the study . . . . . .

S. 24 : Certain information is exempted from disclosure u/s.8, but the concerned organisations remain covered. S. 23 exempts certain specified intelligence and security organisations established by the Central Government from the obligation to disclose information to the citizens.

The only exception made even for these organisations is the information pertaining to the allegations of corruption and human rights violations. Information for these two items have to be disclosed, subject to the approval of the Central Information Commission and time limit to provide such information is 45 days (not 30) from the date of receipt of request.

The specified organisations listed in the Second Schedule, consist of 18 organisations including Intelligence Bureau, Research and Analysis Wing of the Cabinet Secretariat, Directorate of Revenue Intelligence, Directorate of Enforcement and so on.

Similar denial applies, as regards organisations of similar nature established by the State Governments to be specified by notification in the Official Gazette.

Other News :

· RTI plea bares CAT secret :

A single application under the Right to Information Act by a visually-challenged girl could change the face of one of India’s toughest B-school entrance test.

Vaishanavi Kasturi, a visually-impaired B.Com. student who sought information on the selection procedure at the Indian Institute of Management, Bangalore, has helped remove the veil of secrecy in selection of candidates through the Common Admission Test (CAT).

Hitting out at IIM-B for denying admission information to visually-challenged Vaishanavi Kasturi, the Karnataka Information Commission said the premier institute has mindblock on sharing information. The KIC asked the Institute to be more forthcoming in putting information on admission, selection, merit list and ranking in public domain. “This will bring transparency in admission and earn goodwill for the Institute.”

Despite confusion over the jurisdiction of the Central Information Commission or the Karnataka Information Commission over IIM-B, the Institute shared the admission information with Vaishanavi Kasturi and her parents.

· Information on rules for film shooting in public places :

Film units in Mumbai can now look forward to shooting in public places without being harassed by the police and civic agencies which demand a bribe every time a shoot occurs in their jurisdiction.

An online film portal filed a query under the Right to Information Act, asking for details of the procedures involved in acquiring permission for shooting in public places in Mumbai.

The Mumbai Police Commissionerate gave a detailed reply to the query, stating that a production unit can ask for the services of the police force on paying a fixed fee.

Film producers and unit officials say that till date they were not aware of their rights. “Instead, they ended up paying lakhs of rupees to various Government agencies, including the RTO, Police Department and civic officials, though they already had the permission for the shoot.”

It is gathered that this simple information is saving film producers lakhs of rupees which were being paid as massive bribes to the Police and others.

· Supply of rabies vaccine :

Do you know that as per World Health Organisation survey, one person is bitten every two seconds by a dog in India, while one person dies every 30 minutes from rabies ?

The Union and State Governments are to be blamed for shortage of anti-rabies vaccine. Though public and private pharmaceutical firms in India are producing the vaccine in sufficient numbers, the Government has failed to supply them to State-run hospitals, revealed the Central Director General of Health Services in reply to a Right to Information (RTI) application by the People for the Ethical Treatment of Animals (Peta).

· Crawford Market clock to start functioning, thanks to RTI :

The clock at Crawford Market has kept time for 134 years, but it stopped in 2003. Help has now come from RTI to get it restarted.

One Mr. Aziz Amreliwala applied under the RTI Act asking if there is any intent to set the clock right, and if so, how much time it would still take.

In reply, the BMC has stated that the repair work will begin soon and the correct time would be set as soon as the annual contract of maintenance is finalised.

Mr. Amreliwala is determined and says that he will pester the BMC every two days on the progress of the work.

· Library Deposits Refund :

For all the youngsters who are done with college and have forgotten to take back the money that the college collected as a deposit when they first joined, here’s something to think about. An RTI application filed by a student organisation found that over the last six years, KC College, Churchgate, has over Rs.17.5 lakh of deposit money lying uncollected.

The College Principal, Manju Nichani, says it’s the students’ responsibility to collect the deposits.

However, Gajanan Kale, a Mumbai University student and President of Samatavadi Chhatra-bharati, who filed the RTI application, said that the College should have put up a notice asking students to collect their money. “How much effort would it take the College to remind students to collect their money ? They could even have sent students postcards asking them to take the money.”

· Misappropriation of funds :

The Finance Ministry appropriates crores of rupees for the welfare of unorganised workers and small farmers.

Recent RTI query indicates that it’s anybody’s guess if needy workers and farmers are benefited at all.

An internal audit report of the Union Ministry of Labour and Employment shows that Rs.1.7 crore have been misappropriated by high-ranking Government officials. Internal Audit had randomly inspected some major expenditure. Bills of Rs.11 lakhs were submitted by the Central Labour Institute accounts officials in the name of a Sahakari Bhandar in Colaba, which sells mainly foodgrains and pulses. But the bills indicated that the goods purchased included spare parts and accessories for a Toyota vehicle, a refrigerator, computer parts and other un-related materials.

“How can a store that sells mainly foodgrains, pulses and fast-moving consumer goods sell such items ? The bills were forged and the money was diverted.”

The report further states : The details of vouchers for expenditure worth Rs.32.6 lakh till March 2006 have not been furnished to date.

In many cases, lakhs of rupees were spent on conferences, but there is no proper account.

· Upkeep of Golconda Fort :

A resident of the area where Golconda fort in Hyderabad is located, has asked for information under the RTI Act from the Archaeological Survey of India (ASI) the details of the revenue it collects from tourists visiting this fort and the details of security and upkeep arrangement of the fort and its surrounding structures. On the basis of information received, the resident wants to use the information to challenge the ASI’s claim that they are taking care of the monuments.