PIO should transfer / forward of RTI applicaiton u/s 6(3) to multiple Public Authourities R/W Sec 13 of General Claues Act, 1987

                                 CENTRAL INFORMATION COMMISSION
                                         Club Building (Near Post Office)
                                     Old JNU Campus, New Delhi - 110067
                                              Tel: +91-11-26161796
                 

                                                    Decision No. CIC/SM/A/2011/000278/SG/12906
                                                    Appeal No. CIC/SM/A/2011/000278/SG


Relevant Facts emerging from the Appeal:

Appellant: Mr. Chetan Kothari
                  52, Oceanic Apartment, Dr. Rajabali Patel Lane,
                  Off B. Desai Road, Mumbai 400 026


Respondent: Mr. K. J. Sibichan
                      Under Secretary & CPIO
                      Cabinet Secretariat, Rashtrapati Bhawan, New Delhi

RTI application: 21/09/2010; 27/9/2010 transferred
PIO reply: 12/10/2010
First appeal 22/10/2010
FAA order 16/11/2010
Second appeal 30/11/2010

Information sought:
The appellant had filed the RTI application with PIO of the Lok Sabha Secretariat asking:
a) Please provide the details. Name wise break up of state ministers and cabinet ministers of central
government petrol & diesel consumption & amount with opp party leader.
(b) Please provide the details of each state ministers & cabinet ministers of central government (Name
wise break up) how many cars.
(c) Please provide the details of each state ministers & cabinet ministers of central government each of
them how many staff provided. (Give name wise ministers break up)

PIO’s reply:
On 27/09/2010 PIO of Lok Sabha Secretariat transferred the RTI application to PIO, Cabinet
Secretariat and PIO, Leader of Opposition.On October 4 Office of the Leader of Opposition provided this information:
“The staff car to Hon’ble Leader of Opposition in Lok Sabha is provided by Lok Sabha Secretariat and
accordingly, all matters/records relating to the maintenance/ running, including the expenditure on
petrol/diesel, etc. of the car are being dealt/maintained by the concerned branch of Lok Sabha Secretariat.
The information required by the applicant is not available in the office of Leader of Opposition in Lok
Sabha and hence the CPIO is not in a position to give the required information to the applicant.
4. It is, therefore, requested that the CPIO, Lok Sabha Secretariat may he requested to give the
information directly to the applicant. The application forwarded with the OM dated 27.9.2010 is returned
herewith.”
On 12 October 2010 PIO, Cabinet Secretariat provided this information:
“2. The information sought is scattered among a large number of public authorities, including Central
Government Ministries/ Departments. Therefore, in terms of the provisions contained in O.M. No.
1012/2008-IR dated 12.6.2008 issued by Ministry of Personnel, Public Grievances & Pensions
(Department of Personnel & Training), you are required to file separate applications with the CPIOs of
each of the Ministries/Departments concerned individually, for obtaining the required information.
3. In so far as the Cabinet Secretariat is concerned, the information may be treated as NIL.”
On 29/10/2010 PIO of the Lok Sabha Secretariat gave information that no information was available.

Grounds for First appeal:
Information not provided.

FAA order:
After carefully considering all the relevant documents, the Appellate Authority upholds the decision of
CPIO as referred in para 2 above and direct the CPIO to provide a copy of list of Ministries/Departments
which contains the office addresses of the public authority, within 10 working days.

Grounds for Second appeal:
Information not provided. Section 4 of the RTI Act not properly implemented.


Submissions dated 04/06/2011 of appellant received by email :
(1) CPIOs not transfer application within the stipulated period as per provision under Section 6 (3) &
delay inform to applicant.
(2) Applicant unable to send same application to 85 department of Central Govt. Which is waste of time
& money.
(3) Applicant sent RTI application to nodal CPlOs of ‘Loksabha Secretariat’ because that department
provide car, staff etc to opposite party leader.
(4) CPIOs violate the RTI Act & holding the information but misleads to applicant & wasting the public
money & time & increasing the work load for higher authority.
(5) CPIOs failure to Act according to under provision of Section 4(3) for the purposes of sub-section (1),
every information shall be disseminated widely and in such form and manner which is easily accessible to
the public. Also CPIOs failure to Act according to under provision of Section 5(3) & (4).
(6) PIO’s failure to Act according to under provision of Section 2(f), 4(1)d & 5.

Appellant quoted two orders for support of his written submission.
(1) It will be in context to quote the observation made by the Division Bench of the Hon’ble Delhi High
Court in LPA 501/2009, pronounced on 12.1.2010 (matter relating to Asset Declaration of Judges of the
Apex Court):
The Act does not merely oblige the public authority to give information on being asked for it by a
citizen but requires it to suo moto make the information accessible. Section 4(1)(a) of the Act
requires every public authority to maintain all its records duly catalogued and indexed in a
manner and the form which facilitates the right to information under the Act and ensure that all
records that are appropriate to be computerized are, within a reasonable time and subject to
availability of resources, computerized and connected through a network all over the country on
different systems so that access to such records is facilitated. Section 4 spells out various
obligations of public authorities and Sections 6 and 7 lay down the procedure to deal with request
for obtaining in formation.
(2) In fact the Hon’ble High Court of Madras even went a step further and stated that administrative
difficulties and shortage of manpower cannot be cited as reasons for denying information. While
dismissing WP No. 20372 of 2009 and MP No. 1 of 2009, in a Judgment dated 7.1.2010, the Hon’ble
court ruled:
The other objections that they are maintaining a large number of documents in respect of 45
departments and they are short of human resources cannot be raised to whittle down the citizens’
right to seek information. It is for them to write to the Government to provide for additional staff
depending upon the volume of requests that may be forthcoming pursuant to the RTI Act. It is
purely an internal matter between the petitioner archives and the State Government. The right to
information having bee!? guaranteed by the law of Parliament, the administrative difficulties in
pro v/ding information cannot be raised. Such pleas will defeat the very right of citizens to have
access to information. Hence the objections raised by the petitioner cannot be countenanced by
this court. The writ petition lacks in merit.”


Relevant Facts emerging during Hearing:
The following were present:
Appellant: Mr. Chetan Kothari on video conference from NIC-Mumbai-Studio;
Respondent: Mr. K. J. Sibichan, Under Secretary & CPIO;
The RTI application had been filed by the Appellant to the Lok Sabha Secretariat seeking
information about consumption of Petrol and Diesel by State Ministers and Cabinet Ministers including
the leader of the opposition and staff. The appellant has sought this information for a period of 10 years
which appears excessive, since it is unlikely that information would be maintained in this format for 10
years. The PIO of the Lok Sabha Secretariat transferred the RTI application to the Cabinet Secretariat and
to the PIO of the office of Leader of Opposition. No information has been provided by both the PIOs since
they said they do not have the information. The PIO of the Cabinet Secretariat has taken the position that
he cannot transfer the RTI application to PIOs of various ministries and is depending on an office
memorandum issued by DOPT no. 10/02/2008-IR dated 12/06/2008 which states that Section 6(3) of the
RTI Act mentions public authority in the singular and therefore the RTI application can only be
transferred to one public authority as per the RTI Act. The Appellant disputes this and states that the RTI
application should have been transferred wherever required and he also quotes a Madras High Court
Judgment in support of his contention.

Section 6(3) of the RTI Act state,
“Where an application is made to a public authority requesting for an information,-
(i) which is held by another public authority; or
(ii) the subject matter of which is more closely connected with the functions of another public authority,
the public authority, to which such application is made, shall transfer the application or such part of it as may be appropriate to that other public authority and inform the applicant immediately about such transfer:
Provided that the transfer of an application pursuant to this sub-section shall be made as soon as practicable but in no case later than five days from the date of receipt of the application.”

The point to be determined is whether Section 6(3) means that the transfer should only be made to one public authority or to multiple public authorities, if required. Section 13 of the General Clauses Act, 1897 stipulates inter alia that in all central legislations and regulations, unless there is anything repugnant in the subject or context, words in the singular shall include the plural, and vice versa. Section 13 of the General Clauses Act, 1897 enacts a general rule of construction that words in the singular shall include the plural and vice versa but the rule is subject to the proviso that there shall be nothing repugnant to such a construction in the subject or context of the legislation which is to be construed. This principle of law has been well- established and applied by the Supreme Court of India from time to time viz. in K. Satwant Singh v. State of Punjab 1960 SCR (2) 89, Narashimaha Murthy v. Susheelabai & Ors. AIR 1996 SC 1826 and J. Jayalalitha v. UOI & Anr. AIR 1999 SC 1912, as well as by several High Courts while interpreting various statutory provisions.

There is nothing in the Act which would show that Parliament intended that the transfer should only be to
one public authority. It also appears that DOPT’s office memorandum is in contravention of the General
Clauses Act 1987 and interpreted Section 6(3) of the RTI Act wrongly. The whole purpose of the RTI Act
has been to facilitate flow of information to the Citizens. In the instant case it has been shown that
whereas the Appellant applied to the Lok Sabha Secretariat, the Lok Sabha Secretariat itself believed that
the information would be available with the Office of the Leader of the Opposition and with the Cabinet
Secretariat. Both these offices have admitted that they have no information in this matter. Thus even in
this case, the Lok Sabha Secretariat was not aware who would hold the information being sought by the
Appellant. The law does not put any restriction on the public authorities to which the RTI application
could be transferred. The Commission does believe that an appellant should seek information from a
public authority which he can reasonably believe may have the information. In the instant case the
Appellant appears to have exercised reasonable care and applied and to a public authority which an
average citizen may believe will hold the information.


There are numerous instances where RTI applications have been transferred by one public authority to
another and none of them appears to know where the information is. In this scenario for public authorities
to take a position that they will only transfer to one public authority is unreasonable and the law certainly
does not state this. Public Authorities claim that it would be difficult to transfer RTI applications to
multiple authorities since it would mean putting a lot of resource. Section 4(1)(a) of the RTI Act has
talked of computerization of records and functions in various public authorities. Various Prime Ministers
since 1985 have been promising to computerize operations in Government. This is a promise and
commitment which is not being followed by various public authorities. If the records and operations were
computerized, transferring an RTI application to even 50 or 100 public authorities could be done with a
click of mouse by email. If public authorities do not meet commitments implied in the RTI Act, the citizen
cannot be denied his fundamental right.


The Commission rules that DOPT’s office memorandum no. 10/02/2008-IR dated 12/06/2008 is not
consistent with the law. The Commission explained to the Appellant that seeking information for 10 years
would definitely disproportionately divert the resources of the public authorities. He has agreed that
information could be furnished to him for the last two years.


Decision:The Appeal is allowed.
The PIO is directed to transfer the RTI application to various public authorities
before 25 June 2011, who must provide information for the last two years to the Appellant
as per the provisions of the RTI Act.
This decision is announced in open chamber.
Notice of this decision be given free of cost to the parties.
Any information in compliance with this Order will be provided free of cost as per Section 7(6) of RTI Act.

         
                                                                                              Shailesh Gandhi            
                                                                                        Information Commissioner
                                                                                                 16 June 2011

Punishment to PIO U/s 167, 187 & 188 IPC - Shri Subhash Chandra Agrawal Vs. DoPT.

                                         Central Information Commission
                           3rd Adjunct Appeal No. CIC/WB/A/2008/00956
                             [Right to Information Act, 2005 – Section 19]

Appellant: Shri Subhash Chandra Agrawal
Respondent: Department of Personnel & Training (DoPT)

Decision Notice Shri S.C. Agrawal of Dariba Delhi submitted an application dated 24.04.2008 under RTI Act, 2005 to Section Officer Dep’t of Personnel, Public Grievances & Pensions seeking information about procedure (in detail together with copy of documents) for selecting National, Gazetted and Restricted Holidays of Government of India. Along with details, appellant also requested for copies of ‘file noting’. Since the response of CPIO was not found to be satisfactory, appellant approached FAA U/s 19(1) of RTI Act and filed an appeal on 02.05.2008.


2. The First Appellate Authority vide its decision dated 25.5.2008 communicated as follows: -
“1. As per RTI Act, Section 8(1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, - (a) information, disclosure of which would prejudicially affect the sovereignty and integrity of India, therefore, under the  provisions of Act, no information can be provided to the first Para of your appeal.

2. It is a decision of the Government to declare closed holiday on Dr. B.R. Ambedkar’s birthday since
1990, with the due approval of the competent authority. As per the guidelines prescribed on the
website (http://ww.persmin.nic.in/) of Ministry of Personnel, Public  Grievances and Pensions under
RTI-FAQ, information does not include “file noting”, hence no file noting can be provided.”


3. The appellant filed an appeal against this order and prayed for the following directions: -
“1. Details and rules under which Dr. B.R. Ambedkar’s birthday is being observed as a closed  holiday since 1990 without being a listed holiday anywhere may be provided mentioning if such breaking of rules is possible to make birthday of some other leader also a closed holiday.
2. Copy of file notings on Dr. B.R. Ambedkar’s birthday having been made a closed holiday in 1990 may be provided together with copy of file notings on movement of my RTI petition follow by 1st appeal
3. Since DOPT has not approached Courts on CIC decisions on ‘Information’ including file notings under RTI Act, penal action against those responsible at DoPT for not obeying CIC decisions on file notings may be initiated.
4. DoPT may be directed to immediately modify its website to mention file notings as part of ‘Information’ under RTI Act.”


4. The case was heard o 27.11.2008 and again on 11.12.2008. After hearing all concerned parties, Commission came to conclusion that this is a clear case of refusal of information but CPIO has simply acted in accordance with a Circular issued by DoPT and that has resulted from fact that “file noting” has been fallaciously shown to be exempted information on website of DoPT. Referring to its earlier decision in Appeal No. CIC/WB/A/2007/00657 where also similar directions were given to remove clarification on “file noting” posted on website, Commission came to conclusion that denial of information by CPIO as a result of what appears on website of DoPT is incorrect & misleading and, as such, officer providing such information is in violation of RTI Act.


5. After carefully considering matter & hearing Dr. S.K. Sarkar, Jt. Secty (AT&T), DoPT and Ms. Anuradha S. Chagti, Dy Secty, DoPT, Commission U/s 19(8)(a), sub-section (iii) & (iv) directed as follows in our Order of 18.12.’09: -
“The DoPT is now required to delete from its website in the definition of information that this does not include file noting. The present reading in the website http://www.persmin.nic.in/ under point 3 of the heading “About Right to Information” in the RTI Portal the following is the entry:
What does information mean?
Information means any material in any form including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contacts, reports, paper, 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 for the time being in force but doe not include “file notings”

To bring this in compliance with Sec. 2(f), which it misleadingly seeks to quote, this entry will be redrafted as follows, in full quotation from the relevant Section of the RTI Act, 2005, deleting specifically the portion underlined by us.

What does information mean?
Information means any material in any form including records, documents, memos, e-mails, opinions, 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 for the time being in force.”

6. The Commission further directed that -
“Dr. S.K.Sarkar, Jt. Secty(AT&T), DOPT will comply with this order within week date of issue of this Decision Notice intimation to Shri Pankaj KP Shreyaskar, Jt. Reg’r this Commission”


7. The above orders were, therefore, explicit and without ambiguity and Commission expected that these would be complied with at earliest, and that JS Dr. S.K. Sarkar who was directed to ensure compliance, would do what was necessary to ensure what he and DoPT are legally obliged to do and would submit a compliance report.


8. Instead we have received an application from the appellant complaining to the Commission of non-compliance of its orders by the DoPT. The appellant in his complaint petition, submitted through email on December 28, 2008, requested the Commission to initiate penal proceedings against the concerned persons in DoPT for willfully disobeying CIC verdicts, apart from taking all other measures which may compel DoPT to comply with CIC orders on long pending matter of “file noting”. He also contended that it gives damaging impression that nodal Government functionary (DoPT) handling RTI Act does not itself honour CIC verdicts. Another application from appellant which was received on 30.12.2008 stated that DoPT may be directed to provide him file notings, copy of rules and other relevant documents as requested in his RTI application.


9. Instead of receiving a report of compliance in response to our notice, the Commission received a curious communication on 02.01.2009 from Ms. Anuradha S. Chagti, Deputy Secretary, DoPT stating that the entire issue was placed before the Committee of Secretaries (COS) for its consideration and that the decision of the COS is still awaited. Ms. Chagti in her aforesaid letter also mentioned that the letter is being issued with the approval of Secretary, DoPT. Even though this appeared a case of defiance of orders of the Commission, giving DoPT the benefit of doubt, the Commission vide its letter dated 09.01.2009 asked for a compliance report from Dr. S.K. Sarkar, Joint Secretary (AT&T), who had been made responsible for ensuring compliance with our directions by our order of 18.12.’08, so as to reach this Commission on or before 27th January 2009. Dr. S.K. Sarkar did not submit any compliance report within the time frame fixed by the Commission. Instead a letter was again received from Ms. Anuradha S. Chagti, Deputy Secretary, DoPT reiterating what was stated by her earlier in letter dated 02.01.2009, the relevant portion of which is reproduced below: -
“Copies of file notings and compliance of the decision of the Commission – status in this regard has already been communicated to the CIC (copy of the letter enclosed).”


10. On perusal of this correspondence Commission is constrained to conclude that Dr. S.K. Sarkar, Jt. Secretary (AT&T) has obstructed, and Ms. Anuradha Chagti and DoPT as a public authority have knowingly violated and disobeyed orders passed by Commission knowing that directions given by this Commission under Section 19(8) read with Section 19(7) are binding under law. By their conduct, they have therefore committed offences punishable U/s 166, 187 and 188 of Indian Penal Code.


11. Dr. S.K. Sarkar and Ms. Anuradha S. Chagti of DoPT are, therefore, called upon to appear before us in person on 17th June, 2009 at 11.00 A.M. and show cause as to why they be not prosecuted for above offences. A written explanation from each of them must reach this Commission within 10 days from date of receipt of this order. The Commission further directs issuance of summons for their appearance on date and time first hereinbefore mentioned.


12. The facts of case as aforesaid clearly reveal that denial of information requested by appellant is without any reasonable cause and that Officers named above in preceding paragraph have knowingly obstructed furnishing information and that they have thereby rendered themselves liable for penalty U/s 20(1) of Right to Information Act, 2005. The Commission, therefore, directs each one of them to appear before this Commission on 17th June, 2009 at 11.00 A.M. and to show cause as to why each one of them be not held liable for a penalty up to Rs.25, 000/-.as provided for U/s 20(1) of RTI Act. On receipt of their explanation, Commission will also determine as to whether their conduct warrants any recommendation U/s 20(2) of RTI Act.


13. Before concluding, we must observe that we find it appalling that Min. of Govt, which is moreover Nodal Ministry under RTI has sought to emasculate mandate enshrined U/s 19(7) of RTI, which makes decisions of Commission legally binding. If DoPT or its functionaries were in any way aggrieved with order or directions of this Commission they could have challenged same in accordance with Constitution of India, a recourse that they have indeed taken in other cases, or they could have sought time for implementing Commission’s directions. Instead of doing what a Public Authority is expected to do under law, DoPT has created extraordinary situation which constitutes assault on Rule of Law, which is corner-stone of our legal system.


14. A copy of this decision be served on the Secretary, DoPT for his information and to Dr. S.K. Sarkar, Jt. Secretary (AT&T), DoPT and Ms. Anuradha Chagti, Deputy Secretary (RTI), DoPT along with summons for their personal appearance on the date and time mentioned herein above. A copy of this Decision shall also be served on the Cabinet Secretary, Shri Chandrashekhar by name, together with all the parties.
Dated this the 2nd day of June 2009.


                                                                          (Wajahat Habibullah)
                                                                 Chief Information Commissioner


Authenticated true copy. Additional copies or orders shall be supplied against application and payment of the charges, prescribed under the Act, to the CPIO of this Commission.


(Pankaj K.P. Shreyaskar)
Joint Registrar

Decision on Life and Liberty - Shri Shankar Paul Vs. NSCS

                                  CENTRAL INFORMATION COMMISSION
                            Appeal/Complaint Nos. CIC/WB/C/2008/0169 & 378
                                          and WB/A/08/271 dated 15-2-2008
                             Right to Information Act 2005 – Section 18 & 19


Appellant:  Shri Shib Shankar Paul
Respondent:   National Security Council Secretariat (NSCS)

FACTSThese are three appeals concerning four requests dates ranging from 12-11-07 to 26-2-08 of appellant Shri Shib Shankar Paul, at present in Central Jail, Tihar, New Delhi submitted to the CPIO & Under Secretary, National Security Council Secretariat (NSCS) seeking information on search and investigation resulting in his arrest and detention. These have been processed under the following files in this Commission:
i) CIC/WB/C/2008/00169
ii) CIC/WB/C/2008/00378 and
iii) CIC/WB/A/2008/00271


In the above three cases we find that the requests processed in file No. CIC/WB/C/2008/00378 are the same as those in file No. CIC/WB/C/2008/00169. In the first file the complaint has been moved for failure to receive a response, subsequently received resulting in the complaint at (ii), whereas in the third responses have been received on each request and 1st appeal resorted to, the orders on which were found unsatisfactory by appellant Shri Paul.


In file Nos. CIC/WB/C/2008/00378 and CIC/WB/C/2008/00169 appellant Shri Paul has moved three requests for information before CPIO, NSCS on 18th and 26th February, 2008.
In the application of 18-2-08 Shri Paul had sought the following information:
“(a) NSCS had accorded the sanction on behalf of the Central Government in accordance
with section 197 Cr.PC, 1972 vide NSCS letter No. C-11017/1/2006-Admn dated 14.12.2006 to prosecute me in the above mentioned case. Please provide the photocopy of the letter of special cell, New Delhi, seeking the sanction u/s 197 Cr.PC from NSCS and also the reply covering letter of NSCS, through which the aforesaid sanction was granted.
(b) Photocopy of the file notings, based on which the sanction for u/s 197 Cr.PC been accorded. As my personal liberty is at stake, I therefore request that this information be provided for my defence within 48 hrs of receipt of this letter in accordance with section 7 (1) of RTI, 2005.”


In the first application of 26-2-08 appellant sought the following information from CPIO, NSCS:
“a. During my tenure in NSCS, with the help of information available on the website of CETR-IN, I had drafted an Information Security Policy for NSCS which was get implemented. This is not a classified document, as it was to be circulated even to non-gazetted staff for its optimum implementation. All officers of NSCS were provided one copy each for them and their staff. Please provide the copy of Information Security Policy as mentioned above. b. After prolonged deliberation with STQC (Standard Training Quality Certification) of Department of Information Technology (MC&IT), I had sought their help to undertake information security audit. Please provide copy of the letter to STQC, sent around April-May-June 2005. This is also not a classified document as this letter was just duplication of what had been sent through e-mail according to STQC policy. And according to government policy no classified information can be sent through email.” In the second application of 26-2-08 following is the information sought:
“(a) NSCS had accorded the sanction behalf of the Central Government in accordance with section 197 Cr.PC, 1972 vide NSCS letter No. C-11017/1/2006-Admn dated 14.12.2006 to prosecute me in the above mentioned case. Please provide the photocopy of the letter of special cell, New Delhi, seeking the sanction u/s 197 Cr.PC from NSCS and also the reply covering letter of NSCS, through which the aforesaid sanction was granted.
(b) Photocopy of the file notings, based on which the sanction for u/s 197 Cr.PC been accorded. As my personal liberty is at stake, I therefore request that this information be provided for my defence within 48 hrs of receipt of this letter in accordance with section 7 (1) of RTI, 2005.”


In his application dated 12-11-07 of file No. CIC/WB/A/2008/00271 Shri Paul sought the following information from CPIO, NSCS:
“(a) Information relates to the undersigned, who was working with your organization as Sr. System Analyst from 14.09.2001 to 10.06.2006. His Human Rights are being violated as he is in judicial custody in a false case (FIR No. 42/06) by Special Cell, New Delhi.
(b) Please provide information on search carried out of his office on 9.6.2006 and 10.06.2006.
(c) Please confirm his room/cabin was sealed on 9.6.2006 onward.
(d) Please confirm as to whether his office computer and files were looked into by any search party on 9.6.2006 and 10.6.2006.
(e) Please attach file noting and documentary evidence of these searches.

As personal liberty of the undersigned, erstwhile Sr. System, Analyst, NSCS is at stake, the undersigned is, therefore, request that this information be provided within 48 Hrs on receipt of this letter in accordance with Section 7 (1) of Right to Information Act, 2005.”


In file No. CIC/WB/C/2008/00378 the application of 18-2-08 was replied through a letter of 18-3-07 from Shri G. Rajeev, CPIO & Under Secretary, NSCS refusing the information sought u/s 8 (1) sub-section (a). This was repeated in reply to the applications of 26-2-08 both of which were replied to by CPIO Shri Rajeev on 18-3-08. In these three cases the prayer of appellant before this Commission is as follows:
“(a) The Central Information Commission prevails upon Shri G. Rajeev, CPIO of NSCS to provide me the information as sought by me in all these applications under RTI Act 2005.
(b) Take appropriate action against the Central Public Information Officers of NSCS for denying me information’s with malafide intent, especially when my personal liberty is at stake and my Human Rights are violated through this false and fabricated case FIR No. 42/2006 of special cell.”


In the case in file No. CIC/WB/A/2008/00271 the information was refused by CPIO, Shri Rajeev on 22-11-07 u/s 8 (1) (h) of the RTI Act pleading ongoing investigation. In this case Shri Paul moved his first appeal before Shri Rohit Khera, Jt. Secretary, NSCS pleading as follows:
“The case FIR No. 42/2006 has already completed the investigation and submitted Charge Sheet on 8.9.2006. The supplementary Charge Sheet was submitted on 13.10.2006.
Thus no investigation is in progress in the case.”


However, 1st Appellate Authority Shri Rohit Khera JS (A) in his order of 22-1-08 dismissed the appeal u/s 8 (1) sub-section (g) as disclosure, in his view “is likely to reveal the sources relied upon during the enquiries against him, which will have adverse implications on national security”.
In this case appellant’s prayer before us in his second appeal is as below:
“(a) Call for the records of the NSCS on the subject matter.
(b) Order CPIO, NSCS to provide complete and ful information as sought by me in my RTI request lette dated 12.11.2007 (Enclsoure-1).
(c) Impose appropriate penalties and disciplinary action against the CPIO, NSCS as envisaged under section 20 (1) and 20 (2) of the RTI Act, 2005. it is because of the malafide denial of information, I could not secure bail and my personal liberty continues to be curtailedin this false case.
(d) Any other orders/ direction (s) as considered appropriate in view of the peculiarities of this case.”
All cases were heard on 16-7-2008 at Central Jail, Tihar, New Delhi.
The following are present:
Appellant
Shri Shib Shankar Paul.
Cdr (Retd) Mukesh Saini.
Respondent
CPIO Shri G. Rajeev, Under Secretary (Admn), NSCS.


In the meantime we received a request from Shri G. Rajeev, Under Secretary (Admn.) & CPIO, NSCS submitting that Shri V.K. Mall, IPS, Director, NSCS was the officer coordinating with the investigating agency to investigate the case as nodal officer. He has since reverted back to his cadre Gujarat as IGP since 23rd May, 2008. His assistance was requested in hearing the case for which adjournment was requested. We have in the hearing however heard the appellant.
Appellant Shri Paul has invited our attention to a report in the Hindustan Times of 26th May, 2007 in which it has been reported as follows:
“According to an NSCS official, when the IB, which broke the case, arrived to question Paul on June 9, he cooperated with them explaining the file retrieval and firewall system he had set up for the organisation. He came early the next day, Saturday to assist them further.”


He has, therefore, submitted that the order in this case of the 1st Appellate Authority in which despite his cooperation and although the investigation has been completed and charge sheet submitted, he has still not been provided information on grounds of exemption sought u/s 8 (1) (g).


He further submitted that NSC had been misled by a fake report by the police, which he can establish provided he is given the information that he seeks, created by himself during his service with the NSCS. Shri Paul also submitted a file providing detailed response to each question raised through the processing of his application.


Having heard the appellant Shri Shib Shankar Paul the hearing was adjourned to 6-8-08 At 4.30 P.M. when Shri V.K. Mall, presently, IGP, Gujarat would appear before us. In doing so he was directed to take care to have first studied the judgment of Justice Ravindra Bhat in W.P. No. 3114/2007 of the Delhi High Court in Bhagat Singh vs. CIC while seeking exemption under any of the provisions of Section 8 (1) to the disclosure of information sought by appellant Shri Paul. He was also directed to bring with him the requisite file so as to satisfy us that there is ground for the plea taken u/s 8 (1) sub-section (g).


According to our decision of 16.7.08, the following appeared before us on 22.9.2008 at 1.00 p.m. :
Respondents
Sh. V. K. Mall, IGP Govt. of Gujarat
Sh. G. Rajeev, US(A), NSCS
Shri V. K. Mall IGP, Govt. of Gujarat submitted that all the documents that he held with regard to the case of Shri Paul have been transferred to the HO, NSCS. He further submitted that his role in this case, having joined the NSCS after the arrest of appellant Shri Paul was more in the nature of a post office. He, therefore, had no fresh information to disclose. Mr. G. Rajeev US (A) submitted a copy of the Information Security Policy circulated within the NSCS by Joint Secretary Shri Arvind Gupta on 6.7.05. Although he agreed this policy was not marked confidential, it was only for internal circulation within the public authority.
On the application of 26.2.08, while, therefore, a copy of the Information Security Policy has been submitted, the letter to STQC of Department of Information & Technology was also sought regarding which Shri Rajeev stated that the office of NSCS has no record.


He also submitted a copy of correspondence indicating that the NSCS has moved for inclusion in the Second Schedule of the RTI Act, 2005,, a proposal which is now before the highest authorities.
In his application of 18.2.08 Shri Paul had asked for a photocopy of visitors register dated 5.6.06 to 10.6.06. Shri Rajeev, while submitting the register for our inspection, pleaded that disclosure of such information would disclose the names of the visitors to the NSCS, which could compromise
national security and, therefore, has been refused u/s 8(1)(a). He offered to provide the information regarding any specific entry that appellant sought.


With regard to the second application of 26.2.08 and the application of 12.11.07 in File No. CIC/WB/A/2008/00271 Shri Rajeev submitted that he would submit the documents on the following date. The hearing was, therefore, adjourned to 23.9.08 at 10.00 a.m. On 23-9-08 the following appeared before us, together with relevant records:
Respondents:
Shri Rohit Khera, Jt. Secretary, NSCS
Shri G. Rajeev, US (A), NSCS
File No. CIC/WB/A/2008/00271


We examined the records. In this case a report has been received from an organisation exempted from the Act on 8.1.2008. However, there is a police report of 7.1.2008 in which each question raised by appellant Shri Paul has been answered by the DCP Special Cell in letter addressed to DCP (HQ), Delhi Police.
On the first request of 26.2.2008 the information sought by appellant and the documents inspected relevant thereto can be categorised as follows:-
Photocopy of the letter of Special Cell, New Delhi seeking sanction u/s 197 Cr.PC. The letter of concern is of 13.9.2006 to DCP HQ from DCP, Special Cell.
Covering letter of NSCS through which aforesaid sanction was granted. This is a letter of 14.12.2006 from Director (Adm) NSCS to DCP (HQ) Delhi, Shri H. N. Meena.
Photocopy of the file noting based on which sanction u/s 197 Cr.PC has been accorded.
 Page 1 of the noting seeking the sanction refers to a communication received from an organization exempt u/s 24 (1) of the RTI Act. This reference is at page 1 of the noting. However, the remaining part of the noting is the noting between NSCS and PMO on pages 2, 3, & 4 in which there is only a passing reference to the above mentioned exempted organisation.

DECISION NOTICE
Having examined the records and heard both parties we hereby direct as follows;-
1. File No. CIC/WB/A/2008/00271
In this case the information sought is forthright and a response to each question has, in fact, been received from the Delhi Police. This response does not contain any information that could identify and thus compromise the security of any person. The decision of Shri Rohit Khera, JS (Admn)
and 1st Appellate Authority on 22.1.2008 in this matter is, therefore, set aside. CPIO Shri Rajeev will provide a copy of the police report to appellant Shri Shiv Shankar Paul within 10 working days of the date of receipt of this decision notice.
2. In the 3 applications considered in file No. CIC/WB/C/2008/00378 and  IC/WB/C/2008/00169 our decision is the following in respect of each:-
a) Application of 18.2.2008. In this case we agree with respondents that the names of visitors to the NSCS, which as the name of this public authority implies is the apex security agency in the country would decidedly compromise national security and merits exemption from disclosure u/s 8 (1) (a). However, as offered by CPIO, if there is any specific individual regarding whose visit appellant would wish to enquire it would be open to him to communicate the same to the CPIO Shri Rajeev who will examine disclosure of this information in the context of this subsection.  The action of CPIO refusing information on this request is, therefore upheld with the above qualification.
b) In application of 26.2.2008 in which copy of the information on Security Policy has been received, this document is not even marked ‘confidential’. We have examined this policy in some detail; it has several sub-heads namely physical security, fire protection, prevention of computer misuse, advice on selecting passwords, media management, media movement, back up of data, measures to handle computer virus, hardware and software maintenance, purchasing and licensing of hardware and software connectivity, network administration, inventory, internet services, browsing safely, using caution with e-mail attachments, reducing Spam, chain letter (hoaxes and urban legends) and protecting privacy.
These are all general principles of computer management. Eminently advisable to any user of a computer to adopt. It is a policy obviously designed to rain those not highly computer literate, to maintain a level of security of the data that they have stored. There is nothing whatever in this policy document which could compromise National Security. A copy of this document will, therefore, be provided to appellant Shri Paul within 10 working days of the date of receipt of this decision notice.
However, since the information sought in the second question of the same application, which is the correspondence with STQC is not held by the NSCS, this cannot be supplied.
c) On the second application of 28.2.2008, part of the information sought by appellant can be considered security sensitive. It is, therefore, after examination decided as follows:-
The letter of Special Cell New Delhi in which prosecution is recommended u/s 197 Cr.PC from NSCS contains details of the internal functioning of the NSCS. It also describes the manner in which an employee in such an agency can be inveigled into compromising security. During the hearing Shri Rohit Khera reiterated that the NSCS being a premier security agency of the country is cautious in disclosing any aspect of its internal functioning. Disclosure of this information, in his view, would disable efforts initiated to strengthen the security of the agency exposing loopholes to espionage agencies interested in penetrating the NSCS. Having examined these records we are ready to subscribe to the view that disclosure of this letter could amount to such a compromise. However, the covering letter of NSCS through which the aforesaid sanction was granted which is the letter of 14.12.2006 from the Director (Admn), NSCS to DCP, (HQ), Delhi Shri H. M. Meena, also sought by appellant Shri Paul, on the other hand contains no such sensitive information and can be disclosed.


Similarly we have examined the photocopy of file noting. Applying the principle of severability u/s 10(1) we find nothing in pages 2, 3, and 4 of the file noting which could in any way infringe on national security. Therefore, severing page 1, which refers to the recommendations received from an exempted organisation, information furnished by which to Government is exempt from disclosure u/s 24 (1), the remaining file noting may be provided to appellant Shri Shiv Shankar Paul. As in a & b above the information directed to be disclosed with regard to this case also be provided to the appellant within 10working days of the date of receipt of this decision notice.


The appeal is thus allowed in part. There will be no cost. However, since the information now directed to be disclosed was not disclosed within the time limit mandated u/s 7(1), this will, therefore be provided free of cost u/s 7(6)

Announced in the hearing. Notice of this decision be given free of cost to the parties.


(Wajahat Habibullah)
Chief Information Commissioner
23-9-2008


Authenticated true copy. Additional copies of orders shall be supplied against application and payment of the charges prescribed under the Act to the CPIO of this Commission.


(Pankaj K.P. Shreyaskar)
Joint Registrar
23-9-2008

Identity not required to get reply by the PIO

                                             Central Information Commission
                                           2nd Floor, August Kranti Bhawan,
                                       Bhikaji Cama Place, New Delhi-110066
                                                Website: http://www.cic.gov.in/
                                                                          Decision No. 4268/IC(A)/2009
                                                                          F. No. CIC/MA/C/2009/00246
                                                                                 Dated, the 6th August, 2009


Name of the Appellant:  Shri Bhaskar Jyoti Gogoi
Name of the Public Authority:  Oil India Limited

Facts: 1. The complainant has alleged that the CPIO of the respondent has refused to furnish the information on the ground that the appellant has not submitted a proof of his citizenship.


2. On perusal of the documents submitted by the appellant, it is noted that the appellant has asked for information regarding the selection of Junior Engineers.

Decision:
3. A Public Authority is expected to disclose the information relating to the outcome of the process of selection of staff. In view of this, the denial of information merely on the ground that the appellant has not submitted his citizenship proof, is unacceptable.


4. The CPIO is directed to furnish the information asked for by the complainant free of cost within 15 working days from the date of issue of this decision, failing which penalty proceedings u/s 20 (1) of the Act would be initiated. The complaint is thus disposed of.

                                                                                                     Sd/-
      
                                                                                           (Prof. M.M. Ansari)
                                                                                Central Information Commissioner
Authenticated true copy:

(M.C. Sharma)
Assistant Registrar

Name and address of parties: 2
 1. Shri Bhaskar Jyoti Gogoi, Naharkatia Town, Lachit Nagar, Ward No. 3, Naharkatia-786610, Dibrugarh, Assam.
 2. Shri K.K. Sharma, Head – Planning & CAPIO, Oil India Limited, Duliajan-786602, Dibrugarh, Assam.

Hearing order must be given only by First Appellate Authority and not by PIO

                                 Central Information Commission
                          No.CIC/WB/A/2007/01166 dated 6.3.2007                             
                      Right to Information Act-2005-Under Section (19)

                                                                                               Dated 01.04.2009

Appellant: Shri R.L. Kain
Respondent: Ministry of Defence

The Appellant along with Shri Manoj Kumar Kain, is present. On behalf of the Respondent, the following are present:-   (i) Shri V.K. Lagan, Dir (Estt)  (ii) Shri A.K. Gupta, US
The brief facts of the case are as under.

2. The Appellant had, in his application dated 6 March 2007, requested the CPIO for a large number of information on the action taken by the authorities on a number of representations made by him regarding the garlanding of the statue of Dr Ambedkar in the Parliament House lawns by the President of India on the Republic Day. The CPIO, in his reply dated 28 match 2007, requested the Appellant to provide him the copies of his applications as those were not found received in their office. Finally, in his reply dated 26 April 2007, the CPIO responded to various queries made by the Appellant by providing comments/clarification/information on each of them. Not satisfied with the reply of the CPIO, he preferred an appeal before the first Appellate Authority on 9 May 2007. On behalf of the first Appellate Authority, the CPIO informed the Appellant that the first Appellate Authority considered his appeal but endorsed the decision of the CPIO. The Appellant has come before the CIC in second appeal against the order of the Appellate Authority as conveyed by the CPIO. No.CIC/WB/A/2007/01166 dated 6.3.2007


3. During the hearing, both the parties made several submissions. The Appellant was specially concerned that the Public Authority did not maintain records filed by citizens as expected under the Right to Information (RTI) Act. He referred to his own representations made to various authorities in the government in this regard and also referred to a communication sent by the then Home Minister to the Defence Minister, action taken on which was sought by him. The Respondent submitted that the CPIO had searched the records in the Ministry but could not trace many of these documents, possibly because these were sent many years back. The Respondent also argued that many of these documents could have been weeded out following the retention schedule of records prevalent in the government.


4. In spite of the above, we would like to direct the CPIO to provide to the Appellant within 10 working days from the receipt of this order a copy of the government order on retention schedule of records and also a copy of the relevant register, if available, in which the representations sent by the Appellant to the Ministry or to any other authority which got transferred to the Ministry had been destroyed/weeded out following the retention schedule. We also direct the CPIO to provide copies of the file notings of the file in which the joint memorandum of January 2007 had been processed (item 4 of the application).


5. The Appellant drew our attention to the fact that the RTI applicants had been finding it difficult to give their applications and the application fees to the various CPIOs in the Defence Ministry causing harassment to the citizens. The Respondent said that the Ministry had since made adequate arrangements to receive such applications without any difficulty to the public. We would expect that the Ministry would be more sensitive to the needs of the citizens and improve its infrastructure so that the citizens would find it easy to give their applications and application fees for securing information from the Ministry. No.CIC/WB/A/2007/01166 dated 6.3.2007


6. In this case, we also noted that the first Appellate Authority did not pass the order himself on the appeal filed before him but asked the CPIO to convey the order on its behalf. This is not permissible. The first Appellate Authority has to hear the appeal himself and give an opportunity of hearing to the Appellant and pass the order. It is not correct to delegate this function to someone else.


7. With the above directions and observations, the appeal is disposed off.


8. Copies of this order be given free of cost to the parties.


        Sd/-
(Satyananda Mishra)
Information Commissioner


Authenticated true copy. Additional copies of orders shall be supplied against application and payment of the charges prescribed under the Act to the CPIO of this Commission.

(Vijay Bhalla)
Assistant Registrar

First Appeal Authourity must give a hearing order

                             Central Information Commission
                     No.CIC/WB/A/2007/01166 dated 6.3.2007                                 
                Right to Information Act-2005-Under Section (19)

                                                                                                     Dated 01.04.2009


Appellant: Shri R.L. Kain
Respondent: Ministry of Defence

The Appellant along with Shri Manoj Kumar Kain, is present. On behalf of the Respondent, the following are present:-   (i) Shri V.K. Lagan, Dir (Estt)  (ii) Shri A.K. Gupta, US
The brief facts of the case are as under.

2. The Appellant had, in his application dated 6 March 2007, requested the CPIO for a large number of information on the action taken by the authorities on a number of representations made by him regarding the garlanding of the statue of Dr Ambedkar in the Parliament House lawns by the President of India on the Republic Day. The CPIO, in his reply dated 28 match 2007, requested the Appellant to provide him the copies of his applications as those were not found received in their office. Finally, in his reply dated 26 April 2007, the CPIO responded to various queries made by the Appellant by providing comments/clarification/information on each of them. Not satisfied with the reply of the CPIO, he preferred an appeal before the first Appellate Authority on 9 May 2007. On behalf of the first Appellate Authority, the CPIO informed the Appellant that the first Appellate Authority considered his appeal but endorsed the decision of the CPIO. The Appellant has come before the CIC in second appeal against the order of the Appellate Authority as conveyed by the CPIO. No.CIC/WB/A/2007/01166 dated 6.3.2007


3. During the hearing, both the parties made several submissions. The Appellant was specially concerned that the Public Authority did not maintain records filed by citizens as expected under the Right to Information (RTI) Act. He referred to his own representations made to various authorities in the government in this regard and also referred to a communication sent by the then Home Minister to the Defence Minister, action taken on which was sought by him. The Respondent submitted that the CPIO had searched the records in the Ministry but could not trace many of these documents, possibly because these were sent many years back. The Respondent also argued that many of these documents could have been weeded out following the retention schedule of records prevalent in the government.


4. In spite of the above, we would like to direct the CPIO to provide to the Appellant within 10 working days from the receipt of this order a copy of the government order on retention schedule of records and also a copy of the relevant register, if available, in which the representations sent by the Appellant to the Ministry or to any other authority which got transferred to the Ministry had been destroyed/weeded out following the retention schedule. We also direct the CPIO to provide copies of the file notings of the file in which the joint memorandum of January 2007 had been processed (item 4 of the application).


5. The Appellant drew our attention to the fact that the RTI applicants had been finding it difficult to give their applications and the application fees to the various CPIOs in the Defence Ministry causing harassment to the citizens. The Respondent said that the Ministry had since made adequate arrangements to receive such applications without any difficulty to the public. We would expect that the Ministry would be more sensitive to the needs of the citizens and improve its infrastructure so that the citizens would find it easy to give their applications and application fees for securing information from the Ministry. No.CIC/WB/A/2007/01166 dated 6.3.2007


6. In this case, we also noted that the first Appellate Authority did not pass the order himself on the appeal filed before him but asked the CPIO to convey the order on its behalf. This is not permissible. The first Appellate Authority has to hear the appeal himself and give an opportunity of hearing to the Appellant and pass the order. It is not correct to delegate this function to someone else.


7. With the above directions and observations, the appeal is disposed off.


8. Copies of this order be given free of cost to the parties.

Sd/-
(Satyananda Mishra)
Information Commissioner

Authenticated true copy. Additional copies of orders shall be supplied against application and payment of the charges prescribed under the Act to the CPIO of this Commission.

(Vijay Bhalla)
Assistant Registrar

witten arguments for 3rd party and compliance of procedure

                                    CENTRAL INFORMATION COMMISSION
                              Appeal No.CIC/WB/A/2007/01675 dated 24.12.2007
                                        Right to Information Act 2005 - Section 19


Appellant : - Ms. Hema D'Souza
Respondent: - Dy. Commissioner of Police (DCP - Vigilance)

Facts:
By an application of 26.10.07 Ms. Hema D/Souza of Dwarka New Delhi applied to the PIO / DCP (Vigilance) seeking the following information: "a. Please provide date on which was ACP Shri Vijay Manchanda, was suspended.
b. Please provide copy of the certified suspension order of ACP Shri Vijay Manchanda.
c. Please provide names and designation of enquiry officers. d. Please provide the date of retirement of ACP Shri Vijay Manchanda.
e. Please provide date of revocation of suspension, if applicable.
f. Please provide a certified copy of the revocation order. g. Please advise the charges against ACP Shri Vijay Manchanda.
h. Please provide a certified copy of the charges against ACP Shri Vijay Manchanda.
i. Please provide probable date of culmination of departmental enquiry, if applicable.
j. Please provide a certified copy of the decision on culmination of the departmental enquiry proceedings. k. If exonerated, reasons u/s 4 (1) (d) RTI Act, attributed by concerned officials.
l. Certified copy of the recommendations/ note sheets, leading to exoneration.
m. Inspection of relevant files and records/ documents. n. Certified copies of documents on inspection of relevant files and records/ documents."


In his response of 7.11.07 DCP (Vigilance) refused the information sought, as follows:
"I am to inform you that the documents/ information asked by you can not be furnished to you as per section 8 (1) (j) & 11 (1) of RTI Act."
Aggrieved Ms. D'Souza moved a first appeal in which, after citing several decisions of this Commission on the application of exemption u/s 8(1) (j), she concluded with the following prayer:
"a. First Appellate Authority may please take note of the appellant's contentions, especially, in terms of the various CIC decisions cited in para 3 (c) of this appeal, before passing an order.
b. Response to queries. Inspection of all relevant enquiry files/ documents and certified copy of documents on inspection."


However, Shri R. K. Upadhyaya in his order of 6.12.07 summarily rejected this appeal stating as follows:
"There is nothing in the present appeal that may warrant interference with the orders of PIO/ Vigilance, which are strictly as per the provisions of the RTI Act, 2005."


This has brought Ms. D'Souza in her second appeal before us with the following prayer:
"a. Response to queries.
b. Inspection of all relevant enquiry files/ documents and certified copy of documents on inspection.
c. Imposition of penalty u/s 20 of the Act."


The appeal was heard on 17.4.2009. The following are present:
Appellant: Mr. M. D'Souza
Respondents: Mr. M. N. Tiwari, DCP (Vigilance)
Shri D'Souza submitted a letter of authority signed by appellant Ms. Hema D'Souza authorizing him to represent her in the hearing. This has been placed on record.


PIO Shri M. N. Tiwari, DCP (V) submitted that he assumed office recently and agreed that at least part of the information sought should have been supplied to appellant and, therefore, sought time to do so.
Shri D'Souza submitted written arguments in support of Ms. Hema D'Souza's appeal concluding with the following: "a. Issue standing orders of the First Appellate Authority to dispose the appeals in accordance with provisions of the RTI Act and the contentions and citations put forth by the appellant, thereby reducing the burden on CIC and forcing the appellant to undergo delay, harassment and the rigmarole of appeals.
b. Direct CPIO and First Appellate Authority to adhere to the principles of natural justice and to pass reasoned speaking order in all cases, and
c. Initiate penalty proceedings u/s 20 (1) and recommended departmental disciplinary action u/s 20 (2), in this case of violation of provisions of RTI Act by the Public Information Officer, and
d. Pass any such order that this Commission may deem fit and proper in the facts and circumstances of the present case."


She has, in this submission, relied on the requirement of the RTI Act u/s 7(8) (1) that in rejecting an application, reasons be provided. She has also taken recourse to the proviso to sec. 8(1)(j) with regard to disclosure of information that cannot be denied to Parliament and to the fact that w.r.t. sec. 11(1) only such information merits such reference that is under consideration for disclosure and has been treated confidential by the third party. She has further argued that the response of both CPIO and appellate authority militate against the principles of transparency and accountability and has cited the decision of the Kerala High Court in Canara Bank vs. C.I.C. - AIR 2007 Ker 225 together with the decisions of this Commission in Shri Dhananjay Tripathi vs. BHU File No. CIC/OK/A/2006/00163, dated 7th July, 2007 in Shri Dharmendra Sharma vs. Shri D. C. Srivastava, DCP, Delhi File No. CIC/AT/A/2006/00535 dated 19th January, 2007 in Shri Janardan Dubey vs. MHA, File No. CIC/AT/A/2007/00086 dated 28th March, 2007 in Shri Surender Kumar vs. CFSL, File No. CIC/WB/A/2007/00064 dated 18th January, 2007, in decision of Shri Mahavir Singhvi vs. MEA, File No. CIC/OK/A/2006/00010, A/2006/00027 & A/2006/00049, dated 7th July, 2006, and Shri Shahzad Ahmed vs. Shri R. P. Upadhyay, DCP Vigilance, File No. CIC/AT/A/2006/00199 dated 20th September, 2006 in


                                                      DECISION NOTICE

There is little doubt that the information sought in this request is that concerning a third party namely ACP Shri Vijay Manchanda. Nevertheless, in this case the information sought regarding ACP Shri Vijay Manchanda is with regard to a public activity i.e. an official enquiry against Shri Vijay Manchanda and results arising wherefrom. The judgment of the Delhi High Court in W.P. (C) No.3114/2007 - Shri Bhagat Singh Vs. Chief Information Commissioner & Ors cited by appellant in her written statement is also of relevance, although it deals principally with the application of sec. 8(1) (h) Justice Bhat has also enunciated the principles of application of all exemptions u/s 8(1), which requires that the recourse to exemption of any nature needs to be fully explained:

It is a fact that we do not have a law on the protection of privacy in India. In this Commission, we have been guided by the Data Protection Act of 1998 of U.K. and the USA's Law of Torts on privacy. These lay down as follows: U.K. Data Protection Act 1998,

In the U.K's. Data Protection Act 1998, Sec.2 titled Sensitive Personal Data, defines this as personal data consisting of information as to: a. The racial or ethnic origin of the data subject. b. His political opinions
c. His religious beliefs or other beliefs of a similar nature d. Whether he is a member of a Trade Union. e. His physical or mental health or condition. f. His sexual life.
g. The commission or alleged commission by him of any offence.
h. Any proceedings for any offence committed or alleged to have been committed by him, the disposal of such proceedings or the sentence of any court in such proceedings."

U.S. LAW OF TORTS.
The US Restatement of the Law, Second Torts, 652 defines the Intrusion of Privacy in the following manner:-
"One, who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another of his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person."


However, both these will relate to activity of a private nature undertaken by a private citizen whereas in this case the information sought is that of an activity of an official nature undertaken by an official. For this reason, we can understand the intention of the PIO to disclose the information sought. Hence a reference u/s 11(1). However, if the intention is in any case to seek exemption u/s 8(1) sub sec. (j), as rightly pleaded by appellant Ms. D'Souza, there needed to be no question of referral u/s 11 sub sec. (1).


In this case, therefore, we hold that the information sought merits disclosure. However, following from the fact that the information relates to a third party, who is not party to this case, which the third party may have treated as confidential, such disclosure will only be made after obtaining any objection from the third party Shri Vijay Manchanda within five days of receipt of this Decision Notice us 11 (1) of the Act. Thereafter, CPIO is allowed a further ten days to examine these objections, exercise his judgment and disclose such information, as he then finds merits disclosure, an exercise that may be completed within fifteen working days of the date of receipt of this Decision Notice. The appeal is thus allowed.


On the plea for penalty, however, we find that both the CPIO and Appellate Authority have responded to the RTI application well in time. We have, however, taken note of the plea of Shri M. D'Souza during the appeal that he has been shabbily treated with regard to every application made to the Police Department by his wife Ms. Hema D'Souza and himself. We also find that there is no ground for so summarily rejecting the first appeal, as has been the instance in this case, demonstrating a total lack of application of mind. First Appellate Authority Shri Upadhyaya is cautioned to ensure issue of reasoned orders in disposal of first appeal in all cases brought before him as Appellate Authority under the Right to Information Act, lest he open his Dep't to the liability of paying compensation u/s 19 (8) (b).


Announced in the hearing. Notice of this decision be given free of cost to the parties.

(Wajahat Habibullah)
Chief Information Commissioner
17.4.2009

Authenticated true copy. Additional copies of orders shall be supplied against application and payment of the charges, prescribed under the Act, to the CPIO of this Commission.
(Pankaj Shreyaskar)
Joint Registrar
17.4.2009

Decision to withdraw license of non-aided private school for non compliance

                                                Central Information Commission
                                                        Block-IV, 5th Floor,
                                            Old JNU Campus, New Delhi-110067
                                                Website: http://www.cic.gov.in/

                                (Adjunct to Decision No. 714/IC(A)/2007 dated, 14th May, 2007)
                                                                                    Decision No. 1231 /IC(A)/2007
                                                                                     F. No. CIC/MA/A/2007/00104
                                                                                   Dated, the 12th September, 2007


Name of the Appellant: Shri D.K. Chopra.
Name of the Public Authority: Directorate of Education, GNCT of Delhi

Facts: 1. The appellant had asked for certain information, which were furnished, except the minutes of the Managing Committee (MC) of Purna Prajna Public School, Vasant Kumj, New Delhi. The Commission examined the appeal and made the following observations in it’s decision No. 714/IC(A)/2007 dated 18th May, 2007:-
                     • The PIO is directed to obtain, u/s 2(f) of the Act, the minutes of the Managing    
                       Committee meetings from March 2002 to March 2007 from the school and provide a
                       copy to the appellant.
                    • The information sought as above should be furnished within 15 working days from the
                       date of issue of this decision.


2. Subsequently, the appellant informed the Commission that the PIO has not complied with the above decision. The PIO, in turn, stated that he had no legal authority to obtain the information from the school.

3. Both the parties were therefore issued notices for a hearing again in the matter of non-compliance of above decision. The parties were heard on 20th August , 2007 and 12th September, 2007. A representative of the PIO reiterated that under Delhi Education Act, the documents which could be obtained, are specified under Annexure-II in which the document, namely minutes of the meeting of the Managing Committee of schools is not included. The Department of Education was therefore unable to acquire the minutes of the Managing Committee from the concerned school as directed by the Commission. Though an official of the respondent is a member of the MC, the PIO has however no access to the minutes of MC, it was contended.


Decision:

4. The main issue that emanate from the foregoing is that the Government of Delhi has no control on the functioning of un-aided schools and that it cannot access the minutes of MCs under any law, which is un-acceptable to the Commission.

5. A major objective of the RTI Act is to ensure transparency and accountability in functioning of the institutions, particularly the service providers that have considerable interface with a larger section of people. The documents, in question, contain such information that foretell about the health and vitality of the schools, which are responsible for preparing our children to lead the nation. Moreover, the information asked for is an outcome of deliberations of the major stakeholders – school authorities, teachers, representatives of PTA and the Government of Delhi. The minutes of MCs are thus already  in public domain, as these are circulated among the members. How can it be treated as confidential or secret? Unfortunately, the Principal of the school and the PIO have connived to withhold the minutes of the MCs for reasons that contravene with the larger purpose of creating an information regime for good governance.


6. As the activities of the functionaries of the education sector have intense and pervasive influence on every human activity, the decisions taken by the Managing Committees have considerable implications for promoting quality education and the well-being of the entire society. Such documents, therefore, cannot be claimed as secret information by any school which performs a governmental function. The Principal of the school and the PIO have thus failed to appreciate the intent and purpose of the Act which seeks to promote people’s involvement in decision making processes and implementation of programs.


7. All the aided or unaided schools are performing governmental functions to promote high quality of relevant education. An official of the GNCT of Delhi is nominated by the Directorate of Education as a member of the Management Committee of all the schools. The nominated member of the Directorate of Education is therefore the custodian of the minutes of the MCs under section 5(4) of the RTI Act. And, there is no reason why such minutes, reflecting the aspects of governance of the school, should not be put in public domain. The Government has the control on the functioning of the schools and, therefore, it has access to the information asked for. And, so has a citizen.


8. Not only the land allotted to private educational institutes are provided at subsidized rates, but also the fees paid by the students/parents enjoy income-tax concession. There is thus some element of indirect Government funding in the activities of even private and un-aided schools. In view of this, the respondent, which is represented through its officials on the Managing Committee, is surely  the custodian of the information asked for by the appellant. The decisions of the MCs have significant bearing on the life and career of the students as well as their parents / guardians and, therefore, there is no reason why the minutes of the Managing Committee should not be disclosed to the affected persons i.e. the citizens.


9. The PIO’s contention that the minutes of the MCs are not included in Annexure-II of Delhi Education Act and, therefore, he cannot acquire them is not acceptable, as Section 22 of the RTI Act, 2005 has an overriding effect on all such provisions that come in the way of promotion of transparency in functioning of the schools, the activities of which are governmental in nature. The PIO is directed again to furnish the information at the earliest under intimation to the Commission.


10. The then PIO Dr. R. A. Yadav and the present PIO Mrs. S. Kaur, DDE are also held in violation of section 7(1) of the Act. They are therefore directed to show cause as to why a penalty of Rs. 25,000/- should not be imposed on them us 20(1) of the Act, for their deliberate attempt to deny the information asked for by the appellant. Inspite the direction given by the Commission, they have made no worthwhile effort to acquire the document from the school or the nominated member of the respondent. They should submit their written submission and also appear for a personal hearing before the Commission on 12th October, 2007 at 2.00 p.m. (at 2nd floor, August Kranti Bhawan, Bhikaji Cama Place).


11. In view of lackadaisical attitude of the concerned PIO and the Principal of the school towards the implementation of the RTI Act, the Commission’s order of dated 18.5.2007 has not been complied with, which is unfortunate The Director (Edu.), Directorate of Education, GNCT of Delhi is therefore directed to initiate appropriate action against the school, including cancellation/withdrawl of it’s recognition, as the school has chosen to function in a manner which is not duly transparent and is, thus, inconsistent with the ethos and purpose of the RTI Act. An action taken report should be submitted to the Commission at the earliest.

12. Moreover, because of non-compliance of decision of the Commission of 18th May, 2007, at least two additional hearing were unnecessarily conducted at the instance of the respondent. And, the appellant had to attend the hearing, which resulted in incurring of avoidable expenditure on travel, loss of resources and time. The Director (Education), on behalf of the Directorate of Education, GNCT of Delhi should explain as to why a suitable compensation, u/s 19(8) (b) of the Act, should not be awarded to the appellant for the detriment suffered by him. On behalf of the Directorate of Education, the Director of Education should explain on the date and time, as mentioned above, and may also appear for personal hearing in the matter.


13. The Commission is constrained to observe that a large number of officials of the Directorate of Education, in general, and the PIOs/Appellate Authorities, in particular, have failed to appreciate the spirit of the Act for promotion of openness in their functioning. The Director (Edu.), Dte. Of Education is therefore directed to organize education & training program for its officials, as mandated u/s 26 of the Act, in order to equip them for effective implementation of the provisions of the Act.


14. The compliance of the decision, as above, would be reviewed by the Commission in due course.

                                                                                                                 Sd/-
                                                                                                    (Prof. M.M. Ansari)
                                                                                                Information Commissioner

Authenticated true copy:

(L.C. Singhi)
Additional Registrar


Name and address of parties:
 1. Shri D.K. Chopra, A/A 1039, Vasant Kunj, New Delhi-110070.
 2. Mrs. Salinder Kaur, PIO & DDE(SWE), Govt. of NCT of Delhi, Directorate of Education,
O/o Dy. Director of Education, District South West-A, Vasant Vihar, New Delhi.
 3. Dr. R.A. Yadav, DD(Inspection) (the then CPIO in this case), Directorate of Education, Govt. of NCT of Delhi, Old Secretariat, Delhi-110054.
 4. Shri Vijay Kumar, Director, Directorate of Education, Govt. NCT of Delhi, Old Secretariat, Delhi-110054.
 5. Dr. (Mrs.) R. Kohli, Principal, Poorna Prajna Public School, D-III, Vasant Vihar, New Delhi-110070.