Tuesday, March 16, 2010

Disproportionate Diversion of Resources under RTI Act 2005

Disproportionate Diversion of Resources under RTI Act 2005


Section 7 (9) of RTI Act 2005 reads as under:

An information shall ordinarily be provided in the form in which it is sought unless it would disproportionately divert the resources of the public authority or would be detrimental to the safety or preservation of the record in question.


In following cases it has been decided by CENTRAL INFORMATION COMMISSION, NEW DELHI that Section 7(9) of the Act does not provide ground for denial of information.

1. Decision No.CIC/OP/A/2009/000204-AD dated 12-01- 2010

………….As for information having been denied since its is voluminous, the Commission holds that Section 7(9) of the Act does not allow denial of information but denial of providing the same in the form in which it has been sought in the event this leads to disproportionate diversion of resources of the Public Authority………


2. Decision dated 12-03-2009 in appeal No.CIC/WB/A/2007/01042:

This would mean only that allowance is given where compiling information already held would present the difficulties described in the law to the public authority concerned. Information can in no case be denied u/s 7(9), which has only a qualifying clause and no exemption such as is provided u/s 8 sub sec. (1). The decision of Dr. Aditya Arya is, therefore, flawed, and is set aside. He will now review his decision in light of the above observations and ensure that appellant Shri Ajit Kar is provided the information to which he is entitled under the law within twenty working days of the date of issue of this Decision Notice. Appellant Shri Ajit Kar specifically invited our attention to the information sought in Para 30, which may be taken into consideration by the First Appellate Authority Dr. Aditya Arya, Jt. Commissioner of Police (Operations) during his examination. The appeal is thus allowed.

3. Decision dated 25.2.06 in appeal No.10/1/2005-CIC “

…Sec 7(9) of the Act does not authorize a public authority to deny information. It simply allows the authority to provide the information in a form easy to access….”

4. Decision dated 26.3.2008 in appeal No.CIC/WB/A/2007/00349 “..

It was explained to respondents that section 7(9) does not authorize refusal of information but only disclosure in a form other than that asked for, for reasons given ion that Section..”

5. Decision dated 9.1.2009 in appeal No.CIC/OK/A/2008/01256
“…The denial of information on the basis of Section 11 and Section 7 (9) of the Act was without any basis in law. Denial of information can only be under Section 8 (1) or Section 9. Section 11 sets out a procedure for giving the opportunity to a third party to give his objections and Section 7 (9) can be invoked only to state that information in the format demanded by the appellant is not possible. However the PIO would have to offer the information in an alternate format when invoking Section 7 (9)…”

6. Decision dated 22.10.08 in Appeal No. CIC/WB /A/2007/00528-SM

“…It is true that the Section 7(9) provides that information sought in a particular form should be provided in that form unless it would disproportionately divert the resources of the public authority or would be detrimental to preservation of record in question. That means, the public authority concerned should provide the information sought in a different form if he thinks, on reasonable grounds, that the form in which it has been sought would disproportionately divert the resources of the public authority. This provision in Section 7 is not a license to deny information. ..”

7. Decision No. CIC/OK/A/2008/01256/SG/0937 dated 09-01-2009.

Denial of information can only be under Section 8 (1) or Section 9.
Section 11 sets out a procedure for giving the opportunity to a third party to give his objections and Section 7 (9) can be invoked only to state that information in the format demanded by the appellant is not possible. However the PIO would have to offer the information in an alternate format when invoking Section 7 (9). Besides the queries do not lend themselves at all to using Section 11 or Section 7 (9). The PIO is directed to give the information to the appellant. He is also warned that denying information in this casual manner will invoke the penal provisions of Section 20 of the Act.

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8. Extract from judgement dated 07-01-2010 of HIGH COURT OF JUDICATURE AT MADRAS in W.P.NO.20372 of 2009 and M.P.NO.1 OF 2009

Available at http://judis.nic.in/chennai/qrydisp.asp?tfnm=22544

“13. 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 been guaranteed by the law of Parliament, the administrative difficulties in providing 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.”

9. Judgement dated 30-08-2010 of Hon’ble Kerala High Court in WP(C).No. 6532 of 2006(C)



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Happy RTIing

J. P. Shah 09924106490

Friday, March 05, 2010

COLLECTION OF INFORMATION UNDER RTI ACT

NOTE ON COLLECTING AND COMPILING OF INFORMATION UNDER RTI ACT 2005

DECISIONS OF CENTRAL INFORMATION COMMISSION:

Appeal No.CIC/WB/A/2007/01551 & 1552
Appellant - Shri P. Veerappan
Respondent - Department of Personnel & Training (DoPT)
Decided on 06-04-2009

This direction is defective on the ground that collection of information can in no account be constituted to amount to the creation of information.

[ Please also refer DoPT Office Memorandum dated 01-06-2009 appended at the end]
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Complaint No. CIC/WB/C/2007/00931
Appeal No.CIC/WB/A/2008/00886
Appellant - Mr. Muzibur Rahman
Respondent - Central Bureau of Investigation (CBI)
Decided on 28-08-2008
http://cic.gov.in/CIC-Orders/WB-28082008-06.pdf

Appeal No.CIC/MA/A/2006/00653 refers to a public authority not being expected to “create and generate afresh information ” where none exists, “because it is sought by an appellant”. Where the information already exists and the issue is simply compiling it to provide an applicant, it is quite clearly the responsibility of the CPIO who is expected to collate the existing information and provide it to the applicant, in the form ordinarily to be provided in which it is sought.
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Appeal No. CIC/WB/A/2007/00522 dated 1-4-2007
Appellant: Shri B. Madhusoodhanan Nair, Ernakulam
Respondent: Indian Rare Earths Ltd., Mumbai
Decision dated 26-09-2008
http://cic.gov.in/CIC-Orders/WB-26092008-03.pdf

Notwithstanding the above, however we are of the opinion after
discussing with CPIO that the information sought against question no. 4 of the RTI application will take not more than 2-3 days to compile since all that is required is 38 names together with their qualifications. Because appellant is facing difficulty in visiting the office of Indian Rare Earths Ltd. In order to inspect the files the CPIO has no objection to mailing this to him, which he has agreed to do.

CPIO Shri Sridharan will now compile and provide to appellant Shri
Madhusoodhanan Nair a summary of the list of candidates who applied against the said notification with their education qualification and experience and courier the same to him within 10 working days of the date of receipt of this decision notice.
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Appeal No. CIC/WB/A/2007/00999 dated 16-12-2006
Appellant: Shri Satya Narain Shukla, IAS (Rtd)
Respondent: Union Public Service Commission (UPSC)
Decision dated 08-05-2008
http://cic.gov.in/CIC-Orders/WB-08052008-02.pdf

Moreover, Section 7 (9) of the RTI Act clearly states that “an information should ordinarily be provided in the form in which it is sought1”. It is therefore, the duty of the CPIO to compile the information and provide it in the manner sought by appellant unless this would disproportionately divert the resources of the public authority or would be detrimental to the safety or preservation of the record in question.
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Complaint No.CIC/WB/C/2007/00345 dated 16.5.2007
Appellant - Sh. Karthik Jayashankar
Respondent - Ministry of Environment & Forests (MoEF)
Date of decision 18-02-2008
http://cic.gov.in/CIC-Orders/Decision_18022008_02.pdf

We agree with learned Counsel assisting appellant Ms. Lakshmi Jayashankar’s rejoinder quoted above that none of the grounds decided upon for denying information is valid. Under Rule 4 (a) of the RTI Act (Regulation of Fee & Cost Rules) 2005 which came into force on September 16, 2005 a fee is expected to be charged for each page “created or copied”, which indicates that all information held by or under the control of any public authority is accessible to the public as is covered by the ‘right to information’ defined in sec. 2(j), even when it needs to ‘collected’. This is, of course, subject to the exceptions laid down in sec. 7(1).
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DoPT OFFICE MEMORANDUM No. 10/2/2008-IR dated 01-06- 2009

www.rti.gov.in

“Attention is invited to clause (iii) of para 3 of this Department's OM of even number dated 12th June, 2008 on the above noted subject which, inter-alia, states as follows:

"It is beyond the scope of the Act for a public authority to create information. Collection of information, parts of which are available with different public authorities,
would amount to creation of information which a public authority under the Act is not required to do."

2. The Central Information Commission while deciding an appeal has observed that collection of information cannot amount to creation of information and desired that the above referred OM should be modified so as to avoid any confusion among public authorities.

3. The undersigned is directed to clarify that the OM dated 12.6.2008 does not propose to say that collection of information per se amounts to creation of information. The above referred statement has been made to emphasize that the public authority to whom the application is made is not required to collect information from different public authorities to supply it to the applicant.” [emphasis added]

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Compiled by J. P. Shah, Junagadh Gujarat 09924106490
03032010