Thursday, November 15, 2012


INFORMATION RELATING TO SUB-JUDICE MATTER UNDER RTI ACT

Of late, PIOs are denying information sought under RTI Act with the reason that matter is sub-judice i.e. matter is pending with a court of law or tribunal or consumer forum/commission etc.

RTI Act no where permits refusal of information just because subject of information is sub-judice. Under section 8.1.b only that information, which has been expressly forbidden to be published by any court of law or tribunal or the disclosure of which may constitute contempt of court, has been exempted from disclosure. But PIOs extend to all information relating to court cases out of misinterpretation or ignorance or malice just to dodge information.

Following decisions of Central Information Commission are relevant:

1. Decision No.456/IC(A)/2006 F. No.CIC/MA/A/2006/0694 dated 18-12-2006:

“There are no provisions in the RTI Act to reject an application for information merely on the ground that the matter is sub-judice. In the instant case, there is, however, no evidence to indicate that exemption from disclosure of information u/s 8(1)(b) of the Act has been sought by the CPIO. Therefore, the denial of information by the CPIO and appellate authority on ground of the matter being sub-judice is unjustified.”

2.  CIC/SM/A/2008/000106 dated 22-10-2009

“………..The denial of information on the ground that the matter had been pending before the DRT is not supported by any of the provisions of the Right to Information (RTI) Act. Merely, because a matter has been pending before a Court or Tribunal, it cannot be denied to a citizen………”

3. CIC/SM/A/2012/000067 dated 27-09-2012
[Against CPIO, High Court of Calcutta, Appellate Side]

In respect of the reply given by the CPIO, we have to say that no information can be denied merely on the ground that the matter is subjudice. There is no provision in the Right to Information (RTI) Act which exempts any information from disclosure only on this ground. Information can be denied only under the exemption provisions of the RTI Act. We hope the CPIO will keep this in mind in future.”

4. CIC/SM/A/2010/000966 dated 11-04-2011

“After carefully considering the facts of the case, we do not find either the decision of the CPIO or the Appellate Authority in conformity with the provisions of the Right to Information (RTI) Act. There is nothing in that Act which prevents
disclosure of information merely on the ground that a related matter is pending
before a court of law…………….”

5. CIC/LS/A/2009/000937 dated 10-06-2010

“After hearing the Respondents and on perusal of the relevant documents on file and keeping in view the written submissions the Commission first of all make it clear that the matter being sub-judice is not ground to withhold the requisite information under the RTI Act, unless the desired information has been expressly
forbidden to be published by any court of Law or Tribunal or the disclosure of which may constitute contempt of court, in terms of the Section 8(1)(b) of the RTI
Act. In the present case the Respondents have not produced any order of the Court which has expressly forbidden the disclosure of the desired information. After making the legal position clear about the matter being sub-judice, the impugned points of the RTI application are discussed and decision on the point is
given below…..”

Note:

I would suggest that this note may be attached to RTI application as an annexure, so that despite this information if PIO supported by FAA ventures to deny information for it being sub-judice, they will have tough time in convincing Information Commissioner that both acted in good faith and without malafide during hearing of second appeal or complaint. Under section 19.5 of RTI Act the onus to justify replies rests with PIO.  Under section 20.1 the burden of proving that PIO acted reasonably and diligently is enjoined on the PIO.








Sunday, November 04, 2012

Destroyed Record under RTI


DESTROYED RECORD

          Many times, PIO casually replies that record has been destroyed or weeded out by referring to record retention schedule of public authority. In fact the record may not have been actually destroyed despite lapse of specified retention period. In most of cases, record is destroyed after a very long time of expiry of period stated in record retention schedule. For example if a register in a bank is required to be retained say for 5 years from date of last entry, but in practice it is destroyed after 7 or even 10 years from date of last entry when destruction is undertaken for cluster of branches. Similar is the case with most of public authorities. PIO is bound to supply information which still exists [irrespective of its age in record retention schedule] in whole of public authority.

Under these circumstances, information seeker should file another RTI with the same PIO seeking following information:

I enclose photocopies of your letter No. __________ dated ______and my RTI application dated _______ [old RTI]. I have been informed that record is destroyed/ weeded out. Kindly supply following information in connection with that record claimed by you to have been destroyed/weeded out [referred to as said record hereunder]:

3.01. Please provide me certified photocopy of pages of register where the said records were last recorded to have existed before destruction.

3.02. Name, designation and office address of staff who had last custody of the said records.

3.03. Date and place of actual destruction of said records.

3.04. Photocopy of relevant pages of register maintained for destruction of record where the said records were entered into.

3.05. Name, designation of staff in whose presence the said records were destroyed.

3.06. Certified photocopy of guidelines for preservation, safe custody and destruction of records.

3.07. Name, designation and office address of Authority who has authorized destruction of said records.

3.08. Method or procedure adopted for destruction of said record [burning, shredding, watering, pulping etc, etc]


3.09. Please let me know location of existence of this information in some other form or place like computers, microfilms, centralized data base or other sources or locations etc.

3.10 Please provide me names and contact details of other citizens who have been supplied said record in last 10 years under RTI or otherwise.

3.11. Please provide me a sworn affidavit to the effect that information no more exists in entire public authority [electronically or otherwise].  [refer: CIC decision dated 06-11-2009 in Appeal No.CIC/SM/A/2008/00135 & SM/A/2009/001075]

3.12 Please permit me inspection of records sought as above under this application.

________________________________________________________________

Mostly you may get the information, if it is not actually destroyed and not held in other location or form.

  04112012


Saturday, November 03, 2012


WHY INFORMATION COMMISSIONERS DO NOT IMPOSE PENALTY?

01. ICs are under wrong impression that it is their discretion to levy or not to levy penalty at their will. In fact once breach of RTI Act is committed and not reasonably explained, penalty must follow.

02. ICs are afraid because if they levy penalties, the serving govt officers may dig out their [ICs] misdoings when ICs were in service and ICs may have to face investigating agencies post retirement.

03. ICs want to follow line of action and guidance given by political appointers.

04. ICs are attitudinally conditioned not to displease other govt officers and politicians, as they have been doing while in service, lest some day ICs may be exposed.

05. Conceptually ICs have no respect for common citizens, since they were uncommon citizens while in active service for a very long period of their lives.

06. Heart in heart, ICs believe that govt servants and politicians are borne to rule in India and common Indian [mango] citizens are their subjects.

07. ICs do not appreciate and internalize their own duties and responsibilities under RTI and continue to function as administrative entity.

08. ICs lack training in knowledge and attitude to effectively act as ICs.

09. ICs treat appointment as post retirement paid holiday time to enjoy by passing routine and stereo-type orders [clerical or fill-in the blanks] without much taxing their minds. Imposing penalty requires application of mind.

10. ICs may have tie-up arrangement to absolve PIOs for a “fee”, as majority of govt offices have in India [agents or touts].

11. ICs do not believe that common Indians deserve transparency and time is not ripe for opening up governance to such immature mango citizens.

12. Very few appellants will move higher courts [due to prohibitive cost of litigation and exorbitant delay ] for information and penalty, while PIOs will challenge at public cost, any order of  penalty and if it is not upheld, ICs may lose face.

13. RTI appellants or complainants have not so far moved vigilance machinery of Govt against ICs absolving PIOs of penalties even in serious RTI violations, alleging corruption.

14. Citizens do not move petitions to remove ICs to President or Governors for not imposing penalties in many cases, where it should have been definitely imposed.

15. ICs are aware that they are totally over protected by law for whatever decisions they take including not imposing penalties even in deserving cases.

16 ICs psychologically want to retain their image of being very good, understanding and kind among govt staff, even at the cost of making RTI defunct affecting fundamental rights of common citizens.

17. ICs know that after demitting post, they will be common men/women and will have to approach same govt. staff for their mercies. Hence they do not risk offending govt staff for RTI violation by imposing penalty.

18. Some ICs believe that penalties will have demoralizing effect on govt staff and may reduce their efficiency. ICs also know that poor PIOs are under pressure for not meticulously following RTI provisions, lest many of PIOs’ bosses [including politicians] and colleagues would land in trouble.

19. ICs hasten to levy penalties when their authority is challenged by PIOs by being absent in hearing or not complying with ICs orders. However ICs forget that in democracy citizens are the supreme authority.

20 ICs are under impression that getting information is important and not  penalty, irrespective of breach of provisions or harassment to information seekers.

21. Some ICs believe that at least now citizens are getting information, which was not available to them prior to RTI enactment, hence he should not think of penalty, whether imposed or waived.

22. ICs feel that appellant or complainant has no right to insist upon penalty. It is ICs exclusive domain.

23. ICs still hope that they may get some govt post even after demitting post of IC [member of some commission or advisor etc, etc].

24. India is a soft State even when it comes to terrorists and criminals. ICs give benefit to PIOs for civil violations of RTI, even when it affects fundamental rights.

25. Many ICs are afraid of govt officers who hold high posts or are well connected.

26. Appellants or complainants do not even insist in writing after decision is pronounced, that penalty should have been imposed by IC by giving their justification for penalty.

27. There is no social audit of decisions of ICs nor is feed back given by RTI activists to concerned IC with copy to Chief IC. Hence ICs do not improve.

28. There are certain ICs and Chief ICs whose past record is full of misdeeds and they could escape penalties by manipulations and secrecy. Hence they have special love for defaulting [brother-like] PIOs.

29. Politicians select only such ICs who cannot be attitudinally strict for benefit of common men at the cost of govt employees.

30. Most of ICs are with govt. service background and mentally carry that baggage even after retirement.

31. ICs are not adversely commented upon by auditors of CIC or SIC, even when penalty is not imposed in very deserving cases.

32. There is no system to effectively recover penalties even when imposed by ICs. This discourages ICs from penalizing. 41.68% of penalty is not recovered by CIC and situation in most SICs may be worse than this.