CASE LAWS: Anita has enrolled for the P.G.

Diploma in management offered by XPDMI Institute affiliated to an University, which receives funds from the University Grants Commission. The final examination for the students in their second year is conducted by the University, even though the mid-term exams are the responsibility of the Institute - which is a privately funded entity. The institute has to submit all relevant records about the mid-term examinations to the University. Anita wants to know about the norms laid down for evaluating the answer sheets of one of her mid-term examination papers and submits an RTI application to the Principal. The Management tells her that the Institute is a private entity and is not bound by RTI Act, 2005. A friend suggests that she should apply to the PIO of the University and that there is a chance that she might get the relevant information. The friend also suggests that she should first find out if the information she is looking for is disclosed proactively by the University. 1. (a) Is Anita's friend's advice correct? What provisions of the RTI Act, 2005 apply? Answer in your own words. 2. (b) Can the PIO reject Anita`s application on the grounds that even though the information is held by the University, it cannot be given since it pertains to a private entity? Give reasons in support of your answer.

CASE LAW:

Mr. XYZ wanted to strengthen his case for divorce-without-anyencumbrance-on-him by proving that his wife earned sufficient salary to maintain herself and their three children. He filed an RTI application to seek the financial status of his wife (in the wake of the 6th Pay Commission recommendations), who works in a Central Public Sector organisation. His application to the PIO was not entertained citing `request for personal information` as the cause for denial.

1. (a) Was the PIO right in denying information in this case? Justify your answer. Cite case law in support of your answer. 2. (b) Given the sensitivity of the matter, a colleague suggests that the PIO better take a written approval of the First Appellate Authority as also the Head of the Department. Does the PIO need to do this? Give reasons for your answer and also state whether any public interest is involved in deciding this case. Give reasons.

Q. Can a citizen request for information as an office bearer of an association? A. Paragraph 8 of the Guide for the Public Authorities- Guidelines for the public authorities under the Right to Information Act, 2005, published by Department of Personnel & Training, Ministry of Personnel, Public Grievances and Pensions, Government of India (O.M.No.1/4/2008-IR dated: 25th April, 2008) states as follows: The Act gives the right to information only to the citizens of India. It does not make provision for giving information to Corporations, Associations, Companies etc. which are legal entities/persons, but not citizens. However, if an application is made by an employee or office bearer of any Corporation, Association, Company, NGO etc. indicating his name and such employee/office bearer is a citizen of India, information may be supplied to him/her. In such cases, it would be presumed that a citizen has sought information at the address of the Corporation etc. In a decision on 27.06.2006, the CIC had decided that PIO can decline information under section 3, if the applicant applies as a Managing Director of a company and not a citizen of India. [CIC\OK\A\2006\00121 - 27 June, 2006]. Continued in next slide..

Continued from previous slide. Later, however, on 25.10.2006, CIC decided that even if information is sought by an office bearer of an Association/Union, the same should be treated as valid in terms of the provisions of the RTI Act. [139/ICPB/2006- 25.10.2006].

In a decision on 27.06.2006, the CIC had decided that PIO can decline information under section 3, if the applicant applies as a Managing Director of a company and not a citizen of India. [CIC\OK\A\2006\00121 - 27 June, 2006].
Later, however, on 25.10.2006, CIC decided that even if information is sought by an office bearer of an Association/Union, the same should be treated as valid in terms of the provisions of the RTI Act. [139/ICPB/2006- 25.10.2006].

Q. Are File Notifications included in the definition of information? A. The Full Bench of the Central Information Commission consolidated CICs stand on disclosure of file notings in Pyare Lal Verma v.Ministry of Railways (Appeal No.CIC/OK/A/2006/00154 dated 29.1.2007) as follows: [N]ote sheets containing file notings are an integral part of a file. In terms of Section 2(i), a record includes a file and in terms of Section 2(j) right to information extends to accessibility to a record. Thus, a combined reading of Sections 2(f), (i) & (j) would indicate that a citizen has the right of access to a file of which the file notings are an integral part. If the legislature had intended that file notings are to be exempted from disclosure, while defining a record or file it could have specifically provided so. Therefore, we are of the firm view that, in terms of the existing provisions of the RTI Act, a citizen has the right to seek information contained in file notings unless the same relates to matters covered under Section 8 of the Act. notings are an inextricable part of a record as defined u/s 2(f) and further defined u/s 2(i)(a) of the Act unless it had been specifically exempted In fact Joint Secretary Shri Ramanujam of the DoPT stated that nowhere has DoPT said that no one should disclose the file noting and that they have not stopped any public authority from disclosing file noting. DoPT has further clarified its position in its Office Memorandum No.1/20/2009-IR, dt. 23.06.2009 saying that: file noting can be disclosed except file containing information exempt from disclosure under Section 8 of the Act.

Q. Should section 4(1)(b) disclosures be made at all levels of a department? A. Yes. Every PA notified within every department from secretariat to district levels should make disclosures under Section 4(1)(b) of the Act.

Q. Is it not burdensome to publish 17 manuals of information under section 4(1)(b)? A. In fact, publication of information under section 4(1)(b) will reduce the work load on the PIOs in terms of receiving requests from citizens under the Act. As far as compiling of information is concerned, information may already be available in a scattered manner with PAs. Simply collect and collate the information. Once information is put together, updation will be easier.

Q. Is the APIO an assistant to the PIO? A. No, he is not an assistant as commonly understood. An APIO must be designated at the sub-district or sub-divisional levels. An APIOs responsibility is to forward applications and the appeals received by her / him to the right officer / authority. Incidentally, where a Central PA does not have an office or administrative unit at the sub-district / sub-divisional level, the CAPIOs of Department of Posts will also act as CAPIOs for other Central Government PAs.

Q. If the information requested by the citizen is in the possession of the APIO, can he provide the same to the applicant? A. No, the APIOs obligation is only forwarding the request to the PIO concerned, as fast as possible, but within 5 days.

Q. If a PIO has touring duties and cannot be physically present in the office, will it amount to refusal to accept information request? A. The solution here is for the PA concerned to designate another official from within the PA to act as PIO. This will ensure that the citizens applications are always received and prompt action is taken on the same. Where multiple PIOs are designated in a PA, no PIO can refuse to accept an application on the ground that it does not belong to his / her jurisdiction. He / she must collect the information from the concerned PIO and pass it on to the applicant.

Q. If the applicant does not pay the additional fees for accessing information within 30 days, will the PIO be penalised?

A. No, the PIO will not be penalised. The 30 day clock stops ticking from the date of dispatch of the intimation for further fees by the PIO and restarts from the date the applicant pays the additional fees.
If the applicant chooses to seek a review of the additional fee from the appellate authority, the period taken by such authority to make a decision will also NOT be included in the 30 day limit.

Q. If the applicant does not respond to the intimation letter of the PIO for payment of further fees, is the PIO duty-bound to provide information to the applicant? A. No, the PIO is not duty bound to provide information to the applicant in such cases. The Act clearly states that the PIO will provide access to information only upon payment of further fee as determined.

Q. How can the PIO reconcile his duties under the RTI Act with the secrecy required to be taken under the Official Secrets Act,1923 taken at the time of joining service? A. The RTI Act overrides the provisions of the Official Secrets Act, 1923 to the extent the latter are inconsistent with the former. The oath of secrecy taken by Government employees therefore applies only to those provisions of the Act which have been provided as exemptions under the Act. eg. matters pertaining to national security, sovereignty and integrity of the country.

Case I A request has been received for inspection of records. It was granted and the requester was invited to the office on a certain date. When the requester visited, the requested records were placed before him for inspection. But he complained that he could not understand the records which were in English! The petitioner confined to a request that the PIO should permit inspection of the concerned records, with the assistance of the counsel or someone conversant in English. Contd. in next slide.

Case I The High Court of Delhi in Suresh Chand Gupta v Deputy Commissioner of Police and Anr.[W.P.(c) 8228/2007. Dt. 16th November, 2007] insisted that assistance should be provided when the requester can not understand the records which are in English. It was held that Section 7, strengthens the petitioners claim to be provided the facility of assistance of counsel and someone conversant in English. The object of the Act is to provide access to information in the custody of the executive agencies.

Case I If the petitioner, for some reasons, felt inhibited due to his not being fluent in English, denial of appropriate assistance in fact would have resulted in withholding access to information. Surely, that is not the object of the Act or even the order. In these circumstances, the respondents should grant the petitioners request. Accordingly, the respondent is directed to permit inspection of the concerned record by the petitioner, who can be accompanied by his counsel or an authorized representative.

Case II Can a PIO intercept the first appeal and decide it himself? No. In cases where a decision on an appeal to the FAA was communicated, to the requester, under the PIOs signature, CIC condemned the PIOs action and stated: PIO putting himself in the shoes of Appellate authority is against the letter and spirit of the Act.

[CIC/OK/A/2006/00073-19 May, 2006]

Q. A PA has been providing information to people on the basis of their oral requests in the past. Does the RTI Act require such informal practices to end? A. No, the RTI Act, 2005 does not require that the conventional, informal practice of giving information upon oral request be discontinued. If information can be provided quickly upon an oral request it is better to give such information to the requester rather than require him / her to put in a formal application. This also helps a PA / PIO by way of reduced paperwork.

Q. If information asked for is too big, can it be denied? How much information can be asked in one application?
A. A request cannot be denied / rejected on the ground that information asked for is too big. A PA may invite the applicant to inspect the records and specify the information he wants. Information must be provided in the form in which it is requested for unless it disproportionately diverts the resources of the public authority. The Act does not put any restrictions on the amount of information that can be asked for through one application.

Q. What if there is a danger of the applicant misusing the information received under the RTI Act and blackmailing the officers with the information? A. The Act also specifies the categories of information which need not be kept in public domain, therefore, there is no danger of information being misused by the applicant. In fact, disclosure of information as per the provisions of the Act will prevent honest and sincere officers from being black mailed.

Q. What if there is a danger of the applicant misusing the documents he received under the Act? It has been suggested that the Government devise means to authenticate documents released under the Act. A PIO may mark every page with a rubber stamp impression containing the phrase, Documents released under RTI Act containing XX pages. Electronic files may be given in (un-editable) PDF /TIFF format. This will obviate the need for certifying the documents separately.

Q. What if the applicant mutilates or destroys a record during inspection?

A. To start with, A PA would do well to fix particular days of a week for allowing inspection to all applicants who asked for it. Rules may be made regarding the procedure of inspecting records under the Act. That said, a PA must take adequate precautions for preserving the safety of records. In case, an applicant mutilates or destroys a record during inspection, the PA should, immediately, lodge a complaint with appropriate authorities.

Q. If same kind of information is asked by more than one citizen, should it be made available to all the requesters? A. Yes. It is possible, however, that if such records are digitised as far as possible and uploaded on the internet to facilitate easy access, and the public made aware of its availability on the Internet, the number of RTI applications would be less or would come down post-disclosure-on-the-Internet .

Q. If the information is already disclosed, can PIO / APIO refuse to accept a citizens application? A. No. That some information has already been disclosed proactively or to a citizen, cannot be a reason for rejecting an application. B. The PIO concerned must provide the information. (The APIO concerned must forward the application to the PIO concerned). A. For such information to be provided in a given format, reasonable additional fees may be charged and information should be provided upon payment of the prescribed fees.

Q. Can an application for accessing a current or live file be rejected on the ground that the final decision has not been taken? A. Rejection of an application should be strictly on the grounds mentioned under S. 8 & 9 of the Act. Therefore, a request cannot be rejected on the ground that the case is pending for final consideration. If the information asked for falls under any of the exempted categories under S. 8 & 9, the same may be rejected while providing reasons for the same. Information regarding future course of action need not be disclosed.

Q. Will a PIO be penalised if the superior officer orders him not to release information to the requester? The PIO is an independent authority under the Act. There is no need for her / him to take the approval of her / his superior for releasing the requested information. The PIO alone is responsible for any decision taken by him, whether with the approval of his superior or not. If the IC, concerned, finds that the PIO has malafidely rejected the request, it is the PIO who will be penalised and not the superior officer.

Q. Should BPL applicants be charged additional fees for providing information requested by them? A. The RTI Act, 2005 specifies that no fees need to be charged for Below the Poverty Line applicants either at the time of making an application or while providing access to information requested by them.

Q. Can a PIO transfer an RTI application within the PA? A. A PIO can seek assistance of another officer from within the PA who shall render all assistance and shall be a deemed PIO as per S. 5 (4) & (5). However, the RTI Act, 2005 does not provide for transfer of RTI applications within the same PA.

Q. How should a PIO respond if opinions are asked for?

A. opinions are included in the definition of information in the RTI Act, 2005. CIC has clarified that although opinion is indeed information, to so qualify it must be held in material form. (Adjunct to Complaint No. CIC/WB/C/2007/00196-28.03.2008)

Q. What should a PIO do if an RTI application is not accompanied by the prescribed application fee?
A. The PIO concerned should, first, find out whether the citizen making the request is a person below poverty line, in which case no application is required to be paid. If not, the PIO should write to the citizen asking her / him to deposit the application fee to get information. It is suggested that the PIO need not reject the application. However there is no obligation on her / him to provide information unless the requisite (application and / of further) fee is deposited.

Q. To what extent should the PIO keep the applicant informed about the manner in which her / his request is being disposed? A. A PIO would do well to keep an applicant informed about key actions pertaining to the request. To start with if an application is not clear about the information requirements, the applicant may be informed about it and also be told that the PIO would provide her / him all reasonable assistance in filing a proper application. Applications by e-Mails may have to be replied to with an intimation about the fees to be paid. It has been suggested that it would be proper to acknowledge the receipt of applications. If the PIO decides not to disclose 3rd party information because it is exempted or because the PIO accepts its submission about not disclosing information, the candidate should be communicated the rejection of application. If PIO decides to disclose information, the applicant has to be asked to wait till the appeals (if applicable) are decided or the time limits for making appeals are over. If partial information is disclosed, the applicant will have to be, accordingly, informed about both the above points. Incidentally, 3rd party should not be given information about the applicant, which can be seen as personal information. Where an application is transferred to another PA, it has been suggested that the applicant be informed of such details as: whether the complete application or appropriate part of it has been transferred; reasons for transfer; name and contact details of the other PA and the PIO concerned.

Q. What is Public Interest?

A. The Act does not define public interest. We may rely on the interpretation given by the Central IC and the Supreme Court in this regard. Disclosure of information that leads towards greater transparency and accountability in the working of the PA is Public Interest. Public interest covers public health, public security, morals, economic welfare of the community and the objects mentioned in the Directive Principles of State Policy. [Supreme Court in State of Gujarat v Mirzapur Moti Kureshi Kasab Jamat & ors AIR 2006 Supreme Court 212] Note: With these decisions as a reference, a PIO / FAA may still have to closely examine the issues involved on a case-by-case basis.

Case I
If a request is received which a PIO cannot understand and needs more clarity on the particulars of the information sought, what can be do? CIC has advised to hold a personal discussion with the requester in the following decisions: If there was general confusion regarding the kind of information that has been called for and that could have been supplied, it could have been easily resolved by a personal sitting between the appellant and the respondents [CIC/WB/A/2006/00810-5 July 2006] The CPIO and the AA may, however, be well advised that it is better to call the petitioner over for a discussion about what precise information he seeks. the petitioner had come all the way in appeal to the Commission in spite of the fact that the PA was willing to share with him all the information which he had requested. A personal discussion would gave avoided litigation. [CIC/AT/A/2006/00157-5 July 2006]

Case II A request for information related to hundreds of 3rd parties is received by a PIO. It is not practical to give a notice to all of them as required by the S. 11(1). What can a PIO do? In a similar case CIC advised, in view of the fact that the number of third-parties in this case runs to over 800, the FAA [or PIO] may choose to call for hearing certain representatives of all 3rd parties, selecting them from samples of large, medium and small investors and, pass a speaking order [CIC/AT/A/2007/01554, 30th May 2008]

Case III Q. PIO has decided to disclose some information and the Head of the PA has some reservations about the proposed disclosure. Can the Head of the PA appeal against the PIOs decision? A. Yes. A full bench of the CIC in Mrs. Guninder Kaur Gill v DCP EOW answered this question thus: Section 19(2) recognizes the right of a third party to submit an appeal before the First Appellate Authority. If the CPIO decides to disclose information that relates to a PA and if the PA has treated the information as confidential, it can submit an appeal before the FAA under S. 19(2) of the RTI Act. The issue still remains as to whether a PA can appeal against the decision of its own CPIO. In this context, the opening words of Section 19(1) are important. It says that any persons can prefer an appeal who (i) does not receive a decision within time specified; or (ii) is aggrieved by a decision of the CPIO. It may be mentioned that the word person has not been defined in the Act but it is wide enough to include a PA, which is a juristic entity and as such is a person in the eye of the law.

Q. A request for information related to a third party has been received by a PIO, who decides not to disclose information, applying certain exemption. Does the PIO still need to send a notice to the third party

as required by the S. 11(1)?

A: In an interesting Decision CIC advised that it was better to send a notice to the third party, because the third party, to your surprise, might be favouring disclosure of the required information. It is possible that the PIO and the FAA didnt consider invoking the provision of S. 7(7) because they had, in any case, reached a decision not to disclose the information requested by the appellant; and S. 11(1) which S. 7(7) refers, is to be invoked only when a PIO intends to disclose any confidential information or record supplied by a third party, and not otherwise. Continued..

This approach excludes the other possibility that the third party may have no objection to the disclosure of the information, in which case disclosure can be authorized even when an information is prima-facie a personal information, and if it does not attract any other exemption. S.s 7(7), 11 & 7(1) have to be read together. The combined reading of these Sections leaves a clear impression, that when the information sought by an applicant have had a third party link, then before taking any decision... either provide the information or reject the request, the PIO will need to consult / hear the third party. Section 11(1) adds another dimension to the protection of third party interest, viz. giving a hearing to the third party if the PIO intends to disclose any information entrusted to the PA by the third party and which has been treated as confidential it. The requirement of hearing the representation of the third party in respect of an ordinary as well as a confidential information relating to it, is a common thread linking these S.s and S-s., and should therefore be construed as an invariant procedural as well as a substantive requirement of the RTI Act. CIC/AT/A/2006/00306-16.10.2006 Continued..

Section 11(1) adds another dimension to the protection of third party interest, viz. giving a hearing to the third party if the PIO intends to disclose any information entrusted to the PA by the third party and which has been treated as confidential it. The requirement of hearing the representation of the third party in respect of an ordinary as well as a confidential information relating to it, is a common thread linking these S.s and S-s., and should therefore be construed as an invariant procedural as well as a substantive requirement of the RTI Act. CIC/AT/A/2006/00306-16.10.2006

Q. If the law under which PSUs are formed does not allow access to information to people like agendas of Board Meetings etc. should such information be given under the RTI Act, 2005? A. Yes. The RTI Act, 2005 overrides any / all such law(s). Hence, such information must be disclosed, unless it is exempted under the specific provisions of the said Act.

Q. A PIO had furnished information as per the available records and subsequently it turns out that such information is false, misleading or wrong. Will the PIO be penalised even when he was not responsible for the creation of the record? A. Where a PIO has taken an action in good faith, he / she is protected under the Act. The PIO must prove that neither has he / she acted in a malafide manner nor has he / she provided wrong information intentionally. He / She had only passed on the information collected from another officer or compiled and recorded by another officer.

Q. An applicant claims that he had not received the intimation letter from a PIO and files an appeal with the FAA / IC. Is the PIO liable?
A. It is advisable that a PIO always maintain a copy of the intimation letter to defend her / himself in such cases. It is always better to send the intimation letters Under Certificate of Posting so that there is ample proof of dispatch of all such communication. As long as the PIO can prove that he had acted in good faith, he / she will not attract any penalty.

Q. Can the citizen approach the Courts for redressal under the Act?

A. The RTI Act, 2005 bars the courts from entertaining suits, applications or other proceedings against any order made under it. However, the respective writ jurisdictions of the Supreme Court and the High Court under Articles 32 and 226 of the Constitution remain.

THANKS A LOT FOR PATIENT HEARING!