Decisions of CIC

    Mr. Shailesh Gandhi, Information Commissioner in Central Information Commission has delivered a few very significant decisions covering some of the basic issues under the RTI Act. The said issues have been major areas of conflict in the operation of the RTI Act and which have resulted in denial of information from the public authorities to the citizens. One such issue is the interpretation of section 8(1)(j) dealing with exemption of ‘personal’ information, the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of an individual.

    In this case, the applicant had sought certain information from the PIO of Government of NCT of Delhi, Home (General) Department in connection with issue of armed licences from January 2000 to December 2007. In reply, he was informed that no such records are managed by that department. The Appellate Authority, along with certain other observations, ruled that the information is exempt u/s.8(1)(j).

    Before the CIC, the PIO claimed that the information could not be given as it would intrude on the privacy of the applicants and the provisions of section 8(1)(j) exempt providing such information.

CIC’s decision :

    Words in a law should normally be given the meanings given in common language. In common language we would ascribe the adjective ‘personal’ to an attribute which applies to an individual and not to an institution or a corporate. From this it flows that ‘personal’ cannot be related to institutions, organisations or corporates. (Hence we could state that Section 8 (1) (j) cannot be applied when the information concerns institutions, organisations or corporates).

    The phrase “disclosure of which has no relationship to any public activity or interest” must be interpreted to mean the information must have some relationship to a public activity.

    Various public authorities in performing their functions routinely ask for ‘personal’ information from citizens, and this is clearly a public activity. When a person applies for a job, or gives information about himself to a public authority as an employee, or asks for permission, licence or authorisation, all these are public activities. Applying for an arms licence certainly falls in this category. As a matter of fact Section 4 (1) (b) (xiii) requires a suo moto publishing of ‘particulars of recipients of concessions, permits or authorisations granted by it.’

    Commenting on the phrase which states that releasing the information would lead to an unwanted intrusion of privacy, the decision states :

    “We can also look at this from another aspect. The State has no right to invade the privacy of an individual. There are some extraordinary situations where the State may be allowed to invade on the privacy of a citizen. In those circumstances special provisos of the law apply, always with certain safeguards. Therefore, it can be argued that where the State routinely obtains information from citizens, this information is in relationship to a public activity and will not be an intrusion on privacy.

    Certain human rights such as liberty, freedom of expression or right to life are universal and therefore would apply uniformly in all countries. However, the concept of ‘privacy’ is related to society and different societies would look at these differently. India has not codified this right so far, hence in balancing the Right to Information of citizens and the individual’s Right to Privacy, the citizen’s Right to Information would be given greater weightage.

    Therefore, we can accept that disclosure of information which is routinely collected by the public authority and routinely provided by individuals, would not be an invasion on the privacy of an individual and there will only be a few exceptions to this rule which might relate to information which is obtained by a Public Authority while using extraordinary powers such as in the case of a raid or phone-tapping. The applicant for a licence or permit or authorisation gives information of his own volition since he does not regard giving of this information as an intrusion on his privacy.”

    Based on the above reasoning, the CIC ruled that providing names of persons who applied for arms licences cannot be construed as an invasion of privacy and directed that information sought be provided.

    On reading the full decision of this case, I am wondering whether it should be possible to get information on the return of income of any third party under the RTI Act. In Mumbai, in one famous case reported in this column a few years before, the Department had rejected the application/appeal when one Mrs. Hoosenalli sought the information on the returns of income of Applause Bhansali Films Pvt. Ltd, the producer of the film : ‘BLACK’ (see BCAJ, July 2006 and earlier issues).

    [Mr. Jagvesh Kumar Sharma vs. Joint Secretary, Home & PIO, Home (General) Department, Government of NCT of Delhi : Decision No.CIC/WB/A/2008/00993/SG/2219, dated 16.03.2009].

Second case on section 8(1) (j) – Personal Information

    Mr. Mahesh Kumar Sharma (MKS) sought information to get certified copies of the documents under which NOC had been issued to Zile Singh for getting water connection.

    MKS claimed to be the son of said Mr. Zile Singh. Water connection is for the building which at the time of application was owned by Ms. Archana Sharma (Ms. A.S.). She is the daughter of Mr. Zile Singh. The PIO treated it as a third-party information and u/s.11 asked Ms. A.S. whether she has any objection in providing the information sought by Mr. MKS. It was objected by Ms. A.S., besides contesting the claim of Mr. MKS that he is the son of the late Mr. Zile Singh.

    Contentions of Ms. A.S. for objecting to the disclosure of the information to Mr. MKS are :

    1. The information has been given in a fiduciary relationship [Section 8(1)(e)].

    2. Disclosing it would be an intrusion on her privacy [section 8(1)(j)].

    3. Third party has the right to refuse to divulge with information relating to him and unless a large public interest can be established, the information will not be disclosed.

She also sought to justify her claim for denial of information by taking support from the judgment of the High Court of Gujarat, in Reliance Industries Ltd. vs. Gujarat State Information Commission & Others (covered in this column in Nov. & Dec. 2007 and January 2008). The Commission dealt with the above 3 grounds of objection as under:

o The information has been given in a fiduciary relationship. The third party is invoking the protection of Section 8(1)(e) of the RTI Act:

A fiduciary relationship is one where the key element is that the relationship is principally characterised by trust and the information is given for use only for the benefit of the giver. Here the information has been given as per the rules to get an authorisation to get a water connection from a public authority. The traditional definition of a fiduciary is a person who occupies a position of trust in relation to someone else, therefore requiring him to act for the latter’s benefit within the scope of that relationship. In business or law, we generally mean someone who has specific duties, such as – those that attend a particular profession or role, e.g., financial analyst or trustee. In the instant case a key element of the relationship between the applicant for a water connection and the Delhi [al Board certainly cannot be said to be primarily of trust by the applicant in the public authority, nor can it be said that the information was given for the benefit of the giver. The information was provided to get an authorisation    for a water connection. Accordingly, this submission    has no merit.

Disclosing it would be an intrusion on her privacy:

The third party is invoking the protection of Section 8(1)(j) of the RTI Act. On this point, same paras are stated as in the Order in the case reported as above dated 16th March 2009. Accordingly, this submission also has no merit.

Third party has the right to refuse to divulge information relating to him, and unless a larger public interest can be established, the information will not be disclosed :

No legal provision    has been  cited.

We will now look at the main contentions relied upon by the third party from the judgement of the Hon’ble Gujarat High Court:

a) It is necessary that a larger public interest must be justified and the purpose of the applicant and his profile and credentials looked at.

b) The Public Information Officer is charged with the duty to ensure that the Right does not become a tool in the hands of a busy body.

Right to Information is a fundamental right of citizens. The Act has elegantly and crisply defined its objective in Section 3 where it states “Subject to the provisions of this Act, all citizens shall have the right to information.”

The test of public interest is to be applied to give information, only if any of the exemptions of Section 8 apply. Even if the exemptions apply, the Act enjoins that if there is a larger Public interest, the information would still have to be given. There is no requirement in the Act of establishing any public interest for information to be obtained by the sovereign Citizen, nor is there any requirement to establish larger Public interest, unless an exemption is held to be valid. Insofar as looking at the credentials of the applicant is concerned, the lawmaker has categorically stated in Section 6(2), “An applicant making request for information shall not be required to give any reason for requesting the information or any other personal details except those that may be necessary for contacting him.” Thus, it is clear that the credentials of the applicant are of no relevance, and are not to be taken into account at all when giving the information. Truth remains truth and it is not important who accesses it. If there is a larger public interest in disclosing a truth, it is not relevant who gets it revealed to. Hence, we respectfully disagree with the contention of the Hon’ble Gujarat High Court.

Under this Act, providing information is the rule and denial an exception. Any attempt to constrict or deny information to the sovereign citizen of India without the explicit sanction of the law will be going against the rule of law. The citizen needs to give no reasons nor are his credentials to be checked for giving the information. If the third party objects to giving the information, the Public Information Officer must take his objections and see if any of the exemption clauses of Section 8(1) apply. If any of the exemption clauses apply, the PIa is then obliged to see if there is a larger public interest in disclosure. If none of the exemption clauses apply, information has to be given.

The third party’s objections made before the Commission about the exemptions of Section 8(1)(e)& (j)are disallowed. Hence, the information would have to be given.

[Mr. Mahesh Kumar Sharma vs. PI~, Delhi Jal Board, Govt. of NeT of Delhi: Decision No CIC/ AT / A/ 2008/01262/SG/2109 of 27.02.2009].

Standing Committee of the Parliament on RTI Act, 2005 :

National Campaign for People’s Right to Information (NCPRI) has made a presentation before the above committee. Some of the items of the said presentation are worth noting to understand present deficiencies of the RTI Act.

In previous three issues of BCAJ, 7 items have been reported:

•     Level of awareness
•     Use and  misuse  of the RTI Act
•     Reduction of 20-year period for keeping documents
•     Voluntary  disclosures
•     Changes  in Section  8
•     Penalties
•     Use of the RTI Act and  refusal  of information

Now  three  more  items  are being  reported:

• Grievance    redressal

We believe that there is an urgent need to set up statutory public grievance commissions across the country, which have powers to redress grievances and to punish errant officials. A working model can be seen in Delhi, though it has limited powers. A draft legislation for such commissions has also been circulated by people’s movements to the Government.

Perhaps equally important, there is urgent need to take cognisance of the fact that RTI applicants, especially those belonging to the poorer and weaker segments of society, are being threatened, beaten and even killed for seeking information. RTI applicants and activists have been beaten up in many parts of the country, including Delhi. Efforts to dissuade people from exercising their fundamental right to information are a violation of both the spirit and the letter of the RTI Act. Therefore, Information Commissions should set up a system by which complaints of threats and violence related to the RTI are received and conveyed to the relevant authorities, and the action taken monitored and reported to the recommended RTI Council.

• Application fee

We believe it is a good idea to have an application fee as it gives a greater sense of ownership to the applicant, and results in better recording of applications by public authorities, because of the necessity of issuing money receipts. However, we do not think that the amount should be raised above Rs. 10 for the moment. It would, along with penalties need to be subsequently revised upwards to reflect inflation.

Raising the fee would adversely affect the ability of the poor, many of whom do not have a BPL card even though they eminently deserve one to exercise their right to information. The belief that a higher fee might deter those who file a large number of applications is misconceived. Our study shows that most of these multiple applicants belong to urban areas and are relatively well off. It is, therefore, unlikely that even doubling or tripling the fee would discourage them, even if discouraging them were a desirable objective. However, raising the fee would certainly make it difficult for many of the poor to seek information.

• Strengthening the RTI Act

At this point of the Act the most important step required from the Government is to ensure that there are extensive awareness campaigns and that all PIOs are trained and oriented to servicing the Act. Our study suggests that a large proportion of the PIOs are not trained in the RTI.Even those who have been trained need further training and need support materials like manuals and guides. Our study also revealed that over a third of the PIOsdid not even have a copy of the RTI Act.

There also needs to be regular monitoring of the functioning of the RTI Act. Towards this end, the Government needs to urgently set up a National Council for the Right to Information (along the lines of the NREGA Council). The minister in-charge of the nodal department in the Government of India could chair this council and members could include representatives of RTI movement, other prominent people from outside the Government, and secretaries of some of the critical departments.

The council could also have, as a permanent invitee, the Central Chief Information Commissioner, and as special invitees, other Chief Information Commissioners and Information Commissioners,on a rotation basis, from the Central and State Information Commissions.

This council should meet at least once in three months and review the functioning of the Act and of all its stakeholders. It should look into complaints and suggestions and advise the Government on corrective and additional measures required.

We also feel that little purpose is being served by insisting that a first appeal should be made in the department itself. Therefore, we suggest that the provision for a first appeal be deleted and applicants be allowed to directly appeal to the Information Commission.

The first appeal process should be replaced by a process where any refusal of information should be officially approved by a senior officer, and the senior officershould then also be liable for penalties if an offence is committed in refusing the information.

Also, we feel that nodal officers at various levels must be given the responsibility of monitoring the functioning of the RTI Act and take corrective action, where required. They must also report on the outcome of this monitoring to the Information Commission. Therefore, the Collector of each district and the secretary of each department should be given this role.

• Padma Shri

If you know the right people, you could get Padma Shri as a gift, it seems.

Above  point  came out of RTI application    filed by a professor of a college to the Ministry of Home Affairs.

It appears that Jaipal Reddy, Union Urban Development Minister had recommended the name Dr. Sankara Reddy, a retired principal of Delhi’s Sri Venkateshwara College, as the said Principal had hired the wife of the Minister’s private secretary as professor of history even though there were other more deserving candidates.

CMS Rawat, President  of the Teachers’  Association, said  the hiring  of professor  Namita  was  a gross violation of university  guidelines.  “She only had an rMA degree and no teaching  experience.  There were candidates  who were PhDs, but Namita  got the job because of her husband’s  position.  She was initially hired on an ad hoc basis for four months, but she has been here for more  than  a year  now”.

It is also reported that during Sankara Reddy’s tenure, the college had been slapped with fines of over Rs.40 lakh for violating several building norms. Sankara had to oblige [aipal Reddy to get out of this mess. So he got the wife of Reddy’s private secretary a job with the college.

The college was also fined around Rs.27lakh by the ‘Electricity Department for misuse of power.

• Health status of PM and the President

The Centre has refused to disclose information on PM’s and President’s health status, including details of medical expenses borne for the same, under the RTI Act, terming them as classified documents.

Refusing to divulge information on the health of all PMs to an RTI applicant, the Director, Emergency and Medical Relief said, “As the medical care scheme for the PM is a classified document, it is regretted that the information cannot be provided as per the exemption clause of the RTI Act.”

The President’s secretariat also rejected a similar RTI plea, asking for information on health status of the President.

• Info on housing  co-op. Societies

Vijay Chauhan had asked 14 questions pertaining to housing societies – such as the names of societies where administrators had been appointed, names of deputy registrars who appointed the administrators and the tenure of administrators.

In his order, SIC Ramanand Tiwari said the RTI Act had its limitations. “It guarantees furnishing of available information. But as the appellant has prescribed a 14 point format and wants information of the whole department, this does not seem feasible.”

Surprisingly, State Chief Information Commissioner Suresh Joshi on the same point in January, 09 had ordered that the same information should be provided;

Tiwari relied on Section 7(9) of the Act for denying the information.

Shailesh Gandhi, Central Information Commissioner, is of the view that Section 7(9) does not permit the rejection of the application and only specifies that if the information could not be given in the format sought by the applicant, the PIO can provide the information in another format or give options like inspection of files. Section 7(9) cannot be used for denying information.

In this context, it may be noted that Mr. Tiwari faced a volley of grievances from RTI activists who participated in the discussion on the role of the Act and better governance at a seminar organised by Janhit Manch on 28.3.2009. While some of the queries questioned his Orders, in which he was reportedly soft on the PIOs, others related to his inaction against officers who disregarded SIC orders. Tiwari brushed aside most of the queries, saying they were ‘personal in nature’. Further, he stated: “I know there have been complaints like me being too soft on PIOs, but my disposal rate has been good. For me, the priority lies in providing information, but since the issue has been raised, I will try to improve and impose more penalties in future”.

• Interesting report on RTI in Maharashtra in The Times of India

The  Right    to Information Act  (RTI) received a phenomenal response last year with 4.16 lakh queries being filed by citizens across the State.

The three -and-a-half-year-old Act has now become an effective weapon for lakhs of people who have been fighting to procure information. “Maharashtra has beaten all other States in the country and perhaps even the world, in the number of applications received” an exuberant State Chief Information Commissioner Suresh Joshi told TOL “There was a 33% increase in the number of RTI applications received by various Government organisations and public sector undertakings last year than that in 2007”.

The State Urban Development Department topped the list and received 1.04 lakh RTI queries. The queries usually relate to unauthorised construction permission for building proposals, assessments and establishment regulations. The Revenue Department, with 70,491applications came second on the list. People filed queries to procure details of land records from the Revenue Department as a lot of data still need to be updated and computerised.

The home department with 45,363 queries, came third. People began using the Act to find out the status of their FIRs and police investigations. In many instances, the police were forced to take action after the RTI query was filed.

The BMC received 46,967 applications filed by citizens on various local issues. The State Information Commission has penalised 256officers who had denied information and has levied a penalty of Rs.34.01 lakh over the past one year.

• 4 members of the last Parliament break norms

In a reply to an RTIquery, the Lok Sabha Secretariat clearly said MPs travelling on official assignments should not seek five-star hotel comforts. But that is precisely what MPs N. N. Krishnadas (CPM), Jaisingrao Gaikwad Patil (NCP), Lal Mani Prasad (BSP) and Bhupendrasinh Solanki (BJP) were enjoying on November 26, when terrorists struck the Taj Hotel. The law makers were in Mumbai as part of a IS-member Lok Sabha Committee on Subordinate Legislation to hold meetings with the top brass of HPCL and other PSUs.

MPs had the nightmarish experience of the terror attack and had ducked under tables to escape bullets. The cost of board, lodging and transport of the panel during the tour is borne by the LS Secretariat as per the guidelines and not by PSUs, the RTI reply said.

• Prime Minister’s  foreign travels

PM Manmohan Singh has run up a travel bill of Rs. 233.8crore for official foreign visits in the last five years, according to data released by the Government in response to an RTI query. His predecesor Atal Bihari Vajpayee spent Rs. 185.60 crore on foreign tours during 1999-2003, as per official data. The PM’s eight-day visit to Brazil and Cuba in Septemeber 2006 cost the exchequer Rs. 15.89crore and tops in foreign tour expenditure.

The seven-day visit to France, the US and Germany in September 2005 comes second with a travel expenditure of Rs. 13.4crore. The eight-day visit to the UK and the US came third with a travel bill of Rs. 11.9 crore.

A quick hop to neighbouring Dhaka for three days in November 2005 for a summit meeting of Saarc nations cost the taxpayers Rs. 3.70crore. The bill for his three-day tour of China last January was Rs. 6.80 crore.

And to think that such extravagant spending takes place in a country which ranks 94th in the Global Hunger Index of 119 countries as per the recent report brought out by the United Nations World Food Programme.