ORDERS OF THE COURT & CIC

S. 20 and S. 29 of the RTI Act :

A writ petition was filed before the Orissa High Court by the
PIO on whom the Orissa State Information Commissioner (SIC) had imposed penalty
of Rs.19250.

Under the RTI application, certain information applied for
was not furnished within 30 days. The applicant registered a complaint against
the PIO for this default with SIC. The PIO intimated that “since the information
regarding the rate of VAT on different commodities in Oriya version was not
available in the department, the information could not be supplied being not
available”. However, he admitted that since such information had not been
prepared and not available, it was his duty to at least intimate the applicant
about the fact of non-availability of the information sought for by him within
the stipulated time.

When the matter was taken up for hearing at SIC, the
complainant did not appear, but sent a letter to the State Commissioner to
permit him to withdraw the complaint. Even then, without permitting withdrawal
of the complaint, the Commission came to hold that the petitioner who was the
dealing assistant and one Trilochan Pradhan who was the section officer were
prima facie responsible for the delay. So holding, the Commission directed
issuance of notice only to the petitioner to show cause as to why penalty as per
provisions of S. 20(1) of the Right to Information Act, 2005 should not be
attracted. Pursuant to the notice dated 12-3-2007 issued to the petitioner, she
showed cause stating that though the letter was available to her on 22-5-2006,
the single file in which such applications were dealt with was made available to
her on 17-7-2006. Hence, there was delay. However, SIC imposed the penalty due
to the alleged reason that the petitioner had retained the file from 22-5-2006
to 26-8-2006 and was found responsible for delay of 77 days. The complainant had
sought for the Oriya version of the rate of VAT on different commodities
prevailing in Orissa and if Oriya version of the VAT rate chart was not in
existence with the public authority, a simple reply within the time line would
have sufficed. But in the instant case, a negative answer was given by the
referred PIO after a delay of 77 days, which cannot be lost sight of or
condoned.

Decision of the Court :

S. 20(1) of the Right to Information Act provides that where
the Information Commissioner at the time of deciding any complaint or appeal is
of the opinion that the PIO has, without any reasonable cause,

(1) refused to receive an application for information, or

(2) has not furnished information within the time specified
under Ss.(1) of S. 7, or

(3) malafidely denied the request for information, or

(4) knowingly given incorrect, incomplete or misleading
information, or

(5) destroyed information which was the subject of the
request, or

(6) obstructed in any manner in furnishing the information,

it shall impose a penalty of two hundred and fifty rupees
each day till the application is received or information is furnished, so
however, the total amount of such penalty shall not exceed rupees twenty-five
thousand.

Therefore, this power is to be exercised only at the time of
deciding any complaint or appeal. But in this case since the complainant did not
choose to appear and sought for withdrawal of the complaint, the complaint could
not have been proceeded with. In view of the above, proceeding with the
complaint in the absence of the complainant when he is not interested to proceed
with the same is not warranted under the law and, therefore, the Information
Commission has committed manifest error of law in proceeding with the complaint
after condoning the absence when he had already sought for withdrawal.

[PIO v. Orissa Information Commission, WP(C) No. 1874 of
2008, decided on 22-7-2009]

S. 8(1)(g), (h) and (j) :

Shri N. K. Bhasin made an RTI application to ICAI in respect
of the detailed verbatim proceedings of the Council of ICAI in the matter of
complaint by DGM, Bank of India [Reference No. 25-CA(88)/2002]. The CPIO
provided a reply on 17-9-2007, in which the final decision of the Council was
communicated to the appellant, but not the verbatim proceedings. The Appellate
Authority, in its order dated 12-11-2007, upheld the CPIO’s decision. Initially,
when this matter was heard by the Commission on 16-7-2008, a direction was
issued to the respondents to file their written submissions as well as the
appellant to file the counter, if any, for the Commission to process this matter
further. Accordingly, the CPIO filed his comments on 14-8-2008 and the appellant
his counter on 29-8-2008.

As the Order of the CIC is of interest to the members of our
profession, I reproduce verbatim 7 paras of the Order (as I had done in the
issue of April 2010) :

The main point brought out by the respondents is that ICAI
functions under an Act of the Parliament and the regulations framed under the
said Act specially mention the steps to be followed at every stage as well as
the information to be communicated to the parties concerned to any complaint
which the ICAI Council may be dealing with. These regulations require the
Council to specify/intimate only the prima facie opinion to the parties and not
the grounds on which such opinion is formed. No hearing is provided to the
parties at the time of forming of the prima facie opinion by the Council. The
findings of the Council are also communicated to the parties. It is, therefore,
the submission of the respondents that their statute itself makes a difference
between the prima facie opinion stage and the final stage and has provided for
the appropriate information to be given to the parties at their respective
stages. The application of the present applicant was dealt with under those
provisions.

It is the appellant’s submission that the information he has
sought was in a case which has already concluded and been closed. It is his case
that the information requested by him should be disclosed to him “blocking out
such portions of the document as would attract exemption u/s. 8(1)(g) and
u/s.8(1)(j) of the RTI Act, 2005 . . .” and the requested information could not
impede any process of investigation since no process is currently on.

The respondents were specifically asked to state as to what objection they could have to disclosure of the requested information to the appellant, especially when the matter is acknowledgedly a closed one and no investigation or enquiry is pending. They made reference to the ICAI Act and the regulations and stated that they were disinclined to provide to the appellant any documentation other than what the ICAI Act and the regulations entitled him to.

On consideration of both the submissions, it is my view that the respondents had not been able to specifically state as to how the requested information could be barred from disclosure, especially as no investigation to which it might relate is current. That excludes the purview of exemption — S. 8(1)(h) of the RTI Act. I do not see how S. 8(1)(g) or S. 8(1)(j) of the RTI Act would be applicable in the present case. The appellant has himself suggested that should the respondents consider parts of the disclosed information sensitive in terms of S. 8(1) of the RTI Act, they should be willing to block it out/sever it by invoking the provisions of S. 10(1) of the RTI Act and disclose the balance information to the appellant.

I find myself in agreement with the submission of the appellant. I do not see how any of the exemption Sections of the RTI Act would apply to the present information as requested by the appellant especially because this information pertains to an enquiry/ investigation which is already over and the matter stands closed. There is merit also in the appellant’s submission that the respondents should sever u/s.10(1) such portions of the information, which they might consider sensitive in terms of S. 8(1) of the RTI Act.

The respondents’ pleading that their disclosure of information was conditioned only by the provisions of the ICAI Act and the regulations and could not be decided under the RTI Act, cannot be accepted in view of S. 22 of the RTI Act (override Section).

In view of the above, it is directed that the requested information shall be disclosed to the appellant by the respondents/CPIO within two weeks of the receipt of this order. The respondents/CPIO may sever from the disclosed information such portions, which according to them, was sensitive and was likely to attract any of the provisions of the exemptions under the S. 8(1) of the RTI Act.

[Appellant : Shri N. K. Bhasin — Respondents : The Institute of Chartered Accountants of India, F.No. CIC/ AT/A/2008/00265 of 19-1-2010]

                                                      Part B: The RTI Act    

On 31-3-2010, Govt. of India, Ministry of Personnel, Public Grievances and Pensions, Department of Personnel & Training (DoPT) had a brainstorming with Civil Society Organisations (CSO). 22 NGOs from all over India were invited. 25 individuals participated : 3 from DoPT, 2 from CIC’s office and 20 representatives of CSOs (including author of this article).

The brainstorming/consultation was to seek inputs from representatives of Civil Society — especially those who had long-standing experience in promoting RTI so that the department could bring about the intended effective improvements in its functioning as well as that of the RTI regime.

As per the presentation of the Secretary of CIC, three basic issues are considered as critical to the successful implementation of the RTI Act and which need to be set right :

    Implementation of relevant provisions of S. 4 more seriously, innovatively and efficiently. He referred to a recent report of the Director General of National Archives, from which it can be made out that less than 10% of the public sector entities bothered to even report their compliance with the ‘Public Records Act, 1993’. Having a clear road map for streamlining the implementation of the Public Records Act and its operationalisation is crucial. (Note: Part B of r2i of May 2010 covers this subject).

    Meticulous study of the questions/information requests that are usually received by a PA and making all such information available suo motu go a long way in lessening the burden on citizens for getting the information they seek.

    Dissemination i.e., the manner in which infor-mation is made available proactively is crucial. Disclosure of information on websites is of limited or no value for the 90% populace which has no access to the Internet. Some out-of-the-box thinking for designing apt formats to address this issue is also called for.

Five members of CSOs (including Narayan Varma) were contacted in advance by the Deputy Secretary, RTI Division, DoPT and were requested to make the presentation of their views. They did so.

    Dr. Vijay Kumar (National Law School of India University, Bangalore) presented his views from an academic perspective. One of his suggestions was to set up the Ombudsman in the Information Commission for continuously seeking inputs and studying good practices as also for addressing the problems that Public Authorities may face in implementing the RTI Act, 2005.

    Nikhil Dey (MKSS) flagged the issue why the Information Commissions need to be ap-proached on such a large scale. Departments need to look inward to address the issue and overhaul the way they deal with proac-tive disclosure, processing of applications and disposing of first appeals. This would perhaps address the issue of so many of the Government’s own employees filing RTI applications. It will also bring about certain other much-needed reforms in the manner in which governments function.

On the whole, he felt, there was much to celebrate the RTI regime. Its success so far is a good reason to believe that there is no need for amending the Act. It is so important that representatives of the Government and of the CSOs shelve the adversarial positions that they tend to take in this regard and work hand-in-hand. It would be of great mutual help for them to meet more often — on a larger scale — and keep talking to each other.

    Dr. Shekhar Singh (NCPRI) stressed the need to spread RTI awareness in rural areas and to use multi-media approaches for the same. DoPT’s funding therefore needs to be streamlined accordingly. Each Public Authority should be asked by DoPT to have a PIO specifically designated to look after the updation of the Public Authority’s pro-active disclosure. Outsourcing the work of streamlining records management needs to be considered.

    Arvind Kejriwal (Parivartan) made a strong pitch for the National RTI Council. He also favoured involvement of a wider number of stakeholders and hence he proposed that the said National Council would discuss all problems related to RTI implementation and should be headed by the Minister and have 70% representation from CSOs and 15% each from Governments and Information Commissions.

    Narayan Varma (PCGT) urged that DoPT be-come more proactive in its functioning and strengthen the RTI regime. He questioned as to why FAQs from DoPT’s website remains deleted even after the friction on ‘file not-ings’ between DoPT and CIC is resolved. He said that DoPT’s Annual Report should clearly mention its work on RTI in a given year. He suggested that a ‘band of 200 RTI activists’ be constituted under the aegis of the earlier-proposed National Council or otherwise to propagate RTI all over India. There is a need to have very good trainers who can train others — Train the Trainers programme. He concluded saying that there has been good progress in RTI implementation, but what remains to be done is much more.

    The vision and mission of the Department of Personnel and Training was placed before the participants. The outline of the workshop was also explained. The participants then split into 4 random groups. Group I and III discussed the vision of the RTI regime and how to achieve that vision. For Group II and IV discussion was on the stakeholders and Governments as facilitators of the RTI regime.

Some of the points made out in the 4 groups were :

    The Joint Secretary, DoPT wrapped up the proceedings summarising the presentations/ discussions in the previous sessions and pointed out that there was much agreement on the key issues faced by the RTI implementation regime even though there were variations in the solutions that were suggested. He also emphasised that the Government and the RTI activists were essentially working towards the same goal. He stated that the Government is fully commit-ted to the success of the RTI regime and that it would not do anything that would in any way dilute or weaken the RTI regime. He mentioned that this was a beginning of process of consultation.

                                                  PART c :  OTHER NEWS

    BPL individuals misusing benefit provided to them in the RTI Act :

Proviso to S. 7(5) of the RTI Act states that fee prescribed u/s.(1) of S. 6 and u/s.(1) and (5) of S. 7 shall not be charged from the persons who are of below poverty line as may be determined by the appropriate Government.

In a bid to curb the misuse of free information under the RTI Act, the Maharashtra State Information Commissioner has recommended that not more than 100 page-photocopies should be given free of cost to those below the poverty line.

Chief Information Commissioner Suresh Joshi said the clause under which information is given free of cost to below poverty line persons, was being misused. He cited a case where a person below the poverty line sought information on the Krishna Valley Development Corporation right from its inception. The information ran into five lakh pages.

“We charge Rs.2 per page. In this case, the fee would amount to Rs.10 lakh. I believe that those below the poverty line would not be interested in this kind of information. Someone was using the person to obtain information free of cost.” said Joshi.

He has recommended to the CM that if the information runs into several pages, the applicant be asked to inspect the documents and then ask for pages he wants photocopies of.

    UK opens Government data to public :

Britain’s Prime Minister David Cameron has thrown open Government data to the public as part of a radical plan to usher in more transparency in public affairs.

In a letter sent to all government departments, Mr. Cameron set out ambitious plans to open up data and set challenging deadliness to public bodies for publication of information on topics including crime, hospital infection and government spending.

He states : “Greater transparency is at the heart of our shared commitment to enable the public to hold politicians and public bodies to account; to reduce the deficit and deliver better value for money in public spending; and to realise significant economic benefits by enabling businesses and non-profit organisations to build innovative applications and websites using public data.”

    Housing for poor !

Aam admi always loses out to corrupt politicians. It is so sad. A whopping 85% of the flats meant for those from the economically weaker section have been usurped by our politicians. TOI has procured data through RTI application from the Urban Development Department that exposes the rampant misuse of the Chief Minister’s 5% discretionary housing quota scheme.

In 1976, the State Government initiated a housing scheme under the Chief Minister’s 5% discretionary quota which allowed citizens from the economically weaker section to apply for flats surrendered by developers in lieu of residential complexes constructed on Government land. According to the rules, each application must be thoroughly vetted by the State Urban Development Department before being approved by the Chief Minister.

Data accessed from the Urban Development Department shows that over the last 16 years, nearly 85% of the apartments have been given to Ministers, MLAs, MPs, their relatives and friends. TOI has in its possession a copy of the list of people who have been allotted flats under the Chief Minister’s discretionary housing quota scheme. Of the total 3,993 recipients, three-fourth (nearly 2,994) are from the Congress, the Shiv Sena, the BJP and the MNS.

Some of the political recipients have taken the flats in the names of their wives and children. Many sold off their apartments even before the completion of the mandatory five-year lock-in period, making a killing on the sale. A total of 142 flats were sold before the end of the lock-in period, in violation of rules framed by the Urban Development Department. Data shows that 1,008 flats have been resold with the allottees pocketing decent profits.

IS THERE NO ONE TO QUESTION SUCH ACTS ?

    Gay Professor :

In Indian Institute of Technology (Hyderabad), management sacked gay rights activist and faculty member Ashley Tellis, apparently uncomfortable with his sexual orientation. The academic, with around 20 years of experience, was shown the door recently, less than a year of joining IIT-H.

Tellis has filed a right to information application, seeking the reasons behind his sacking.

    Illegal garden in Navi Mumbai :

Civic activist Sandeep Thakur used the RTI Act to get facts from Navi Mumbai Municipal Corporations (NMMC). Facts are that CIDCO which built Navi Mumbai has spent Rs.12 crores to create a holding pond in Sector 10-A. It was because of this pond, Navi Mumbai escaped flooding when large parts of Mumbai went under water on July 26, 2005.

In 2008, NMMC filled up one-fifth of the pond to create a garden. This, despite the fact that there are two large public gardens just across the road.

In reply to the RTI application, the Chief Engineer of NMMC admitted that the garden was illegal. He promised last year that the pond would be restored to its original size in April that year. However, no action was taken. Things started moving only when Thakur filed a PIL in April this year asking the Court to direct the civic chief to restore the holding pond to its original capacity before monsoon.

On May 7, the High Court said it would like to know “who took the decision to develop the garden inside the holding pond” and directed the Commissioner to recover the money spent from that person. The Bench said the Commissioner would be held responsible in the matter. Commissioner Nahata has been ordered to file an affidavit before the hearing on July 20.

    Mumbai Mayor’s Fund :

Nobody knew that such a fund existed (Gerson da Cunha, founder of AGNI commented : I have never heard of it. This is one of BMC’s best-kept secret). Existence of such a fund got revealed when an RTI application was made to find out details about it. The Mayor’s fund, as per the RTI records, got a shot in the arm when Mayor R. T. Kadam (1995-1996) organised a programme for fund-raising which resulted in funds of over Rs.1.26 crore. Of this, a crore was kept in fixed deposit and the interest received was used to meet medical aid for the needy. However, the irony is that Mayors who succeeded Kadam only spent the money from the kitty towards medical aid, but did nothing to increase it. When Datta Dalvi, Mayor (2005-’07) exited office, the fund had a balance of over 50.80 lakh, other than the fixed deposit.

Surprisingly, though Dr. Shubha Raul, Mayor, (2007-’09), sanctioned the maximum medical aid of over Rs.50 lakh during her tenure, her contribution to the kitty was zero. At the end of her tenure, the balance corpus was just a paltry sum of over Rs.4 lakh.

The Mayor provides financial assistance to underprivileged patients suffering specifically from heart ailments, dialysis, brain tumor, tuberculosis and kidney ailments.

Shraddha Jadhav, the present Mayor informs that she has over Rs.1 crore in deposit and is utilising the interest received from it to meet public needs. On an average, Ms. Jadhav receives (daily) five to six applications for financial help and has a balance of over Rs.4 lakh in hand. Ms. Jadhav says that she plans to organise a few fund-raising events soon.

    Expenditure on newspapers by the Ministers :

An RTI inquiry reveals that the Maharashtra State Government spent over Rs.7.5 lakh from January 2009 to February 2010 on newspapers and magazines provided to the CM and Deputy CM besides various publicity departments of Mantralaya.

As per the information received in RTI reply, the CM’s office receives three copies of 24 newspapers daily including English and vernacular publications, while the Deputy CM’s office gets 19 newspapers in Marathi, Hindi and English. Interestingly, the office of the Director (Publicity) receives 33 sets of newspapers and magazines including Femina, Society and Stardust. Over 44 different newspapers and magazines are distributed in the news sections, making it highest subscriber amongst 16 departments in Mantralaya, followed by 40 publications that are received by Mantralaya library.

    Shailesh Gandhi goes digital :

Mr. Gandhi selected by the Central Government as a Central Information Commissioner in September 2008 has gone digital. His communication to me and others is very interesting. He states that digital record-keeping is definitely the way forward in any office — government or otherwise. It would promote transparency and accountability in the office and reduce corruption. Full communication is posted on www.bcasonline.org and www.pcgt.org.