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Section 5(3), (4) to (5) of the RTI Act
A very interesting and unusual matter came before the High Court of Delhi. The same is summarised as under:
- “The petitioner challenged the order dated 16th January, 2009 of the Central Information Commission (CIC) imposing penalty u/s.20 of the Right to Information Act, 2005 on the petitioner of Rs. 12,500 deductible in two instalments of Rs.6,250 each from the salary of the petitioner, starting from 3rd March 2009. The petition came up before the Court first on 2nd March, 2009, but no stay was granted. The petitioner on 14th December, 2009 informed that the penalty amount had been paid to the CIC and further submitted that the fault leading to the imposition of penalty was not in his functioning as the Public Information Officer (PIO) of the DDA, but of Shri S. C. Gupta, the then Dy. Director (Housing) of the DDA. It may be noticed that the CIC has vide the impugned order, while levying penalty of Rs.12,500 on the petitioner, levied penalty of Rs.12,500 on the said S. C. Gupta also, deductible from his salary. On the said contention of the petitioner, the said Shri S. C. Gupta was impleaded as respondent No. 4 to the petition and in fact he alone has been served with the notice of petition.”
- “It is the case of the petitioner that he, as PIO of DDA had acted with promptitude and has on the very next day of receiving the RTI application, sought information from the respondent No. 4 and the delay in providing information was of the respondent No. 4. It is further the case of petitioner that in pursuance to the directions of the First Appellate Authority to provide further information also, the delay in providing the same was of the said Shri S. C. Gupta.”
- The CIC however has in the order dated 16th January, 2009 impugned in this petition held that it had in the earlier order dated 26th September, 2008 (which is not before the Court) held that it is the not the delay in response for which the petitioner had been held liable, but the petitioner had failed to provide the information sought and had simply forwarded a report to the information seeker without caring to examine whether the report even addressed the information sought. It was thus held that the petitioner had abdicated his responsibility as PIO. It was further held that the petitioner as the PIO of the DDA was responsible for providing the information and what was being passed on. The said conduct of the petitioner was held to be amounting to deemed refusal of information.
The Court stated:
- “It is not in dispute that the petitioner was the designated PIO u/s.5 of the Act of the DDA. U/s.5(3) of the Act it was for the petitioner to deal with the request and render reasonable assistance to the information seeker. The PIO u/s.5(4) is authorised to seek the assistance of any other officer as may be considered necessary for the purpose of providing information and section 5(5) mandates such officers to render all assistance to the PIO. Section 5(5) also deems such officers from whom information is sought, as the PIO for the purpose of any contravention of the provisions of the Act.”
- “The contention of the petitioner appears to be that he as PIO was merely required to forward the application for information to the officer concerned and/or in possession of the said information and upon receipt of such information from the concerned officer furnish the same to the information seeker. He would thus contend that as long as he as PIO has acted with promptitude and forwarded the application to the officer in possession of the information and furnished the same to the information seeker immediately on receipt of such information, he cannot be faulted with and liability for penalty if any has to be of such other officer from whom he had sought the information and cannot be his.” “The argument aforesaid reduces the office of the PIO to that of a Post Office, to receive the RTI query, forward the same to the other officers in the department/administrative unit in possession of the information, and upon receipt thereof furnish the same to the information seeker. It has to be thus seen from a perusal of the Act, whether the Act envisages the role of a PIO to be that of a mere Post Office.”
- The Court then provided definition of ‘dealt with’. In Karen Lambert v. London Borough of Southwark, (2003) EWHC 2121 (Admin) it was held to include everything right from receipt of the application till the issue of decision thereon. U/s. 6(1) and 7(1) of the RTI Act, it is the PIO to whom the application is submitted and it is he who is responsible for ensuring that the information as sought is provided to the applicant within the statutory requirements of the Act. Section 5(4) is simply to strengthen the authority of the PIO within the department; if the PIO finds a default by those from whom he has sought information, the PIO is expected to recommend a remedial action to be taken. The RTI Act makes the PIO the pivot for enforcing the implementation of the Act.
The Court further noted
- “This Court in Mujibur Rehman v. Central Information Commission held that information seekers are to be furnished what they ask for and are not to be driven away through filibustering tactics and it is to ensure a culture of information disclosure that penalty provisions have been provided in the RTI Act. The Act has conferred the duty to ensure compliance on the PIO. He cannot escape his obligations and duties by stating that persons appointed under him had failed to collect documents and information; that the Act as framed casts obligation upon the PIO to ensure that the provisions of the Act are fully complied. Even otherwise, the settled position in law is that an officer entrusted with the duty is not to act mechanically. The Supreme Court as far back as 1995 in Secretary, Haila Kandi Bar Association v. State of Assam, [1995 supp. (3) SCC 736] reminded the high-ranking officers generally, not to mechanically forward the information collected through subordinates. The RTI Act has placed confidence in the objectivity of a person appointed as the PIO and when the PIO mechanically forwards the report of his subordinates, he betrays a casual approach shaking the confidence placed in him and duties the probative values of his position and the report.”
The Court finally held
“Thus no fault can be found with order of the CIC apportioning the penalty of Rs.25,000 equally between the petitioner and the respondent no. 4. There is thus no merit in the petition; the same is dismissed.”
[J. P. Agrawal v. Union of India and Ors., W.P. (C) 7232/2009, decided on 4-8-2011. Reported in Right to Information Reporter — RTI RI (2012) 353 (Delhi)]
Section 8(1)(d)&(a) of the RTI Act
- Two writ petitions were heard together, since common arguments were canvassed and common questions are involved, they were disposed of by this judgment.
- The petitioner functions as service provider to the Government of Maharashtra. It provides the facility of Smart Card-based Registration Certificate. It is stated that considering the need for computerisation, the Government switched over to the latest technology in its various departments. In the transport sector, the Government aimed at modernising the Regional Transport Offices which was aimed at streamlining the entire process undertaken at these offices and obviously to make functions of these Regional Transport Offices efficient, prompt and easy. In this backdrop, the Central Government took a policy decision to introduce ‘Smart Card’ with micro processor chip and it was decided to permit the use of Smart Cards for issuing registration certificates in electronic form. It is stated that this micro processor chip-based Smart Card obviously has various advantages over the regular paper-based registration books. A reference is made to the Central Government’s guidelines issued on 17-10-2001. The implementation of this policy required amendments to the Motor Vehicles Act and Rules and therefore, the amendments were made on 31-5-2002 and Rule 2(s) was added to define the term ‘Smart Card’. It is stated that the registration certificate is now issued to the motor vehicle owners in the form of Smart Cards and thereafter, several provisions of the Motor Vehicles Act have been referred to. It was submitted that the Government of Maharashtra floated a PAN India tender for appointing a service provider to comply with requirement of issuance of ‘Smart Cards’. The petitioner participated in the tender process and was declared successful. A contract dated 30-11-2002 came to be executed. It is stated it is not an ordinary contract, but it is an outcome of exhaustive statutory project. The project which the petitioner is implementing must be seen in the backdrop of the policy decision of the Government to provide a more standardised and tamper-proof registration of the vehicles. The policy of the Government is to adopt a technology which will prevent tampering of registration books by the anti-social elements. It is stated that this contract is confidential in nature. The project has been undertaken by the petitioner, but attempts are made to exploit the petitioner for personal gains by various unscrupulous elements. The RTI Act, according to the petitioner, does not give an absolute right to a person to obtain any informa-tion and it is therefore, contended that Shri Sanjay Bhole, the respondent No. 4’s attempt to obtain the information must be seen in this light.
- SCIC in its order had directed the Transport Commission to furnish the information requested for. The same is challenged in this writ petition. While the Court agreed that clause (a) of section 8(1) is in no way applicable. However, as to clause (d), order notes:
- “Clause (d) provides that the information can be disclosed if the competent authority is satisfied that larger public interest warrants such disclosure. Therefore, that clause as admitted by (Advocate of the appellant) Mr. Manohar is not absolute. It does not say that information including commercial confidence, trade secrets or intel-lectual property, the disclosure of which, would harm the competitive position of a third party; cannot be demanded or if demanded, cannot be disclosed even if larger public interest warrants the same. The State Information Commissioner has held that the disclosure of both agreements would not result in disclosure of trade secret or intellectual property. His conclusion is that the tenders were for an important work which affects large number of vehicle owners and drivers of vehicles. The agreements have to be entered into for providing a service in the form of making of Smart Cards for registration of motor vehicles and driving licences at enhanced fees. Further, the conclusion is that the disclosure of information would enable public scrutiny of the process and contracts and therefore, it is desirable in larger public interest that the information is provided.”
Final Order
“In the light of this conclusion, both writ petitions fail. Rule is discharged, but without any order as to costs. At this stage, it is prayed that the ad interim orders passed by this Court be continued so as to enable the petitioners to challenge this judgment in higher court. This request is opposed by the respondent No. 4. In such circumstances, the request made to continue the ad interim orders is rejected and particularly, when the information as directed to be given under the impugned orders is as early as on 23-3-2011.”
[Writ petitions No. 2912 & 3137 of 2011, Shonkh Technology Ltd. & United Telecom Ltd. v. Shri Sanjay Bhole & State IC, Joint Transport Commissioner & PIO decided on 1-7-2011: (‘Information Decisions’ 2012 (1) ID 268) Bombay High Court]
