Appellant: Investigation in the matter had concluded and the charge-sheet had been filed - CIC: If the matter has reached its conclusive end, the complete information shall be provided after applying due procedure as envisaged u/s 10 of the RTI Act
5 Nov, 2019
Information Sought:
The appellant has sought the following information in regard to complaint lodged on 30 Nov 17 regarding corruption at SEEPZ SEZ:
1. Copy of the tour report submitted to Commerce Secretary on preventive vigilance inspection carried out on 26th & 27th Dec 17.
2. Final report submitted to Commerce Secretary on preventative vigilance inspection which was carried out on 26th & 27th Dec 17.
3. Documents and questionnaire raised after preventive vigilance investigation to SEEPZ SEZ.
4. And other related information.
Grounds for Second Appeal
The CPIO did not provide the desired information. Submissions made by Appellant and Respondent during Hearing: The appellant contested the reply of the CPIO in respect of para (h) of the RTI application. He further submitted that a contradictory reply was given by submitting that investigation is pending.
The CPIO submitted a detailed written submission vide letter dated 29.10.2019. He further submitted that the tour report is a part of the investigation.
Observations:
Having heard the submissions of both the parties, it is noted that the main issue for determination is whether the appellant is entitled to get the desired information or not. During the hearing, the appellant submitted that the investigation in the matter had concluded and the charge-sheet had been filed. However, the CPIO submitted that since the files are not in their custody and had been called for by the Ministry concerned, they are not aware of the present status of the case. In such circumstances where it cannot be established if the investigation is over or not, the present CPIO is directed to provide an updated status to the appellant with regard to the stage at which the matter is pending. Further, the CPIO in his reply could not satisfactorily demonstrate as to how the disclosure of information would "impede" the process of investigation.
The Commission finds the following observation of the Hon'ble High Court Delhi in Bhagat Singh v. CIC & Ors. WP(C) 3114/2007 pertinent in this matter.
"13. Access to information, under Section 3 of the Act, is the rule and exemptions under Section 8, the exception. Section 8 being a restriction on this fundamental right, must therefore is to be strictly construed. It should not be interpreted in manner as to shadow the very right itself. Under Section 8, exemption from releasing information is granted if it would impede the process of investigation or the prosecution of the offenders. It is apparent that the mere existence of an investigation process cannot be a ground for refusal of the information; the authority withholding information must show satisfactory reasons as to why the release of such information would hamper the investigation process. Such reasons should be germane, and the opinion of the process being hampered should be reasonable and based on some material. Sans this consideration, Section 8(1)(h)
Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders;
Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders;
Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders;
Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders;
Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders;
and other such provisions would become a haven for dodging demands for information."
Furthermore, the Hon'ble High Court of Delhi in B.S. Mathur v. PIO in W.P. (C) 295 of 2011 dated 03.06.2011 had held that :
"19. The question that arises for consideration has already been formulated in the Court's order dated 21st April 2011: Whether the disclosure of the information sought by the Petitioner to the extent not supplied to him yet would "impede the investigation" in terms of Section 8(1)(h)
Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders;
Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders;
Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders;
Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders;
Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders;
RTI Act" The scheme of the RTI Act, its objects and reasons indicate that disclosure of information is the rule and non-disclosure the exception. A public authority which seeks to withhold information available with it has to show that the information sought is of the nature specified in Section 8 RTI Act. As regards Section 8(1)(h)
Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders;
Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders;
Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders;
Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders;
Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders;
RTI Act, which is the only provision invoked by the Respondent to deny the Petitioner the information sought by him, it will have to be shown by the public authority that the information sought "would impede the process of investigation." The mere reproducing of the wording of the statute would not be sufficient when recourse is had to Section 8(1)(h)
Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders;
Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders;
Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders;
Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders;
Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders;
RTI Act. The burden is on the public authority to show in what manner the disclosure of such information would 'impede' the investigation...............
22. ...........The mere pendency of an investigation or inquiry is by itself not a sufficient justification for withholding information. It must be shown that the disclosure of the information sought would "impede" or even on a lesser threshold "hamper" or "interfere with" the investigation. This burden the Respondent has failed to discharge."
The Hon’ble High Court of Delhi in Adesh Kumar v. UOI and Ors. W.P. (C) 3542/ 2014 dated 16.12.2014 had held as under:
“10. A bare perusal of the order passed by the FAA also indicates that the aspect as to how the disclosure of information would impede prosecution has not been considered. Merely, citing that the information is exempted under Section 8(1)(h)
Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders;
Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders;
Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders;
Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders;
Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders;
of the Act would not absolve the public authority from discharging its onus as required to claim such exemption. Thus, neither the FAA nor the CIC has questioned the Public Authority as to how the disclosure of information would impede the prosecution.”
The Commission also observed that as per the provisions of Section 19 (5) of the RTI Act, 2005, in an appeal proceeding, the onus to prove that a denial of a request was justified shall be on the CPIO. Neither the CPIO present during the hearing nor the FAA, could justify their positions as to how the disclosure of information would be in contravention of any of the provisions enshrined under Section 8 of the RTI Act, 2005.
In this context, the Commission referred to the decision of the Hon’ble High Court of Delhi in the matter of Dy. Commissioner of Police v. D.K. Sharma, WP (C) No. 12428 of 2009 dated 15.12.2010, wherein it was held as under:
“6. This Court is inclined to concur with the view expressed by the CIC that in order to deny the information under the RTI Act the authority concerned would have to show a justification with reference to one of the specific clauses under Section 8 (1) of the RTI Act. In the instant case, the Petitioner has been unable to discharge that burden. The mere fact that a criminal case is pending may not by itself be sufficient unless there is a specific power to deny disclosure of the information concerning such case.”
Moreover, as per the provisions of Section 7 (8) (i) of the RTI Act, 2005, where a request for disclosure of information is rejected, the CPIO shall communicate the reasons for such rejection. The appellant submitted that he is not satisfied with the reply of the CPIO as the desired information was not provided to him till date. He further submitted that the information sought had wrongly been denied by the CPIO citing Section 8(1) (h) of the RTI Act, 2005 without justifying the grounds for denial. To substantiate his contention, he relied on the decision passed by a coordinate bench of this Commission in File No. CIC/NBDOE/A/2018/611376-BJ dated 22.05.2019. He further submitted that once the charge-sheet has been issued, the investigation gets over and hence, the applicability of Section 8(1)(h)
Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders;
Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders;
Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders;
Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders;
Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders;
does not arise. The CPIO submitted that an appropriate reply was provided to the appellant on 25.05.2018. He further stated that since the investigation was not done by their Department, no records are available with them.
Decision:
Based on the above observations, the present CPIO is directed to re-visit the RTI application and provide a revised reply to the appellant giving an updated status of the case, as discussed during the hearing. For this purpose, he can seek assistance u/s 5(4) of the RTI Act from the custodian of the information. Further, if it is found that the matter has reached its conclusive end, the complete information as desired by the appellant shall be provided to him. However, the information can be provided after applying due procedure as envisaged u/s 10 of the RTI Act thereby masking the names/ designations/addresses etc of all the concerned third parties. This direction is to be complied with within a period of 21 days from the date of receipt of this order under intimation to the Commission.
The appeal is disposed of accordingly.
Vanaja N. Sarna
Information Commissioner
Citation: Binod Agarwal v. CPIO, Ministry of Commerce & Industry in Decision no.: CIC/DOCOM/A/2018/158959/02003, Date of Decision: 30/10/2019