Information regarding complaints received in IIPS and MOHFW against Faculties etc. and reply given - CIC: There is complete negligence and laxity in dealing with the RTI applications; Penalty of Rs. 5,000/- each imposed on the past and incumbent PIO
O R D E R
The Appellant vide her RTI application sought information on 08 points regarding all complaints received in IIPS and MOHFW against Faculties, Registrar, former Director, current Director and other authorities of IIPS and reply given by each of them from 2012 to till date, all written correspondence made by IIPS (both internal and external) including copy of e-mails, copy of noting, copy of minutes, related to all field agencies involved in DLHS – 4 and NFHS – 4 and MOHF and issues related thereto.
Dissatisfied due to non- receipt of information from the CPIO, the Appellant approached the FAA. The FAA, vide its communication dated 22.02.2018 informed the Appellant that a meeting had been arranged to discuss issues related to the Appellant’s RTI application. Therefore the Appellant was requested to attend the meeting at 02:30 PM on 06.03.2018 at the Director’s office. In response, the Appellant vide email dated 03.03.2018, informed the FAA that she would be unable to present on 06.03.2018 and that she had already sent a demand draft of Rs. 3,942/- for photocopying charges for 1991 pages as requested by the CPIO vide email dated 10.01.2018. The demand draft was received by the CPIO on 08.02.2018. The FAA, vide email dated 05.03.2018 informed the Appellant that the matter was discussed with the Institute’s Advocate who had conveyed that the matter was sub-judice in the Court hence the information cannot be provided.
Facts emerging during the hearing:
The following were present:
Appellant: Ms. Chandni Prafulbhai Munjpara through VC;
Respondent: Dr. D. A. Nagdeve, CPIO through VC;
The Appellant reiterated the contents of the RTI application and stated that the information sought was not provided to her despite payment of Ra. 3,942/- as photocopying charges for 1991 pages as requested by the CPIO vide email dated 10.01.2018. She further submitted that the denial of information by the FAA on the ground that the matter was sub-judice was incorrect, misleading and an afterthought communicated with an intention to deny the information and cause mental harassment to her. Thus, the Appellant prayed for disclosure of information and imposition of penalty against the CPIO/ FAA. In its reply, the Respondent at the outset tendered his conditional apology for the reply provided by the then CPIO (Prof. K.C. Das) and admitted that the said response was incorrectly provided without ascertaining the correct factual position in the matter. While admitting that he had assumed the responsibilities of CPIO w.e.f. 01.02.2018, the Respondent present during the hearing expressed his helplessness to provide the information to the Appellant since the FAA vide order dated 05.03.2018 denied disclosure of information on the ground that the matter was sub judice. On being queried by the Commission regarding the action taken by him to facilitate the flow of information from the date of assuming the responsibilities as CPIO w.e.f. 01.02.2018 till date, no satisfactory information was provided by the Respondent. His conduct during the hearing was casual and callous and no convincing reply could be offered.
Having heard both the parties and on perusal of the available records, the Commission at the outset was appalled to learn about the callous and casual approach exhibited by the Respondent Public Authority Officials in replying to the RTI application/ First Appeal. The Commission observed that the CPIO did not provide the information despite payment of the requisite fee by the Appellant. The FAA, on the contrary denied complete information by taking a vague plea that the matter was subjudice before Court without providing any further details in support of its decision. Moreover, the incumbent CPIO despite assuming the responsibility of CPIO from 01.02.2018 did not take any action in the matter. The Commission observed that the RTI Act, 2005 stipulates time limits in its various provisions relating to responding to RTI Applications, transfer of applications, filing and disposing of first appeal to ensure that a culture of information dissemination is strengthened so that a robust functioning of the democracy gets established. This was recognised by the Hon’ble High Court of Delhi in Mujibur Rehman vs Central Information Commission (W.P. (C) 3845/2007)(Dated 28 April, 2009) wherein it was held as under:
“14.......The court cannot be unmindful of the circumstances under which the Act was framed, and brought into force. It seeks to foster an “openness culture” among state agencies, and a wider section of “public authorities” whose actions have a significant or lasting impact on the people and their lives. Information seekers are to be furnished what they ask for, unless the Act prohibits disclosure; they are not to be driven away through sheer inaction or filibustering tactics of the public authorities or their officers.
It is to ensure these ends that time limits have been prescribed, in absolute terms, as well as penalty provisions. These are meant to ensure a culture of information disclosure so necessary for a robust and functioning democracy.”
With regard to providing a clear and cogent response to the Appellant, the Commission referred to the decision of the Hon’ble Delhi High Court in J P Aggarwal v. Union of India (WP (C) no. 7232/2009 wherein it was held that:
“ 7“it is the PIO to whom the application is submitted and it is 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.”
8………….The PIO is expected to apply his / her mind, duly analyse the material before him / her and then either disclose the information sought or give grounds for nondisclosure.”
Furthermore, the Hon’ble High Court of Delhi in the matter of R.K. Jain vs Union of India, LPA No. 369/2018, dated 29.08.2018, held as under:
“9………………………….. That apart, the CPIO being custodian of the information or the documents sought for, is primarily responsible under the scheme of the RTI Act to supply the information and in case of default or dereliction on his part, the penal action is to be invoked against him only.”
A reference can also be made to the decision of the Hon’ble High Court of Himachal Pradesh in the matter of Block Development Officer, Paonta Sahib vs. State Information Commission and Anr., CWP No. 6072 of 2012 dated 27.06.2018 held as under:
“9. It is vehemently urged by learned counsel for the petitioner that the impugned order suffers from vice of arbitrariness and, therefore, should be quashed and set aside. It was further argued that the petitioner on receipt of the application had transferred it to the concerned authorities and, therefore, there was no lapse on his part. He would also urge that the petitioner did not know the intricacies of the RTI Act and, therefore, he could not have been penalized.
10. I find no merit in the contention put-forth by the petitioner. It is more than settled that ignorance of law can be no excuse. Once the petitioner is designated as PIO, then all the more he is deemed to have knowledge and even otherwise the least that was required of him was to have acquainted himself thoroughly with the provisions of the RTI Act. Therefore, the explanation as sought to be put-forth by the petitioner at this stage clearly reflects the lackadaisical attitude of the petitioner. The only reasonable explanation for the cause of delay can be accepted and not lame excuses.”
Moreover, the Commission observed that it should be the endeavour of the CPIO to ensure that maximum assistance should be provided to the RTI applicants to ensure the flow of information.
In this context, the Commission referred to the OM No.4/9/2008-IR dated 24.06.2008 issued by the DoP&T on the Subject “Courteous behavior with the persons seeking information under the RTI Act, 2005” wherein it was stated as under:
“The undersigned is directed to say that the responsibility of a public authority and its public information officers (PIO) is not confined to furnish information but also to provide necessary help to the information seeker, wherever necessary.”
The Commission further 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 in its response to the First Appeal, could justify their position as to how the disclosure of information would be in contravention to any of the provisions enshrined under Section 8 of the RTI Act, 2005.
While observing that in order to deny information under any of the exemption mentioned under Section 8 (1) of the RTI Act, 2005, the Respondent is required to provide justification or establish the reason why such exemption was claimed, 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 Commission also observed that as per the provisions of section 8 (1) of the RTI Act, 2005, no specific exemption is codified which allows non-disclosure of information on the ground that the matter is sub-judice. In this context, the following extract of the decision of the High Court of Delhi in Municipal Corporation of Delhi v. R.K. Jain in W.P. (C) 14120/ 2009 dated 23.09.2010 can be cited:
“5...........The matter being sub judice before a court is not one of the categories of information which is exempt from disclosure under any of the clauses of Section 8(1) of the RTI Act.”
Furthermore, the Commission in its decision in Mr. Ashu v. CPIO/ Sr. Supdt of Posts, Department of Posts in CIC/BS/A/2015/001578/11769 dated 28.11.2016 had held as under:
“At the outset it is clarified that the RTI Act provides no exemption from disclosure requirements of sub-judice matters. The only exemption for sub-judice matters is regarding what has been expressly forbidden disclosure by a court or a tribunal and what may constitute contempt of court.”
The Commission thus observed that there is complete negligence and laxity in the public authority in dealing with the RTI applications. It is abundantly clear that such matters are being ignored and set aside without application of mind which reflects disrespect towards the RTI Act, 2005 itself. The Commission expressed its displeasure on the casual and callous approach adopted by the respondent in responding to the RTI application. It was felt that the conduct of Respondent was against the spirit of the RTI Act, 2005 which was enacted to ensure greater transparency and effective access to the information.
Keeping in view the facts of the case and the submissions made by both the parties and in light of the decisions cited above and the perceptible deliberate harassment caused to the RTI applicant in contravention of the spirit of the Act as also several circulars issued by the DoPT and rulings of various Courts, the Commission finds that as per the provisions of Section 20(1) Where the Central Information Commission or the State Information Commission, as the case may be, at the time of deciding any complaint or appeal is of the opinion that the Central Public Information Officer or the State Public Information Officer, as the case may be, has, without any reasonable cause, refused to receive an application for information or has not furnished information within the time specified under sub-section (1) of section 7 or malafidely denied the request for information or knowingly given incorrect, incomplete or misleading information or destroyed information which was the subject of the request or obstructed in any manner in furnishing the information, it shall impose a penalty of two hundred and fifty rupees each day till application is received or information is furnished, so however, the total amount of such penalty shall not exceed twenty-five thousand rupees: Provided that the Central Public Information Officer or the State Public Information Officer, as the case may be, shall be given a reasonable opportunity of being heard before any penalty is imposed on him: Provided further that the burden of proving that he acted reasonably and diligently shall be on the Central Public Information Officer or the State Public Information Officer, as the case may be. of the RTI Act, 2005, this is a fit case for levying a penalty of Rs. 5,000/- each on Prof. K.C. Das, the then CPIO and Dr. D. A. Nagdeve, the incumbent CPIO for not providing the information to the Appellant within the stipulated time frame despite payment of the requisite fee as admitted by the incumbent CPIO also during the hearing.
The FAA, International Institute for Population Sciences, Mumbai is directed to recover the amount of Rs 5,000/- from the salary of Prof. K.C. Das and Dr. D. A. Nagdeve on receipt of this order and remit the same by way of Demand draft drawn in favour of “Pay and Accounts Officer, CAT” payable at New Delhi and send the same to Dy. Registrar, (CR-II) email: firstname.lastname@example.org, Room No. 106, First Floor, Central Information Commission, CIC Bhavan, Baba Gangnath Marg, Munirka, New Delhi-110067 within 30 days from the date of receipt of this order.
The Commission also instructs the incumbent CPIO to provide point wise information to the Appellant within a period of 15 days from the date of receipt of this order. The Commission further instructs the Respondent to convene periodic conferences/seminars to sensitize, familiarize and educate the concerned officials about the relevant provisions of the RTI Act, 2005 for effective discharge of its duties and responsibilities.
Furthermore, it is appalling to note that the FAA had also not acted in accordance with the provisions of the RTI Act, 2005, and therefore is advised to be alert and cautious in the implementation of the RTI Act, 2005 with due diligence and care.
The Appeal stand disposed with the above directions.
1. The Secretary, Ministry of Health and Family Welfare, ‘A’ Wing, Nirman Bhawan, New Delhi-110011 (with the advise to review the efficaciousness of the RTI mechanism within the International Institute for Population Sciences (IIPS), Mumbai and ensure that the Director and its employees get sensitized about the provisions of the RTI Act, 2005 within a time bound manner and pay more attention to the spirit of the Act. The Commission conveys its displeasure in respect of the functioning of the RTI Act, 2005 in IIPS.)
2. The First Appellate Authority, International Institute for Population Sciences, Mumbai, Govandi Station Road, Deonar, Mumbai – 400088
3. DR to CR-II, Central Information Commission, CIC Bhavan, Baba Gangnath Marg, Munirka, New Delhi-110067
Citation: Ms. Chandni Prafulbhai Munjpara v. CPIO International Institute for Population Sciences, Mumbai in Second Appeal No.:- CIC/IIPOS/A/2018/119498-BJ, Date of Decision: 03.10.2019