Appellant was asked to pay Rs. 68/- for 34 pages of correspondence, but only 20 pages provided - CIC: FAA erred in asking for fee as the documents were supplied to him only at appellate stage; refund fee charged - CIC: Show cause to PIO for penalty

Information regarding CESTAT was sought - appellant was asked to pay Rs. 68/- for 34 pages of correspondence, but was provided with 20 pages of correspondence - CIC: FAA erred in asking for fee as the documents were supplied to him only at appellate stage; the PIO is bound to refund the copying fee of Rs. 68/- charged from the appellant - CIC: the PIO has not seriously applied his mind and not handled the matter in letter and spirit of the RTI Act; SCN issued for imposition of penalty

ORDER

Shri R.K. Jain, hereinafter called the appellant, has filed the present appeal dated 7.2.2012 before the Commission against the respondent Ministry of Finance, Department of Revenue, New Delhi for providing incomplete information in response to his RTI application dated 23.4.2011. The matter was earlier heard by the Commission on 13.09.2012. As the hearing remained inclusive the matter was listed for hearing again on 13.12.2013. The appellant was present whereas no one from respondent side were present. Shri Victor James, the then CPIO sought three weeks time because he is presently working in a different office on deputation basis.

2. Briefly, the appellant field his RTI application dated 23.4.2011 before the CPIO seeking the following information:

“(A) Whether the process of appointment of new President to the CESTAT has been initiated;

(B) Date-wise details of action/steps taken for the appointment of a retired Chief Justice/ Senior Judge of the High Court as President of the CESTAT;

(C) Whether any communication has been sent to CJI seeking recommendation of a name of a retired Judge or senior Judge of a High Court for appointment as President, CESTAT;

(D) Inspection of all original records, documents, files etc. for appointment of Shri R.M.S. Khandeparkar as President, CESTAT;

(E) Whether any proposal for transfer of Member of CESTAT has been received or any such proposal is under consideration of the Ministry; and

(F) Inspection of all original records, documents, files etc. in respect of information A to E above.”

The CPIO vide his reply dated 5.5.2011 informed the appellant with respect to his query regarding process of appointment of new President of CESTAT including whether communication had been sent to Chief Justice of India in the negative. With respect to the appellant’s request for inspection of record regarding appointment of Shri RMS Khandeparkar as President of CESTAT, the respondent CPIO replied as follows –

“You may inspect pages 19 to 28 of note portion and pages 137 to 209 of correspondence portion in F. No. 27/34/2007-Ad.IC except pages 158-159/c, ages 180-181/c and page 207 which are third party confidential letters at 3 p.m. on 13.5.2011 in R. No. 51-II, North Block, New Delhi. Copy of notices issued to third parties are enclosed.”

With respect to information whether proposal for transfer of Member, CESTAT, has been received or any such proposal is under consideration, the CPIO replied in the negative. The CPIO also informed the appellant that inspection of confidential documents would be decided on receipt of reply from concerned third party. Copy of notices issued to third party was enclosed with the reply.

3 The appellant filed first appeal before the FAA on 17.12.2011 stating therein that he inspected the offered record on 30.5.2011 and vide his endorsement to CPIO of the same date. He requested for copy of all file noting and correspondence pages. However, copies of these documents were not provided to the appellant until the date of filing of the appeal. The appellant also requested through his reminders dated 1.6.2011, 9.7.2011 and 9.11.2011 for disclosure of information claimed to be third party information and if no objection has been received from the third party, the CPIO was requested to provide a copy of the same. However, the then CPIO neither provided copies of information sought by the appellant on 13.5.201 nor has he responded to the repeated reminders sent to him by the appellant. He therefore requested the FAA to direct the CPIO to provide information at the earliest besides recommending to CIC for imposition of penalty u/s 20 of the RTI Act, 2005.

The FAA vide his letter dated 1.2.2012 partially allowed the appeal and ordered as follows:

“ (i) The appellant may deposit the requisite charges for obtaining the copies of the documents immediately and the CPIO should supply the information within one week thereafter;

(ii) The disclosure of information relating to the third party i.e. DOPT is allowed and its copy is enclosed with this order;

(iii) The disclosure of information relating to the other third party i.e. the Supreme Court (Page No. 158-159/c and 180-191/c) is not allowed as disclosure of the information is exempted under the provisions of Section 8(1)(b) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which has been expressly forbidden to be published by any court of law or tribunal or the disclosure of which may constitute contempt of court; (e) of the RTI Act. A copy of the reply received from the concerned third party provided to the appellant.”

4. The appellant thereafter filed the present appeal before the Commission where he prays that the impugned order of the FAA be set aside to the extent that it upheld the provisions of Section 8(1)(b) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which has been expressly forbidden to be published by any court of law or tribunal or the disclosure of which may constitute contempt of court; (e) and (j) to the letter of the Chief Justice of India to Finance Minister and also directing the appellant to pay the copying charges, being contrary to Section 7(6) of the RTI Act, the CPIO be directed to provide the complete information within a time bound manner, that an inquiry be instituted u/s 18(2) Where the Central Information Commission or State Information Commission, as the case may be, is satisfied that there are reasonable grounds to inquire into the matter, it may initiate an inquiry in respect thereof. of the RTI Act, penalty be imposed on to the then CPIO u/s 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 for knowingly not providing third party information, after inspection on 13.5.2011, within the stipulated period of 30 days, thereby causing a delay of 258 days. He has also requested for disciplinary action against Shri Victor James, the then CPIO u/s 20(2) 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 and persistently, failed 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 recommend for disciplinary action against the Central Public Information Officer or the State Public Information Officer, as the case may be, under the service rules applicable to him. of the RTI Act for willfully denying to the appellant information without reasonable cause.

5. During the hearing on 13.9.2012 Shri V. Sreekumar, Under Secretary and present CPIO informs that Mr. Victor James, the then CPIO has been relieved from the Department w.e.f. 29.8.2012. In a written submissions filed by Mr. Sreekuamr, it is stated that Shri Jain inspected the records (file No. 27/34/2007- Ad.IC) on 13.5.2011 and requested to provide copies of all the note sheets and 20 pages from the correspondence side. However, he did not submit the fee for getting their copies. Moreover, the appellant wrote the incorrect file number after inspection, as per his inspection note recorded on the margin of CPIO’s letter dated 5.5.2011. He also states that the Supreme Court vide letter dated 18.5.2011 raised objection for disclosure of its letter dated 21.1.2008 and sought exemption u/s 8(1)(e)(j) of the RTI Act stating inter alia as under:

“The issue of providing information relating to appointment of Hon. Judges is the subject matter of judicial proceedings in SIP No. 32855-56 of 2009, now converted into Civil Appeal No. 10044-45 of 2010, which are pending consideration before the Hon. Court. Further, in terms of order dated 4.12.2009 in SIP (C) No. 32855/2009 titled ‘Central Public Information Officer and Anr. Vs. Subhash Chandra Agrawal, there is a stay on disclosure of information relating to appointments of Judges. Hence disclosure of information in this regard may constitute contempt of court….”

5.1 The DOPT vide letter dated 17.11.2011 conveyed its no objection to disclosure of its letter dated 2.3.2009. In the case of third party information concerning Supreme Court, in case the CPIO decides not to disclose a third party information, ordinarily, the averments of the third party should be made available to the RTI petitioner.

5.2 In the meanwhile, the appellant vide letter dated 9.11.2011 requested to disclose the third party information as more than 5 months had passed. The appellant also filed before FAA through his letter dated 17.12.2011 regarding non-disclosure of third party information by the CPIO despite lapse of more than six months. The appellant in his letter submits that in terms of the order of the FAA, the CPIO vide letter dated 6.2.2012 requested the appellant to deposit Rs. 68/- for obtaining 34 pages of information and the appellant deposited the fees on 6.2.2012. In response thereto the appellant was provided copies of 30 pages of file No. 27/34/2007/Ad.IC vide letter dated 15.2.2012.

5.3 The respondent submit that the appellant vide letter dated 20.2.2012 informed him that he has not received any information or response to his letter dated 6.2.2012. However, he did not mention the details of pending information. Thereafter the CPIO vide letter dated 13.3.2012 requested the appellant to inform him whether the information provided to him is complete and requested him to inform the details of information which he has not received but he has not received any reply from the appellant in this regard.

5.4 Finally, the respondent submit that the appellant filed his RTI application dated 23.4.201 and the then CPIO provided the requisite information to the appellant, except the third party information, well within the time frame stipulated under the RTI Act, obeying the order passed by the FAA and thereafter vide letter dated 6.2.2012 he was provided copies of requisite pages vide letter dated 15.2.2012. The CPIO also requested the appellant to clarify if information provided to him is complete and informing him about information pending, if any. In conclusion, all information, except third party information relating to the Supreme Court of India has been supplied to the appellant there was no lapse or delay on the part of the CPIO which call for any penal action against him.

6. Having heard the submissions of the parties, the Commission is of the view that the then CPIO has not seriously applied his mind and not handled the matter in letter and spirit of the RTI Act. While the appellant has been meticulously following up his case with the public authority, with letters and reminders, one can see lack of sincere effort in providing the information to the appellant. For example, while the appellant had hand-delivered copy of the second appeal at the CPIO Office on 7.2.2012, with another copy delivered on 29.8.2012, the latter has denied receiving the same. It is also noticed that the information has been provided to the appellant after the appellate order. It is further observed that the appellant has been asked to pay Rs. 68/- for 34 pages of correspondence, but he has been provided with 20 pages of correspondence. The CPIO ought to have provided copies of third party notices issued by him but he failed to do so. The FAA has also erred in asking the appellant to deposit fee for documents because the documents were supplied to him only at appellate stage. Accordingly, the CPIO is bound to refund the copying fee of Rs. 68/- charged from the appellant.

7. In view of the aforesaid observations, the Commission feels that the then CPIO has not approached the matter in right earnest and there is prima facie delay in providing information/reply to the appellant. Therefore, a separate show cause notice shall be issued to the then CPIO Shri Victor James to explain as to why a penalty u/s 20 of the RTI Act, 2005, should not be imposed on him for causing delay in providing the information to the appellant.

(Sushma Singh)

Information Commissioner

Citation: Shri R.K. Jain v. Ministry of Finance, Department of Revenue in Case No. CIC/SS/A/2012/001340