CIC: Information pertaining to Points 01 to 04 of the RTI application remained unattended; Secretary, MoH&FW, to depute an officer to furnish reply; Convene periodic seminars to sensitize the concerned officials about the provisions of the RTI Act

FACTS:

The Appellant vide his RTI application sought information on 08 point regarding the certified copies of the procurement rules applicable in RCH II and NRHM, certified copies of the agreement entered into by the Union Government and the State Government, certified copies of the framework of implementation of both the schemes and who was responsible for implementation of the Program and other issues related thereto.

The CPIO, MoH&FW (EPW Section), vide its letter dated 12.02.2018, stated that they did not have the information to provide against the queries raised in the application and forwarded the application to NHM-I Division for providing necessary information. Dissatisfied due to nonreceipt of any response from the CPIO, the Appellant approached the FAA. The FAA, vide its order dated Nil, stated that the CPIO had already replied to the application vide letter dated 12.02.2018 and that the copy of the Appeal was being transferred to the FAA of the CPIO(NHMI) to whom the RTI application was transferred. Subsequently, the CPIO (NHM-I), vide its letter dated 17.05.2018, provided a suitable response to the Appellant.

HEARING:

 Facts emerging during the hearing:

The following were present:

Appellant: Absent;

Respondent: Mr. Rajendran Nair M. B., CPIO and Under Secretary (Procurement-II Section);

The Appellant remained absent during the hearing. Mr. Vijay, Network Engineer NIC studio at Jaipur confirmed the absence of the Appellant. In its reply, the Respondent (Procurement-II Section) stated that information pertaining to point No. 06 was related to him which was culled out from the file and furnished to the Appellant on 22.01.2020. The Commission noted that as per the written submissions available on record information pertaining to points 05 and 06 had been furnished but on points 01 to 04, the Respondent feigned ignorance and no reply is available on record. It was opined by the Respondent that he was clueless about points 01 to 04. The Commission was in receipt of a request letter from the Respondent, CPIO & US (NHM-1) dated 17.01.2020 wherein it was submitted that in connection with the arrangements for the Republic Day Parade, the government offices located in various buildings including the office of the Ministry i.e. Nirman Bhawan will be closed till 1.00 PM on 23rd January, 2020 (copy enclosed). In view of the above, it was humbly submitted that the hearing may be shifted to the afternoon or the undersigned may be exempted from personal hearing on 23.01.2020 at 11.30 AM.

The Commission was in receipt of a written submission from the Respondent, CPIO & US (NHM-1) dated 16.01.2020 wherein while reiterating the contents of the RTI application, it was submitted that so far as NHM-1 Section was concerned, the then CPIO (Ms. Aruna Bahl Sen, US (NHM-1) had sent a reply to the Appellant on 28th March, 2018. With regard to First Appeal of the Appellant, the then CPIO, in compliance with the directions of the FAA order dated 09.04.2018, again sent a reply on 18th April, 2018 to the Appellant. Later, in continuation, the then CPIO, provided the information to the Appellant in respect of point no. 05 of the RTI application on 17.05.2018 in response to the Appellant’s letter dated 24.04.2018. As regards filing of the Second Appeal, it was submitted that then CPIO, NHM-1 had provided the information available with her to the Appellant, vide letter dated 17.05.2018. Hence, the Appellant’s statement that he had not received any response w.r.t. his letter dated 24.04.2018 was beyond the fact.

The Commission was in receipt of a written submission from the Respondent, CPIO & US (Procurement-II Section) dated 22.01.2020 (wrongly written as 2019) wherein while reiterating the chronological sequence of the event, it was submitted that the CPIO, Procurement-II, transferred the RTI application to CPIO (RCH) on 01.02.2018 indicating that the information sought by the Applicant did not pertain to Procurement-II Section. But it was observed that point no. 06 of the application pertained to the erstwhile SSM Division, which had been reorganized and renamed as Procurement-II Section. Furthermore, it was submitted that the information sought in the original RTI application, in respect of point no. 06 i.e. relevant note sheet portion (page nos. 14 to 28 of File No. as mentioned) as available in the file was provided to the Appellant vide their letter dated 22.01.2020 a copy of which was enclosed for kind reference.

The Commission referred to the definition of information u/s 2(f) “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; of the RTI Act, 2005 which is reproduced below:

 “information” means any material in any form, including records, documents, memos, emails, opinions, advices, press releases, circulars, orders, logbooks, contracts, report, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force.”

Furthermore, a reference can also be made to the relevant extract of Section 2 (j) of the RTI Act, 2005 which reads as under:

“(j) right to information” means the right to information accessible under this Act which is held by or under the control of any public authority and includes ........”

In this context a reference was made to the Hon’ble Supreme Court decision in 2011 (8) SCC 497 (CBSE Vs. Aditya Bandopadhyay), wherein it was held as under:

35..... “It is also not required to provide ‘advice’ or ‘opinion’ to an applicant, nor required to obtain and furnish any ‘opinion’ or ‘advice’ to an applicant. The reference to ‘opinion’ or ‘advice’ in the definition of ‘information’ in section 2(f) “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; of the Act, only refers to such material available in the records of the public authority. Many public authorities have, as a public relation exercise, provide advice, guidance and opinion to the citizens. But that is purely voluntary and should not be confused with any obligation under the RTI Act.”

Furthermore, the Hon’ble Supreme Court of India in Khanapuram Gandaiah Vs. Administrative Officer and Ors. Special Leave Petition (Civil) No.34868 OF 2009 (Decided on January 4, 2010) had held as under:

6. “....Under the RTI Act “information” is defined under Section 2(f) “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; which provides: “information” means any material in any form, including records, documents, memos, emails, opinions, advices, press releases, circulars, orders, logbooks, contracts, report, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force.” This definition shows that an applicant under Section 6 of the RTI Act can get any information which is already in existence and accessible to the public authority under law. Of course, under the RTI Act an applicant is entitled to get copy of the opinions, advices, circulars, orders, etc., but he cannot ask for any information as to why such opinions, advices, circulars, orders, etc. have been passed.”

7. “....the Public Information Officer is not supposed to have any material which is not before him; or any information he could have obtained under law. Under Section 6 of the RTI Act, an applicant is entitled to get only such information which can be accessed by the “public authority” under any other law for the time being in force. The answers sought by the petitioner in the application could not have been with the public authority nor could he have had access to this information and Respondent No. 4 was not obliged to give any reasons as to why he had taken such a decision in the matter which was before him.”

The Commission felt that timely response is the essence of the RTI mechanism enacted to ensure transparency and accountability in the working of Public Authorities. In this context, the Commission referred to the decision of the Hon’ble Delhi High Court in Mujibur Rehman vs Central Information Commission (W.P. (C) 3845/2007)(Dated 28 April, 2009) wherein it had been 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.”

The Commission observed that it is the duty of the CPIO to provide clear, cogent and pointed reply to the information seeker. In this context, a reference can be made to the judgment 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, in OM No. 20/10/23/2007-IR dated 09.07.2009, while elaborating on the duties and responsibilities of the FAA, it was stated that:

“3. Deciding appeals under the RTI Act is a quasi judicial function. It is, therefore, necessary that the appellate authority should see that the justice is not only done but it should also appear to have been done. In order to do so, the order passed by the appellate authority should be a speaking order giving justification for the decision arrived at.

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.”

The Commission also noted 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 Appellant was not present to contest the submissions of the Respondent or to substantiate his claims further.

DECISION:

Keeping in view the facts of the case and the submissions made by the Respondent, it was noted by the Commission that information pertaining to Points 01 to 04 of the RTI application remained unattended. The Commission therefore directs the Secretary, MoH&FW, New Delhi, to depute an officer who could address the issues related to these points and furnish point-wise reply to the Appellant as per the provisions of the RTI Act, 2005, within a period of 30 days from the date of receipt of this order.

The Commission also instructs the Respondent Public Authority 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.

The Appeal stands disposed with the above direction

(Bimal Julka)

 (Information Commissioner)

Citation: Mr. Virendra Mehta v. CPIO &Under Secretary, Ministry of Health & Family Welfare (EPW Section) and CPIO, Ministry of Health & Family Welfare (NHM – I Division) in Second Appeal No.:- CIC/MH&FW/A/2018/140249-BJ, Date of Decision: 23.01.2020