CIC noted with concern that two officers of the same public authority have made contradictory statements – CIC: FAA has shown utter disregard to the provisions of the Act; FAA should have provided an opportunity of being heard to both the appellant & PIO

Information sought:

The appellant had sought certified copy of tender acceptance letters including corrigendum issued of each of the OMSS dedicated movement tender approved by regional office during 2013-14, details of payment done by buyers for the stock sold rakewise, copy of release order issued, copy of authority submitted by buyer for accepting the stock, copy of release order, delivery completion report of each RO, details of rake loaded by FCI under OMSS dedicated movement, copy of railway receipt of each rake loaded railhead wise, details of indent placed and cancelled with railways in February, March 2014, etc.

Relevant facts emerging during hearing:

Both parties are present and are heard through video conferencing. The appellant had filed an RTI application on 28.04.2014, seeking the above information. Manager (RTI) in his reply provided point wise information along with relevant documents. The FAA/General Manger (R) in his order refers to replies from CPIO/DO, FCI, Gwalior, Bhopal and Sagar vide their letters dated 26.05.2014, 27.05.2014 and 10.06.2014 respectively. The Commission only has CPIO/DO, FCI, Gwalior’s reply dated 10.06.2014 on record. The FAA, after examining the appeal, finds that since the original records for 2012-13 OMSS have been seized by CBI, they are not available in the office; further, them being commercial in nature are exempted under section 8(1)(j) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information: Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person. Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information: Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person. Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information: Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person. of the RTI Act.

The appellant stated that part information has been received as the CPIO has not provided details of each rake of stock allotted under OMSS tender sale party wise, copy of authority submitted by buyer for accepting the stock is incomplete, copy of delivery completion report, RR has not been given. The respondent stated that information as available on record was provided to the appellant vide letter dated 10.06.2014. The appellant stated that some of the copies provided by the respondent authority are incomplete, the same may be given again. On query by the Commission from the FAA as to whether the information was denied to the appellant because the same were not available as the file has been seized by CBI or they are commercial in nature u/s 8(1)(d) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information; or personal in nature u/s 8(1)(j) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information: Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person. Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information: Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person. Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information: Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person. , the FAA was unable to give a satisfactory answer. CPIO, Sagar stated that information can be provided from the shadow file of the original, seized by CBI.

Interim Decision: 29.01.2015

After hearing both the parties and on perusal of record, the Commission is of the view that this case has been dealt with in the most lackadaisical manner. The CPIO has provided information from the shadow file, which has been denied on a later date by the FAA by taking three pleas, namely, the documents being unavailable as the same have been seized by CBI, the information sought being of commercial in nature u/s 8(1)(d) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information; and personal in nature u/s 8(1)(j) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information: Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person. Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information: Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person. Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information: Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person. . The FAA, present before the Commission, has been unable to justify any of these pleas for denial of information and has shown utter disregard towards the RTI regime.

In view of the above, the Commission directs the CPIO and the FAA to file their written submissions, clearly stating what has been provided to the appellant, any additional information that can be provided to the appellant and what cannot be provided to him after invoking appropriate exemption clauses of the RTI Act. The written submissions should be received in the Commission, latest by 27th February 2015, a copy of which shall also be endorsed to the appellant, after which the Commission shall pass a final order and a fresh hearing will be held as desired.

Chairman & Managing Director, Food Corporation of India, New Delhi, is directed to take note of the manner in which CPIO/FAA have dealt with this case. A copy of this order may be marked to Chairman & Managing Director, Food Corporation of India, New Delhi, for information and necessary action as deemed fit. The order is reserved.

Final Decision: 01.05.2015

Written Submission dt. 26.02.2015 has been filed by Shri Parminder Singh, ACPIO – Rep. of FAA. It is stated therein that 11 pgs have been provided to the appellant on Point (a) of his RTI application and that information on Points (b) to (i) cannot be provided to the appellant as the investigation is pending in CBI and disclosure of information would impede investigation. He states that the appellant has been repeatedly filing various RTI applications seeking similar information, time and again and that several opportunities of inspection have been provided to the appellant for clarifying his requirement of information, but the appellant did not avail the opportunity.

Written submission dt. 27.02.2015 has been filed by Shri Mrityunjay Kumar, CPIO wherein he has given point-wise details of the information provided to the appellant. A copy of the documents sent to the appellant has also been enclosed. Written submission dt. 10.01.2015 has been filed by the appellant, wherein he has stated that he is seeking information regarding the year 2013-14 and not 2012-13, for which the files have been sent to the CBI. Further, he has stated that earlier information was denied u/s 8(1)(j) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information: Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person. Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information: Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person. Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information: Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person. and later on, it was denied u/s 8(1)(d) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information; . He alleged that the respondent authority is trying to hide information on frivolous grounds and has requested that information should be provided to him.

On perusal of the Written Submissions dt. 26.02.2015 and 27.02.2015, filed by Shri Parminder Singh, ACPIO and Shri Mrityunjay Kumar, CPIO, respectively, the Commission finds they are contradictory to each other. The CPIO has stated that information has been provided to the appellant on all the points, except Point (h), whereas the representative of the FAA, has stated that information only on Point (a) has been provided and the information on the remaining points has been denied, as it would impede the CBI investigation. Both the CPIO & FAA have referred to the letter dt. 05.11.2014 in their submissions. On perusal of the same, it is found that the letter dt. 05.11.2014 is written by Supdt. Of Police, CBI/ACP/Bhopal to Area Manager, FCI, Bhopal and it refers to a case against Shri Ashish Agarwal, which is under investigation. The Commission notes with concern that two officers of the same public authority, in the same Regional Office, have made contradictory statements. CPIO seems to have provided all the information to the appellant, as per record, except one and the FAA has denied information on all points, except one.

In view of the above facts, the Commission finds that information has been provided to the appellant, in fact also on some of the points, which should not have been provided. Information such as copies of bills, undertakings/letters of authority on stamp papers, bank statements, etc. have been provided to the appellant, which should not have been disclosed, as per the provisions of the Act. The Gujarat High Court, in Reliance Industries Ltd. V. Gujarat State Information Commission, while explaining the procedure to be followed when order is against third party, held that once information is allowed to go in the hands of applicant, it is irreversible process.

The information sought by the appellant, in the instant case, is voluminous and the same may not be readily available in the respondent authority. Each question asked by the appellant has a sub-set and the information has been sought in a particular format, like ‘for each rake loaded railhead wise’, etc. The FAA had disposed of the matter stating that since the record for 2012- 13 OMSS has been seized by CBI, information in record pertaining to 2013-14 is commercial in nature and is exempted u/s 8(1)(j) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information: Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person. Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information: Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person. Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information: Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person. of the RTI Act.

The FAA, being a rank superior to PIO, would be well versed with the information sought by the appellant and the correctness of information provided by the PIOs. However, in the instant case, the FAA has shown utter disregard to the provisions of the Act. The FAA, being a quasi judicial body, should have, first, provided an opportunity of being heard to both the appellant and PIO and, then, gone into aspects like whether PIO has given correct reply, whether he has duly applied the provisions of the Act, whether information sought by the appellant can be provided, whether correct exemption clauses have been invoked, etc. In the instant case, therefore, the FAA has failed to exercise his quasi-judicial power.

The Commission, therefore, finds it fit to remand back this appeal to the FAA, FCI, Bhopal and directs him to provide an opportunity of being heard to both the parties and then, pass a speaking order after considering the facts raised by the appellant in his appeal, within three weeks of receipt of this order, under intimation to the Commission. The Commission, also cautions the FAA to strictly follow the RTI regime while disposing of an appeal and pass a speaking order, after taking due cognizance of merits of the case. Chairman/MD, FCI is directed to take note of the manner in which both the PIO and FAA have dealt with the RTI application and first appeal. DS/DR of this Bench is directed to mark a copy of this order to Chairman/MD, FCI for necessary action. The appeal is disposed of accordingly.

(Yashovardhan Azad)

Information Commissioner

Citation: Shri Premlal Pathak v. Food Corporation of India in F.No. CIC/YA/A/2014/902315