CIC: once a certain information is placed in public domain accessible to the citizens either freely, or on payment of a pre-determined price, that information cannot be said to be ‘held’ or ‘under the control of’ public authority; not accessible under RTI

Information relating to appointment on compassionate grounds was sought - PIO: no time limit has been prescribed for giving compassionate appointment and the copy of the rules relating to it are available on the website - CIC: once a certain information is placed in the public domain accessible to the citizens either freely, or on payment of a pre-determined price, that information cannot be said to be ‘held’ or ‘under the control of’ the public authority; it would cease to be an information accessible under the RTI Act - CIC: PIO had acted consciously and with no intent to deny the information sought by the appellant and hence imposition of penalty would not be justified

Information sought:

The applicant has sought the following information:-

1. Provide the action taken on the letter no. B2/Relax/Mukesh/2011/Jhun dated 27/04/2011 related to the issue of compassionate appointment of the heir of late Mr. Om Prakash Saini Ex. Postmaster Surajgarh and the copy of reply to the same.

2. Provide the time limit when the heir of the deceased person will be appointed.

3. Provide the copy of the rules laid by the Central Government for the compassionate appointment in the department.

Grounds for the Second Appeal: The CPIO has not provided the desired information.

Relevant Facts emerging during Hearing: The following were present

Appellant: Mr. Ved Prakash Verma appellant’s representative through TC: 09847057882

Respondent: Mr. K L Saini CPIO through TC M: 09413079456

The appellant’s representative stated that he is not satisfied with the information provided by the CPIO as the photocopy given to him in response to query 1 is not attested and the respondent in their reply to query 3 have informed that the rules for compassionate appointment are available in printed books/internet but he has not been able to obtain the same. The CPIO stated that he will provide an attested copy of the letter vide which Shri Mukesh Kumar’s case for compassionate appointment was forwarded to the Circle office and a copy of the rules relating to compassionate appointment after downloading the same from the internet. The appellant’s representative stated that penal proceedings should be initiated against the CPIO for not providing proper information.

Decision notice:

As agreed by the CPIO the information as above should be provided to the appellant within 15 days from the date of receipt of this order. It is seen that the Hon’ble High Court of Delhi in its decision dated 1/6/2012(W.P(C) 11271/2009 Registrar of Companies & Ors vs. Dharemendra Kumar Garg & Ors) has held as under:

“ 48. In Sh. K. Lall Vs. Sh. M.K. Bagri, Assistant Registrar of Companies & CPIO, F. No. CIC/AT/A/2007/00112, the Central Information Commissioner Sh. A.N. Tiwari squarely considered the very same issue with regard to the interplay between Section 610 of the Companies Act and the rights of a citizen to obtain information under the RTI Act. Sh. A.N. Tiwari by a detailed and considered decision held that information which can be accessed by resort to Section 610 of the Companies Act cannot be accessed by resort to the provisions of the RTI Act. The discussion found in his aforesaid order on this legal issue reads as follows:

"9. It shall be interesting to examine this proposition. Section 2(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 the right to- (i) inspection of work, documents, records; (ii) taking notes, extracts or certified copies of documents or records; (iii) taking certified samples of material; (iv) obtaining information in the form of diskettes, floppies, tapes, video cassettes or in any other electronic mode or through printouts where such information is stored in a computer or in any other device; of the RTI Act speaks of “the right to information accessible under this Act which is held by or under the control of any public authority”. The use of the words “accessible under this Act”; "held by" and “under the control of” are crucial in this regard. The inference from the text of this sub-section and, especially the three expressions quoted above, is that an information to which a citizen will have a right should be shown to be a) an information which is accessible under the RTI Act and b) that it is held or is under the control of a certain public authority. This should mean that unless an information is exclusively held and controlled by a public authority, that information cannot be said to be an information accessible under the RTI Act. Inferentially it would mean that once a certain information is placed in the public domain accessible to the citizens either freely, or on payment of a pre-determined price, that information cannot be said to be 'held' or 'under the control of' the public authority and, thus would cease to be an information accessible under the RTI Act. This interpretation is further strengthened by the provisions of the RTI Act in Sections 4(2), 4(3) For the purposes of sub-section (1), every information shall be disseminated widely and in such form and manner which is easily accessible to the public. and 4(4), which oblige the public authority to constantly endeavour "to take steps in accordance with the requirement of clause b of subsection 1 of the Section 4 to provide as much information suo-motu to the public at regular intervals through various means of communication including internet, so that the public have minimum resort to the use of this Act to obtain information." (Section 4 sub-section 2). This Section further elaborates the position. It states that "All materials shall be disseminated taking into consideration the cost effectiveness, local language and the most effective method of communication in that local area and the information should be easily accessible, to the extent possible in electronic format with the Central Public Information Officer or State Public information Officer, as the case may be, available free or at such cost of the medium or the print cost price as may be prescribed." The explanation to the subsection 4 section 4 goes on to further clarify that the word "disseminated" used in this Section would mean the medium of communicating the information to the public which include, among others, the internet or any other means including inspection of office of any public authority.” As per the ratio of the above cited decision once an information is put on internet or is available in priced publication in the market it cannot be said to be 'held' or 'under the control of' the public authority and, thus would cease to be an information accessible under the RTI Act. As regards the appellant’s plea for initiating penal proceedings against the CPIO, it will be apt to quote the observations made by the Hon’ble Delhi High Court in its decision dated 02/02/2012 (W.P.(C) 766/2010 & CM No. 1611/2010) while quashing the penalty order passed by the Commission:- “The aspect of levy of penalty on the PIO is governed by Section 20 of the Right to Information Act (RTI Act). It states that the CIC may at the time of deciding any complaint or appeal impose penalty on the CPIO, where he is of the opinion that the CPIO 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. The crux of the said provision is that the PIO should have obstructed the supply of the information with intent or should have acted consciously and deliberately in a manner so as to block the provision of the information.”

It is seen from the records that a reply to the appellant’s RTI application dated 20/09/2012 was provided timely by the PIO vide letter dated 11/10/2012. The PIO in response to query 1 informed the appellant that compassionate appointment case of Shri Mukesh Kumar has been forwarded to the circle office while in reply to query 2 he was informed that no time limit has been prescribed for giving compassionate appointment and in reply to query 3 it was informed that copy of the rules relating to compassionate appointment are available on the website and in books. Thus, in the matter at hand point wise reply as per available records was provided and it cannot be said that the CPIO acted consciously and deliberately with intent to deny the information sought by the appellant. Imposition of penalty on the CPIO, therefore, would not be justified.

The appeal is disposed of accordingly.

BASANT SETH

Information Commissioner

Citation: Mr. Rajulal Saini v. Department of Posts  in File No. CIC/BS/A/2013/000764/5035