Copy of inquiry report, decision, file notings & the result of appellant’s complaint to CVO were denied u/s 8(1)(h) - CIC: there should be definite material information with PIO to delineate that disclosure will impede the process of investigation
16 Feb, 2015Information sought:
Appellant had sought copy of inquiry report, decision of the concerned officials, file notings and the result of his complaint addressed to Chief Vigilance Officer vide his letter dated 15.04.2010 in respect of A/T No. 14(5)2006-07/E1(P)TV/1433 for flyaway C Band DSNG Terminals.
Relevant facts emerging during hearing:
Both parties are present. The appellant filed an RTI application on 04.06.2010 seeking copy of inquiry report, decision of the concerned officials, file notings and the result of his complaint addressed to Chief Vigilance Officer vide his letter dated 15.04.2010 in respect of A/T No. 14(5)2006-07/E1(P)TV/1433 for flyaway C Band DSNG Terminals. The CPIO vide his reply dated 11.06.2010 informed the appellant that the complaint was technical in nature and as such the same was sent to Engineer-in-Chief, DG, Doordarshan for necessary action. The First Appellate Authority vide order dated 22.07.2013, forwarded the appeal to Engineer-in-Chief, DG:Doordarshan for further action.
The appellant stated that he was awarded a contract and later the same was cancelled. Now, the appellant wants to know the action taken report on his complaint made by him in this regard. The PIO stated that inadvertently they had sent communication in respect to the appellant’s earlier complaint. Thereafter, when his complaint was traced, he sent a reply on 09.05.2014. Regarding enquiry report, it may be mentioned that the matter has gone before the Arbitration Tribunal, therefore, it has become in the nature of dispute now and the enquiry report itself is incomplete and is still under process. The CPIO stated that an opportunity may be given to him to make written submissions in the matter as he strongly feels that the information is exempt from disclosure.
Interim Decision: (20.08.2014)
On consideration of fact and circumstances of the case mentioned hereinabove, the Commission hereby directs the Respondents to submit a clear, cogent, concise submission as to how information is exempted under the RTI Act before the Commission (endorsing a copy to appellant) within 3 weeks of the receipt of the order.
Decision: (05.12.2014)
Respondent Shri R.K.Vashishtha, CPIO/SVO, DG, Doordarshan, vide his written submission dated 15.09.2014, submitted that the case related to complaint made by Shri Uday Kumar to the Vigilance wing, DG Doordarshan, was received on 15.04.2010. The issues raised in the complaint were pertaining to tender no.14 (5)2006 of EI(P)TV for the procurement of Flyway C Band DSNG Terminals. The said tender resulted in the award of contract to the applicant’s firm. A dispute arising out of the contract is presently under arbitration in the Arbitral Tribunal of Arbitrator Shri R.K.Singh, which is still pending. As both the complaint and the subject of arbitration are related to the above contract, the information sought by the applicant was denied by invoking exemption u/s 8(1)(h) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; of the RTI Act. The question before the Commission is whether disclosure of requested information would impede the process of investigation or apprehension or prosecution of offenders. It would be expedient to extract clause (h) of section 8 (1) which reads as follows:-
“8. Exemption from disclosure of information- (1) notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,- … (h) Information which would impede the process of investigation or apprehension or prosecution of offenders;”
From a plain reading of the above provision, it follows that Section 8(1) (h) of the RTI Act exempts disclosure of information which would impede the process of investigation or apprehension or prosecution of offenders. Merely because the process of investigation or apprehension or prosecution of offenders is ongoing, the bar stipulated under Section 8(1) (h) of the RTI Act is not attracted; it must be clearly established by the PIO that disclosure of the information would impede the process of investigation or apprehension or prosecution of offenders. In this regard, it would be relevant to note that Ravindra Bhat, J. of the High Court of Delhi in Bhagat Singh v. Chief Information Commissioner and Ors. (WP(C) No. 3114/2007) stated that:
“13. Access to information, under Section 3 of the Act, is the rule and exemptions under Section 8, the exception. Section 8 being a restriction on this fundamental right, must therefore is to be strictly construed. It should not be interpreted in manner as to shadow the very right itself. Under Section 8, exemption from releasing information is granted if it would impede the process of investigation or the prosecution of the offenders. It is apparent that the mere existence of an investigation process cannot be a ground for refusal of the information; the authority withholding information must show satisfactory reasons as to why the release of such information would hamper the investigation process. Such reasons should be germane, and the opinion of the process being hampered should be reasonable and based on some material. Sans this consideration, Section 8(1) (h) and other such provisions would become the haven for dodging demands for information.”
The division bench of Delhi High court presided by Hon’ble the Chief Justice of Delhi High Court in case of Director of Income Tax (Investigation) and Ors. Vs. Bhagat Singh and Anr (LPA 1377/2007) also observed that:-
“8.... Under Section 8(1) (h) information can be withheld if it would impede investigation, apprehension or prosecution of offenders. It is for the appellant to show how and why investigation will be impeded by disclosing information to the appellant. General statements are not enough. Apprehension should be based on some ground or reason....”
In Sudhiranjan Senapati Vs. Union of India and Ors. (WP (C) 7048/2011), Justice Rajiv Shakdher of Delhi High Court had observed that: -
“13. Therefore in my view, in such like cases when, the State takes a stand the information can not be disclosed; while dilating on its stand in that behalf, the State would necessarily have to, deal with the aspect as to how the information sought, is of such a nature, that it could impede prosecution. Much would thus depend, on the nature of information sought, in respect of which, a clear stand needs to be taken by the State, while declining the information...”
It is clear from the decisions of the Hon’ble Delhi High Court as stated above, the PIO, who is denying information under Section 8(1) (h) of the RTI Act, must show satisfactory convincing reasons as to why disclosure of such information would impede the process of investigation or apprehension or prosecution of offenders. These reasons must be relevant and the opinion of the PIO that by disclosing the information, prosecution of offenders shall be impeded should be reasonable. The opinion of the PIO must be based on some material fact and cannot be a mere apprehension not supported by any evidence. General statements are not enough. Apprehension should be based on some ground or reason. The stand taken by CPIO for declining the information in the present case is that the appellant had sought information with respect to his complaint relating to award of contract to his firm which was later cancelled and a dispute arising out of the contract is still under arbitration. The stand of the CPIO is neither in consonance with the rulings of the High Court nor in agreement with the provision of section 8(1)(h) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; of the Act.
Moreover, a careful reading of the section reveals that the word used in section 8(1) (h) is “would” which implies that there should be definite material information in the hands of the CPIO to delineate that disclosure of the information will impede the process of investigation. If the intent of the legislature was to deny information on the basis of apprehension it would have used the word “could”. In the present case since the express intention of the Legislature is clear from the very preamble of the Act, it is not permissible to speculate whether the word “would” includes “could”. Moreover, while it is the duty of the Commission to harmonise the various provisions of the Act as enacted by the legislature but it certainly is not the duty of the Commission to stretch the words used by the legislature to fill in gaps or omissions in the provisions of the Act. Denial of a citizen’s fundamental right must be justified and the mere act of ongoing arbitration cannot be used to deny citizens’ rights. In view of the foregoing, the Commission does not accept the grounds taken by the respondents for denial of information under Section 8(1) (h) of the RTI Act. The Commission directs the respondents to provide the information to the appellant, to the extent not already provided in relation to the his RTI application being considered in the appeal, within two weeks of receipt of this order, under intimation to the Commission, only after redacting names of officers who wrote the notes or made entries in the concerned files or against whom action was recommended. The appeal is disposed of accordingly.
(Yashovardhan Azad)
Information Commissioner
Citation: Shri Uday Kumar v. Prasad Bharati (Min. of Info. & Broadcasting) in F.No.CIC/DS/A/2013/002125-YA