Information was not provided even after the CIC order - the former PIO had retired & the present PIO changed the stand on the information sought - CIC: penalty proceedings against the then PIO cannot be initiated since he has retired

Even after the direction of CIC the information was not provided - the earlier PIO had retired and the present PIO changed the stand on the information sought - CIC: penalty proceedings against the then PIO cannot be initiated since he has retired,  the information to be obtained from CESTAT and appropriate action taken by the public authority

ORDER

1. In this complaint, the Complainant has, interalia, alleged that the information/reply given by the CPIO, DGFT vide his letter dated 24.05.2013, following the Commission’s order dated 15.04.2013; CIC/SS/A/2012/001879, is false and misleading.

2. The operative portion of the Commission’s order reads as follows:  “The Commission is not in agreement with the decision of the CPIO to correlate the information sought at poin (a) & (d) to the exemption clause 8 (1) (d) of the RTI Act, 2005. If certain action has been taken against any such pre-inspection agency for not doing their work properly such information ought to be in public domain once the investigation/inquiry in relation to the same is over therefore this information is to be provided to the appellant. However, in relation to the complaints/references in relation to which investigation/inquiry is still pending, the name, complaint no. and date of complaint shall be provided as premature disclosure of information may effect the process of investigation. During the hearing, the respondent submits before the Commission with regard to point (b) that the decision on the list of approved pre-inspection agencies is taken by the Interministerial Committte and hence the information at point (b) is not available with the respondent. The Commission cannot accept the contention of the respondent since such information is expected to be a part of the record of the public authority. The CPIO is therefore directed to provide this information. With regards to point (e) & (f) the copies of complaints/references received against inspection agencies since Jan 2006 and their present status shall be provided to the appellant.”

3. During the hearing, the Complainant makes following submissions/arguments in respect of the information provided by the CPIO after the order of the Commission:

Point (A)

4. The Complainant states that in respect of this point of his RTI application, the Commission, while overruling the CPIO’s denial under section 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; of the RTI Act, had directed the CPIO to provide the information to the Complainant. However, this time the CPIO has changed his stand, and denied receipt of the CESTAT Order dated 28.04.2011, action taken on which had been initially sought in the RTI application. The CPIO also stated that the company (M/s Global marine Agencies) has not been nominated as a Pre Shipment Inspection Agency by DGFT, so there is no question of taking any action against the agency. The Complainant now argues that how can an information which was earlier denied to him 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; of the RTI Act become unavailable when its disclosure was allowed by the Commission. He thus alleges that the CPIO has given incorrect and misleading information to him. Point (B):

5. The Complainant states that earlier the CPIO had taken the stand that information sought in this point is not available. The Commission however refused to accept this contention of the Respondents observing that such information is expected to be a part of the record of the public authority, and accordingly directed the CPIO to provide this information to the Complainant. However, now the CPIO has informed the Complainant that the records could not be traced as to who were the members of the Committee which had approved M/s Alex Stewart International (Aust.) Pvt Ltd Australia as the PreShipment Inspection Agency. The Complainant alleges that the CPIO is deliberately changing his stand in order to conceal the information. He questions that how can the information, which was earlier said to be unavailable in the records of the Respondents, suddenly become untraceable after the order of the Commission. He thus alleges that the CPIO has given misleading and incorrect information to him. Points (E) & (F):

6. It is the Complaint’s submission with regard to these points that the CPIO has given copies of bunch of documents without specifying as to which document pertains to which year, although he (Complainant) had clearly identified the period for which the information required. The Complainant also takes strong objection to the CPIO’s decision denying him the inspection of records as requested in point (E) of the RTI application on the ground that the inspection has not been directed by the Commission.

7. The Respondents, on their part, submit that they have provided the factual information to the Complainant in pursuance of the order of the Commission. They mention that the then CPIO, who had earlier given reply/information to the Complainant, has since retired and that they, at this stage, are not in a position to explain as to how or on what basis he (former CPIO) had given said reply/information to the Complainant. However, on being asked as to why they did not obtain the order of the CESTAT in question from the CESTAT or the Complainant (who also states that he provided a copy of the same to them), and took necessary action at least after the Commission’s order, they do not have any answer.

8. The Complainant also, when asked, expresses his unwillingness to inspect the records in question at this stage, and insists that penalty be imposed on the CPIO for giving incorrect and misleading information to him.

9. On consideration of the submissions above and on perusal of records, the Commission notes that the Respondents have grossly failed to discharge their duties not only under the RTI Act, but also what they are expected to do in their normal course of business. Needless to say, had the Respondents obtained the order in question of the CESTAT—subject matter of RTI application— in the first instance itself, the present proceedings could have been avoided and factual information could have been provided to the Complainant. Moreover, serious attempt to search for the file in respect of information sought at point (B) of the RTI application should have been made, which the Respondents have failed to do. This shows the careless approach of the Respondents.

10. In the circumstances above, although the Commission is not in a position to initiate any penalty proceedings against the then CPIO since he has retired from the services of the public authority, the Commission hereby would like to bring this case to the notice of the head of the public authority viz., Director General of Foreign Trade for appropriate action at his level so that such cases do not recur, and factual and correct information is disseminated to RTI applicants. It is also expected that order in question of the CESTAT is obtained and appropriate action is taken thereon by the public authority.

11. A copy of this order be sent to Director General of Foreign Trade for appropriate action at his level.

(Sushma Singh)

Information Commissioner

Citation: Shri R.K. Jain v. Directorate General of Foreign Trade in Case No. CIC/SS/C/2013/000290