In the larger public interest, the CIC advised the Min of Health and Family Welfare to appoint a Nodal Officer for the compilation and collation of all available OMs / Notifications issued in the form of a compendium for ready reference of all concerned

O R D E R

RTI – 1 File No. CIC/MOHFW/A/2018/623283-BJ

FACTS:

The Appellant vide his RTI application sought information on 02 Points in respect of the certified copies of the Office Memorandums dated 06.03.1962 and 17.04.1967. The CPIO and US, M/o H&FW, D/o Health and Family Welfare, vide his response dated 14.03.2018, denied the disclosure of information on the ground that it was not readily available in the Office records of the CPIO. Furthermore, the application was also transferred to the CPIO and US, Hospital Division as per Section 6(3) of the RTI Act, 2005. Dissatisfied by the response of the CPIO, the Appellant approached the FAA. The FAA, vide his order dated 21.05.2018, concurred with the response of the CPIO.

RTI – 2 File No. CIC/MOHFW/A/2018/623300-BJ

FACTS:

The Appellant vide his RTI application sought information regarding the certified copy of the Office Memorandum dated 20th December, 1988. The CPIO and US, M/o H&FW, D/o Health and Family Welfare, vide its reply dated 14.03.2018, denied the disclosure of information, on the ground that the information sought was not readily available with them. Dissatisfied by the response of the CPIO, the Appellant further approached the FAA. The FAA, vide its order dated 21.05.2018, concurred with the response of the CPIO.

RTI – 3 File No. CIC/MOHFW/A/2018/623306-BJ

FACTS:

The Appellant vide his RTI application sought information regarding attested copies of 08 Office Memorandums mentioned by the Appellant dated 14.05.1971, 01.01.1972, 11.06.1974, 09.10.1974, 16.08.1979, 09.02.2009, 19.05.2010 and 28.05.1982 all of which related to the Appointment of Private Medical Practitioners as AMAs. The CPIO and US, M/o H&FW, D/o Health and Family Welfare, vide its reply dated 14.03.2018, disclosed the information sought in Point 07 of his application, while the information for other points were denied by the CPIO, on the ground that the same was not readily available with them. Dissatisfied by the response of the CPIO, the Appellant further approached the FAA. The FAA, vide its order dated 21.05.2018, concurred with the response of the CPIO.

RTI – 4 File No. CIC/MOHFW/A/2018/623311-BJ

FACTS:

The Appellant vide his RTI application sought information in respect of the attested copies of the 03 Office Memorandums mentioned by the Appellant, which relate to Revised consultation/Visiting/Injection fee of Authorised Medical Attendants(AMAs), and Hospital recognised by the State Governments/CGHS/CS(MA) Rules, 1944, respectively. The CPIO and US, M/o H&FW, D/o Health and Family Welfare, vide its reply dated 14.03.2018, denied the disclosure of information on the ground that the information sought by the Appellant are not readily available in the Office of the CPIO and that the OMs were incorporated in the Swamy’s Compilation on Medical Attendance Rules, which could be used as a reference book. Dissatisfied by the response of the CPIO, the Appellant approached the FAA. The FAA, vide its order dated 21.05.2018, concurred with the response of the CPIO.

RTI – 5 File No. CIC/MOHFW/A/2018/623315-BJ

FACTS:

The Appellant vide his RTI application sought information in respect of an attested copy of Office Memorandum bearing Number G.I., M.H., O.M. No. 14025/33/75-MC, dated 15th April, 1975. The CPIO and US, M/o H&FW, D/o Health and Family Welfare, vide its reply dated 14.03.2018, denied the disclosure of information on the ground that the information sought by the Appellant are not readily available in the Office of the CPIO and that the OMs were incorporated in the Swamy’s Compilation on Medical Attendance Rules, which could be used as a reference book. Dissatisfied by the response of the CPIO, the Appellant approached the FAA. The FAA, vide its order dated 21.05.2018, concurred with the response of the CPIO.

RTI – 6 File No. CIC/MOHFW/A/2018/624303-BJ

FACTS:

The Appellant vide his RTI application sought information on 04 Points regarding the certified copies of the GOI, M/o Health, Notification dated 12.09.1974 and Corrigenda dated 21.02.1977, GoI M/o Health Notification, dated 21.02.1977, GoI M/o Health Notification dated 09.08.1978, GOI M/o Health, Office Memorandum dated 23.07.2009 and Corrigendum dated 03.08.2009, etc. The CPIO and US, M/o H&FW, D/o Health and Family Welfare, vide his reply dated 14.03.2018, denied the disclosure of information for Point no 01 to 03, on the ground that the information sought on these points was not readily available with them. While, for the information related to Point no. 04, it was mentioned that the same did not pertain to them, and hence, the RTI application was transferred to the other CPIO, AD (GQ), CGHS, New Delhi as per Section 6(3) of the RTI Act, 2005. Dissatisfied by the response of the CPIO, the Appellant further approached the FAA. The FAA, vide its order dated 21.05.2018, concurred with the response of the CPIO.

HEARING:

Facts emerging during the hearing:

The following were present:

Appellant: Absent;

Respondent: Ms. Sunita, Sr. Analyst, Mr. Neeraj Sachdeva, US, Mr. K. Venkatesan, US and Mr. Rajeev Attri, Under Secretary;

The Appellant remained absent during the hearing. Mr. Pradeep Roy, DIO at NIC studio at West Tripura confirmed the absence of the Appellant. In a telecon with the Dy. Registrar in IC (BJ)’s Registry, the Appellant expressed his reluctance to attend the hearing as recorded by the DR. The Respondent (M/oH&FW, Department of Family Welfare) informed the Commission that in all the aforementioned matters, the information held and available with them was provided to the Appellant. It was reiterated that in his RTI applications, the Appellant himself had made reference to the Swamy’s Compilation on Medical Attendance Rules (incorporating orders received upto January, 2015), thirty sixth edition – 2015 wherein all the notifications of the Office Memorandums were already mentioned and that they used the aforementioned compilation for their internal purposes as well. It was submitted that even MoH&FW followed Swamy’s Compilation in various matters as it is a comprehensive compilation of all the OMs issued by the Ministry. On being queried by the Commission regarding the process for record keeping / compilation of the documents sought in the RTI application at the Ministerial level through a Nodal Officer and its periodic updation with clarifications, no satisfactory response was offered by the Respondents who submitted that being very old records several OMs/ Notifications were not available at this distant date. However, recent records were being digitized by them to ensure their availability till posterity. It was also submitted that the Notifications sought pertained to several divisions / departments which were required to be collated and compiled by a competent officer having prior knowledge and experience of the administrative setup / functions of the Public Authority. Due to the absence of the Appellant, the factual position in the matter / his contention against the response provided by the CPIO / FAA could not be ascertained.

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 also observed that the RTI Act, 2005 stipulates time limits in its various provisions relating to responding to RTI Applications, transfer of applications, filing and disposing of first appeal to ensure that a culture of information dissemination is strengthened so that a robust functioning of the democracy gets established. This was recognised by the Hon’ble High Court of Delhi in Mujibur Rehman vs Central Information Commission (W.P. (C) 3845/2007)(Dated 28 April, 2009) wherein it was 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.”

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.”

Moreover, it cannot be said that the transferring authority can be completely absolved of his duties and responsibilities as CPIO after resorting to Section 6 (3) of the RTI Act, 2005. In this context, a reference can also be made to the decision 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 non-disclosure.”

Furthermore, in Ministry Of Railways Through ... vs Girish Mittal on 12 September, 2014 W.P.(C) 6088/2014 & CM Nos.14799/2014, 14800/2014 & 14801/2014, the Hon’ble High Court of Delhi held as under:

“15. The plain language of Section 6(3) of the Act indicates that the public authority would transfer the application or such part of it to another public authority where the information sought is more closely connected with the functions of the other authority. The reliance placed by the learned counsel for the petitioner on the provisions of Section 6(3) of the Act is clearly misplaced in the facts and circumstances of the case. This is not a case where penalty has been imposed with respect to queries which have been referred to another public authority, but with respect to queries that were to be addressed by the public authority of which petitioner no. 2 is a Public Information Officer. Section 6(3) of the Act cannot be read to mean that the responsibility of a CPIO is only limited to forwarding the applications to different departments/offices. Forwarding an application by a public authority to another public authority is not the same as a Public Information Officer of a public authority arranging or sourcing information from within its own organisation. In the present case, undisputedly, certain information which was not provided to respondent would be available with the Railway Board and the CPIO was required to furnish the same. He cannot escape his responsibility to provide the information by simply stating that the queries were forwarded to other officials.”

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.

5..............................The Act provides that the first appellate authority would be an officer senior in rank to the CPIO. Thus, the appellate authority, as per provisions of the Act, would be an officer in a commanding position vis a vis’ the CPIO. Nevertheless, if, in any case, the CPIO does not implement the order passed by the appellate authority and the appellate authority feels that intervention of higher authority is required to get his order implemented, he should bring the matter to the notice of the officer in the public authority competent to take against the CPIO. Such competent officer shall take necessary action so as to ensure implementation of the RTI Act. ”

The Commission moreover felt that there was an urgent need to develop a robust system of record keeping in the Respondent Public Authority and to review its efficaciousness periodically. In this context, a reference was made to the decision of the Hon’ble High Court of Bombay in the matter of Union of India v. Vishwas Bhamburkar, W.P.(C) 3660/2012 dated 13.09.2013 wherein the Court had in a matter where inquiry was ordered by the Commission observed as under:

“6…………It is not uncommon in the government departments to evade disclosure of the information taking the standard plea that the information sought by the applicant is not available. Ordinarily, the information which at some point of time or the other was available in the records of the government, should continue to be available with the concerned department unless it has been destroyed in accordance with the rules framed by that department for destruction of old record. Therefore, whenever an information is sought and it is not readily available, a thorough attempt needs to be made to search and locate the information wherever it may be available. It is only in a case where despite a thorough search and inquiry made by the responsible officer, it is concluded that the information sought by the applicant cannot be traced or was never available with the government or has been destroyed in accordance with the rules of the concerned department that the CPIO/PIO would be justified in expressing his inability to provide the desired information. Even in the case where it is found that the desired information though available in the record of the government at some point of time, cannot be traced despite best efforts made in this regard, the department concerned must necessarily fix the responsibility for the loss of the record and take appropriate departmental action against the officers/officials responsible for loss of the record. Unless such a course of action is adopted, it would be possible for any department/office, to deny the information which otherwise is not exempted from disclosure, wherever the said department/office finds it inconvenient to bring such information into public domain, and that in turn, would necessarily defeat the very objective behind enactment of the Right to Information Act.”

The Hon’ble High Court of Gujarat in the matter of Chandravadan Dhruv vs. State of Gujarat and Ors, Special Civil Application No. 2398 of 2013 dated 21.12.2013 held as under:

“24. Since the issue raised by the petitioner is of a vital public importance, we, on our own, made a little research on the subject and found that the Department of Personnel and Training of the Government of India has constituted a Task Force for the effective implementation of Section 4 of the RTI Act. As a part of this Task Force, IT for Change is facilitating a sub group on 'Guidelines for Digital Publication under RTI supporting Proactive Disclosure of Information'. As a part of the work of this sub-group a one day consultation was held on the said subject i.e. 'Formulating guidelines for digital publication under RTI supporting proactive disclosure of information' in Bengaluru. 25.3 How to ensure proper record keeping?

• The required level of proactive disclosure is not possible without appropriate record keeping, and this aspect needs focused attention. There are detailed rules for record keeping and they should be strictly followed and the scheme for it should be published. Record keeping practices may have to be reviewed from the point of view of comprehensive proactive disclosure requirements, especially through digital means.

• Section 4.1.a is very clear about the need for proper record keeping, inducing in digital and networked form. Funds should be earmarked for digitizing records. Complete details of all records that are maintained and available digitally, and about those which are not, with due justification thereof, should be published. Annual reports on compliance with section 4.1.a should be sought by the Information Commissions.

• The costs involved in digitizing resources and maintaining networked computer based record-keeping and information systems is often cited as a major deterrent. It was felt that it is no longer a major issue. India is at par or better in terms of IT issues than many developed countries that maintain high standards of digital publishing of public information. The real cost is in terms human resources, including skills, and these are easily available at all levels in India today.

• An example was given about how a government office in Bangalore was able to scan all its documents at a very low cost. Another example that was discussed was of 'Bhoomi' project in Karnataka, whereby, it was contended that, if open public access to such complex spatial data as the land records of the entire state can be ensured, how can giving access to all textual documents of an office or department be any more difficult.”

The Commission further noted that the position of Nodal Officer in a Public Authority is created in order to ensure timely and precise response on the RTI applications where information is scattered and multiple Divisions / Departments are involved. It was felt that there was lack of coordination between Public Authority Officials present during the hearing on the issue of custodian of information which ultimately impedes the implementation of the provisions of the RTI Act, 2005. The Commission also referred to the OM No. 1/32/2007-IR dated 14.11.2007 wherein while prescribing for creation of a nodal authority for dealing with RTI applications, it was stated as under:

“It is, therefore, requested that all public authorities with more than one PIO should create a central point within the organisation where all the RTI applications and the appeals addressed to the First Appellate Authorities may be received. An officer should be made responsible to ensure that all the RTI applications/ appeals received at the central point are sent to the concerned Public Information Officers/ Appellate Authorities, on the same day. For instance, the RTI applications/ appeals may be received in the Receipt and Issue Section/ Central Registry Section of the Ministry/ Department/ Organisation/ Agency and distributed to the concerned PIOs/ Appellate Authorities. The R&I/CR Section may maintain a separate register for the purpose. The Officer-in-charge/ Branch Officer of the Section may ensure that the applications/ appeals received are distributed the same day.”

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, technically speaking no further intervention of the Commission is required in the matter. However, in the larger public interest emanating from the queries raised in the RTI application seeking generic information regarding the OMs/ Notifications issued by the Public Authority, the Commission advises the Respondent Public Authority that in the interest of proper record keeping and preservation of documents for posterity, a Nodal Officer should be appointed for the compilation and collation of all available OMs / Notifications issued in the form of a compendium for ready reference of all concerned. Needless to add that the Nodal Officer (RTI) should have proactively acted in the matter to compile and collate the information from the concerned Divisions / Departments in order to facilitate expeditious reply to the RTI application.

The Appeals stand disposed accordingly.

 (Bimal Julka) 

(Information Commissioner)

Citation: Mr. Pradeep Kumar v. Ministry of Health & Family Welfare in Second Appeal No.(s):- CIC/MOHFW/A/2018/623283-BJ+ CIC/MOHFW/A/2018/623300-BJ+ CIC/MOHFW/A/2018/623306-BJ+ CIC/MOHFW/A/2018/623311-BJ+ CIC/MOHFW/A/2018/623315-BJ+ CIC/MOHFW/A/2018/624303-BJ, Date of Decision : 05.07.2019