Central Information Commission
Mr.Aseem Takyar vs Central Information Commission on 12 June, 2012
CENTRAL INFORMATION COMMISSION
Club Building (Near Post Office)
Old JNU Campus, New Delhi - 110067
Tel: +91-11-26161796
Decision No. CIC/SG/A/2012/000764/19219
Appeal No. CIC/SG/A/2012/000764
Relevant Facts emerging from the Appeal
Appellant : Mr. Aseem Takyar
S/o Late R.C Takyar.
Plot No 144, Phase-I, Udyog Vihar,
Gurgaon-122016, Haryana.
Respondent : Mr. Pankaj Shreyaskar,
CPIO Central Information Commission 2nd Floor, 'B' Wing, August Kranti Bhawan, Bhikaji Cama Place, New Delhi-110066 Third Party : Mr. Subhash Chandra Agrawal 1775 Kucha Lattushah Dariba. Chandni Chowk Delhi-110006 RTI application filed on : 03/09/2011 PIO replied : 26/09/2011 First Appeal : 20/10/2011 First Appellate Authority order : 16/11/2011 Second Appeal received on : 05/03/2012 Sl. Queries Reply 1 Certified copy of RTI, Application, First Appeal, and Second Information received Appeal filed by the applicant Shri. Ayub Ali in the Case No CIC/WB/A12009/000721-SM decided on 15.04.2011. 2 Certified copy of the RTI, Application, First Appeal, and Second Information received Appeal filed by the applicant Shri. P. D. Gupta in the Case No CIC/WB/A/2009/00076I-SM decided on 26.05.2011 3 Certified copy of RTI, Application, First Appeal, and Second Information denied as Appeal filed' by the applicant Shri. S. C. Aggarwal in the Case No third party Mr. SC CIC/WB/A/2O1O/000184-SM decided on 20.06.2011. Aggarwal objected.
Grounds for the First Appeal:
Non-receipt of information as only intimation under section 11 (1) was received.
Order of the FAA:
"Since the documents sought by the appellant have been supplied by third-party and is not available in public domain, as is contended by the appellant (what is available in public domain is the decision of the Commission), the decision of the CPIO does not need any interference. So far as information relating to other two applicants is concerned, if the fee is received (as stated by the appellant), the information should be provided without any further delay by Shri Vijay Bhalla, Deputy Registrar."Page 1 of 3
Grounds for the Second Appeal:
Information provided is unsatisfactory Relevant Facts emerging during Hearing on 07 May 2012:
The following were present:
Appellant: Absent;
Respondent: Mr. S. Padmanabha, CPIO & Dy. Secretary alongwith deemed PIOs;
"The PIO had sought the concurrence of the three Third Parties. Information relating to query 01 & 02 has been provided but information relating to query-03 was not provided since Mr. S. C. Agrawal had objected to disclosing copies of his second appeal with enclosures. Section 11 of the RTI act, which is the basis on which the information is sought to be denied to the appellant in the present case lays down:
'11. (1) Where a Central Public Information Officer or the State Public Information Officer, as the case may be, intends to disclose any information or record, or part thereof on a request made under this Act, which. relates to or has been supplied by a third party and has been treated as confidential by that third party, the Central Public Information Officer or State Public Information Officer, as the case may be, shall, within five days from the receipt of the request, give a written notice to such third party of the request and of the fact that the Central Public Information Officer or State Public Information Officer, as the case may be, intends to disclose the information or record, or part thereof, and invite the third party to make a submission in writing or orally, regarding whether the information should be disclosed, and such submission of the third party shall be kept in view while taking a decision about disclosure of information:
Provided that except in the case of trade or commercial secrets protected by law, disclosure may be allowed if the public interest in disclosure out weighs in importance any possible harm or injury to the interests of such third party.
(2) Where a notice is served by the Central Public Information Officer or State Public Information Officer, as the case may be, under sub-section (1) to a third party in respect of any information or record or part thereof, the third party shall, within ten days from the date of receipt of such notice, be given the opportunity to make representation against the proposed disclosure.
(3) Notwithstanding anything contained in section 7, the Central Public Information Officer or State Public Information Officer, as the case may be, shall, within forty days after receipt of the request under section 6, if the third party has been given an opportunity to make representation under sub-section (2), make a decision as to whether or not to disclose the information or record or part thereof and give in writing the notice of his decision to the third party.
(4) A notice given under sub-section (3) shall include a statement that the third party to whom the notice is given is entitled to prefer an appeal under section 19 against the decision.' It is evident that the PIO is expected to follow the procedure of Section 11 when he "intends to disclose any information or record". This means that the PIO has come to the conclusion that the information is not exempt as per the provisions of the RTI Act. It is clearly stated at Section 11 (1) that 'submission of third party shall be kept in view while taking a decision about disclosure of information. The information 'which. relates to or has been supplied by a third party and has been treated as confidential by that third party'. Thus the procedure of Section 11 comes into effect if the PIO believes that the information exists and is not exempt, and the third party has treated it as confidential. The PIO must send a letter to the third party within 5 days of receipt of the RTI application. It only gives the third party an opportunity to voice its objections to disclosing information. The PIO will keep these in mind and denial of information can Page 2 of 3 only be on the basis of exemption under Section 8 (1) of the RTI act. As per Section 11 (3), the PIO has to determine the whether the information is exempt or not and inform the appellant and the third party of his decision. If the third party wishes to appeal against the decision of the PIO, he can file an appeal under Section 19 of the Act as per the provision of Section 11 (4).
Section 11 does not give a third party an unrestrained veto to refuse disclosing information. It clearly anticipates situations where the PIO will not agree with the claim for non-disclosure by a third party and provides for a appeal to be made by the third party against disclosure, which would have been unnecessary, if the third party had been given a veto against disclosure. Thus the PIO is expected to follow the procedure of Section 11, when he intends to disclose the information but has some reason to believe that the third party treats it as confidential. If the third party sends an objection, the PIO has to determine whether the information is exempt under the provisions of the Act.
The Commission however, adjourns the hearing to give the third party Mr. S. C. Agrawal to give his arguments of how the information sought by the Appellant in the instant case is exempt as per the provisions of Section 8(1) of the RTI Act. If the third party does not come for the hearing the information will be disclosed.
The Commission will hear this matter again on 12 June 2012 at 11.30AM.
The PIO, Appellant and the Third Party are directed to appear before the Commission on 12 June 2012 at 11.30AM to give their arguments."
Relevant Facts emerging during Hearing on 12 June 2012:
The following were present:
Appellant: Mr. Aseem Takyar;
Respondent: Mr. Pankaj Shreyaskar, CPIO alongwith deemed PIO Mr. Vijay Bhalla, Dy. Registrar; Third Party: Absent;
The Commission had sent a notice to the third party Mr. Subhash Chandra Agrawal as per the provision of Section 19(4) of the RTI Act. The Third Party Mr. Subhash Chandra Agrawal has not appears for the hearing nor send any written submissions objecting to release of the information. The Commission notes that as per he provisions of Section 11 of the RTI Act when a PIO asks for the objections of the Third Party it means that the PIO intends to disclose the information unless the third party provides objections showing how the information is covered under the provisions of Section 8(1) of the RTI Act. When no such objection is received establishing that an exemption applies to the information the information must be supplied to the applicant. In the instant case no exemption has been claimed by the third party Mr. Subhash Chandra Agrawal and hence the PIO is directed to provide the information to the Appellant.
Decision:
The Appeal is allowed.
The PIO is directed to provide the information to the Appellant before 30 June 2012. This decision is announced in open chamber.
Notice of this decision be given free of cost to the parties.
Any information in compliance with this Order will be provided free of cost as per Section 7(6) of RTI Act.
Shailesh Gandhi Information Commissioner 12 June 2012 (In any correspondence on this decision, mention the complete decision number.) (PG) Page 3 of 3