Central Information Commission
Hema Dsouza vs Unique Identification Authority Of ... on 31 January, 2020
Author: Vanaja N Sarna
Bench: Vanaja N Sarna
क य सच ु ना आयोग
CENTRAL INFORMATION COMMISSION
बाबा गंगनाथ माग
Baba Gangnath Marg
मु नरका, नई द ल - 110067
Munirka, New Delhi-110067
Decision no.: -CIC/UIDAI/A/2018/633695/02760
File no.: - CIC/UIDAI/A/2018/633695
In the matter of:
Hema D Souza
... Appellant
VS
The ADG(E&U-II) & CPIO
Unique Identification Authority of India,
(Enrolment & Update Division-II), 7th Floor, UIDAI Building,
Bangla Sahib Road, Behind Kali Mandir,
Gole Market, New Delhi - 110001
... Respondent
RTI application filed on : 03/09/2018 CPIO replied on : 17/09/2018 First appeal filed on : 20/09/2018 First Appellate Authority order : 10/10/2018 Second Appeal dated : 16/10/2018 Date of Hearing : 30/01/2020 Date of Decision : 30/01/2020 The following were present:
Appellant: Melvin D souza, representative of the appellant. Respondent: Shri Praveen Kumar Jha, Deputy Director & CPIO.
Information Sought:
The appellant has sought information regarding the complaint submitted at UIDAI, New Delhi on August 28, 2018 vide dairy No. 6961:
1. Provide file no. / nomenclature of complaint etc., assigned to the above complaint having Diary No. 6961 dated 28/08/2018.
2. Provide names and designation of all personnel/officers who have dealt with the complaint.1
3. Provide dates and duration, when the complaint was handled by each personnel/officer.
4. And other related information.
Grounds for Second Appeal The appellant submitted that the exemption claimed by the CPIO under section 8(1) (a) of the RTI Act was not proper as the CPIO failed to explain or give any reasons regarding the applicability of the exemption in his case.
Submissions made by Appellant and Respondent during Hearing:
The representative of the appellant submitted that the reply of the CPIO claiming exemption u/s 8(1)(a) of the RTI Act is not proper as he has failed to give reasons, as mandated u/s 8 (1) of the RTI Act, as to how the information sought would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relations with foreign States or lead to incitement of an offence as provided under the sub- section. He further submitted that providing an Aadhaar card to a citizen is a public activity and hence information should be provided to him.
To substantiate his contention, he relied on following cases:
1. In Appeal No. CIC/WB/A/2007/00840, it was held:
"The RTI application was worded in a very clear and focussed manner by the Appellant. The Commission disapproves of the practise of PIOs using the exemptions of Section 8 (1), without providing a reasoning. The Commission is likely to view such a practise as a denial of information without reasonable cause and take consequent actions as per the law. This time however, we feel the ends of justice will be met by directing the Public Authority to be more diligent when using the exemption clause."
2. In Appeal No. CIC/OK/A/2006/00163, dated 07.07.2006, it was held that :
"The Commission, therefore, was compelled to observe that the Registrar had taken recourse to the provisions of Section 8(1)(g) and 8(1)(h) merely as a pretext to deny the information. It is difficult to comprehend why the Registrar sat over the fact-finding Committee's small report for fifteen months without taking any action even after there was an RTI application. Through this Order the Commission now wants to send the message loud and clear that quoting provisions of Section 8 of the RTI Act ad libitum to 2 File no.: - CIC/UIDAI/A/2018/633695 deny the information requested for, by CPIOs/Appellate Authorities without giving any justification or grounds as to how these provisions are applicable is simply unacceptable and clearly amounts to malafide denial of legitimate information attracting penalties under section 20(1) of the Act. 9. The Commission hereby directs the Registrar, BHU, to make available.....".
3. In appeal No.CIC/AT/A/2006/00535 dated 19.01.2007, it was held:
"The Act treats human rights violation and corruption-related information as belonging to a category where disclosure must be authorized regardless of whether the information requested attracts exemptions. Matters concerning human rights and corruption should, therefore, be construed to come within the exception of Section 8(2)."
4. In AppealNo.CIC/AT/A/2007/00245 dated 7.06.2007, it was observed, "Since the grant of visa itself is a public activity, the information on the basis of which such grant was made, especially whether a grant of visa was preceded by submission of correct and authentic information by the visa-seeker, also assumes a public persona. Since there is a linear relationship between the furnishing of information by an applicant for visa and the grant of visa to her / him and, grant or denial of visa being a public activity, the information connected with that should be assumed to be in public domain. In my view, the AA has erred in treating the information furnished by the third party as personal and private information in absolute terms. In fact, since the grant of visa was dependant on furnishing of that information, there is no reason why the information itself should be held to be confidential and personal whereas the grant of visa is not. A parallel example is the grant of Arms License under the Arms Act in the country. A person, before he could be granted the Arms License, was required to satisfy certain conditions and to disclose certain information to the public authority such as residence, profession, marital status, criminal antecedents and so on. On the basis of such information the Arms License could either be refused or granted. The person can appeal against refusal. All information given by him, therefore, automatically came out into the open. Apart from that, a private citizen 3 can also demand to know from the public authority granting such license, the information furnished by the license-seeker and even object to the grant of license by bringing to the notice of the licensing authority that the information provided by the license seeker was false, misleading or deficient. The purpose of citing the example is to highlight the fact that wherever a privilege is granted to a person under a given provision of law, all the activities connected with such grant, assume the characteristics of a public activity. No information germane to the grant of that privilege to that person under the law can thereafter be held as confidential and private or personal."
He also submitted that he may be compensated u/s 19(8)(b) for mental harassment, loss of several man hours etc and the concerned CPIO may also be penalized u/s 20(1) of the RTI Act.
The CPIO reiterated the contents of the reply dated 17.09.2018 and submitted that the desired information cannot be shared with the appellant under Regulation 7 of the Aadhaar(Data Security) Regulations, 2016 which reads as under:
"The nature of information that cannot be shared outside the Authority unless mandated under the Act includes but not limited to Information in CIDR, Technology details, Network Architecture, Information Security policy and processes, software codes, internal reports, audit and assessment reports, application details, asset details, contractual agreements, present and future planned infrastructure details, protection services and capabilities if the system."
Observations:
From a perusal of the relevant case records, it is noted that the reply provided by the CPIO had claimed a blanket exemption u/s 8(1)(a) of the RTI Act without justifying the applicability of the above mentioned Section. The Commission is in agreement with the submissions of the appellant and the decisions quoted by him. The reply thus cannot be treated as proper as under the provisions of Section 19 (5) of the RTI Act, 2005, in an appeal proceeding, the onus to prove that a denial of a request was justified shall be on the CPIO. Neither the PIO present during the hearing nor the CPIO responding to the RTI application, could justify their position as to how the disclosure of information would be in 4 File no.: - CIC/UIDAI/A/2018/633695 contravention of any of the provisions enshrined under Section 8 of the RTI Act, 2005. In this context, the Commission refers to the decision of the Hon'ble High Court of Delhi in the matter of Dy. Commissioner of Police v. D.K. Sharma, WP (C) No. 12428 of 2009 dated 15.12.2010, wherein it was held as under:
"6. This Court is inclined to concur with the view expressed by the CIC that in order to deny the information under the RTI Act the authority concerned would have to show a justification with reference to one of the specific clauses under Section 8 (1) of the RTI Act. In the instant case, the Petitioner has been unable to discharge that burden.
In the present RTI application, the appellant has sought information with regard to her complaint dated 28.08.2018 filed against Sh. Virender Sharma for obtaining Aadhaar Card no. 6504 8188 4683 unlawfully on the basis of forged documents, using her address. The CPIO, without considering the contents of each of the points raised by the appellant, has claimed a blanket exemption u/s 8(1)(a) of the RTI Act which is totally incorrect.. Also, the FAA without deciding the appeal on its merits, had simply upheld the reply of the CPIO. Had they been more careful while handling the RTI application, they could have provided a point-wise reply to the appellant. This clearly depicts that there is complete lack of knowledge of the provisions of the RTI Act within the respondent organisation.
As far as points no (i), (iii), (v), (viii),(ix) & (xi) is concerned, complete information should be provided to the appellant in a point-wise masking the names where relevant. On point no. (ii), only the designations of the officers should be given. On point no(iv), a copy of the observations made by each of the officers who handled the above mentioned complainant is to be provided. However, the names and signatures should be severed u/s 10 of the RTI Act. With regard to points no. (vi) & (vii), these points are not specifically covered u/s 2(f) of the RTI Act, however, if there is anything on the record of the respondent authority in relation to these points, the same should be given to the appellant after severing such information which is exempt under any of the exemption clauses of the RTI Act. No relief can be given on point (x) of the RTI application as the same is exempted from disclosure u/s 8(1)(j) of the RTI Act.5
On point no (xii), if such information is available, it should be provided to the appellant. By providing the required information as per the directions above, point no. (xiii) and (xiv) would get covered.
With regard to the imposition of penalty on the CPIO/PIO under Section 20 of the RTI Act, 2005, the Commission took note of the ruling of Hon'ble Delhi High Court in W.P.(C) 11271/2009 Registrar of Companies & Ors v. Dharmendra Kumar Garg & Anr. (delivered on: 01.06.2012) wherein it was held:"
61. Even if it were to be assumed for the sake of argument, that the view taken by the learned Central Information Commissioner in the impugned order was correct, and that the PIOs were obliged to provide the information, which was otherwise retrievable by the querist by resort to Section 610 of the Companies Act, it could not be said that the information had been withheld malafide or deliberately without any reasonable cause. It can happen that the PIO may genuinely and bonafidely entertain the belief and hold the view that the information sought by the querist cannot be provided for one or the other reasons. Merely because the CIC eventually finds that the view taken by the PIO was not correct, it cannot automatically lead to issuance of a show cause notice under Section 20 of the RTI Act and the imposition of penalty. The legislature has cautiously provided that only in cases of malafides or unreasonable conduct, i.e., where the PIO, without reasonable cause refuses to receive the application, or provide the information, or knowingly gives incorrect, incomplete or misleading information or destroys the information, that the personal penalty on the PIO can be imposed. This was certainly not one such case. If the CIC starts imposing penalty on the PIOs in every other case, without any justification, it would instill a sense of constant apprehension in those functioning as PIOs in the public authorities, and would put undue pressure on them. They would not be able to ful fill their statutory duties under the RTI Act with an independent mind and with objectivity. Such consequences would not auger well for the future development and growth of the regime that the RTI Act seeks to bring in, and may lead to skewed and imbalanced decisions by the PIOs Appellate Authorities and the CIC. It may even lead to unreasonable and absurd orders and bring the institutions created by the RTI Act in disrepute."
6File no.: - CIC/UIDAI/A/2018/633695 Similarly, the following observation of the Hon'ble Delhi High Court in Bhagat Singh v. CIC & Ors. WP(C) 3114/2007 is pertinent in this matter:
"17. This Court takes a serious note of the two year delay in releasing information, the lack of adequate reasoning in the orders of the Public Information Officer and the Appellate Authority and the lack of application of mind in relation to the nature of information sought. The materials on record clearly show the lackadaisical approach of the second and third respondent in releasing the information sought. However, the Petitioner has not been able to demonstrate that they malafidely denied the information sought. Therefore, a direction to the Central Information Commission to initiate action under Section 20 of the Act, cannot be issued."
Furthermore, the High Court of Delhi in the decision of Col. Rajendra Singh v. Central Information Commission and Anr. WP (C) 5469 of 2008 dated 20.03.2009 had held as under:
"Section 20, no doubt empowers the CIC to take penal action and direct payment of such compensation or penalty as is warranted. Yet the Commission has to be satisfied that the delay occurred was without reasonable cause or the request was denied malafidely. ......The preceding discussion shows that at least in the opinion of this Court, there are no allegations to establish that the information was withheld malafide or unduly delayed so as to lead to an inference that petitioner was responsible for unreasonably withholding it."
In view of the above judicial dicta, the Commission does not find it justified to impose any penalty on the CPIO. The appellant too could not make out a convincing case for grant of compensation under Sec 19(8)(b) of the Act.
Decision:
Based on the above observations, the present CPIO is directed to consider the RTI application afresh and provide a point-wise reply to the appellant as per the above discussion and directions within a period of 20 days from the date of receipt of this order under intimation to the Commission. The CPIO should note that he cannot claim any exemption while complying with this order and 7 any non-compliance with the above directions will make him liable for penalty under the relevant provisions of the RTI Act.
The Commission also instructs the Respondent Authority to convene periodic conferences/seminars to educate the concerned officials including the CPIOs and the FAAs about the relevant provisions of the RTI Act, 2005 for effective discharge of their duties and responsibilities so that such avoidable lapses do not occur again in future.
The appeal is disposed of accordingly.
Vanaja N. Sarna (वनजा एन. सरना) Information Commissioner (सच ू ना आय! ु त) Authenticated true copy (अ भ मा णत स या पत त) A.K. Assija (ऐ.के. असीजा) Dy. Registrar (उप-पंजीयक) 011- 26182594 / दनांक / Date 8