Central Information Commission
Mr. Vihar Durve vs Central Information Commission on 27 July, 2010
CENTRAL INFORMATION COMMISSION
Appeal Nos. CIC/WB/A/2009/000545 dated 5.5.2009
& CIC/WB/A/2010/000303 dated 7.7.2010
Right to Information Act 2005 - Section 19
Appellant - Shri Vihar Durve
Respondent - 1. Department of Personnel & Training
2. Central Information Commission
Both appeals Heard: 22.7.2010
Decision announced: 30.7.2010
Facts:
These are two appeals received Shri Vihar Durve of Pawan Vihar, Pune - one stemming from information provided by CPIO Ms. Zoya C.B. of the DOPT and the other against the information provided by CPIO Shri Tarun Kumar, Central Information Commission. Since both hinge on the same issue, they have been clubbed together for hearing.
1. File No. CIC/WB/A/2009/000545 In this case, by an application of 18.11.08 addressed to DoPT, received by CPIO only on 2.12.08 Shri Vihar Durve applied for the following information:
1 "Inform me and furnish me the name of Authority or Ministry who is supposed to evaluate the Sec. 4 of RTI compliance of each Govt. Department/Local Authority? 2 Inform me and furnish me the method/procedure/technique/parameters how each CIC evaluates the Sec. 4 of the RTI compliance?
3 Inform me and furnish me details of Power / authority / duty / obligations cast on each CIC to evaluate sec. 4 of RTI compliance.
4 Inform me and furnish me the advantages of evaluating sec. 4 compliance of RTI to RTI applicant and Govt. Department or Local Authorities.
5 Inform me and furnish me the disadvantages of evaluating sec. 4 compliance of RTI to RTI applicant and Govt.
Department or Local Authorities.
16 Inform me and furnish me effect of evaluating sec. 4 compliance of RTI on India's Transparency & Corruption Index or taking RTI to its logical conclusion.
7 Inform me and furnish me effect of not evaluating sec. 4 compliance of RTI on India's Transparency & Corruption Index or taking RTI to its logical conclusion.
8 Inform me and furnish me effect of evaluating sec. 4 compliance of RTI on Global Warming or taking RTI to its logical conclusion.
9 Inform me and furnish me effect of not evaluating sec. 4 compliance of RTI on Global Warming or taking RTI to its logical conclusion.
10 Inform me and furnish me the budgetary provisions meant for conducting yearly RTI Conclave by CIC. 11 Inform me and furnish me the cost of conducting yearly Conclave by CICs 12 Inform me and furnish me when will CIC, compliance of Sec. 4 of RTI by yearly RTI compliance? 13 Inform me name of person who is supposed to disseminate above information on CIC's website? Why it is not published? When will it be published To this, he received pointwise reply dated 23.12.08 from CPIO Ms. Zoya C.B., U.S. (RTI) informing him as follows:
"Point No. 1 & 2: Under Sec. 25(2) of the Act, the CIC may ask a public authority in relation to the exercise of its function under this Act does not conform with the provisions or spirit of this Act, it may give to the authority a recommendation specifying the steps which ought in its opinion to be taken for promoting such conformity. Point No. 3: Powers & functions of the CIC and the State Information Commissions are given under sec. 18 of the RTI Act, 2005.
Point No. 4 & 5: Does not form part of information. Point No. 6 to 9: Information is not available with the CPIO Point No. 10: There are no separate provisions for the same. Point No. 11: Pertains to Central Information Commission. Point No. 12: Information is not available. Point No. 13: Pertains to Central Information Commission."
Aggrieved by this response, for the reasons mentioned in his appeal, Shri Durve moved an appeal before Ms. Anuradha Chagti, D.S., DOPT contesting each point as below:
Point No1 2 "1. My appeal point: CPIO, CIC of India vide letter no.
CIC/CPIO/2008/1278 dated 27th Oct., 2008 has informed me that Nodal Agency for monitoring Sec. 4 of RTI is Ministry of Personnel, Public Grievance & Pensions, Department of Personnel & Training (attached herewith) Therefore,
1) CPIO be directed to furnish me correct information and furnish me supporting documents which states that CIC of India is Nodal Agency to monitor sec. 4 of RTI.
2) Also CPIO be directed to be specific about what is meant by SPIRIT of RTI Act.
Point No 2
2. My appeal point: CPIO, CIC of India vide letter no.
CIC/CPIO/2008/1278 dated 27 Oct 2008 has informed me that Nodal Agency for monitoring Sec. 4 of RTI is Ministry of Personnel, Public Grievance & Pensions, DOPT (attached) herewith Therefore
1. CPIO be directed to furnish me correct information and furnish me supporting documents which states that CIC of India is Nodal Agency to Monitor Sec. 4 of RTI.
2. Also CPIO be directed to be specific about what is meant by Spirit of RTI Act.
3. CPIO be directed to inform me in detail the method / procedure / technique / parameters how each CIC evaluates the sec. 4 of RTI compliance.
Point No 3
3. My Appeal point: CPIO be directed to furnish me correct information about obligation cast on each CIC to evaluate sec. 4 of RTI compliance.
Point No. 54. My appeal point: CPIO can't interpret what comes under RTI & what does not interpretation of RTI Act is sole discretion of Hon. Information Commissioners.
Hence CPIO be directed to furnish me correct information about points No. 4 & 5.
Point No. 6:
5. My appeal point: CPIO be directed to forward my RTI application where the information is available. Point No 10
6. Also following information not furnished to me from my RTI application 3(iii) (1) Daily progress made on ... to (6) The 3 number of similar applications ... is not furnished. Hence CPIO be directed to furnish me correct information above points."
Upon this, Ms. Anuradha Chagti, DS (RTI) in her order of 17.2.09 has found as follows:
"Point No. 1 to 2: Sec.4 (1) of the RTI Act reads as under:
a) maintain all its records duly catalogued and indexed in a manner and the form which facilitates the right to information under this Act and ensure that all records that are appropriate to be computerised are, within a reasonable time and subject to availability of resources, computerised and connected through a network all over the country on different systems so that access to such records is facilitated;
b) publish within one hundred and twenty days from the enactment of this Act,--
(i) the particulars of its organisation, functions and duties;
(ii) the powers and duties of its officers and employees;
(iii) the procedure followed in the decision making process, including channels of supervision and accountability;
(iv) the norms set by it for the discharge of its functions;
(v) the rules, regulations, instructions, manuals and records, held by it or under its control or used by its employees for discharging its functions;
(vi) a statement of the categories of documents that are held by it or under its control;
(vii) the particulars of any arrangement that exists for consultation with, or representation by, the members of the public in relation to the formulation of its policy or implementation thereof;
(viii) a statement of the boards, councils, committees and other bodies consisting of two or more persons constituted as its part or for the purpose of its advice, and as to whether meetings of those boards, councils, committees and other bodies are open to the public, or the minutes of such meetings are accessible for public;
(ix) a directory of its officers and employees;
(x) the monthly remuneration received by each of its officers and employees, including the system of compensation as provided in its regulations;
(xi) the budget allocated to each of its agency, indicating the particulars of all plans, proposed expenditures and reports on disbursements made;4
(xii) the manner of execution of subsidy programmes, including the amounts allocated and the details of beneficiaries of such programmes;
(xiii) particulars of recipients of concessions, permits or authorisations granted by it;
(xiv) details in respect of the information, available to or held by it, reduced in an electronic form;
(xv) the particulars of facilities available to citizens for obtaining information, including the working hours of a library or reading room, if maintained for public use; (xvi) the names, designations and other particulars of the Public Information Officers;
(xvii) such other information as may be prescribed; and thereafter update these publications every year; "
c) publish all relevant facts while formulating important policies or announcing the decisions which affect public;
d) provide reasons for its administrative or quasi-judicial decisions to affected persons.
Further Sec. 25(1) reads as "The Central Information Commission or State Information Commission, as the case may be, shall, as soon as practicable after the end of each year, prepare a report on the implementation of the provisions of this Act during that year and forward a copy thereof to the appropriate Government.
No other supporting document is available with this Division.
Point 3 to 5: Information has been provided on what is available with this Department. No other supporting document is available with the Division.
Point No. 6: Information is neither available with the CPIO nor it is known if such correlation has been done by any public authority.
Point No. 7: Information is neither available with the CPIO nor it is known if such correlation has been done by any public authority.
Point No. 8: Information is neither available with the CPIO nor it is known if such correlation has been done by any public authority.
Point No. 9: Information is neither available with the CPIO nor it is known if such correlation has been done by any public authority.
5Point No. 10: Information has already been provided. The information desired is not maintained in any format and is therefore not available with the CPIO.
It is reiterated that interpretation of the provisions of the Act is beyond the scope of the Act."
Appellant's prayer in his second appeal before us is as below:
"a) CPIO, DOPT be directed to furnish me correct information about the Nodal Agency to monitor Compliance of Sec. 4 of Govt. Agencies when he / she said Nodal Agency is CIC.
b) CPIO, CIC be directed to furnish me the method, parameter etc. i.e. how DOPT monitors Compliance of Sec. 4 of Govt. Agencies from year to year basis."
2. File No. CIC/WB/A/2010/000303 In this case Shri Durve by an application of 21.9.08 received by the CPIO on 30.9.08 has sought the following information:
"1. Inform me and furnish me the name of Authority or Ministry who is supposed to evaluate the Sec. 4 of RTI compliance of each Govt. Department/Local Authority?
2. Inform me and furnish me the method/procedure/technique/parameters how each CIC evaluates the Sec. 4 of the RTI compliance?
3. Inform me and furnish me details of Power / authority / duty / obligations cast on each CIC to evaluate sec. 4 of RTI compliance.
4. Inform me and furnish me the advantages of evaluating sec. 4 compliance of RTI to RTI applicant and Govt. Department or Local Authorities.
5. Inform me and furnish me the disadvantages of evaluating sec. 4 compliance of RTI to RTI applicant and Govt. Department or Local Authorities.
6. Inform me and furnish me effect of evaluating sec. 4 compliance of RTI on India's Transparency & Corruption Index or taking RTI to its logical conclusion.
7. Inform me and furnish me effect of not evaluating sec. 4 compliance of RTI on India's Transparency & Corruption Index or taking RTI to its logical conclusion.6
8. Inform me and furnish me effect of evaluating sec. 4 compliance of RTI on Global Warming or taking RTI to its logical conclusion.
9. Inform me and furnish me effect of not evaluating sec. 4 compliance of RTI on Global Warming or taking RTI to its logical conclusion.
10. Inform me and furnish me the budgetary provisions meant for conducting yearly RTI Conclave by CIC.
11. Inform me and furnish me the cost of conducting yearly Conclave by CICs
12. Inform me and furnish me when will CIC, compliance of Sec. 4 of RTI by yearly RTI compliance?
13. Inform me name of person who is supposed to disseminate above information on CIC's website? Why it is not published? When will it be published?
AND
1. Daily progress made on my application so far i.e. when did my application reach which officer for how long did it stay with that officer and what was the action taken by her / him?
2. Name and designation of the officials / employees who were supported to take action on my application and that of the officer who is supposed to take final decision in the matter.
3. Copies of documents relating to my application with all the file notings thereon.
4. How much is the time limit for disposal of applications of this type, going by your rules or citizens charter.
5. Copies of action initiated against official and / or employees for delaying action in the matter beyond the prescribed time limit as per your rules or citizens charter.
6. The number of similar application received within seven days from the receipt of my application and their respective status."
To this Shri Durve received a response point wise dated 29.1.08 from CPIO Shri Tarun Kumar, Jt. Secretary, informing him as follows:
"1. The Nodal Ministry for such valuation is Ministry of Personnel, Public Grievances & Pensions, Department of Personnel & Training.
2. The CIC examines the issues of sec. 4 compliance in a case that case before it in a complaint or an appeal under Sec. 18/19 of RTI Act.7
3. The powers of the Commissioners/Commission are described in Chapter 3 of the RTI Act.
4-5 CPIO provides information u/s 2(f) of the RTI Act. He cannot interpret or evaluate the particular provisions of RTI Act. You may seek legal opinion of an Advocate or an expert at your level.
6-9. The Central Information Commission has a limited role of examining a complaint or an Appeal. The non compliance of Sec. 4 by a particular Public Authority only, and not evaluating it in terms of transparency, corruption and Global Warming.
10.11 The Commission does not hold any conclave however it organized so far in two Conventions in 2006-07 & 2007-08. No specific budget has been allocated in the Demands for grant for the Annual Convention of CIC. Expenditure on the Annual Conventions of CIC is incurred from out of the overall funds allocated to CIC in the Demands for Grants. Information specifies to holding of the convention on expenditure incurred is not available. The conference wise the expenditure is made out on two heads on different items, activities requirements of the convention from heads "other administrative expenses" and office expenses and payments were also made in 2006 on travel expenses of some invitees. It is re-emphasized that there is no separate head for Conference / Convention.
12, 13 & 14: The CIC compliance with sec. 4 of the RTI Act every year and is available in our web site www.cic.gov.in and the web site is up dated periodically.
15 Shri Pankaj KP Shreyaskar in consultation with NIC for Sec. 4 compliance.
1. Your application was received on 30.9.2008 and was diarized by diary No. 41997/08 and it was received by the CPIO on the same date. CPIO is supposed to reply to RTI application.
2.3 The undersigned is replying the RTI application and there is no noting on the subject.
4. As per the RTI Act 30 days are prescribed for disposal of such RTI application by t he CPIO. In view of above there is no delay.
5. Details of Similar RTI applications received from 30.9.3008 to 10.10.2008 are enclosed with application A."
Because of the perceived contradiction in information provided by DoPT and CIC Shri Durve moved an appeal on 1.12.08 before the Appellate Authority Central Information Commission contesting the information provided, as follows:
8"1. As per Sec. 19(8) (a) of RTI The CIC or State Information Commission. as the case may be has the power to:
a) require the public authority to take any such action as may be necessary to secure compliance with the provisions of this act, including:
(i) by providing access to information, if so requested, in a particular form;
(ii) by appointing a Central Public Information Officer or State Public Information Officer, as the case may be.
(iii) By publishing certain information or categories of information.
(iv) By making necessary changes to its practices in relation to the maintenance management and destruction or records.
(v) By enhancing the provisions of training on the right to information for its officials.
(vi) By providing it with an annual report in compliance with clause (b) of sub section (I) of Sec. 4.
In light of above provisions, CPIO furnished me wrong information. It is responsibility of CIC to assess the progress of suo moto compliance of Sec. 4 and hence CPIO be directed to furnish me correct information.
Appellant Shri Durve's specific plea on all answers provided is athe following:
1. Also CPIO be directed to inform me relevant portion / section from the RTI Act i.e. the source of information from where he informed me that the Nodal Ministry for such valuation is Ministry of Personnel, Public Grievances & Pensions, Department of Personnel & Training.
2. Very specific information regarding Duty & Obligations cast on each CIC to evaluate sec. 4 of RTI compliance was sought.
However, CPIO just referred to powers of information Commissioners & Deliberately refused to furnish me details of duty/obligation cast on Information Commission. CPIO be directed to furnish me correct information about the duty / obligation cast on Information Commissioners to evaluate sec. 4 of RTI Compliance."
3. CPIO be directed to furnish me correct information about the advantages of evaluating sec. 4 compliance of RTI to RTI applicant and Govt. Department or Local Authorities.
4. CPIO be directed to inform me the exact date & other necessary details about when would CIC start discharging its duty & would conduct 9 yearly RTI conclave to monitor the progress of Sec. 4 compliance of all Govt. Agencies."
In his order of 16.1.09 Shri Mohammed Haleem Khan has arrived at the following decision:
"Point No.1: At the time of hearing the appellant was asked specifically what are his grievances against the reply of CPIO. The appellant was emphatic that since CPIO has not given him any document in support of the reply, he should supply the document along with that. The matter was discussed with the CPIO and it emerged that in view of the fact that DOPT is the nodal Ministry, the CPIO's reply cannot be considered wanting and accordingly this issue should be treated as adequately replied. Subsequently the appellant provided a copy of DOPT's letter dated 23rd December, 2008 wherein DOPT has quoted sec. 25(5) and therefore, according to the appellant the burden of Sec. 4 compliance by public authorities falls on the CIC. Since this letter is of a subsequent date, CPIO cannot be found wanting for not replying accordingly and not supplying this document along with his reply. Shri Tarun Kumar, however, emphasized that CPIO has not given wrong information to which the appellant did not agree. First Appellate Authority after hearing both the parties has come to the conclusion that CPIO has replied on the basis of records / information he had and cannot be faulted. Point No. 2: The CPIO elaborated that he has given information that Commission takes a view of sec. 4 disclosure on a case to case basis at the time of disposal of complaints and appeals under sec. 18 & 19 of the RTI Act. The CPIO agreed to supply a copy of the Rules made by DOPT and the Regulations made by the Commission in this regard.
Point No. 3 to 9: The appellant is satisfied with the reply. Point No. 10 & 11: The reply of the CPIO with regard to Point No. 10 & 11 was not found adequate. The CPIO was accordingly directed to provide the details of budget provision and actual utilization in the years 2006-07, 2007-08 and 2008-09 for the Annual Conventions. The Budget of the Commission may be put on website as part of the mandatory disclosure u/s 4(1) (b) (xvi) if not done already.
Point No. 12: The CPIO has given the reply, however, the appellant is not satisfied with the reply and desired that he should be informed of the exact date and other necessary details about when would CIC start discharging its duty & would conduct yearly RTI Conclave to monitor the progress of sec. 4 compliance of all Govt. agencies. It was clarified by the CPIO that the Commission have 10 complied with the sec. 4 of the RTI Act. It was decided that the matter will be revisited and wherever required updated. It was decided that the date of updating will also be put up against each update.
Point No. 13: The appellant is satisfied with the reply.
6. Regarding other points, the reply submitted by the CPIO were discussed in the light of the comments of the appellant and it was agreed that if photo copy of the file of his RTI application is provided to the appellant in full, it will suffice the query. CPIO is accordingly directed to provide a copy of the same to the appellant.
7. First Appellate authority appreciated the effort made by Shri Vihar Durve and Shri Rakesh Agarwal for participating and presenting their point of view personally before the First Appellate Authority."
In this case, appellant's prayer before us in his second appeal is as below:
"a) CPIO, CIC be directed to furnish me with Documentary Evidence about the Nodal Agency to monitor compliance of Sec. 4 of Govt. Agencies when he said Nodal Agency is DOPT Ministry.
b) CPIO, CIC be directed to furnish me the method, parameter etc. i.e. how CIC monitors Compliance of Sec.
4 of Govt. Agencies from year to year basis."
The key issue, therefore, in both cases is the appropriate authority under the RTI Act to enforce compliance with sec. 4.
The appeal was heard by video conference on 22.7.2010. The following are present:
Appellant at NIC Studio, Pune Shri Vihar Durve Respondent at CIC Studio, New Delhi.
Shri Tarun Kumar, Jt. Secy. CIC Shri K. K. Girdhar, CPIO, DOPT Observer at CIC Studio, New Delhi.
Shri Venkatesh Nayak Shri R. K. Girdhar, CPIO, DOPT submitted that compliance with Sec. 4 of the RTI Act 2005 is a statutory requirement. The relevant clause of the Act 11 through which this is to be enforced has been provided to appellant Shri Durve. CPIO Shri Tarun Kumar on the other hand submitted that this authority will lie with the "appropriate Government" u/s 26(3) (g) which specifically lays down as follows:
26(3) The appropriate Government shall, if necessary, update and publish the guidelines referred to in sub-section (2) at regular intervals which shall, in particular and without prejudice to the generality of sub-section (2), include--
(g) the provisions providing for the voluntary disclosure of categories of records in accordance with section 4;
Both CPIOs submitted that it is not possible for either public authority to regularly access compliance by public authorities within their jurisdictions. Appellant Shri Durve on the other hand submitted that since it is within the authority of Central Information Commission to monitor the implementation of the RTI Act u/s 25 it will also be necessary for CIC to enforce compliance with sec. 4. In a subsequent hearing in a separate case, appellant Shri Durve also referred to a decision of this Commission in CCIC/WB/C/2009/000468 Vihar Durve vs. Rajya Sabha Sectt. Regarding the Report of Department Related Parliamentary Standing Committee on Personnel, Public Grievances Law & Justice. However, this is not the point at issue in the present hearing.
DECISION NOTICE In this case, CPIOs, both of CIC & DOPT, have provided the information sought by appellant Shri Vihar Durve in the form held by them and according to their understanding of the law. However, what emerges from the appeals is an apparent hiatus in the law with regard to enforcement of compliance with sec. 4 which is a vital element of the law to achieve the objective of the law described in its preamble "to promote transparency and accountability in the working of every public authority". While, therefore, both appeals are dismissed, this Commission places on record its appreciations of the efforts of appellant Shri Vihar Durve in agitating a point which deserves attention both by the Information Commission and the Government. The clarification of this issue will, therefore, be pursued by 12 the Central Information Commission with the DOPT with reference to the Report of Department Related Parliamentary Standing Committee of on Personnel, Public Grievances Law & Justice to avoid any ambiguity in imposition or enforcement of this clause thereby hopefully leading to closer adherence with the letter and spirit of the law.
Announced in the hearing. Notice of this decision be given free of cost to the parties.
(Wajahat Habibullah) Chief Information Commissioner 22.7.2010 Authenticated true copy. Additional copies of orders shall be supplied against application and payment of the charges, prescribed under the Act, to the CPIO of this Commission.
(Pankaj K.P. Shreyaskar) Joint Registrar 22.7.2010 13 14