Central Information Commission
T S Sivakumar vs Department Of Posts on 8 August, 2018
CENTRAL INFORMATION COMMISSION
(Room No.313, CIC Bhawan, Baba Gangnath Marg, Munirka, New Delhi-110067)
Before Prof. M. SridharAcharyulu (Madabhushi Sridhar), CIC
Second Appeal No.: CIC/POSTS/A/2018/119469
Shri T S Sivakumar Appellant
Versus
CPIO, Department of Posts Respondent
Order Sheet: RTI filed on 17.08.2017, CPIO replied on 11.09.2017, FAO on 03.01.2018, Second
appeal filed on 26.03.2018, Hearing on 01.08.2018;
Proceedings on 06.06.2018: Appellant absent, Public Authority represented by CPIO. Mr. S.
Raghunathan, SSPO and CPIO. Directions issued and Show-cause issued.
Proceedings on 01.08.2018: Appellant absent, Public Authority represented by CPIO. MrS.
Raghunathan, CPIO from NIC Erode:
Date of Decision - 08.08.2018: Penalty imposed.
ORDER
FACTS:
1. The appellant sought certified copies of delivery receipts of postal articles that were addressed to the applicant's name and address along with 'Delivery receipt', number of the postal articles, date of the respective postal articles delivered to the applicant and the name and/or pincode number of the origin post office from where the respective 37 Postal articles were sent. The CPIO on 11.09.17 replied that in respect of postal articles from Sl.01 to 21, it is intimated that the records relating to the postal articles delivered to the applicant are not available as the preservation period was over. In respect of postal articles from Sl.No.22 to Sl.No.37 the applicant may kindly credit a sum of Rs. 54/- (27x2) for the supply of attested/certified copy of delivery receipt. The appellant, being dissatisfied, filed the first appeal on 19.11.17. The FAA on 03.01.2018 upheld the decision of the CPIO.
Being dissatisfied, the applicant approached this Commission.
2. The Commission's order dated 08.06.2018:
2. Mr. S. Raghunathan, SSPO and CPIO, submitted that the delivery slips of the postal articles as referred to by the appellant were available as on date of RTI CIC/POSTS/A/2018/119469 Page 1 application and even on date of first appeal. The records were physically segregated for the process of weeding-out, but thereafter they were weeded out, because of expiry of preservation period.
3. If the public authority has weeded out the documents/files/letters as per their record retention and removal policy, that amounts to 'not holding' of the documents which were sought under RTI and hence need not be provided. They have to, however, furnish the extract from the Register of removal of records, showing date and time of removal of such record, as proof of their claim. But, if they have not weeded out as on the date of RTI application, though retention scheduled time was exhausted, it means they were holding the record and hence they shall share the same. Removing the papers after RTI has filed for them amounts to breach of RTI of the appellant and necessitates invocation of penalty Section 20 of RTI Act for destroying the papers sought under RTI Act. In this case the public authority has segregated the papers for removal but did not remove. When the CPIO preferred to refuse the information and First Appellate Authority received the first appeal, the papers were lying with the public authority. But they refused to share. Hence, the Commission finds that the CPIO has violated the provision of the RTI Ac by not furnishing the delivery slips which had not been weeded out on the date of RTI application. The CPIO had a duty to share the available records which had been merely segregated instead of denying the information sought and weeding out of records during the pendency of application is clearly a violation of the provisions of the RTI Act.
4. The Commission directs the CPIO to provide the documents available at their office and the certified copy of the extract of the weeding out register, in case those documents have been weeded out.
5. The Commission was informed that the Postal Department has a policy not to remove the documents in spite of expiry of retention period, if any complaint is filed regarding the delivery of article concerned. The same policy should be adopted for the retained papers in spite of expiry of retention period, if RTI application is filed.
The Commission requires the public authority to announce this policy and inform each of the CPIO not to remove the papers concerned if an RTI application is pending.
6. The Commission directs Mr. S. Raghunathan, CPIO, to show-cause why maximum penalty should not be imposed upon him for illegally denying the information sought. The CPIO is directed to submit his explanation, before 01.08.2018 and the matter is posted for compliance on the aforesaid date.
Decision :
3. Mr. S. Reghunathen, the CPIO and SSP, Erode Division, vide letter dated 24.07.2018, submitted to the Commission as under:-
Shri T.Sivakumar of Anthiyur vide his RTI application dated 17.08.2017received by this office on 22.08.2017 had sought for copy of delivery slips in respect of 37 registered/ speed post articles that-were delivered to him during the year 2015 and 2016 through AnthiyurSubPostOffice.
The applicant was addressed vide this office vide Lr No. ECCC/RTI/20,21-2017- 18/Dlgs dated 11.09.2017, to credit a sum of Rs.54/- for supply of copy CIC/POSTS/A/2018/119469 Page 2 deliveryslips for the articles under Sl 22 to 37 pertaining to the year 2016 and the same were supplied to theappellant on payment of prescribed fee vide this office letter No. dated 03.10.2017.
In respect of articles under Sl. 01 to 21 it was informed to the applicant that as thepreservation period of the records were over, it could not be supplied.
The applicant had again preferred one RTI application dated 09.10.2017, wherein he hadsought for the particulars of disposal of old records citing the reply given by the CPIO videletter No ECCC/RTI/20,21-18/Dlgs dated 11.09.2017.
The applicant was given reply that as the preservation period of delivery slips of Sl no 1 to 21 of his RTI application dated 17.08.2017 was over, the same was segregated from theoffice records and dumped with the old records. The old records would then be disposed /handled as per the departmental procedure. Hence, the information sought in connection with weeding out of the above mentioned records were not available then.
Aggrieved over the reply of the CPIO, the applicant had preferred appeal vide his application dated 19.11.2017wherein he had requested that he himself would arrange for searching of the documents sought by him from the pooled and dumped old records under the supervision of postal authorities.
The appellant authority while disposing the appeal vide its memo No.RTI/Appeal/174/2017 dated 03.01.2018 and had upheld the decision of the CPIO.
Then the applicant had approached the CIC forum against the orders of theappellateauthorities' decision.
Now, I wish to submit the following few lines before the Commission for humbleConsideration.
As per the Department rules, the preservation period of inland registered article is 18months and inland speed post articles is 6 months. When the appellant filed his RTIapplication on 11.09.2017, the records corresponding to Sl 1 to 21 were already dumped with the old records. It is submitted that Anthiyur Sub Post Office has huge mail traffic and has 10 Branch Post Offices under its operational control. The records ofboth the SubPost Officeand all the 10 Branch Post Offices which crossed the records retention periodas per prescribed schedule were bundled and dumped in sacks as old" records in aseparated from the current records.
Even though the old records were not weeded out at the time of appeal preferred by theapplicant, they were pooled and kept in bundles and not in accessible condition.In the decision of first appeal also, the first appellate authority upheld the decision takenin this case stating that there is no provision in the RTI Act to permit the appellant tosearch the wanting documents from the dumped old records which were alreadysegregated from the current records as the period of CIC/POSTS/A/2018/119469 Page 3 preservation is over. Also; nodirections have been received from the first appellate author$ to supply/preserve theold records concerned. As such, adhering to the Departmental Rules the records wereweeded out.
As the appellate authority while disposing the appeal preferred by the applicant had alsoupheld the decision of the CPIO, the process of initiating of segregation of the documentssought for by the applicant from the dumped old records was not taken up. As far as thisDepartment is concerned, the process of weeding out of old records involves lot ofprocedures like assembling of old records of all the offices under one roof, issue of tendernotice, finalizing the tender etc. which is a time consuming and sensitive issue. Henceeven though the old records were dumped and pooled during 2016 they were weeded outonly during March 2018.
In this instant case, the appellant himself provided the date of delivery of the articleswhich implies that all the said articles were delivered to him. As per Section 8 of RTI Act. The RTI Act does not prescribe a record retention schedule. The records are to beretained by a public authority as per the record retention schedule applicable to thatpublic authority. It is possible that information generated in a file may be available in the form of O.M or a letter or in any other form even after the file has been weed out, andas such this Department had complied with the said rule.
Further, apart from the copy of the delivery of requested slip, the only information that could be provided for the appellant in connection with the delivery of the requested article as the "date of delivery" which was already known to the appellant.
Since my joining as CPIO in this Division, 7 number of RTI applications have been received from Shri T.S. Sivakumar and in most of the cases,he has requested for a copy of delivery slips pertaining to the year 2013, 2014 & 2015. However, all the applications were disposed of properly by supplying available information within the prescribed time limit. During the hearing of CIC held on 06.06.2018 also, the applicant had not appeared before the forum which implies that he has not given due weightage and importance for it.
In this case, I have purely adhered to the Departmental Rule and not denied the request for information with malafide intention or knowingly given incorrect or incomplete or misleading information or purposefully destroyed the information.
As records pertaining to Sl. No. 1 to 20 of the appellant's RTI application dated 11.09.2017 were weeded out on 27.03.2018, as per the directions in Para (4) of CIC order no. CIC/POSTS/A/2018/119469 dated 08.06.2018, the records could not be provided. Hence as directed the certified copy of extract of weeding out register is submitted herewith.
Also, it is humbly submitted that all offices under this Division have been instructed not to weed out the corresponding records in which a RTI was raised even if their preservation period is over based on the CIC decision CIC/POSTS/A/2018/119469 dated 08.06.2018. I assure that, I will dispose the RTI applications by following the above said decision in future CIC/POSTS/A/2018/119469 Page 4 and take extra care to provide information within prescribed rules and timelines to citizens who exercise their Right to Information. However, I request the Commission to show me leniency as it was my only intention to dispose the case as per the Departmental Rules and lack of clarification in handling / supplying information in connection with old records as per RTI Act led to my action and. not any mala fide intentionsor enmity to the applicant. I also submit that I will continue to carry out my duties as aresponsible CPIO.
4. The CPIO Mr. S. Raghunathen, Senior Superintendent of Post Offices, admitted that the records relating to points 1 - 21 were available as on the date of RTI application 17.8.2017 and that they were weeded out only in 2018 after the second appeal was filed. The CPIO tried to justify the weeding out during pendency of second appeal saying there is no provision in RTI in this regard. The Commission has to point out to him the basic tenet of the RTI Act that the public authority was under obligation to give the copies of documents held by the public authority as per section 2(f) definition of 'information' and 2(j) definition of right to information, which both the CPIO and First Appellate Authority ignored.
s2(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;
s2(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 the right to--
By non-weeding out, the public authority was holding those documents relating to 1- 21, in this case, though the weeding out period was exhausted. A set of documents which were actually and physically available cannot be presumed to have been not 'held' because the retention period is exhausted. Even after the expiry of retention period, the public authority has to actually destroy the documents by recording the fact of weeding out. The documents do not become 'non-existing' just because of expiry of weeding out period. The contention of both CPIO and FAA lacks in legal sanctity, logic and even common sense. The authorities also ignored the penal provisions under Section 20, which makes CPIO liable if 'destroyed information which was subject of the request' as one of the grounds mentioned.
CIC/POSTS/A/2018/119469 Page 5 s20(1) Where the Central Information Commission or the State Information Commission, as the case may be, at the time of deciding any complaint or appeal is of the opinion that the Central Public Information Officer or the State Public Information Officer, as the case may be, has, without any reasonable cause, refused to receive an application for information or has not furnished information within the time specified under sub-section (1) of section 7 or malafidely denied the request for information or knowingly given incorrect, incomplete or misleading information or destroyed information which was the subject of the request or obstructed in any manner in furnishing the information, it shall impose a penalty of two hundred and fifty rupees each day till application is received or information is furnished, so however, the total amount of such penalty shall not exceed twenty-five thousand rupees:
5. The documents held shall be shared subject to exceptions under Section 8 and
9. The CPIO's case is not relating to exceptions. It is proved by their admission that the documents were in existence, and were held during entire year 2017, when the appellant was pursuing with the CPIO and FAA for taking copies of those documents. And admittedly they were removed in 2018, when the matter was pending before the Central Information Commission.
6. The second proviso to Section 20 says Provided further that the burden of proving that he acted reasonably and diligently shall be on the Central Public Information Officer or the State Public Information Officer, as the case may be,
7. Thus it is the burden of CPIO to prove that he acted reasonably. The CPIO failed to prove that he acted reasonably, because he knew that the documents were held by them and he also knew that they were dumped at a particular place and remained dumped for one year, but he choose not to give them to the appellant.
8. Section 20(1) says that if the CPIO malafidely denied or knowingly destroyed information which was the subject of the request shall be recommended for disciplinary action. Though malafides are not proved, the CPIO admittedly knew the existence of the records, hence he is guilty under Section 20(1) and liable to penalty. It is regarding principle of transparency and systematic retention of documents besides providing legal access to those records to individuals seeking under RTI Act. The public authority cannot act against the letter and spirit of RTI Act. It's an issue of governance, record maintenance, retention and removal subject to sharing them under RTI Act. It is not right and proper for the CPIO to say that CIC/POSTS/A/2018/119469 Page 6 there are no such provisions in the Act. They should know to read the law properly and understand its spirit. They cannot use the provisions of law to their convenience and in contradiction with the spirit of transparency. Hence, for the above reasons the Commission holds CPIO guilty under Section 20(1) for imposition of penalty.
9. However, to decide the quantum of penalty, the Commission considers the fact that this is not a case of delay for which the penalty amount should be counted at the rate of Rs 250 per day. Considering all the reasons the CPIO has put forward, imposition of Rs 2500/-(two thousand five hundred only) fine will be appropriate to punish the act of CPIO in defiance of the norms of RTI and transparency for the purpose of establishing a rule that no public authority or CPIO shall weed out or destroy the record which was existing at the time RTI application, First Appeal or Second Appeal, which would amount to disrespect towards the law and authorities constituted under the law. Hence, the Commission imposes a token penalty of Rs. 2500/- on Mr. S. Raghunathen, the then CPIOunder Section 20 of the RTI Act.The penalty of Rs. 2500/-(two thousand five hundred only) shall be deducted by the Public Authority from the salary of Mr. S. Raghunathen, thethen CPIO by way of demand draft drawn in favor of "PAO CAT", New Delhi in one monthly instalment and forward the demand draft addressed to Deputy Registrar (CR-II), email:
[email protected] Room No. 106, First Floor, Central Information Commission, Baba Gangnath Marg, Munirka, New Delhi-110067.The instalment should reach the Commission by 08.10.2018.
10. The Commission fails to understand why the public authority went ahead with destruction of records when applicant was demanding the papers under points number 1to 21. It would have been better if the postal department demands actual cost of the copying and hand over the original documents under a proper acknowledgement, instead of weeding them out.
11. The Commission recommends the postal department higher officials to consider the possibility of handing over original documents which are going to be weeded out to the concerned officials/citizen-account-holders or their heirs at cost of posting and other expenses under due acknowledgment in a properly maintained CIC/POSTS/A/2018/119469 Page 7 register, instead of simply destroying them after the expiry of period of retention. The Commission views that this will help not only the owners or persons concerned with the record or their legal representatives to get their original documents, but also prevents RTI requests on this point by any person whatsoever.
SD/-
(M.Sridhar Acharyulu)
Central Information Commissioner
CIC/POSTS/A/2018/119469 Page 8