Central Information Commission
Anant Gupta vs Department Of Commerce on 5 September, 2022
Author: Saroj Punhani
Bench: Saroj Punhani
के ीय सूचना आयोग
Central Information Commission
बाबागंगनाथमाग , मुिनरका
Baba Gangnath Marg, Munirka
नई द ली, New Delhi - 110067
File No : CIC/DOCOM/A/2022/620496
Anant Gupta ......अपीलकता /Appellant
VERSUS
बनाम
CPIO,
Department of Commerce,
SEZ Section, RTI Cell,
Udyog Bhawan,
New Delhi- 110011 .... ितवादीगण /Respondent
Date of Hearing : 01/09/2022
Date of Decision : 01/09/2022
INFORMATION COMMISSIONER : Saroj Punhani
Relevant facts emerging from appeal:
RTI application filed on : 24/02/2022
CPIO replied on : 03/03/2022
First appeal filed on : 07/03/2022
First Appellate Authority order : 22/03/2022
2nd Appeal/Complaint dated : NIL
Information sought:
The Appellant filed an online RTI application dated 24.02.2022 seeking the following information:
"My request concerns the 88th meeting of the Board of Approval for SEZs on the 25th of February, 2019 under the auspices of this department. I have already accessed the minutes of this meeting available on the special website for Special Economic Zones in India. From the minutes I have gathered that the learned members of the committee decided to approve the setting up of a sector specific SEZ in Godda district of Jharkhand as 1 requested by Adani Power (Jharkhand) Ltd. The proposal was Item No. 88.6 for the 88th meeting of the BoA. I would like to know the following:
1. What were the deliberations through which the learned members of the BoA arrived at the decision to approve this request,
2. What were the concerns against this specific request that were received by the BoA,
3. How did the BoA resolve those concerns in order to approve this request?"
The CPIO furnished a detailed reply to the appellant on 03.03.2022 stating as follows:-
".......... It is informed that the agenda and minutes of the meetings of the Board of Approval available on the sezindia portal are in the nature of official record. The information being sought by the applicant appears to be an attempt to seek information not available with the CPIO or an attempt to elicit an opinion, interpretation by the CPIO. The same is not within the ambit of information as defined under the RTI Act 2005. Under the provisions of the RTI Act, 2005, only such information as is available and existing and held by the public authority or is under control of the public authority can be provided. As such, the CPIO is not under any obligation to create information that is not a part of the record, to solve the problems raised by the applicants or to furnish replies to hypothetical questions."
Being dissatisfied, the appellant filed a First Appeal dated 07.03.2022. FAA's order dated 22.03.2022 upheld the reply of CPIO.
Feeling aggrieved and dissatisfied, the appellant approached the Commission with the instant Second Appeal.
Relevant Facts emerging during Hearing:
The following were present:-
Appellant: Present in person.
Respondent: Sumit Kumar Sachan, U.S. & CPIO present in person. The Appellant expressed his dissatisfaction with the CPIO's reply and FAA's order by reiterating the contents raised in the instant Appeal. The relevant portion of it is reproduced below in verbatim -2
"......Upon receiving his letter, I filed my first appeal with Shri Vipul Barisal. He rejected my appeal by saying that the minutes of the meeting as they are "specifies the status of conditions met/documents furnished by the developer". This claim does not pass the test of factual accuracy. I respectfully urge you to go through the minutes of the meeting (Document 1) in question and verify that ho such thing is provided on any page of the document. The FAA's order states "there is no additional information with regard to deliberations". This kind of statement allows public officials to wipe their hands off the responsibility to make this information available. For your reference, I have attached the minutes of another government body's meeting. This body is the Expert Appraisal Committee of the Ministry of Environment, Forests and Climate Change. The meeting in question was conducted 23/01/2020. The committee members discussed the same issue i.e. designation of the Godda Thermal Power Project as a SEZ (refer to Document 2). You can see item no. 37.6 on Pages 11-13 of the document. The minutes are far more detailed and transparent about the committee's deliberations than the minutes of the 88th meeting of the BoA. This is only because the project in question is located in an ecologically sensitive place. Minutes such as those maintained by the Ministry of Environment, Forest and Climate Change's EAC are made in the spirit of transparency and public accountability. But the minutes of BoA meeting as they stand are opaque. This information I seek is in the interest of transparency which is the very spirit of the RTI Act, 2005. I implore you to uphold that spirit and ensure the information sought by me is provided at the earliest...." In response to Appellant's contentions, the CPIO submitted that reply along with relevant information has already been provided to the Appellant. He further invited attention of the bench towards his written submission dated 31.08.2022 which is as under -
"1. xxxxxxx
2. The applicant vide his application stated that the minutes of the meeting that are publicly available do not mention anything besides the fact that the BoA approved the request on that day. The applicant had further requested to share the information or forward it to concerned authorities.
3. The application was examined and vide letter dated 03.03.2022 (copy enclosed), the applicant was informed that the agenda and minutes of the meetings of the Board of Approval available on the sezindia portal are in the nature of an official record. The information being sought by the applicant appears to be an attempt to seek information not available with the CPIO or an attempt to elicit an opinion, interpretation by the CPIO. The same is not within the ambit of information as defined under the RTI Act, 2005. Under the provisions of the RTI Act, 2005, only such information as is available and 3 existing and held by the public authority or is under control of the public authority can be provided. As such, the CPIO is not under any obligation to create information that is not a part of the record, to solve the problems raised by the applicants or to furnish replies to hypothetical questions.
4.xxxxxx
5.The appeal was examined in detail in light of the facts of the case and the reply furnished by the CPIO. It was observed that the request/proposal of M/s Adani Power (Jharkhand) Ltd. for setting up of sector-specific SEZ for power at Villages Motia, Mali, Gaighat & adjacent villages in Godda District, Jharkhand over an area of 425 Ha (formal approval for the land in possession of 22.68 Ha area and in-principle approval for remaining 202.32 Ha) was placed before the Board of Approval in its 88th meeting held on 25.02.2019. The agenda (copy enclosed) of the meeting specifies the status of conditions met/documents furnished by the developer on the basis of which the decision was taken by the BoA. As a matter of record, there is no additional information with regard to deliberation by the BoA. Hence, there was no infirmity in the reply furnished by the CPIO. Accordingly, the appeal was disposed of by the JS &FAA vide order dated 22.03.2022 (copy enclosed).
xxxxxx"
Upon Commission's instance, the CPIO further clarified that it is not necessary that all meetings concerning their projects/deliberations should have minutes. In this regard, the Appellant interjected to state that concerning the sensitivity of the project all the deliberations should have minutes and their records should be placed in the public domain in order to maintain probity and transparency in the system.
Decision:
The Commission based on a perusal of the facts on record does not find any scope of action in the matter with respect to the information sought for as well as the reply of the CPIO's provided thereon; as the queries raised by the Appellant are more in the nature of seeking clarifications to be drawn by the CPIO which concededly do not conform to Section 2(f) of RTI Act.
The Appellant shall note that outstretching the interpretation of Section 2(f) of the RTI Act to include deductions and inferences to be drawn by the CPIO is unwarranted as it casts immense pressure on the CPIOs to ensure that they provide the correct deduction/inference to avoid being subject to penal provisions under the RTI Act.4
In this regard, the Appellant's attention is also drawn towards a judgment of the Hon'ble Supreme Court on the scope and ambit of Section 2(f) of RTI Act in the matter of CBSE vs. Aditya Bandopadhyay & Ors.[CIVIL APPEAL NO.6454 of 2011]wherein it was held as under:
"35. At this juncture, it is necessary to clear some misconceptions about the RTI Act. The RTI Act provides access to all information that is available and existing.........A public authority is also not required to furnish information which require drawing of inferences and/or making of assumptions. 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) 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." (Emphasis Supplied) Similarly, in the matter of Khanapuram Gandaiah vs Administrative Officer &Ors.
[SLP (CIVIL) NO.34868 OF 2009], the Hon'ble Supreme Court held as under:
"7....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...."
(Emphasis Supplied) And, in the matter of Dr. Celsa Pinto, Ex-Officio Joint Secretary,(School Education) vs. The Goa State Information Commission [2008 (110) Bom L R 1238], the Hon'ble Bombay High Court held as under:
"..... In the first place, the Commission ought to have noticed that the Act confers on the citizen the right to information. Information has been defined by Section 2(f) as follows.
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;5
The definition cannot include within its fold answers to the question why which would be the same thing as asking the reason for a justification for a particular thing. The Public Information Authorities cannot expect to communicate to the citizen the reason why a certain thing was done or not done in the sense of a justification because the citizen makes a requisition about information. Justifications are matter within the domain of adjudicating authorities and cannot properly be classified as information." (Emphasis Supplied) Nonetheless, the reply and as a sequel to it further clarifications tendered by the CPIO during hearing is in the spirit of RTI Act, merits of which cannot be called into question.
Having observed as above, no further relief can be granted in the matter.
However, the Commission empathizes with the concern of the Appellant and advises him to pursue the matter through appropriate administrative channel.
The appeal is disposed of accordingly.
Saroj Punhani (सरोजपुनहािन) हािन) Information Commissioner (सूचनाआयु ) Authenticated true copy (अिभ मािणत स#यािपत ित) (C.A. Joseph) Dy. Registrar 011-26179548/ [email protected] सी. ए. जोसेफ, उप-पंजीयक दनांक / 6