Central Information Commission
Dr. Archana S. Gawada vs Central Information Commission (Cic) on 22 April, 2009
CENTRAL INFORMATION COMMISSION
Appeal No.CIC/WB/C/2007/00663 dated 19.11.2007
Right to Information Act 2005 - Section 18
Appellant - Dr. Archana S. Gawada
Respondent - Central Information Commission (CIC)
Facts:
By an application of 10.8.07 Dr. (Ms.) Archana S. Gawada applied to CPIO Shri G. Subramanian, Under Secretary, Central Information Commission, New Delhi, seeking the following information:
"The appeal No. CIC/OK/A/2006/00563 Arun Jaitly vs Doordarshan and CIC/WB/A/2007/00287 Ms. Veena Sikri vs. DOPT & others has been decided by the commission. In this regard following information may please be provided.
1. Provide the copies of the appeal memo along with the enclosure as submitted by the respective appellants in above mentioned appeals.
2. Provide copy of submission made by the appellant along with the enclosure if any in support of the above appeals.
3. Provide the copy of submissions made by the respective respondents along with the enclosure if any in defence of the above appeals.
Part II The applicant of this application has filed an application dated 31.1.2007. The application was addressed to Shri Pankaj K. P. Shreyaskar, the then CPIO of CIC. The said application was sent by speed post on 1.2.2007. The said application was received by office of Commission on 3.2.2007 (the copy of application, the postal receipt and certified true copy of proof of delivery is enclosed herewith for ready reference). In the draft order copy of the 1st appeal (CIC/AA/A/2006/0022) it has been stated that "though the applicant had sent the RTI application on 1.2.2007, but the CPIO, CIC received on 28.2.2007. In this back ground following information may please be provided.
I) When as per the proof of delivery the application dated 31.1.2007 was delivered in office of commission on 3.2.2007 yet it was presented to Shri Pankaj K. P. Shreyaskar, the then CPIO of CIC only on 28.2.2007. Please provide day to day account of the movement of the said application during the intervening period of 1 25 days. Please provide the copies of the records created and the name and designation of the official responsible who handled the said I application."
To this she received a response on 22.8.07 in the form of copies of letters forwarding the application to the following seeking their no objection to disclosure u/s 11(1):
1. Ms. Veena Sikri, 80, Jor Bagh, New Delhi
2. CPIO, Ministry of External Affairs, South Block, New Delhi-110001
3. CPIO, DOPT, North Block, New Delhi-110001.
4. CPIO, Prime Minister's Office, South Block, New Delhi-110001.
5. CPIO, Cabinet Secretariat, Rashtrapati Bhavan, New Delhi-110001.
6. Shri Vinod Kumar, Public Information Officer, Directorate General, Doordarshan, Doordarshan Bhawan, Copernicus Marg, New Delhi-110001.
Subsequently through a letter of 15.9.07 CPIO Shri Subramanian informed the following that not having received their response, he proposes to disclose the information sought:
1. Ms. Veena Sikri, 80, Jor Bagh, New Delhi 2
2. CPIO, DOPT, North Block, New Delhi-110001.
3. CPIO, Prime Minister's Office, South Block, New Delhi-110001.
4. Shri Vinod Kapoor, Public Information Officer, Directorate General, Doordarshan, Doordarshan Bhawan, Copernicus Marg, New Delhi-110001.
Through a letter of 22.9.07 he then replied to appellant Dr. Archana as follows:
"You had sought information vide your original RTI application 10th Aug., 2007. Vide Part-1, you had sought copies of appeal memos, enclosures submitted by appellants and Respondents.
Total No. of pages in File No. CIC/WB/A/2007/00287 comes to 90 Total No. of pages in File No. CIC/OK/A/2006/00563 comes to 50 You may send Rs. 280/- (@ Rs. 2/- per page) for the documents in favour of "PAO, CAT" payable at New Delhi by way of IPO or Demand Draft. Documents will be sent to you on receipt of DD or IPO. In case you want to inspect files / documents you can do so on any working day.
Regarding Part II On receipt of the dealing marked it to CIC and it was placed before Shri Pankaj K.P. Shreyaskar on 28.2.07. No information about the delay is available in this regard. No records have been created and there is no information available as to the person responsible. In case you are interested you can visit the Commission and look for records yourself."
In response complainant Dr. Archana Gawada with her letter of 28.9.07 paid the required amount but with the following qualification:
3"However, the remittance is made under protest for the reason that in accordance with the sec.11(3) of RTI Act 2005, where the third party has been given an opportunity to make representation u/s 11(2), the CPIO has to provide the information within 40 days after the receipt of request u/s 6, further in accordance with the provision of sec. 7(6), where a public authority fails to comply with the time limits in that case the information shall be provided free of charge."
In her complaint before us Dr. Archana has submitted as follows:
"i) The Respondents be directed to furnish the complete information as sought vide application dated 10.8.2007.
ii) The Respondents be directed to furnish the said information free of charge as the said public authority has failed to comply with the time limits specified in sub-section 1 of section 7 of Right to Information Act, 2005 and the Respondent be directed reimburse to the complainant sum of Rs. 280 submitted in the form of IPO.
iii) The respondent be directed to pay compensation of Rs.
1000/- to the complainant.
iv) The Respondents be penalized as per the provisions of section 20 of Right to Information Act, 2005."
The complaint was heard on 22.4.2009. The following are present :
Respondents at CIC Studio, New Delhi.
Shri G. Subramanian, CPIO / Under Secretary Shri L. C. Singhi, Jt. Secy.
Appellant Dr. (Ms.) Archana S. Gawada had been informed by Notice dated 15.1.2009 and arrangement for video conferencing made with NIC Thane regarding the hearing but she opted not to be present. Through an e-mail addressed to us at 10.56 pm on the night of 21.4.'09 that had not been accessed until the hearing Dr Gawada had pleaded her inability to be present because of a prolapsed invertabral disc (slipped disc) and has instead submitted a written statement CPIO Shri G. Subramanian submitted that the complete information, as sought vide application dated 10.8.07 has been supplied to appellant after receipt of the fee. However, because this information had not been provided within the 4 time limit specified u/s 7(1) read with Sec. 11 of the RTI Act, this fee has been returned to the appellant Dr Gawada.
Complainant Ms Gawada has on the other hand submitted the following plea in her written statement attached with her e-mail of 21.4.09:
The information sought by the complainant under part I of said application , were not such as could be said to be the information or records treated as confidential by the third party. The respondent could have invoked sec 11 only if the information sought was related to the third party and the same has been treated as confidential by that third party not otherwise. The information sought by the complainant under part I of the said application was public document which any person can access. If it being not so, than none of the file of appeal or complaint can be accessed by any person. Or even the appeal /complaint order could not be uploaded on the web site as each such order contain factual information related to the parties in that complaint/appeals. Since the information sought by the complainant can not be said to be treated as confidential by the third party and were factually public documents hence invoking of sec 11 was unwarranted and uncalled A) The information provided by the respondent in respect of Part II of the said application is profusely hideously and thus misleading, The complainant has in detail explained in tabulated in para 8 of the complaint. It is ludicrous & inconceivable that an RTI application which is received on 03.02.2007 in the O/o CIC, takes 25 days to reach the sole CPIO stationed at the same premises and yet no body is responsible. In more than one year of awe-inspiring functioning of CIC it is expected that all the officials of the CIC must have understood the importance of time scheduled disposal of RTI application. The information furnished by the respondent is frankly appalling, factually inconceivable and worrying cavalier.
B) In accordance with provision of section 7 (1) of the Act the respondent was required to furnish the information within 30 days from the date of receipt of application. The respondent has admitted vide his letter no. CIC/ CPIO / 2007 / 360 DATED 23.11.2007 that the said RTI application of was received on 14.08.2007. Hence respondent was required to supply the information on or before 12.09.2007 for both the parts ( if the invoking of the sec11 is held unwarranted ) yet 5 the respondent furnished information ( Misleading ) in respect of Part II only on 22 .09.2007. Secondly , for time- being if it is presumed that the invoking of sec11 was called for in that event also the respondent was required to furnish the information in respect of part II of the said application within 30 days i.e. on or before 12.09.2007 and the information in respect of part I within 40 days i.e. on or before 22.09.2007 .The respondent supplied information after 40days in respect of Part II and after 86days in respect of Part I of the said application. Further the respondent was required to issue notice to third party within 5 days of receipt of application i.e. on or before 19.08.2007 yet the respondent has issued the said notices only on 22.08.2007. In nutshell the respondent has failed to observe the schedule and has contravened the provisions of RTI act and rules made thereunder.
C) The complainant at the cost of repetition wish to submit that the complainant is sentient about the stand of the Hon'ble Commission that recourse to the 1st appeal u/s 19(1) should be first exhausted by the information seeker rather than directly approaching the Hon'ble Commission by invoking sec 18(1) of the Act, yet the complainant has resorted to invoke the forbidden provision of Act on following counts
a) The complainant has in past sought information from CPIO of CIC vide application dated 31.01.2007 and 14.06.2007 on both the occasion the complainant, aggrieved with non-response, belated response and partial denial of information and incomplete information, has resorted to take recourse u/s 19(1) of the Act. The complainant has received the order of 1st appellate authority in respect of appeal only on 07.08.2007 even though dated 26.03.2007 (corresponding to application dated 31.01.2007) that too after filing an RTI application to know its status. As far as the appeal in respect of application dated 14.06.2007, which is filed on 14.08.2007 is concerned no order of 1st appellate authority has been issued yet. Hence it seems that the system of timely disposal of 1st appeals is not yet developed in the Hon'ble commission.
b) In the Act there are twin provisions of redressal of the grievance viz. (a) Complaint u/s. 18 & (b) Appeals u/s. 19. It is the prerogative of the applicant to choose to avail either of the two remedies. It is in the same 6 way that in Constitution of India wherein also there are twin provisions for redressal of violation of fundamental right viz. by way of petition under Article 32 and 226. It is unheard that the Hon'ble Supreme Court has turned down any petition under Article 32 on the ground that the petitioner has not taken recourse to Article 226. It is pertinent to mention here that the opening paragraph of Section 18 has cast an inescapable duty on the Hon'ble Commission to inquire upon the complaints received from any person as the word "shall" has been used. There is no such prequalification mentioned in section 18 of the act for the matter that the complaint cannot be filed before preferring First Appeal under section 19 of the act.
D) The application of the complainant has not been dealt circumspectly by the respondents as per the provisions of the RTI Act.2005 and rules made thereunder yet as the information in respect of which the complaint is made was sought in the month of august 2007. Now, that complaint is being heard after a gap of two years. Pending the disposal of the complaint, the requirement of the information sought in the application of which the complaint is outcome has become infructuous. And since the respondent has supplied the information in respect of part I of the application soon after the filing of this complaint .Hence the complainant wishes to withdraw all the prayers. Yet due to the out come of this complaint ,any direction issued on the issues raised by the complainant has precious precedent value to the complainant and the public at large as well as the CPIO of public authorities.
DECISION NOTICE The two principal issues in the appeal are
1. The supply of information sought
2. The information having been supplied after the due date, the fees charged be refunded The above issues have already been met. There is therefore no further ground for complaint under the RTI Act 2005. However appellant has raised a 7 pertinent issue in questioning the need for reference to the third party u/.s 11 (1) That Section specifically refers to information "which relates to or has been supplied by a third party and has been treated as confidential by that third party 1 "
It must be accepted as a measure of policy in papers received by this Commission that none of the information so received in an organisation committed to transparency can be treated as confidential unless specifically marked as such. This is based on the principle that access to information is the rule and exemptions only the exception. It is understood that CPIO Shri Subramanian has made a reference as a measure of abundant caution, but having done so, it was hardly necessary to await a response beyond the ten days mandated u/s 11 sub-section (2). Such a practice will in future be abjured in dealing with such applications for information before the Commission Dr Gawada has also done well to point out that through the replies received the defects in the working procedure of the Commission have been exposed, notably that "It is ludicrous & inconceivable that an RTI application which is received on 03.02.2007 in the O/o CIC, takes 25 days to reach the sole CPIO stationed at the same premises and yet no body is responsible".
Similarly Dr Gawada has been discouraged from moving an appeal u/s 19(10 because of apprehension of similar delays in disposal. These are complaints of a serious nature. The Secretary CIC Shri Srivastava will examine these issues and ensure that procedures are reformed to bring the functioning of this Commission into closer conformity with what the citizen is justified in expecting of it.
On the question of penalty, we find that the application of 10.8.07 has in fact been responded to on 15.9.07. After making allowance for the additional time of ten days, permissible where third party reference is involved, the response has been given well within the time limit prescribed. The delay has occurred only as a result of procedure in payment and supply of information. There will, therefore, be no penalty.
1Underlined by us for emphasis 8 Announced in the hearing. Notice of this decision be given free of cost to the parties.
(Wajahat Habibullah) Chief Information Commissioner 22.4.2009 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 Shreyaskar) Joint Registrar 22.4.2009 9