Central Information Commission
Shailesh Gandhi vs Reserve Bank Of India on 23 November, 2017
It
CENTRAL INFORMATION COMMISSION
New CIC Building, Baba Gangnath Marg, Munirka,
New Delhi 110067,
website:cic.gov.in
Complaint No.:- CIC/RBIND lC/2Ot7 l|Z3TSO
Complaina-nt : Mr. Shailesh Gandhi
Respondent : The CplO,
Reserye Ba:rk of lndia,
Central Ofhce Building,
Mumbai
Date of Hearing : 13.10.2017
Date of Decision : 20.71.2017
Qqtg qL fi1r".C_9f RTI application Not on Record
CPIO's response Not on Record
Date of f 11ing the First Appeal Not on Record
First Apjrellate A].1thority's response Not on Record
DatC Sl-!l!!g complajnt in rhe Commission 16.1.2.2076
ORDER
FACTS:
The instant matter was previously heard by a Single Bench of the Commission on 16.O5.2O 1?. The facts of the matter based on which the Single Bench acted upon are reproduced hereunder for the sake of brevity:
'l.T}ris matter concerrLs a complaint dated 16.12.2016 filed bg the Complaino.nt ta the Commission und.er Section 18 (1) (J) of tLrc RTI Act. He strtted that the .RBI haci i_ssued a ,Dbctosure PoLicy' on its tuebsite. containing a list of infonnatinn uhich shall not be giuen. The aboue policg had. been justified. by tlte Respondenls by stating that uhite compiting the non disclosure : .
list it had been the Bqnk's endeauour to auoin th.e objectiues of the RTI Act. The Complainant stated. that the RBI hod thus at'rogated to itself the ight to la.g d.otun exemptions from disclosure of informatioru, ulhich is ttrc sole prerogatiue of Parliament ulhich has prouided the exemptions under Sectton g Page 1 of 19 ffi a and g of thLe RTI Act. He further submilTed that the informahon tisted in the disclos'are policy also contained some iruformation uthich was ordered. to be disclosed bg the Stpreme Court The Ckmplainant mrrintains thot the obaue action of the Respondents could cause complete disruption of the uorking of nTt, i7 otfrer public authoities fotlouted this exomple ln that case, PIOs of public oiutllo"ities tttoutd,be following tlrc \tlegat proclamation of their orgaftizations" instead of the RTI Act' The Complainanl has praged th..7t the aboue action of the EBI be d.eclared" iLlegat. He also sought on urgent heaing in the maTter as it impinged upon the fundamental ights of cilizens' tl
4. The Respondents descibed the aboue mmpldint as 'fiuolous". TftPA stated that the Complainant had Jiled a complaint Luithout making a request for information through an RTI apptication and such q complaint LDas not sustainable' In this ionnection tllea cited Commission''s arder No' t-r./ RR/c/rn1r/\OOO14/KY dqted 19.9.2016- 'L-IE Complainant, on tlg other lwnd, stated thqt it uas tu)t oblijatory b rtle dn RTI applicatton before filing o comploinl unie, Siction 18 (1) (fl. The Respondents further submified that th.e Disclosure Policg on their utebsite was draun up purs)ant to the order No. CIC/ SM/ A/ 2A1A/ AO0148 dated2S'1A'201O of ttrc Cotnmission in S:rr': Kistan Lal Mi77al us CPIO' Reserue Bank oJ India. In para 6 of the aboue order, lhe Commission httd directed the Respond.ents to prepdre tleir disclosure policg in resped of not ontg the minutes ofthe board and other meetings but atso in respecl o7 atl other iruformatton hetd bA them ift htne Luith the ,ffi p.ri;"irr"
-Follousing of tIrc Act qnd post this policg on their uebsite' R1'I issuance ofthe cLboue order, the maller as discussed in tlrc public authoitg and the disctasure policg utas placed on WP their iebsite on 2g.4.2O11 and uas also intimated to the Comrnission uid.e tleir tetter dated 4 5 20 1 1 '
2. Based on the submissions of both parties, the Single Bench issued a decision dated O5.O7.2O17 which reads as under:
Page 2 of 19/ .
. In the light af the foregoing , in the vieut of this bench, the 11 disclosure policg as dranun up bg the Respondents is contrary to the letter and spirit of tlrc RTI Act. Houeuer, as pointed out bg the Respondents, tley dreu up this policy on the basis oJ an earlier decisian ol anoUlEr bench ctf the Commission. The Respondents haue c.lso rqised th.e issue of maintainabilitg of a mmplaint in th.e absence oJ an RTI Application hauing been filed and, as stdted aboue, the Commission he^s taken different deu.ts on this issue also. Therefore, ue tuould recommend the constitution of a larger bench .to CIC/ RBIND/ C/ 2017/ 123750 consid.er and dispose of tlrc aboue tssues. ?he Regislrar is directed to place this matter before the Chtef Inforrnation Commissioner for constihttion oJ a larger bench."
3. In view of the aforesaid decision, this bench of the Commission had been constituted by the CIC on 18.08.2017. The two primar5r issues that emanate from the previous proceedings are:
I. Whether or not the instant Complaint is maintainable under Section 18 1(f1 of the RTI Act.
II. Second being the credence of Complailalt's averments regarding the fa.l1out of the disclosure policy of Respondent office-
4. The Dy. Registrar, Registry of IC (SH), vide its note dated 27.07.2076 tralsferred the file to the O/o the Registrar Ior further processing the case. it was also stated that rncidentaJly an e-mail dated 23.07.2017 was received in the Registry on 26.07.2017 from Shri Gandhi stating that he would be away from India from 28.h July to 20th September, 2017 and as such the headrrg in the case should be fixed after 2O.h SepLember, 2017 .
HEARING:
Facts emerging during the hearing:
The foilowing were present:Page 3 of 19
ffi Complainant: Mr. Shajlesh Gandhi through VC; Respondent: Mr. Nanda Kumar, GM (HQ)/CPIO; Mr. A. Krishna Gopa1, Jt. Legal Advisor; Mr. Chetan Baiwir, DGM (RTI Div.)/CPIO and Mrs. Anjali Karyekar, Manager (RTI Div.)through VC;
SUBMISSION OF PARTIF^S DURING THE HEARING ON 13.10.2017 5- The Complaina.nt refrarned his contentions brought out during the hearing before the Single Bench on 16.O5.2017 arrd in doing so, he asserted his belief that if RBI decides what information it will disclose and what it will not, aJ]d if commission were to allow this practice, it would lead to a situation where Commission will not be able to hold a:ly PIO of RBI responsible for their acts of omission a:rd commission, as the PIOs will take defence under this policy. During the course of hearing, the Complainalt made it explicitly clear that prior to the hearing of this matter, he was not aware of the CIC order in the matter of Shri Kishar1 LaI Mittal vs, CPIO, Reserve Bank of India.
Nonetheless, he contended that howsoever done irr good faith, Commission had erred in giving such leverage to RBI to carve out its own disclosure poliey.
6. In its response, the Respondent argued that until the year 2010, the said policy was not conceived or published by them on their website and that it had been made available only in complialce of the Commission's order in the matter of Shri Kishan Lal Mittal vs. CPIO, Reserve Bank of India. Therea-fter, it was remarked that the Complaina::t had not thus fal explained as to how his Complaint ls maintainable ulder Section 18(1)(f) of the RTI Act. it was contended that there was no scope of application of Section 18 1(f) of the Act or Section 18 of the RTI Act as a whole in the instant matter, as there was no request made on the Complainart's part, which then could be said to have been refused or rejected by their CPIo. It was opined that Section 18 ffi primarily ior instances ivhere a request for information is iected by the CPIO, rvhile Section 18 1(f) could be invoked for matters which are outside the scope of Section 18 1(a) to 18(1)(e) of the Act, but a request for information has to precede a PaBe 4 of 19 Complaint under Section 18 of the RTI Act, 2005. It was asserted that a mere Complaint without arry RTI Application could not be deemed as substantial for approaching the Commission. Further, it was submiLted that the said policy is not even a part of their suo moto disclosure, since they complied with the marldate of Section 4(1)(b) of the R'II Act as early as in the year 2005 itseif. It was reiterated that they did not put up this po]icy on their own volirion but only as per the directions of the Commission. The Respondents lurther emphasised on the fact that the said policy did not surface overnight and had been in, existence for around 06 years now and therefore Lhey walted the Complainait to stale as to what was his cause of action for calling out on the said policy after a,]l this time. Furthermore, in a1t these years, not even once has the policv become a subject matter for consideration before the Commission and if the CPIOs were at fauit for follorr,.ing the said policy as a mandate, the Commission would have intervened much earlier as well, but that was not the case. The Respondent hrblic Authority again lamented that the Complainalt has not explained the maintainability of the Complaint while also reasserting that for any Compliant under Section 18 (1)(f), a request for information was necessary as per the provisions of Section 6 of the Act. It was a-lso their conlention that the Complainant's arguments rnerely focussed on imaginary issues and that he was excessively harping on RBI's pcrceived exercise of power, when in fact, RBI had not exercised any power per se, but had only complied a Commission's direction in its order. The Respondents also believed that the Complainant should have withdrawn the instalt Complaint at the very instance he learnt of the fact that this policy has been brought up on their website as per the Comm'ission's directions irse-f .
7. The Commission raised cerLain questions to both the parties intermittently during the course of their submissions.
8. The Complainant was asked to explain his cause of action a:rd whether he had approached RBI for any of the information listed in the policy as well as if RBI had obstructed his Right to Information in aly manner. Thc Complainant stated that he , Page 5 of X9 .
+i,.
happened to see the said policy on the RBI website upon a reference made by someone arrd at that time he was not awa.re as to when was this policy published. He however insisted that it could not be ignored that the policy was summarily flawed and reflective oI a wrong practice. About the marntainability of the Compiaint, the Complainant read out the provision of Section 18 of the RTI Act arrd stated.that said Section did not mention that filing a RTI Application was necessa-rf/ with the Complaint ald rnoreover the objective of the said provision was to look into any kind of issue related to accessing of records. ln this context, he also relied on a decision oI Maharashtra State Information Commission (SIC) dated 25.O3.2Q17, whereby direcrions were issued for pro-active disclosure of various welfare schemes of the Govt. departments of State of Maharashtra on their websites as a part of Section 4 mandate of the RTI Act based on his Complaint under Section 18(1)(lJ.
9. The Representatives of the Respondent Public Authority spoke about the dlmamics of the averred policy on the instalce of the Commission stating that this policy was in the nature of a negative list of what inforrnation RBI could perhaps deny, since Commission in its order dated 28.10.2010 implied that RBI makes it clear that uhich. inforrnation it ulould not disclose under the exemptioru prouisions af RTI Act. Additionally, stating that the policy was at best ir-rdicative in nature and nowhere it was projected as a mandate lor CPIOs to remain bound to. In addition, it was pointed our that the text of the policy adequately states that each application received under the Act would be examined in the light of provisions of RTI Act. Furthermore, they betieved that t1l.e genesis for the disclosure policy although was the Commission's direction but the intention was only to 1et the people get a sense of the probability of denial o[ information for some categories of information. The Respondent further relied on a judgment of the Hontrle Supreme Court in the matter of Narendra Numor Mqheshutari us Union af India & Ors [1989 AIR SC 2fga] wherein it rvas held as under :
#Ah "1.6. Being non-statutot!. in character, the guidelines are not iudiciallu enforceabl.e. A policg is not lau). A statement of palicg w#t ,,.-i Page 6 of 19 ';, 'ru) ,1. "
is ruot a prescription of binding citerian. Tfe campetent quthnitA might depaft from these guidelines where the proper exercise of ttis discretion so utarrants.,
10. The Complainant a-rgued that the decision of the Commission dated 28.10.2010 on u,hich RBI has been labouring was per ine.tiam and he opined that the respective ben-ch of the Commission did not think through tJle consequences of allowrng RBI tb exercise such a power. However, he agreed to the point that at the liling stage of the instant Complarnt he was not aware of the said directions of Commission, but, at this stage he wa:rted this bench to look at the future implications of allowing such a policy to remajn in public domain, as he believed that not only will the said policy mislead citizens who are desirous of seeking information but it could also result in a situation where all public authorities would follow suit a-trd start dissemination of such disclosure policies, and CplOs of each public authority will eventually quote the policy for w.ongfully denying the information. The Complainant raised hrs concein on another issue regarding the disclosure policy which exhibited a tong list of information that could not be provided, white he found himself confounded with the sheer number of information which RBI stated it could not provide but partlcularly referred to the failure of the policy in adhering to the ratio laid down by the Hon,Lrle Supreme Court in the landmark judgement af Jdgafltilo.l N lfistry case, wherein, for instance, in the policy, inspection reports of Urbal Cooperative Balks was stated to be an exempt information under various clauses of Section g of the RTI Act, when in fact the Supreme Court upheld. the decisions of the uommlsslon 1or dlsclosure of information in thc above category. Similarly, 1ega1 opinion furnished by legal department of central organisations and regional offices was a_lso stated to be an exempt information under Section g(1)(e), v,,hich he argr_red was against the Commission,s tal<e on the applicability oi Section 8(1)(e) for opilions exchar:ged or remarks iendered by virtue of the public post held by the government In thi"
background, he desired that the Commission "e*alt-s.
to direct the Respondents to strike down the policy from their u,ebsite and Page 7 of19 ffi also made it clear that he did not want arry penal action in the matter.
11. Moreover, the Respondent vide its written submission dated 16.1A.2017 (receiued bg the Commission afier the learing) dso submitted that the Comptainalt had no iocu-s standi to file the present complaint as none of his rights had been infringed' It ' was argued that the Complaint u/s 18(1)(0 u'ould be majntainable provided (i) there sha-ll be a request to the information and (ii) such request had to be denied by the PIO' Therefore, only on the fulfilment of the said condition precedent, a complaint could be received a::d inquired into lt was informed that in the present matter, no request u/s 6 of the RTI Act, 2005 was received from the Complainant and therefore the question for deniat ol such request d:id not aJise. A reference vras made to the decision of the Commission dated 19 09'2016 in CtClSSlcl2a:.2lgOoOI4 /Kv arld CIC/SS/ C/ 2012 /ooo352llrY to substa-ntiate their contention. In addition, lt was explained that the Commission in its order dated 28.10 201O in fi1e no' CIC/SM/Ai 2010/OOO148 had in the earlier, directed the RBI to formulate a disclosure policy in respect of information it may not disclose under the exempfion provj.sion of the RTI Act, 2005 and post this po1ic1' on its website. Accordingly, the Public Authority had prepared a list of such information and posted on its ofhcial weUsite. The disclosure policy explicitly stated that each application received under rhe RTI Act would be examined in the ligirt of tne provision oI the RTI Act, 2005 and any decision with respect to non-disclosure by the Respondent bank would be supported by the citing the relevant exemption provisions of the RTt act, ZOO5. Therefore, the disclosure policy of the RBI placed on its website was in compliance with the order of the CIC dated 28,10.201O. Thus, it was categodcally emphasised that RBI had in compliance to this Commission's direction, prepared a "disclosure policy" ald placed the sa.Ine on its website lt was contended that the complainarrt had nothing but self induced' unnecessa{/ unfounded fears and imagination and therefore the instant Comolaint was If,ivolous, vexatious and bad in law It was submitted Lhat The Cdinplarna.1l was guilty of suppressio ,t.r1,.
'r}r( P'ge 8 ol 19 uai and suggestio /alis and for this reason the complaint deserved to be dismissed bv the Commission.
OBSERVATIONS:
12. The Commission observed that by and large the premise of this Compiaint is notional in nature, v.,her€ the Complainant 'believes' that the disclosure policy of the Respondent public Authorlty could disrupt the access to information und.er RTI Act, 2005, It is well established at this stage that at no point in time has the Complajnalt attempted to obtain or access the infonnation lrom RBI or could cite any instance where RBI had denied the information to him. lt was also pertinent to note that the relief that the Complajnart had sought was direction lrom the Commission for striking down the poiicy from RBI website, he specihcally stated that he was not seeking direction for imposition of penalty. Fufther, the contentions of the Respondent could not be ignored that this policy had been on their website for about 6 years ald Complainart .vvas raising doubts without a:ry basis and was ignorant of the fact that the policy was a result of Comrnission,s directions itself. The Compla:inalt had accepted that he was not aware of the Commission's directions until the matter was heard by the Single Bench. Even further, thc Cornplainant could not cite aly cause of action except for vagueiy statilg that he lear-nt of this policy upon the insistence of some person. On a query from the Commission regarding the establishment of the cause of action in the matter and the maintainability of his Complaint under the RTI Act,20O5, the Complainart only read out the provision of Section 18 1(f). His afguments of complialce oi Section +1f ;py of RTI Act being routinely pursued by the Commission under Section 18 of the Act could hold good only where this disclosure policy couid be seen as a suo moto disclosrrr.e
13. The Commission was convinccd that the aliegations of the Complainart were only speculative ard hypothetica.l in nature.
t4. Furthermore, as for lhe Respondent,s action of framing and putting up the policy, their proposition was accepted that lt was lq_h. Page 9 of 19 (ffi)3 w#4 done only in compiianee of the Commission's directives. In this context, if we read the operative portion of the order of 28.10.2010, it clearly stated as under:
.6. Besides, ue also direct the CPIO to bring It to the notice of the competent authorltg in the RBI to prepare tts disclosure policg in respect of ll,ot onlg the rnin tes of the board and other meeiings'but a,lso in respect oJ oll other lnformation held bg it in tufle u)ith the provislons of the Right to Infoflndtio,r (RT? Act dtld. Post this policg iri. its u)ebsite. O'ace the PIBI makes it clear which infonnotio,r- it tuould tLot dlsclose under the exen\)tion prouisions of the Right to Inforl'r.a'tion (RTI) Act, it utould be clear to eteryone what oll inforrnation can be exPected, to be disclosed. Such clear enunciation of the negatiue list of itetns/closses o.f infofln,otioft in coftfonnitg ttith tlg exemptiofl prouisions of the RTI Act would remaae all doubts in the min.ds oJ the offlcers of fiE Bank dbout uhat theg must disclose and uthich theg must not. This utould minimise the use of the appellate mectLcLni.sm and bing in much greater trdnsparencA in the functioning of the dpex Bank It rttill c.lso set a trend for other banks to follottt."
15. What could be deduced from the a-foresaid direction was that the stipulation o{ hou' RBI would rvield this authodty of prepanng the list had been left open by the Commission While passing a direction in the context of a Section 4(1)(b) component, as pointed out by the Single Bench a-1so, the Commission left it open to the Respondent Public Authority to devise its negative 1ist. Firrther, the lalgr-rage therein was such, which was leaning more towards a category of lnformation for the CPlos/officers of RBI and for other balks to fo11ow, a:rd not for the public except where it was deemed that from this negative ltst, 'it uould be clear to eueryone lDhat all infonnation can be expected tn be disclosed'. The ke]'lvord in the said direction was what could be expected to be discJosed. lthis in no way seerned to be forming a Paee 10 of 19 part of Section 4(1)(b) mandatc, which sought dissemination of certain categories oI information that formed a part of active record of the public authority. The policy being discussed here was clearly more in the nature of guidelines for CPIOs of RBI for dealing with an RTI AppLication. Arguatrly, the policy did not have any sanction of law and merely u,'as made a reference point for CPIOs.
76. However, during the hearing, the Complainalt stated that the order of, the Commission in Shi Kishan Lal Mittal u. CPIO, Reserue Bqnk of India, File No CIC/SM/A/20101000148 dated 28.10.2010 was bad in law ald did not have aly precedential value. It was observed that re-visiting the said order would anount to reviewing the earlier decision of rhe Commission v,.hich was not envisaged within the provisions of RTI Act, 2005.
ln this context, the decision of the Hon'ble High Court of Delhi in the matter of DDA us. CIC and Anr WP (C) 12714/ 2aO9 Decided On: 21.O5.2O1O couid be cited wherein it had been held as under:
"35. Yet another instance of tle camplete transgression of the stqtutory pouers is to be found in Regulation 23. The sqid regulatiory inter alia, provi.des tlwl an appelktnt or a complainant or a respondent m{lA, notuittstanding that ttLe decision or order of the Commission is fnal make an apptication to the Chief Information Commissianer for special leaue to appeat or reuietu of a decision or order of tlte case and mention tlle grounds for such a request. It futl|Er seeks to empou)er the Chief Infonnation Commissioner, to consider and dec[de such a request cts he ttLinks fit. Neither the RTI Act flor the rules framed thereunder grdnt the pouer of reuieu to the Central InJormatlon Cotnmlsslor. or the Chte{ . :' Information Corntnissioner. Once the statute does ot 'L.' prouide for the power of reuiew, the Chief Infortnatibn ,' Commlssio?r'.er cannot, toithottt qng authoritg of taw, assume the potaer of retieu or even of a specidl leoue to appeal. Clearlg, the s(tid. regtldtion is begond tti-e contetnplation of the Act. Such a regulatiort is ultrd uires the prooisions of the Act"
Page 11of 19 The Hon'b1e Delhi High Court in the rnatter oISUHAS CHAKMA UNION OF INDIA and ANOTHER W-P.(C) 5086/2010( date of decision: NOVEMBER 18, 2011 had also held as under:
"lt is u.tell selTled that unless the pouer of reuieu is uested statutoilu, the Court/ authoit'u has no inherent pouer of reuieu. See Patel Narshi Thokershi and Others ' u. Shrli Pradguma nsinghji Arpnsing\| ( 1 9 7 ) 3 SCCB4 4.1
Requlation 23 of Ttw Central Information Commission (Mttnactement) Regulations, 2007, as amended uide notification No.CIC/ Leqat/ 2007/ 006 dated 20.10.2008 frrther exemplifies the positioru. Prior to this amendmen\ tlrc aforesaid Regulation 23 read a,s follouLs:-
(1)A decision or an order once pronounced bg the Commisston stnlt be finol.
(2) An appellant or a comptainant or a respondent manl, hotueuer, make an application to th.e Chief Infonnation Commissioner for speciat leave 1o appeal or reutew of a decbion or order of tle case and mention the orounds for such q request.
(3) :fhe Cfrkf Informatbn Commissioner, on receipt of such a rewesl, nau consider and decide the matter as he lhinks fit. (emphasis supplied) After the said aforesaid amendment carried out in tle uecLr 2008, Regulation 23 of the aforesaid Regulations ratu read as .follotus: -
A decision or an order once pronounced bu the Commtsston shall be finaL It is, tLterefore, euen rtnre clear that bg amendment, the leqistature has specificafl!.,1 LDithdrau)n thE power of reuieu uhich earlier uested in the CIC."
17. As per the submissions made by both the parties and the lacts available on record, it is clear Lhat the impugned "Disclosure Policy" was preparqd by. the Respondents in complialce with the a{orementioned decision and was not a suo moto Paee 12 of 19 disclosure as per Section 4 of the RTI Act, 2O05. In this regard a reference ca:r be made to the submission by the Respondent that they had already complied with the obligation u/s a (1) (bl in 2005 after the promulgation of the RTI Acr, 2OO5 which was not disputed or challenged by the Complainant. In this context, the Commission felt that the Complaint was without a cause of action since the Complainalt \,'as not aware of the earlier decision of the Commission and subsequent action by the Respondent in compiiance with the decision. Thus, it was not the case of violation of Section 4 by the Respondent as claimed by the Complainanl but $.as a matter of action taken in compli:uce of ar-r earlier decision of the Commission.
18. Furthermore, the scope and ambit of Sectlon 18(1)(f) should be construed in the marner the Act provides for. The said provision states that:
"(1 )Subject to the prouisiotls ol this Act, it shall be the dutg of tlLe Central Infonruttion Commission or State Inforrnation Commission as the ca-se maA be to receiue and inquire into a complaint from anA person,-
(fl in respect of ang other matter relating to requesting or obtaining access fo records under lhis Act.,
19. In the instart matter, Cornplainar:t had clarified that there had been no such request for information made on his part to the RtsI, or any attempt made at obtaining the access to the records. Thc contentions of the Complainart that Commission could not maintain a stand of not receiving complaints which were not accomparied by RTI Applications could not be acceded to, sole1y in the quest for accorrling a ,logical end,to issues such as the present one. As observcd in the order dated 16.07.2077 of the Single Bench regarding an instance where Commission adjudicated upon a Complajnt without arr RTI Appiication:
"Howeuer, in another order of the Commisstort (crc/ wB/ c/ 201A/ qOOO?1,Crc/wB/ C/ 2O1O/ 9000s2_ Page 13 of 19 ,fffi w#/ sM,cIC/ SM/ C/ 2011/ 900894, Crc/SM/c/2011/901291, crc/ sM/ c/ 2o1 1/ 901292, CrC/ SM/ C/ 201 1/ 901294, crc/ sM/ c/ 2o1 1/ 9o1296, CrC/ SM/ C/ 2O1 1/ 901297, CIC/ SM/ C/ 2011/ 901298, CIC/SM/C/2A11/9a13a1 and CIC/WB/ C/ 2A 10/ 00a57s SM dated 12.1.2A12), the Commission considered complaints filed ctgairust certain High Coura,s under Section 18 of the RTI Act orl tte ground that their u.)ebsites did not cat-nl suo-motll declarations as mandated under Section 4 (1) (b) of the R1L Act. The complaints utere flot preceded bg dng RII (r.pplic(rtion.s as the issue was one o:f suomotu disclosure qnd. not request for inJormqtion, not couered bg Section 4 of the RTI Act." [Emphasis Suppliedl
20. Norv, it is notervorthy that the single trench had itself made a remark that the issue raised in the aboyementioned seL oI Complaints was one of suo moto disclosure ard not a hypothetical or presumptive apprehension regarding arr indicative guideline prepared $'hile complying with a direction of the Commission. Even further, a perusal of the referred order daled L2.O7.2012 revea-led that the Commrssron nowhere talked about Section 18(1)(f) of the RTi Act or the absence of a RTI Application but merely proceeded under Section 18 of the Act for a matter pertaining to Section 4(lJft) oI the RTI Act. In view of this, it would not be appropdate to rely on the sald judgement any further in the instant matter.
21. Moreover, il we iook at the RTI Act, 2005 in particular, there is no stipulation of what the Commission could do aJter conducting ar inquiry under Section 18(2) therein, the only enabiing provision further in the RTI Act for action in a Complaint under Section 18 was inferred from the lalguage of Section 20 of the Act which provides as under:
ffi (1) Wh.ere thte Central Information Commission or the State Information Commission, as the case maA be, at the time of deciding anA conplsint or appeal is of the opiniort thqt the Centrql Public Infonnation Officer or llae Stqte Page 14 of 19 Public Information Offi.cer, as tLe cqse may be, Lns, Luithout qnlJ reasonable cause, refused to receiue qn clpplication for information or Lms not fumished irufomwtion uithin the time specified under sub sedion (1) of section 7 or malafidelg denied the request for information or kruowingly giuen incorrect, incomplete or misleading information ar destrolled information uhich was the subject af tte request or obstrwcted in anA manner in fitrnishing the infonnation, it shall impose a penaltg of ttuo hundred and Jiflg ntpees each dag titl application is receiued ar information is furnished, so holueuer, the total amount of such penaltg sho,lt not exceed tuentA fi.ue thousarud rupees: Prouided tho.t the Centr.tl Puhtic Information Off.cer or tLte State Pubtic Infornatictru Olfi.cer, os the case maA be, shatl be giuen a reasonable opporhtnitg of being heard before ang penalty is imposed on him: Prouided furtler that the burden of prouing ttrctt LLe acted rea^sonablg and diligentlg shall be on the Central Pubtic Information Offi.cer or the Stctte Pubtic lrformation OfJicer, as the case maA be.
(2) Where the Cenlral Information Commission or the State Information Commission, cts the cctse mag be, at ttLe time of deciding onA complaint or appeal is of the opinion that lhe Centrol Public lnformation Olfcer or the Stale Public Information Officer, the case magj ibe, ,.has, LuiLhnul anA reasonqbte cquse ctnd pe rsistenllg,',[a _r-" ."
Jar)g{ r,/: to receive .an applicaion for infor-mation or has not'fianished information wilhin Lhe time spacified unde, sub seclton (1) of section 7 or malafi.delA denied the request for infor'mation or knotuinglg giuen incorrect, incomplete or misteading inforrnation. or destroged information uthich utas the subject of tLe request or obstructed in. ang manner in fitrnishing the information, it shall recommend for disciptinary a.tion against the Central Public Information Officer or the Stote Pubtic lrtformcttion Aff.cer, qs the cqse mag be, under the seruice n es dpplica.ble to him.
Page 15 of 19i(ffi \.'rY-a Y4m{d
22. This power of imposing penalty is only to be exercised against a CPIO/SPIO ald not the public authority. So when we accord an interpretation to the ambit of Section 18(1)(f) of the RTI Act, which was in the nature of a residuary power as recogrrised by Honble Supreme Court in CIC us. Slate of Manipur, lCivn Appeal Nos.10787-10788 Of 201i1 it ought to be given such a cot'rstruction which can be brought lirithin the scope of adjudication of the Commission. The relevant extract of the a.foresaid judgement of the Hon'b]e Supreme Court of India is as under:
"29.If tue look ai Section 18 oJ the Act it appears that tfe pouers under Section 18 haue been categorized under clauses (a) 1o (l) oJ Section 18(1). Under clauses (a) to /J) of Section 18(1) of the Ad the Central Information Commission or the State Infonnation Commissiory as the case maA be, mag receiue and inquire into mmplaint of ang persorl who hcts been refitsed access to anA information requested under this Act (Section 18(1)(b)) or has been giuen incamplete, misleading or false infonnation under the Act (Section 18(1)(e)) or has not been giuen a resporlse to a request for information or access to infonnation tuithin time lim.ils specified under the Act (Section 18(1)(c). We are not concerned with prouision of Section 18(1)(a) or 18(1)(d) of the Acl. Here u)e are concerned uith the residuary prouision under Section 18(1)A of the Act."
23. This scope was very well limited to an action against a CPIO/SPIO, when rve bring this aspect within the contet of the instant Complaint, we must not overlook the fact that the RBI's non-disclosure policy had been drau.n on the direction of the Commission given to the public authodty and not to the CPIO. It leads us to the question of who within the RBI was to be held responsible for adjudging the hypothesis of the Complainant, if it was the competent authority of RBI who could be held liable for approving arrd allowing publication of the policy, question remains under what authority the Commission coirld seek tJ:e presence of the competent Page 16 of 19 authority as the facts of rhe instart matter did not ca]l for taking arly evidence or producing a-rry documents or a-ffidavit. This was for the simple reason that this bench of the Commission could not hold RBI responsible for exercising the liberty of interpretation accorded to it by another bench of this very same Commission based on a mere apprehension of obstruction of right to information of the citizens by CPIOs of RBI as envisaged by the Complainant.
24. Furthermore, Secdon 18(1)(i) of the Act uses the phrases 'request'/'obtain' and we ought to render only a literaL ilterpretation of these phrases. If we look at Sccaion 6 of the RTI Act, 2005 it erpiains what a citizen should do if he/she desired to obtain information; u,hich was to make a request) and this request had been stipulated as a request made in writing or electronic form with the CPIO/ SPIO/CAPIOi SAPIO.
o6.
Request for obtaining infonnation.-
(1) A person, uho desires to obtoin anA information under this Act, shall make d. request in urittng or through electronic mectns in English or Hindi in the official language of the ctrea in uhich the application is betng made, accomponging such fee qs mqA be prescibed, to-
(a) the Central Public lruformation Offrcer or State htblic Infonruation Officer, as the case mag be, of tlrc concemed publtc cluthoritA;
(b) the C.entral Assistnnl Public lnfonnation Olfiter or State Assisfan, Public Information Officer, as thr. case maA be, specifuing tLw: parTiculars of the information sought b14 him or her..."
25. It is pertinent to note that even in the matter of CIC Vs. s.to,te of Mqnipur (s\1pra), it had been held as under:
"23. Right to Information hcts also been stafiltoilll recognised under Section 3 of the Ad a.s follotls:
PaSe 17 of 19 Wd '3 Nght to infonnation. Subject to the prouisions of this Act, all citizens shall haue tlrc ight lo infonnation.'
24. Section 6 in this mnnectjon is uery cntciol.
tlnder Section 6 a person, tuho desires to obtain qng infarmation under this Ad, shall make a request in witing or through electroruic means in English or Hindi or in the . official language of the area it which the applicatton is being made, accompanging such Jee as mag be prescibed. Such request mag be made to the Centol Public Information Olficer or Stqte Public In[onnation Officer, as the case m.ag be, or to the Central Assislant htblic Informalion Officer or State Assistant Public Informatioru OJficer. In making the said reE)est the applicant is not required to giue an! reason for obtaining the infonnation or ctnu other personal detaits excepting those which are necessary for cantacting him.
25. It is quile interesting to npte thqt euen though under Section 3 af the Act right of alt citizens, to receiue information, is stahLtoilg recognised but Sectlon 6 giues the said rtght tD ang person-"
26. lt follows then this right to information had to be exercised by foliowing the process of Section 6 al]d the phrase "request a:rd obtain" was contained in this very enabling provision before it finds a mention in Section lB 1(f) oI the RTI Act.
27. Frorn the discussions above, the limited scope of Section 18 as a whole was quite predominant, and for this reason the Commission did not ilnd it expedient to extend such dimensions to the meanirrg of Section 18(1)(1) of the Act so as to accommodate even the apprehensions of citizens being cited as a reason for not being able to request for information or obtain access to records or proceed on conjecture arrd speculations about the conduct of CPiO's of the Public Authority.
ffi PaBe 18 of 19 DEDUCTIONS:
28. In view of the above eiucidations, the instant Complaint under Section 18(1)(f) of the Act which was based on assumptions and apprehensions of Complainanl (ithout any conclusive attempt at exercising the right to information was not maintainable. Moreovet, on being queried by the Commission regarding the reasons for not approaching the Pubhc Authority by filing an RTI Application, before filing the instant Complaint, no satisfactory and reasoned response was provided by the Complainant who re-iterated that as per the provisions of the RTI Act, 2OO5 it was not mandatory to file arr RTI application prior to liling a complaint u/s 18 of the Act DECISION:
29. From the observations arrd deductions made above, the instalt Complaint is not maintainable under Section 18(1)(! of the RTI Act due to the absence of cause of action. Moreover, the Complainant could not substantiate the reasons for not filing an RTi application $,'ith the Public Authority before filing a Complaint with the Commission.
30. The Complaint is accordingly dismissed SD/. SD/ lDivya Prakash sinha) (Bimal Julka) ID.forEratio! Comlrrissioner Information ColDmissiorrel ticated 'ltue Copy:
ffi Page 19 of 19