Central Information Commission
Mr.Ehtesham Qutubuddin Siddiqui vs Ministry Of Culture on 2 July, 2012
CENTRAL INFORMATION COMMISSION
Club Building (Near Post Office)
Old JNU Campus, New Delhi - 110067
Tel: +91-11-26101592
File No. CIC/SM/A/2011/001713/BS & CIC/SM/A/2012/000239/BS/0284
Relevant Facts emerging from the Appeal
Appellant : Shri. Ehtesham Qutubuddin Siddiqui
UT-1129/10, Anda cell, Mumbai central
prison,
Arthur road, Mumbai-400011
Respondent : CPIO
Ministry of Culture Superintending Archaeologist (publication) Archaeological survey of India Janpath, New Delhi-110011 Central Public Information Officer Ministry of Culture Dy Director, CCRT, 15-A, Sector - 7, Dwarka, New Delhi - 110075 RTI application filed on : 10/01/2011 & 12/09/2011 PIO replied on : 17/01/2011 & 11/10/2011 First appeal filed on : 31/01/2011 & 24/10/2011 First Appellate Authority order : 17/03/2011 & 18/11/2011 Second Appeal received on : 27/06/2011 & 02/02/2012 Information Sought vide RTI dated 10/01/2011:
The appellant has requested to furnish a copy of following books:
1. A historical memoir on the Qutb. Delhi J.A. Page.
2. An Archeological tour in Waziristan and Northern Baluchistan by Aural Stein.
3. An Archeological tour in Supper Swat and Adjacnt Hill tracts by Sir Aural Stein.
4. Excavations swat and Exploration in the oxus territories of Afganistan, Evert Bargar and Philip Wright.
5. Images of Nepal, Krishna Deva.
6. Bamiyan, Challenge to World Heritage.
7. Copy of all guide book of World Heritage Series.
8. Copy of all guide book on Expedient and Concise literature of Monuments and Archeological sites. (In English Language)
9. The booklets on picture post lord of ladakh.
Information Sought vide RTI dated 12/09/2011:
The Appellant has asked to furnish all cultural packages, reports & books published by Centre for Cultural Research and Training.
Reply of the CPIO dated 17/01/2011:
PIO in his reply requested to send the Demand Draft of Rs.3573/- towards the total cost of available ASI publications.
Reply of the CPIO dated 11/10/2011:
The PIO has furnished the 'Product Catalogue' having the details of all the cultural packages mentioning that all these cultural packages are the priced publication of CCRT.
Grounds of First Appeal:
The applicant stated that he wanted books free of cost as he falls in the Below Poverty Line Category (as declared by I Addl. Principle Judge, annexure III).
Order of the FAA dated 17/03/2011:
The FAA vide his letter dated 17/03/2011 stated that "since the applicant is below poverty line and the RTI Act is silent about free of cost supply of priced publications of the Government of India to the citizens who come below poverty line under RTI Act, 2005.The matter is being referred to the Commission for clarification and necessary orders."
Order of the FAA dated 18/11/2011:
"I am of the view that you have not sought any information from the CCRT under the RTI Act, but instead have asked for the priced publications produced by the CCRT, to be provided free of cost. Therefore, the said appeal is rejected. In case you need any Cultural Package(s) from the Centre, you may select the same from the product catalogue sent to you vide our letter dated October 11, 2011, after making the required payment for the same."
Grounds for the Second Appeal:
The applicant wanted to seek the desired information free of cost as he comes in Below Poverty Line Category.
Relevant Facts emerging during hearing held on 04/06/2012: The following were present Appellant: Absent Respondent: Mr. A K Khanna, CPIO & Mr. Anil Kohli, PIO "It is seen from the records that the appellant vide his RTI application dated 10/01/2011 had requested ASI Department to furnish original printed copies of 19 publications. The CPIO vide his reply dated 17/01/2011 stated that all these are priced publications and accordingly the appellant has been advised to pay the cost of Rs.3573/- for obtaining the same. The appellant vide his RTI application dated 12/09/2011 has also requested for "all cultural package, report and books published by Centre for Cultural Resources & Training (CCRT)". The PIO vide his reply dated 11/10/2011 has enclosed a "product catalogue" of all the cultural package and informed the appellant that same are priced publications of CCRT and hence can be supplied only on order basis. The FAA upheld the contention of the PIO and referred the matter to the Commission for clarification and necessary orders. The appellant who is under trial has claimed that the information should be furnished to him free of cost as he falls within the "BPL" category. In support of his contention the appellant has enclosed a copy of an order dated 13/08/2010 issued by the 1st Additional Principal Judge, City Civil Court, Greater Mumbai as appellate authority under the RTI Act holding that as the appellant is a under trial prisoner from 2006, there is no necessity to have a certificate from the competent authority to treat him below the poverty line.
The order is reserved."
Decision notice announced on 02/07/2012:
(1) Section 2(f) of the RTI Act, defines information as:
"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."
(2) Section 2(i) of the RTI Act defines record as:
(i) "record" includes--
(a) any document, manuscript and file;
(b) any microfilm, microfiche and facsimile copy of a document;
(c) any reproduction of image or images embodied in such microfilm (whether enlarged or not); and
(d) any other material produced by a computer or any other device;
(3) There can be no doubt that any material in the form of documents, books, cultural packages, reports etc. available with the Centre for Cultural Resource & Training(CCRT) qualifies as 'information' within the meaning of that expression as used in Section 2(f) &
(i) of the RTI Act. The question however is - whether the mere fact that the said material constitutes 'information' is sufficient to entitle a citizen to invoke the provisions of the RTI Act to access the same.
(4) To consider this question, it is necessary to refer to relevant provisions of the RTI Act.
The 'right to information' has been defined u/s 2(j) as follows:
"2(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............"
The right to information is conferred by section 3 of the RTI Act, which reads as follows:
"3. Right to information - Subject to the provision of this Act, all citizens shall have the right to information."
It is to be noted that Section 3 of the RTI Act does not use the language; "Subject to the provision of this Act, all citizens shall have the right to access all information." Therefore, the right conferred by section 3 of the RTI Act, which is the substantive provision, means the right to information "accessible under the Act which is held by or under control of any public authority and includes........."
(5) From the above, it is clear that if a particular information is not be held by, or under the control of the public authority concerned there would be no right in a citizen to seek such information from that particular public authority.
(6) With regard to the expression "held by or under the control of any public authority" used in the definition of "Right to Information" the Hon'ble Delhi High Court in Writ Petition No. 11271/2009 has observed as under:
"31. In the context of the object of the RTI Act, and the various provisions thereof, in my view, the said expression ―held by or under the control of any public authority used in section 2(j) of the RTI Act deserves a wider and a more meaningful interpretation. The expression "Hold" is defined in the Black's Law dictionary, 6th Edition, inter alia, in the same way as "to keep" i.e. to retain, to maintain possession of, or authority over.
32. The expression ―held is also defined in the Shorter Oxford Dictionary, inter alia, as ―prevent from getting away; keep fast, grasp, have a grip on. It is also defined, inter alia, as ―not let go; keep, retain".
33. The expression ―control is defined in the Advanced Law Lexicon by P.N. Ramanatha Aiyar 3rd Edition Reprint 2009 and it reads as follows:
"(As a verb) To restrain; to check; to regulate; to govern; to keep under check; to hold in restraint; to dominate; to rule and direct; to counteract; to exercise a directing, restraining or governing influence over; to govern with reference thereto; to subject to authority; to have under command, and authority over, to have authority over the particular matter. (Ame. Cyc)"
34. From the above, it appears that the expression ―held by or ―under the control of any public authority, in relation to ―information, means that information which is held by the public authority under its control to the exclusion of others. It cannot mean that information which the public authority has already ―let go, i.e. shared generally with the citizens, and also that information, in respect of which there is a statutory mechanism evolved, (independent of the RTI Act) which obliges the public authority to share the same with the citizenry by following the prescribed procedure, and upon fulfillment of the prescribed conditions. This is so, because in respect of such information, which the public authority is statutorily obliged to disseminate, it cannot be said that the public authority ―hold or ―controls the same. There is no exclusivity in such holding or control. In fact, the control vests in the seeker of the information who has only to operate the statutorily prescribed mechanism to access the information. It is not this kind of information, which appears to fall within the meaning of the expression ―right to information, as the information in relation to which the ―right to information is specifically conferred by the RTI Act is that information which "is held by or under the control of any public authority".
(7) This Commission while deciding the matter Mr. K. Lall vs. Mr. M.K. Bagri, Assistant Registrar of Companies & CPIO in appeal no. CIC/AT/A/2007/00112 has held as under:
"9. It shall be interesting to examine this proposition. Section 2(j) of the RTI Act speaks of 'the right to information accessible under this Act which is held by or under the control of any public authority.......'. The use of the words 'accessible under this Act'; 'held by' and 'under the control of' are crucial in this regard. The inference from the text of this sub-section and, especially the three expressions quoted above, is that an information to which a citizen will have a right should be shown to be a) an information which is accessible under the RTI Act and b) that it is held or is under the control of a certain public authority. This should mean that unless an information is exclusively held and controlled by a public authority, that information cannot be said to be an information accessible under the RTI Act. Inferentially it would mean that once a certain information is placed in the public domain accessible to the citizens either freely, or on payment of a pre-determined price, that information cannot be said to be 'held' or 'under the control of' the public authority and, thus would cease to be an information accessible under the RTI Act. This interpretation is further strengthened by the provisions of the RTI Act in Sections 4(2), 4(3) and 4(4), which oblige the public authority to constantly endeavour "to take steps in accordance with the requirement of clause b of sub- section 1 of the Section 4 to provide as much information suo motu to the public at regular intervals through various means of communication including internet, so that the public have minimum resort to the use of this Act to obtain information." (Section 4 sub-section 2). This Section further elaborates the position. It states that "All materials shall be disseminated taking into consideration the cost effectiveness, local language and the most effective method of communication in that local area and the information should be easily accessible, to the extent possible in electronic format with the Central Public Information Officer or State Public Information Officer, as the case may be, available free or at such cost of the medium or the print cost price as may be prescribed." The explanation to the sub-section 4 section 4 goes on to further clarify that the word "disseminated" used in this Section would mean the medium of communicating the information to the public which include, among others, the internet or any other means including inspection of office of any public authority."
(8) This ratio can also be culled out from Appeal No. CIC/WB/A/2008/000961-SM dated 26.09.2007 wherein it was inter alia held by this Commission:
"it is indeed true as contended by the respondent, that the appellant had asked for number of information which was already available in public domain either by way of priced publication sold through book stores or already placed in the internet/website of the air force. Any information already available in public domain need not be provided by the CPIO".
(9) It is apparent from the foregoing observations of the Hon'ble High Court Delhi and the decisions of this Commission cited above that once an information is brought into the public domain by means of a priced publication, the said information cannot be said to be "held by" or "under the control of" the CPIO and hence would cease to be information accessible under the RTI Act.
(10) In the instant case, information is available without the need for a request as these are priced publications. Therefore, to cast an obligation on the public authority to provide copies of the same under the RTI Act will not only be onerous but may also violate the Copyrights Act and may not be saved even under Section 9 of the Act as copyright may subsist in a person other than the State.
(11) Further presuming, though not admitting, that the information seeker falls under the BPL category for the appeal at hand still the information cannot be supplied to him free of cost under proviso to Section 7(5) of the RTI Act as the information is not held by the CPIO and access to this category of information viz. priced publication(s) shall be on the basis of payment of such costs as may be prescribed for the purpose.
Both the appeals stand disposed of accordingly.
This decision is announced in open chamber.
Notice of this decision be given free of cost to the parties.
Basant Seth Information Commissioner July 2, 2012 (In any correspondence on this decision, mention the complete decision number.)AM