Central Information Commission
Chetan Kothari vs Department Of Aids Control on 12 February, 2019
के ीय सूचना आयोग
Central Information Commission
बाबा गंगनाथ माग, मुिनरका
Baba Gangnath Marg, Munirka
नई द ली, New Delhi - 110067
ि तीय अपील सं या / Second Appeal No.:- CIC/DAIDC/A/2017/150000-BJ +
CIC/DAIDC/A/2017/149998-BJ +
CIC/DAIDC/A/2017/149994-BJ
Mr. Chetan Kothari
....अपीलकता/Appellant
VERSUS
बनाम
1. CPIO
National AIDS Control Organisation,
Department of AIDS Control (DAC)
M/o Health and Family Welfare,
6th and 9th Floor, Chandralok
Building 36, Janpath,
New Delhi-110001
2. CPIO and Program Officer (VBD)
Ministry of Health & Family Welfare
(National AIDS Control Organization)
Department of AIDS, 9th Floor, Chandralok
Building 36, Janpath,
New Delhi-110001
... ितवादीगण /Respondent
Date of Hearing : 12.02.2019
Date of Decision : 12.02.2019
ORDER
RTI 1: CIC/DAIDC/A/2017/150000-BJ Date of RTI application 26.04.2017 CPIO's response 30.06.2017 06.07.2017 Date of the First Appeal 06.06.2017 First Appellate Authority's response Not on Record Date of diarised receipt of Appeal by the Commission 20.07.2017 Page 1 of 8 FACTS:
The Appellant vide his RTI application sought information regarding the details of State/Union Territory wise data of people who had contracted Hepatitis B & C, Malaria, Syphilis by blood transfusion in the last 5 years etc. Dissatisfied due to non-receipt of any response from the CPIO, the Appellant approached the FAA. Subsequently, the CPIO, Program Officer (VBD), vide its letter dated 30.06.2017 stated that the information sought was not available with them. Furthermore, the CPIO, Assistant Drugs Controller (I) & CDSCO (HQ), vide its letter dated 06.07.2017 retransferred the RTI application to the Program Officer (VBD), National AIDS Control Organization, New Delhi as the same had been inadvertently marked/forwarded to their office. The order of the FAA, if any, is not on the record of the Commission.
RTI 2: CIC/DAIDC/A/2017/149998-BJ Date of RTI application 26.04.2017 CPIO's response 20.06.2017 Date of the First Appeal 06.06.2017 First Appellate Authority's response Not on Record Date of diarised receipt of Appeal by the Commission 20.7.2017 FACTS:
The Appellant vide his RTI application sought information on 04 points regarding the provisions that prohibits the people belonging to LGBT Community from donating bloods, copies of guidelines/notification, if any, that prohibited them from doing so; any amendments made in such notification/guidelines allowing them to donate blood and issues related thereto.
Dissatisfied due to non-receipt of any response from the CPIO, the Appellant approached the FAA. Subsequently, the CPIO, Program Officer (VBD), vide its letter dated 30.06.2017 for points 01 to 03, informed the Appellant that the desired information was not available with them and therefore, the RTI application was transferred to the concerned department i.e. DCG(I), CDSCO, New Delhi for further necessary action at their end. However, the information regarding point no. 04 was provided to the Appellant. The order of the FAA, if any, is not on the record of the Commission.
RTI 3: CIC/DAIDC/A/2017/149994-BJ
Date of RTI application 26.04.2017
CPIO's response 30.06.2017
Date of the First Appeal 06.06.2017
First Appellate Authority's response Not on Record
Date of diarised receipt of Appeal by the Commission 20.07.2017
Page 2 of 8
FACTS:
The Appellant vide his RTI application sought information on 05 points regarding the statistics on Blood Banks, State/Union Territory wise number of Blood Banks in India; details of Blood Bank licensed for packing of Red Blood Cell/for FFP &/or Liquid Plama/ for Platelets and issues related thereto.
Dissatisfied due to non-receipt of any response from the CPIO, the Appellant approached the FAA. Subsequently, the CPIO, Program Officer (VBD), vide its letter dated 30.06.2017 informed the Appellant that complete information was not available with them and therefore, the RTI application was transferred to the concerned department i.e. DCG(I), CDSCO, New Delhi for further necessary action at their end. Moreover, for available information, the detail of website was referred & further suggested that the same could be accessed from the website. The order of the FAA, if any, is not on the record of the Commission HEARING:
Facts emerging during the hearing:
The following were present:
Appellant: Absent;
Respondent: Mr. Manish Kr. Diwaker, SO and Dr. Sujith, TO, Basic Services Division;
The Appellant remained absent during the hearing. Mr. Prashant, Network Engineer NIC studio at Navi Mumbai Belapur confirmed the absence of the Appellant. The Commission was in receipt of a written submission from the Appellant dated 10.02.2019, wherein it was requested to the Respondent to upload the information on the website of NACO as also to regularly update the same. It was also requested to provide him the information till 31.01.2019. The Respondent informed the Commission that the information sought by the Appellant was not available with their organization but Director General Health Services (DGHS) / Controller General of Drugs holds such information. It was regretted that the First Appellate Authority had not adjudicated the matter within the stipulated time frame. It was noted by the Commission that the information sought by the Appellant was in the larger public interest and should be made available in the public domain. Needless to say, that the RTI applications had not been dealt with appropriately by the Respondent Public Authority neither was the transfer effected in accordance with Section 6 (3) of the RTI Act, 2005.
The Commission was in receipt of a written submission from the Respondent dated 12.02.2019, wherein it was stated that as per available records in BTS Division, NACO and NBTC, the RTI application of the Appellant was not received. However, the First Appeal was received by the FAA on 22.06.2017 through Shri Sunder Devan, ASO, NACO and reply to the First Appeal was sent to the Appellant on 30.06.2017 from the then CPIO, Shri Jolly J Lazarus informing that the updated information was not available with NACO hence was not provided. Shri Jolly also transferred the First Appeal to the DCG (I) for further necessary action. The RTI application was not received in the BTS Division hence only the Appeal was transferred to DCG (I) for reply. However, the CPIO (DCG) (I) returned the First Appeal in original to Shri Jolly J Lazarus vide letter dated 06.07.2017. It was explained that Shri Jolly J Lazarus, Programme Officer (Voluntary Blood Donation) and the then CPIO (BTS) was a contractual employee who had resigned their organization w.e.f. 15.01.2019 and that he was designated as the CPIO (BTS) and (NBTC) vide office letter dated 18.12.2017. Thus, it was stated that there was no intention to hide/ deny or delay information on the part of CPIO/ FAA. While accepting that Shri Jolly J Page 3 of 8 Lazarus had inadvertently forwarded the First Appeal with a copy of the RTI application to the DCG (I) for taking further necessary action and furnishing the information on 30.06.2017 in place of the FAA, it was stated that the Appellant could directly obtain the information from the DCG (I).
The Commission also observed that the RTI Act, 2005 stipulates time limits in its various provisions relating to responding to RTI Applications, transfer of applications, filing and disposing of first appeal to ensure that a culture of information dissemination is strengthened so that a robust functioning of the democracy gets established. This was recognised by the Hon'ble High Court of Delhi in Mujibur Rehman vs Central Information Commission (W.P. (C) 3845/2007)(Dated 28 April, 2009) wherein it was held as under:
"14.......The court cannot be unmindful of the circumstances under which the Act was framed, and brought into force. It seeks to foster an "openness culture" among state agencies, and a wider section of "public authorities" whose actions have a significant or lasting impact on the people and their lives. Information seekers are to be furnished what they ask for, unless the Act prohibits disclosure; they are not to be driven away through sheer inaction or filibustering tactics of the public authorities or their officers. It is to ensure these ends that time limits have been prescribed, in absolute terms, as well as penalty provisions. These are meant to ensure a culture of information disclosure so necessary for a robust and functioning democracy."
The Hon'ble Delhi High Court in the case of J.P Agrawal v. Union of India-2013(287) ELT25(Del.) held as under:
7."it is the PIO to whom the application is submitted and it is who is responsible for ensuring that the information as sought is provided to the applicant within the statutory requirements of the Act. Section 5(4) is simply to strengthen the authority of the PIO within the department; if the PIO finds a default by those from whom he has sought information. The PIO is expected to recommend a remedial action to be taken". The RTI Act makes the PIO the pivot for enforcing the implementation of the Act.
8..............The PIO is expected to apply his / her mind, duly analyse the material before him / her and then either disclose the information sought or give grounds for non-disclosure. A responsible officer cannot escape his responsibility by saying that he depends on the work of his subordinates. The PIO has to apply his own mind independently and take the appropriate decision and cannot blindly approve / forward what his subordinates have done."
The Hon'ble Delhi High Court in the case of Shri Vivek Mittal v. B.P. Srivastava, W.P.(C) 19122/2006 dated 24.08.2009 had upheld the view of the CIC and observed ".....that a CPIO cannot escape his obligations and duties by stating that persons appointed under him had failed to collect documents and information. The Act as framed, castes obligation upon the CPIOs and fixes responsibility in case there is failure or delay in supply of information. It is the duty of the CPIOs to ensure that the provisions of the Act are fully complied with and in case of default, necessary consequences follow".
Page 4 of 8Furthermore, the Hon'ble High Court of Delhi in the matter of R.K. Jain vs Union of India, LPA No. 369/2018, dated 29.08.2018, held as under:
"9................................ That apart, the CPIO being custodian of the information or the documents sought for, is primarily responsible under the scheme of the RTI Act to supply the information and in case of default or dereliction on his part, the penal action is to be invoked against him only."
Furthermore, in OM No. 20/10/23/2007-IR dated 09.07.2009, while elaborating on the duties and responsibilities of the FAA, it was stated that:
"3. Deciding appeals under the RTI Act is a quasi judicial function. It is, therefore, necessary that the appellate authority should see that the justice is not only done but it should also appear to have been done. In order to do so, the order passed by the appellate authority should be a speaking order giving justification for the decision arrived at.
5..............................The Act provides that the first appellate authority would be an officer senior in rank to the CPIO. Thus, the appellate authority, as per provisions of the Act, would be an officer in a commanding position vis a vis' the CPIO. Nevertheless, if, in any case, the CPIO does not implement the order passed by the appellate authority and the appellate authority feels that intervention of higher authority is required to get his order implemented, he should bring the matter to the notice of the officer in the public authority competent to take against the CPIO. Such competent officer shall take necessary action so as to ensure implementation of the RTI Act. "
The Hon'ble Supreme Court in the matter of Bihar Public Service Commission v. Saiyed Hussain Abbas Rizwi: (2012) 13 SCC 61 while explaining the term "Public Interest" held:
"22. The expression "public interest" has to be understood in its true connotation so as to give complete meaning to the relevant provisions of the Act. The expression "public interest" must be viewed in its strict sense with all its exceptions so as to justify denial of a statutory exemption in terms of the Act. In its common parlance, the expression "public interest", like "public purpose", is not capable of any precise definition. It does not have a rigid meaning, is elastic and takes its colour from the statute in which it occurs, the concept varying with time and state of society and its needs (State of Bihar v. Kameshwar Singh([AIR 1952 SC 252]). It also means the general welfare of the public that warrants recognition and protection; something in which the public as a whole has a stake [Black's Law Dictionary (8th Edn.)]."
The Hon'ble Supreme Court in the matter of Ashok Kumar Pandey vs The State Of West Bengal (decided on 18 November, 2003Writ Petition (crl.) 199 of 2003) had made reference to the following texts for defining the meaning of "public interest', which is stated as under:
"Strouds Judicial Dictionary, Volume 4 (IV Edition),'Public Interest' is defined thus:
"Public Interest (1) a matter of public or general interest does not mean that which is interesting as gratifying curiosity or a love of information or amusement but that in which a class of the community have a pecuniary interest, or some interest by which their legal rights or liabilities are affected."Page 5 of 8
In Black's Law Dictionary (Sixth Edition), "public interest" is defined as follows :
Public Interest something in which the public, or some interest by which their legal rights or liabilities are affected. It does not mean anything the particular localities, which may be affected by the matters in question. Interest shared by national government...."
In Mardia Chemical Limited v. Union of India (2004) 4 SCC 311, the Hon'ble Supreme Court of India while considering the validity of SARFAESI Act and recovery of non-performing assets by banks and financial institutions in India, recognised the significance of Public Interest and had held as under :
".............Public interest has always been considered to be above the private interest. Interest of an individual may, to some extent, be affected but it cannot have the potential of taking over the public interest having an impact in the socio-economic drive of the country..........."
The Commission observed that a voluntary disclosure of all information that ought to be displayed in the public domain should be the rule and members of public who having to seek information should be an exception. An open government, which is the cherished objective of the RTI Act, can be realised only if all public offices comply with proactive disclosure norms. Section 4(2) of the RTI Act mandates every public authority to provide as much information suo- motu to the public at regular intervals through various means of communications, including the Internet, so that the public need not resort to the use of RTI Act. The Hon'ble Supreme Court of India in the matter of CBSE and Anr. Vs. Aditya Bandopadhyay and Ors 2011 (8) SCC 497 held as under:
"37. The right to information is a cherished right. Information and right to information are intended to be formidable tools in the hands of responsible citizens to fight corruption and to bring in transparency and accountability. The provisions of RTI Act should be enforced strictly and all efforts should be made to bring to light the necessary information under Clause (b) of Section 4(1) of the Act which relates to securing transparency and accountability in the working of public authorities and in discouraging corruption."
The Commission also referrers to the Hon'ble Delhi High Court ruling in WP (C) 12714/2009 Delhi Development Authority v. Central Information Commission and Another (delivered on:
21.05.2010), wherein it was held as under:
"16.It also provides that the information should be easily accessible and to the extent possible should be in electronic format with the Central Public Information Officer or the State Public Information Officer, as the case may be. The word disseminate has also been defined in the explanation to mean - making the information known or communicating the information to the public through notice boards, newspapers, public announcements, media broadcasts, the internet, etc. It is, therefore, clear from a plain reading of Section 4 of the RTI Act that the information, which a public authority is obliged to publish under the said section should be made available to the public and specifically through the internet. There is no denying that the petitioner is duty bound by virtue of the provisions of Section 4 of the RTI Act to publish the information indicated in Section 4(1)(b) and 4(1)(c) on its website so that the public have minimum resort to the use of the RTI Act to obtain the information."
Furthermore, High Court of Delhi in the decision of General Manager Finance Air India Ltd & Anr v. Virender Singh, LPA No. 205/2012, Decided On: 16.07.2012 had held as under:
Page 6 of 8"8. The RTI Act, as per its preamble was enacted to enable the citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority. An informed citizenry and transparency of information have been spelled out as vital to democracy and to contain corruption and to hold Governments and their instrumentalities accountable to the governed. The said legislation is undoubtedly one of the most significant enactments of independent India and a landmark in governance. The spirit of the legislation is further evident from various provisions thereof which require public authorities to:
A. Publish inter alia:
i) the procedure followed in the decision making process;
ii) the norms for the discharge of its functions;
iii) rules, regulations, instructions manuals and records used by its employees in discharging of its functions;
iv) the manner and execution of subsidy programmes including the amounts allocated and the details of beneficiaries of such programmes;
v) the particulars of recipients of concessions, permits or authorizations granted. [see Section 4(1) (b), (iii), (iv), (v); (xii) & (xiii)].
B. Suo moto provide to the public at regular intervals as much information as possible [see Section 4(2)]."
It was also observed that similar issues were heard and adjudicated by the Commission in CIC/YA/A/2016/001233 dated 29.03.2017. The Appellant was not present to contest the submissions of the Respondent or to substantiate his claims further.
DECISION:
Keeping in view the facts of the case and the submissions made by the Respondent and considering the larger public interest, the Commission directs the Directorate General of Health Services (DGHS) to depute an officer to examine the RTI application and ensure that a suitable reply is furnished to the Appellant with a copy endorsed to the Commission within a period of 30 days from the date of receipt of this order failing which action under Section 20 (1) of the RTI Act, 2005 shall be initiated.
The Commission also instructs the Respondent Public Authority to convene periodic conferences/seminars to sensitize, familiarize and educate the concerned officials about the relevant provisions of the RTI Act, 2005 for effective discharge of its duties and responsibilities.
The Appeal stands disposed accordingly.
Bimal Julka (िबमल जु का) Information Commissioner (सूचना आयु ) Page 7 of 8 Authenticated true copy (अिभ मािणत स यािपत ित) K.L. Das (के .एल.दास) Dy. Registrar (उप-पंजीयक) 011-26182598/ [email protected] दनांक / Date: 12.02.2019 Copy to:-
1. Secretary, Ministry of Health and Family Welfare, 'A' Wing, Nirman Bhavan, New Delhi-110011
2. The Directorate General of Health Services (DGHS), Room No. 446-A, Nirman Bhawan, Maulana Azad Rd, New Delhi, Delhi 110011
3. The Addl. Secretary and DG, NACO, Ministry of Health and Family Welfare, Room No. 254A, 'A' Wing, Nirman Bhawan, New Delhi 110011 Page 8 of 8