Central Information Commission
Mr.Ehtesham Qutubuddin Siddiqui vs Ministry Of Culture on 7 December, 2012
CENTRAL INFORMATION COMMISSION
Club Building (Near Post Office)
Old JNU Campus, New Delhi - 110067
Tel: +91-11-26101592
File No. CIC/BS/A/2012/000717+ 000665+ 000793+ 000725/1396
Relevant Facts emerging from the Appeals
Appellant : Shri Ehtesham Qutubuddin Siddiqui
UT-81, Anda Cell,
Mumbai Central Prison, Arthur Road,
Mumbai-400011
Respondents
The CPIO
File No. 000717 : Lalit Kala Akademi (National Academy
Of Art) Rabindra Bhavan , New Delhi-110001.
The CPIO
File No. 000665 : Khuda Bakhsh Oriental Public Library,
Patna (Bihar)-800004.
The CPIO
File No. 000793 : Salar Jung Museum
Hyderabad-50002 (A.P.)
The CPIO
File No. 000725 : Superintendent Archaeologist
(Publication) Archaeological Survey of India,
Japath, New Delhi-110011
File No File No File No File No
000717 000665 000793 000725
RTI application filed on : 15/12/2011 14/12/2011 08/11/2011 31/10/2011
PIO replied : 11/01/2012 20/12/2011 24/11/2011 22/11/2011
First appeal filed on : 20/01/2012 09/01/2012 16/01/2012
12/12/2011
First Appellate Authority order : 10/02/2012 11/02/2012 22/02/2012 12/01/2012
Second Appeal received on : 19/05/2012 18/05/2012 30/05/2012
19/05/2012
File No. 000717
Page 1 of 7
Information sought: "Kindly furnish the Published copy of all publication, Monographs, Lalit Kala (Ancient), Lalit Kala Contemporary, Greeting Cards, Portfolios, Multiculture reproduction, Books, Catalogue, Samkaleen Katha, Published by Lalit Kala Academy along with soft copy of all publication CD/DVD."
Reply of the CPIO: "We would like to inform you that the total of the publications etc as asked by you is approx. Rs. 57000/-(Rupees Fifty Seven Thousand only). There is no any provision under RTI Act as well as in the Akademi to issue such publications free of cost even to the candidates belong to under below poverty line. Hence, it is not possible for the Akademi to issue you such publications free of cost."
Ground for the First Appeal: The CPIO denied the information to the Applicant. That the Applicant is BPL, therefore, the information sought for should be provided in compliance of section 7(5) of RTI Act and Rule 5(b).
Order of the FAA: "we would like to inform you that as per rule under section 7(5) & 7(6) only the fee can be exempted to the applicant below poverty line. Since our publications are priced that cannot be treated as part of information sought by you under the RTI Act. If you are interested to acquire the publications, you may deposit the amount as per your requirement. A list of the publication available in the Akademi is enclosed for your reference." Grounds for the Second Appeal: The contention of the FAA that only RTI fee is exempted, is wrong. Priced publications are well covered by the RTI Act. Thus, all publications sought by the appellant may be provided free of cost.
File No. 000665 Information sought: "kindly furnish the published copy all book & Publication of all languages (Urdu, Hindi, Farsi, Arabic, & English) published by khuda Bakhsh oriental Public Library Patna with soft copy."
Reply of the CPIO: "The Library's publications are priced publication and are readily available in the market. These publications do not come under the definition of 'Information' and therefore, we are unable to supply them free of cost."
Ground for the First Appeal: The requested information is 'information' as defined under section 2(f) of RTI Act. Hence, it can be provided u/s 7(5) & 7(6) of RTI Act. Order of the FAA: "I have to say that the interpretation of the word "information" given by you under 6(b) of your appeal is not correct. As such the appeal is rejected." Grounds for the Second Appeal: The requested information is 'information' as defined under section 2(f) of the RTI Act. Therefore, it can be provided u/s 7(5) & 7(6) of RTI Act.
File No. 000793 Information sought: "Kindly furnish the published copy of all publications published by Salar Jung museum since its formation along with soft copy of all publication in CD/DVD." Reply of the CPIO: "it is stated that your request is not covered under Section 2(f) or Section 2(i) of RTI Act 2005."
Ground for the First Appeal: The requested information is 'information' as defined under section 2(f) of RTI Act. It can be provided u/s 7(5) & 7(6) of RTI Act.
Order of the FAA: "Publications of the museum are priced and as such they are available for sale in the Museum shop and further they are protected by copy right Act. The above publications are Page 2 of 7 being sold for the interested customers and the sale proceeds are being shown as revenue to the Museum. Under the above circumstances the undersigned rejects the request of the appellant. However the same shall be made available to the appellant on payment basis and will be sent by Value Payable Post."
Grounds for the Second Appeal: The requested information is 'information' as defined under section 2(f) of the RTI Act. Hence, it can be provided u/s 7(5) & 7(6) of RTI Act.
File No. 000725 Information sought: "Kindly furnish the published copy of all books, review, memoirs, survey, Bulletin, Exhaustive Research, Annual reports, coffee tale pub, Guide books, picture post card, reports, inventory, Epigraphy and on all topic, published by Archeological Survey of India Publication along with soft copy."
Reply of the CPIO: "Copy of the Price List of books published by Archaeological Survey of India is enclosed for your reference please. Requisition for the required publications can be sent to the Production Officer (Publication), Archaeological Survey of India, Janpath, New Delhi-110011. After receiving the requisition in writing, an invoice towards cost of publications, packing and postage will be sent to you and required publications will be dispatched to you on your address after receiving the total cost by Bank Draft in favour of The Director General, Archeological Survey of India, Janpath, New Delhi-110011."
Grounds for the First Appeal: The requested information was denied by the CPIO without any ground under the RTI Act. Therefore, it can be provided u/s 7(5) of RTI Act. Order of the FAA: No order was passed by the FAA. Through copy of letter dated 12/01/2012 the appellant was intimated inter-alia clarification was sought from CIC regarding supply of published material free of cost.
Grounds for the Second Appeal: The FAA did not pass any order. The requested Information can be provided u/s 7(5) of RTI Act.
Decision Notice:
In all the above four appeals identical questions of law and facts are involved viz. whether priced publication are information as defined under Section 2(f) of the RTI Act and if so, whether the material can be accessed under the provisions of the RTI Act, hence I propose to dispose of all the appeals by virtue of a common order.
It is seen that the Commission in the appellant's own matter on a similar issue vide appeal nos. CIC/SM/A/2011/001713/BS & CIC/SM/A/2012/000239/BS/0421 dated 06/07/2012 has held as under:-
"(3)There can be no doubt that any material in the form of documents, books, cultural packages, reports etc. available with the respondent public authority 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:
Page 3 of 7"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 the control of any public authority and includes........."
(5) From the above, it is clear that if a particular information is not "held by", or "under the control" of the public authority concerned there would be no right in a citizen to access 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 Page 4 of 7 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) The 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 dated 12/04/2007 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 the 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 Page 5 of 7 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 the 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 appeals 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."
The ratio of the above cited decision squarely applies to all the appeals at hand and the same are disposed of accordingly.
This decision notice is announced in open chamber.
Copy of this decision notice be given free of cost to the appellant and Respondent(s).
BASANT SETH Information Commissioner December 07th, 2012 Page 6 of 7 (In any correspondence on this decision, mention the complete decision number.) (khan) Page 7 of 7