Central Information Commission
Saurav Das vs Department Of Health & Family Welfare on 23 July, 2024
Author: Heeralal Samariya
Bench: Heeralal Samariya
के न्द्रीय सूचना आयोग
Central Information Commission
बाबा गंगनाथ मागग, मुननरका
Baba Gangnath Marg, Munirka
नई दिल्ली, New Delhi - 110067
नितीय अपील संख्या / Second Appeal No. CIC/MOHFW/A/2021/625995
Shri Saurav Das ... अपीलकताग/Appellant
VERSUS/बनाम
PIO, Department of Health & Family Welfare ...प्रनतवािीगण /Respondent
Date of Hearing : 09.08.2021, 19.06.2024
Date of Decision : 16.08.2021, 18.07.2024
Chief Information Commissioner : Shri Heeralal Samariya
Relevant facts emerging from appeal:
RTI application filed on : 01.06.2021
PIO replied on : 16.06.2021
First Appeal filed on : 17.06.2021
First Appellate Order on : 21.06.2021
2 Appeal/complaint received on
nd : 25.06.2021
Information soughtand background of the case:
The Appellant filed an RTI application dated 01.06.2021 seeking information on following points:-
"Under the provisions of the RTI Act, kindly furnish the following- In relation to the NEGVAC-
1. Whether the Members of the NEGVAC are required to sign Non-Disclosure Agreements. If so, the period for which the NDA is covered by furnished. Kindly remember, RTI Act requires that if anything is on record, the same should be furnished.
2. Furnish the scope of such NDA and the details of what it covers.
3. Furnish a copy of the order/rule/any agreement which requires Members of NEGVAC to not disclose contents of discussions held in the meetings of NEGVAC. If anything is on record, the same is liable to be furnished."
The CPIO vide letter dated 16.06.2021 replied as under:-
"Reply:- Members of NEGVAC sign Non-disclosure Agreements and rest of information/documents is exempted under Section 8 (1) (a) of RTI Act, 2005 as it would prejudicially affect the strategic, scientific or economic interests of the State. Further, seeking documents as mentioned does not serve any larger public interest, when the information/guidelines/Standard Operating Procedure (SoP)/Frequently Asked Questions (FAQs)/data/statistics etc for the General Public is proactively disclosed by the Ministry of Health & Family Welfare on the various Platforms.Page 1 of 6
However, for COVID-19 Vaccination related information/guidelines/Standard Operating Procedure (SOP)/Frequently Asked Questions (FAQs)/data/statistics etc, you may visit the Ministry of Health & Family Welfare's website "mohfw.gov.in" or "Aarogya Setu App", COWIN portal (https://www.cowin.gov.in) (refer link https://dashboard.cowin.gov.in) or "mygov.in/COVID-19" or "MyGov App", Press Information Bureau, Government of India's website www.pib.gov.in then go to Home All Press Release then Select Ministry (Ministry of Health & Family Welfare) select Date, Month, Year for date wise release/information, which is being updated from time to time. You may also get lots of information regarding COVID-19 Vaccination in Media Conferences addressed by the highest level Officers of MoHFW regularly. One may approach concerned Vaccination Centre or call helpline number 011- 23978046, Toll free - 1075 and Helpline Email ID: [email protected] and for any technical enquiry with respect to COVID-19, one may email on [email protected]"
Dissatisfied with the response received from the CPIO, the Appellant filed a First Appeal dated 17.06.2021. The FAA vide order dated 21.06.2021 upheld the reply of the CPIO stating that: "There is no information to furnish in the Covid Vaccination Cell. This appeal stands disposed off."
Aggrieved and dissatisfied, the Appellant approached the Commission with the instant Second Appeal.
Facts emerging in Course of Hearing:
A written submission dated 08.07.2021 marked to the Appellant, has been received from CPIO, Ministry of Health and Family Welfare, COVID-19 Vaccine Administration Cell wherein among reiterating the other factual details, the Respondent stated as under:
3. In this regard, it is kind to inform that the National Expert Group on Vaccine Administration for COVID 19 ("NEGVAC" for short) has been guiding on all aspects of COVLD-19 vaccination drive for the Country. This body has representation of relevant ministries, State Governments and Technical Experts. It provides guidance on all aspects of vaccine introduction including prioritization of beneficiaries, procurement, vaccine selection and its delivery.
This office i.e. COVID-19 Vaccine Administration Cell (CVAC) was created under the Immunization Division in Sept, 2020. All policy matter's files in respect of COVID- 19 vaccination/vaccine are initiated by the technical consultants and put up to the Technical Officer (mostly Doctors) of Immunization Division and further to competent authority. These files regarding policy matter/supply/distribution in respect of COVID- 19 vaccination/vaccine are not put up to the undersigned means the undersigned is not in the channel of submission of decision making process regarding COVID-19 vaccine/vaccination. Even the next higher authority i.e. Smt. Sarita Nair, Deputy Secretary & First Appeal Authority is also not in the channel of submission for the same.
As informed by the Immunization Division, MoHFW, the Members of NEGVAC sign Non-disclosure Agreements and documents such file noting/minutes etc is exempted under Section 8 (1) (a) of RTI Act, 2005 as it would prejudicially affect the strategic, scientific or economic interests of the State. However, decision/guidelines/SoPs/FAQs etc are proactively disclosed on the various Platforms in the large public interest. (Refer Ministry of Health & Family Welfare's website "mohfw.gov.in" or Page 2 of 6 "Aarogya Setu App" (refer link https://dashboard.cowin.gov.in) or "mygov.in/COVID-19" or "MyGov App" and may also refer Press Information Bureau, Government of India's website www.pib.gov.in then go to Home All Press Release then Select Ministry (Ministry of Health & Family Welfare) select Date, Month, Year for date wise release/information. As the policy matter's files in respect of COVID-19 vaccination/vaccine have not been submitted to the undersigned at any point of time, therefore information is not available with the undersigned. However, in this regard, any clarification required or any instruction to be issued, same may please be addressed to Dr. M. K. Agarwal, Additional Commissioner, (Universal Immunization Programme), Ministry of Health & Family Welfare, Nirman Bhawan, New Delhi.
The Appellant has filed an undated common rejoinder to the CPIO's detailed submissions among which one of the relevant contentions was about exemption claimed under Section 8(1)(a) of the RTI Act not being supported by any justification. The PIO's contention about not being in the channel of submission of decision making process regarding COVID-19 Vaccine/vaccination has been countered by the Appellant stating that though the concerned official may not have the custody of the file, however, outright denial of information on that ground is illegal and unacceptable, since Section 5(4) of the RTI Act was not applied nor any effort made to seek assistance of the relevant official to provide information. The Appellant has further contended that though the PIO has stated that information is available in public domain, he has not found the desired information on any of the websites. He demanded the information claiming that larger public interest demands disclosure of information. The Appellant has averred in his submissions that he has filed the RTI application under 'life and liberty' provision of the RTI Act whereas the PIO has not provided the information/response on whether, in their opinion, the same is indeed a matter of life and liberty or not. It is his contention that the PIO's act of not sending any response within the mandated time of 48 hours is akin to denial of information.
After perusing the above documents and considering the averments of the parties, the Second Appeal filed by the Appellant was heard at length by the erstwhile Chief Information Commissioner on 09.08.2021 and an order dated 16.08.2021 was passed.
Not satisfied with the decision by the Commission, the Appellant approached the Madras High Court and filed 4 Writ Petitions W.P. Nos. 5369, 5372, 5374, 5377 and 5378 of 2022. The Madras High Court vide order dated 07.12.2023 held that the matter should be decided afresh after hearing all parties concerned following the prescribed procedure and pass reasoned orders dealing with the contentions raised by them on merits and in accordance with law.
Hence the instant hearing.
Appellant: Present Respondent: Shri Rajesh Kumar - US was present during hearing.
Page 3 of 6The Appellant present during hearing contended that information sought by him had been denied while the Commission had on earlier occasion vide order dated 16.08.2021 decided the matter holding that information had been provided by the Respondent without any pointed discussion or any material proof produced in that regard. He referred to the aforementioned decision dated 07.12.2023 passed by the Madras High Court seeking that the matter be decided afresh uninfluenced and uninhibited by the earlier order.
Respondent present during hearing reiterated that response in terms of the RTI Act had been duly provided to the Appellant in this case, on the basis of available records as has already been submitted in the aforementioned documents.
Decision:
In view of the observation of the High Court, the instant case is decided afresh, without referring to the earlier decision dated 16.08.2021 passed by the Commission. The primary issues emerging in this matter are dealt as under:
Whether life and liberty clause is applicable in this case It is also noted from the averments put forth by the Applicant is that he had contended that the Respondent has failed to answer his queries within 48 hours, though he had pleaded that the RTI applications raise queries affecting "life and liberty" of the public at large. The question of applicability of this clause has been adjudicated many times by the Commission. The most recent is the decision dated 29.07.2021 passed by a co-ordinate bench of this Commission while deciding the Appeal number CIC/DOIPP/A/2021/625997 filed by the same Applicant, wherein after a detailed analysis of this subject, the Commission had held as under:
"..the bench came to the conclusion that the Parliament has made a very special exception for cases involving 'life or liberty of a person' so that it would be used only when an imminent threat to life or liberty is involved. The appellant referring the matter as being related to public at large, and not 'a person' as specified in Sec. 7(1) proviso and in the interest of preventing the damage caused by pandemic is not sufficient to invoke this particular clause of 48 hours reply timeline, when apparently, the Appellant has failed to substantiate as to how information sought in the instant RTI Application has a bearing on his life and liberty or of any other person. Further, he also failed to quote any particular instance in which any individual related to him was affected due to non disclosure of the information. Therefore, the life and liberty of whom the appellant is pleading for is non-existent. However, undoubtedly it is a matter of great public interest. This bench is taking full cognizance of the plea that the information sought relates to public interest as the same is related to the COVID 19 pandemic vis-a-vis .. in the wake of Covid-19 pandemic. The matter itself is unprecedented and therefore, the appellant's plea that disclosure of information would have helped in holding discussions with Government is far stretched. To comment on the fact that as to whether there were enough steps taken by the authority or not in ensuring supply of medical oxygen is outside the jurisdiction of this bench."
Emphasis supplied Page 4 of 6 This Bench upholds the view of the co-ordinate bench and is of the considered opinion that no review is required of this aspect, which already stands decided by a reasoned speaking order.
Whether Section 8(1)(a) of the RTI Act is applicable Perusal of records of the case reveals that the Respondent has submitted written submission dated 08.07.2021 denying disclosure of information citing the Section 8(1)(a) of the RTI Act. In this context it is important to visit the exact provision of law, which is as under:
8. Exemption from disclosure of information.--
(1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,--(a) information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign State or lead to incitement of an offence;
It is noted that the Respondent has not explained or justified the denial of information and how the above clause of Section 8(1)(a) is attracted in this case, where only basis generic queries have been raised. Thus the Respondent's reply denying access to some of the information without justifying how disclosure of information in this case could have any detrimental impact on the sovereignty and integrity of the country or compromise national security, or adversely impact strategic, scientific or economic interests of the country or international relations of the country or lead to incitement of an offence, as envisaged under Section 8(1)(a) of the RTI Act is not found legally untenable as such. Hence the denial of information merely citing the provision of Section 8(1)(a) of the RTI Act is not acceptable and the Respondent is hereby directed to submit a suitable explanation, before the Commission, justifying denial of information under Section 8(1)(a) of the RTI Act, for denying the rest of the information.
Conclusion:
After careful perusal and analysis of the various facts emerging in this case, and in view of the PIO's reply and written submission and the Appellant's rejoinder, the Commission hereby directs the CPIO/Under Secretary, MoHFW - Shri Rajesh Kumar present for the hearing to furnish a revised point wise reply addressing the queries raised by the Appellant. The Respondent must ensure that if any information is held with another Division of the public authority, the same should also be obtained and furnished, exercising provisions of Section 5(4) of the RTI Act. In the event any of the query has already been addressed/answered before, the Respondent shall give appropriate reference thereof or the accurate weblink in the revised reply. The CPIO must ensure that provisions of the RTI Act are strictly adhered to while furnishing the revised reply so that information which is expressly barred from disclosure under Section 8 or 9 of the RTI Act is severed invoking Section 10 of the RTI Act. Denial of information on any point vide any of the provisions of the RTI Act must be duly justified by the PIO.
The Commission also deems this a fit case to strongly recommend the Respondent-PIO to take necessary steps for suo motu disclosure of maximum Page 5 of 6 information on their website, in compliance of the provisions of Section 4 of the RTI Act in order to promote transparency and accountability in functioning of the public authority. There is no denying that the Respondent is duty bound by virtue of the provisions of Section 4 of the RTI Act to publish the information on its website so that the public have minimum resort to the use of the RTI Act to obtain the information. Accordingly the Respondent public authority is advised to place the maximum information related to minutes of the meeting/circulars/policy decisions/orders issued by their department on their official website as per the provisions of Section 4 of the RTI in the larger public interest. While proactively disclosing the information mentioned above, due caution should also be exercised by the Respondent to strictly adhere to the provisions of the RTI Act and redact any information which falls under the purview of the Section 8, 9 or 10 of the RTI Act.
The appeal is disposed off with the above directions.
Heeralal Samariya (हीरालाल सामररया) Chief Information Commissioner (मुख्य सूचना आयुक्त) Authenticated true copy (अनिप्रमानणत सत्यानपत प्रनत) S. K. Chitkara (एस. के . नचटकारा) Dy. Registrar (उप-पंजीयक) 011-26186535 Page 6 of 6 Recomendation(s) to PA under section 25(5) of the RTI Act, 2005:-
1. It is recommended to improve upon following provision(s) of suo-motu disclosure in compliance with clause (b) of sub-section(1) of section 4 of the RTI Act, 2005:
(i) the particulars of any arrangement that exists for consultation with, or representation by, the members of the public in relation to the formulation of its policy or implementation thereof.
(ii) a statement of the boards, councils, committees and other bodies consisting of two or more persons constituted as its part or for the purpose of its advice, and as to whether meetings of those boards, councilscommittees and other bodies are open to the public, or minutes of such meetings are accessible for public.
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