Central Information Commission
CIC/AD/A/2009/000256
Dated April 15, 2009
Name of the Appellant : Mr. Bincy Thomas
Name of the Public Authority : Ministry of External Affairs
Background
1. The Appellant filed an RTI application on 05.06.2008 addressed to the Ministry
of External Affairs seeking information pertaining to the RTI applications received
and dealt with by the M/o External Affairs between the period of October 10th
2005 and March 31st 2008. He requested for the information in a tabular form
relating to:
1) the RTI applications received, ‘Not Responded to’, ‘Rejected’, ‘Full Information
provided’, ‘Part Information Provided’ or ‘Forwarded to another Authority’ etc.;
2) Copies of relevant pages of application register or any other record of the
applications received, dates thereof alongwith names and addresses of the
Applicants;
3) Copies of all RTI applications received by the MEA between 12th October 2005
to 31st March 2008;
4) Detailed break-up of the time taken in responding to or rejecting the RTI
applications between 12th October 2005 and 31st March 2008;
5) A tabular questionnaire about the various Sections of the RTI Act 2005 applied
while rejecting the RTI queries during the same period has also been sought by
the Appellant through the RTI application.
Information was also sought in the form of copies of i) all First Appeals received
and ii) orders given by First Appellate Authority; iii) number of First Appeals
accepted/rejected alongwith a tabular break-up of the time taken in disposal of
the First Appeals between 12th October 2005 to 1st April 2008 and iv) the number
of First Appeals wherein appellant was given opportunity of being heard before
deciding the appeal.
2. The CPIO, MEA responded vide letter No. RTI/551/176/2008 dated
02.07.2008 denying the information to the Appellant under provisions of Section
7(9) of the RTI Act 2005 stating that the information sought is voluminous and
would disproportionately divert the resources of the Public Authority.
3. Being aggrieved at the denial of the information, the Appellant then filed a First
Appeal before the Appellate Authority on 30.07.2008,. In the detailed
appeal, the Appellant provided a brief reiteration of his RTI application and also
the gist of the PIO’s reply. While countering the PIO’s argument on Section 7(9) of
the RTI Act 2005, the Appellant, in his appeal, contended that the provisions of
the Section do not allow the PIO to refuse the information altogether, but make
provision for providing the information in whatever form it is available.
Furthermore, the Appellant contended that most of the information sought by him
should have been, any way, available with the Public Authority as a mandate as
per provisions of Section 25(3) of the RTI Act 2005, and if the PIO maintained
that the information was not available with him, the same would suggest
contravention of the RTI Act 2005 by the Public Authority for improper and
inadequate maintenance of records. The First Appellate Authority, Dean,
Foreign Service Institute & Secretary, MEA vide his letter dated
06.08.2008 allowed the appeal directing that information provided by the
Ministry to the CIC should be made available to the Appellant immediately and in
case the Appellant seeks any further information on any specific point, inspection
of the relevant files to be allowed and photocopies of documents as sought by
Appellant to be made available to him upon payment of prescribed fees.
4. The CPIO being thus directed by the Appellate Authority responded to the
Appellant vide letter dated 08.09.2008 providing partial information to the
Appellant. While the information sought by the Appellant on points 1,4,5 and 8 of
the RTI application were provided, the information pertaining to points 2,3,6,7
and 9 was not furnished nor was the Appellant offered inspection of the relevant
files. The CPIO also failed to even cite any exception under the RTI Act 2005 for
not providing the information despite specific orders of the Appellate Authority to
this effect. Thus the Appellant was compelled to once again approach the First
Appellate Authority vide his letter dated 01.10.2008 seeking redressal of his
grievance of having been provided incomplete information. The Appellant set out
in tabular form the details of the information ‘Not provided’ to him by the CPIO.
5. In response to her letter dated 01.10.2008, the First Appellate Authority, being a
different officer in the place of the earlier FAA, responded vide his letter dated
14.11.2008 whereby she directed the CPIO to provide information with respect to
the points 2 and 3 by allowing the Appellant to examine and obtain photocopies of
the register wherein all RTI applications received are noted/entered. However,
with respect to points 3, 6 and 7, the FAA denied permission to disclose
information under Section 8(j) and with respect to point 9 of the RTI application
the Appellate Authority stated that “the RTI Act does not provide any opportunity
to the applicant for hearing in respect of appeals to the Appellate Authority”.
6. Being thus aggrieved by the denial of information, the Appellant filed a second
appeal before the CIC on 22.01.2009 against the First Appellate Authority’s order
dated 14.11.2008. In his Appeal before the CIC, the Appellant submitted details of
the entire sequence of events leading to the filing of the appeal and challenged
the act of the subsequent First Appellate Authority overruling the initial order of
her predecessor. Furthermore, the Appellant challenged the contradiction in the
impugned order with respect to the “allowing as well as disallowing” disclosure of
information related to point 3 of the RTI application. The ambiguity and
vagueness in the impugned order dated 14.11.2008 with respect to the point 9 of
the RTI application was also specifically contended by the Appellant in his Appeal
before the CIC. The Appellant also stressed that the partial disclosure of
information and the inordinate delay in response by the CPIO despite specific
orders of providing the same immediately attracted penal provisions and
accordingly the CPIO is liable to be penalized as per provisions of Section 20(1) of
the RTI Act 2005.
7. The Bench of Mrs. Annapurna Dixit, Information Commissioner, scheduled the
hearing for 15.04.2009 and a communication dated 28.03.2009 was accordingly
sent to the parties intimating the date of hearing of the appeal.
8. Mr. Shekhar Singh was present on behalf of the Appellant during the hearing.
9. None was present from the Public Authority.
Decision
10. Perusal of the appeal before the CIC brings out the most obvious question of law
as to under what powers and on what grounds the subsequent First Appellate
Authority [Ms. P Sen Vyas] reviewed and revised the Order dated 06.08.2008
passed by the erstwhile Appellate Authority [Sh. Ajai Choudhury]. It is interesting
to note, as has also been the contention of the Appellant, that the entire process
of review by the subsequent FAA [Ms. P Sen Vyas] is suo motu and without even
as much as any Review Petition being on record. The RTI Act 2005 does not
provide for setting aside or overruling of an Order of the First Appellate Authority
by the predecessor since appeal against the Order of the First Appellate Authority
lies only before the CIC and is decided only by the Information Commissioner. In
the instant case, however, the powers exercised by the subsequent First Appellate
Authority is evidently ultra vires, beyond the jurisdiction of powers conferred upon
the FAA, and the CIC does take a stringent view of the same.
11. Even on the merits of the case, the impugned order clearly lacks application of
mind as is evident from the contradictory directions with respect to the disclosure
of information vis a vis the point 3 of the RTI application. While in the para 2 of
the impugned order dated 14.11.2008, the Appellant is permitted “…to examine
the register…. and obtain photocopies of documents as desired upon payment of
prescribed fees with respect to points 2 and 3…” of the RTI application, in the
following para 3 of the impugned order, “..request for information in point 3 ….. is
not permitted under Section 8 (j) of the RTI Act 2005…”
The denial of the information being vague and not supported by adequate reason
indicates the superficiality as even the exemption sought under the RTI Act has
not been properly mentioned by an officer of the rank of an Appellate Authority.
The application of Section 8(1) (j) of the RTI Act 2005 simpliciter without
justifying the same not only contradicts the provisions of Section 19 (5) of the RTI
Act 2005 but it is also completely unwarranted, considering the fact that the RTI
Act 2005 provides for the Severability clause under Section 10 (1) wherein that
part of the information which may be exempt from disclosure may be separated
from the information that may be provided. The denial of information simply citing
an incorrect provision of law without adequate reasoning or justification only
indicates the intention to avoid disclosure of information thereby defeating the
purpose of the Act viz. promotion of transparency in the working of every Public
Authority.
All the information sought by the Appellant herein relating to the RTI
applications before the MEA in any case cannot be classified as personal
information for the simple reason that the same forms part of public documents
under a special enactment, the RTI Act 2005 which in itself promotes
transparency. The Orders uploaded on the website of the CIC contain synopsis of
all the applications and First Appellate orders as well and contain no personal
information vis a vis the applicants and hence the information sought by the
Appellant already exists in the public domain. Hence the exemption invoking the
provisions of Section 8 (1) (j) of the RTI Act 2005 could easily have been provided
either as it is or atleast after application of the provisions of the Section 10 (1) of
the RTI Act 2005, neither of which has been done in the instant case.
12. The exercise which ought to have been undertaken by the Public Authority in
providing the information to the Appellant has clearly been undertaken to deny
the same. In effect, the denial of information on unsubstantiated grounds has
resulted in violation of provisions of the RTI Act 2005. The Commission after going
through the merits of the case in detail, while upholding the order dated
06.08.2008, passed by the erstwhile FAA, hereby directs that all the information
as sought by the Appellant specifically with respect to the points 2,3,6,7 and 9
may be provided by 10th May, 2009.
The denial of information without adequate reason and delayed and incomplete
response by the CPIO despite specific orders of the erstwhile FAA is directly in
contravention of the spirit and provisions of the Act and hence the Commission
takes a very strong view of such violation. Accordingly the Commission directs
the CPIO to Show Cause why penal provisions under Section 20 of the
RTI Act 2005 may not be invoked against him for not furnishing
information within the stipulated time and for knowingly providing
incomplete information. The reply to the Show Cause to reach the Commission
within 15 working days from the date of receipt of this order.
13. The appeal is disposed off accordingly in the above terms.
(Annapurna Dixit)
Information Commissioner
Authenticated true copy:
[G. Subramaniam]
Assistant Registrar
Cc:
1. Mr. Bincy Thomas, C-17A, DDA Flats,
Munirka, New Delhi – 110 067
2. The DS & CPIO, MEA
Room No. 801, Akbar Bhawan,
Chanakyapuri, New Delhi – 110 021
3. The Special Secretary, MEA & Appellate Authority -RTI
Room No. 183-A, South Block,
New Delhi – 110 011
4. Officer in charge, NIC
5. Press E Group, CIC