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Decision No. CIC/DS/A/2010/000331/SG/8400Adjunct
Appeal No. CIC/DS/A/2010/000331/SG
Relevant Facts
emerging from the Appeal:
Appellant : Mr. Mukesh Dewal
Gumti no. 3, Court Campus,
District & Sessions Court, Indore
M.P.
Respondent : Mr. Rehan Ghani,
PIO & Dy. Director
Regional office ESI Corporation,
Panchadeep Bhawan, Nandanagar,
INDORE--452011
RTI application filed on : 04/09/2009
PIO replied : 06/10/2009
First appeal filed on : 05/11/2009
First Appellate Authority order : 01/12/2009
Second Appeal received on : 02/04/2010
S. No Information Sought Reply of the Public Information
Officer (PIO)
1. Furnish information about the land which has been Information is 40 year old, not readily
given to leprosy organization by KRB at Indore. available.
2. Furnish all documents regarding the lease been No lease has been granted.
provided to the organization.
3. Furnish documents regarding lease which has been No land given on lease.
granted to the organization.
4. The corporation has given two lease. Notify the The corporation had ownership of the
bases of lease which has been given for the purpose land which had been given on lease to
of housing colony. two organizations.
5. Furnish documents regarding buying of land by the The land bought has been enclosed.
corporation and the total area of land, give certified
copy.
6. Furnish documents regarding free hold land taken 106.66 acres has been given by the M.P.
by the corporation from M.P. gov. govt.
Grounds for the First Appeal:
Unsatisfied with the decision of CPIO.
Order of the First Appellate Authority (FAA):
The order given by the CPIO is in order.
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Grounds for the Second Appeal:
Unsatisfied with the order of CPIO & FAA.
Relevant Facts emerging during Hearing held on July 5, 2010:
The following were present
Appellant: Mr. Mukesh Dewal on video conference from NIC-Indore Studio;
Respondent: Mr. Rehan Ghani, PIO & Dy. Director;
“The appellant had identified certain records during the inspection but these were not provided
to him by the PIO on the ground that these were 20 years old. The FAA has in perverse interpretation
of the Section-8(3) of the RTI Act stated that information which is over 20 years old need not to be
given. Section 8(3) of the RTI Act states, “Subject to the provisions of clauses (a), (c) and (i) of sub-
section (1), any information relating to any occurrence, event or matter which has taken place,
occurred or happened twenty years before the date on which any request is made under section 6 shall
be provided to any person making a request under that section:
Provided that where any question arises as to the date from which the said period of twenty
years has to be computed, the decision of the Central Government shall be final, subject to the usual
appeals provided for in this Act.”. Thus Section 8(3) clearly states that for information which is over
20 years old only exemptions under Section 8(1)(a), (c) and (i) would apply. The other seven
exemptions of the RTI Act would not apply. The FAA has also tried to invoke Section 891)(e) of the
RTI Act. This information is certainly not held in a fiduciary capacity by the Public authority and it is
for the PIO to justify refusal to give information.
Section 8 (1) (e) of the RTI Act exempts from disclosure ‘information available to a person in his
fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants
the disclosure of such information;’
The traditional definition of a fiduciary is a person who occupies a position of trust in relation to
someone else, therefore requiring him to act for the latter’s benefit within the scope of that relationship.
In business or law, we generally mean someone who has specific duties, such as those that attend a
particular profession or role, e.g. doctor, lawyer, financial analyst or trustee. Another important
characteristic of such a relationship is that the information must be given by the holder of information
who must have a choice,- as when a litigant goes to a particular lawyer, a customer chooses a particular
bank, or a patient goes to particular doctor. An equally important characteristic for the relationship to
qualify as a fiduciary relationship is that the provider of information gives the information for using it
for the benefit of the one who is providing the information. All relationships usually have an element of
trust, but all of them cannot be classified as fiduciary. Information provided in discharge of a statutory
requirement, or to obtain a job, or to get a license, cannot be considered to have been given in a
fiduciary relationship.
This information is certainly held in a fiduciary capacity by the Public authority. The FAA has also
gone on to invoke Section 8(1)(j) (h) of the RTI Act without any justification. It is apparent that the
FAA is guided only by a strong desire to refuse the information and not by any valid interpretation of
the law.
The appellant is willing to undertake an inspection of the relevant records again on 12 July 2010. The
PIO is directed to facilitate an inspection of the relevant records by the appellant on 12 July 2010 at
10.0am at the office of the PIO.
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The earlier PIO Mr. H. K. Mehta, Dy. Director has refused the information without any basis in law.”
Decision dated July 5, 2010:
The Appeal was allowed.
“The present PIO Mr. Ghani is directed to facilitate an inspection of the records
and provide photocopies of the records which the appellant wants free of cost before 15
July 2010 upto 300 pages.
The issue before the Commission is of not supplying the complete, required information by the
then PIO Mr. H. K. Mehta, Dy. Director within 30 days as required by the law.
From the facts before the Commission it is apparent that the then PIO is guilty of not furnishing
information within the time specified under sub-section (1) of Section 7 by not replying within 30 days,
as per the requirement of the RTI Act.
It appears that the then PIO’s actions attract the penal provisions of Section 20 (1). A showcause notice
is being issued to him, and he is directed give his reasons to the Commission to show cause why
penalty should not be levied on him.
Mr. H. K. Mehta, Dy. Director will present himself before the Commission at the above address on 02
August 2010 at 11.00am alongwith his written submissions showing cause why penalty should not be
imposed on him as mandated under Section 20 (1).
If there are other persons responsible for the delay in providing the information to the Appellant the
PIO is directed to inform such persons of the show cause hearing and direct them to appear before
the Commission with him.”
CC:
To,
The then PIO Mr. H. K. Mehta, Dy. Director through Mr. Rehan Ghani present PIO &
Dy. Director;
Facts leading to hearing held on September 9, 2010:
The Commission, by its order dated 05/07/2010 directed Mr. Rehan Ghani, PIO/Deputy Director to
facilitate an inspection of the records sought by the Appellant and provide photocopies of the records
identified by the Appellant free of cost before 15/07/2010 upto 300 pages. The Commission received a
letter dated 20/07/2010 from the Appellant stating that he had inspected the relevant records on
12/07/2010 and identified 250 pages of which he required copies. However, he was provided with only
83 pages. The Commission also received a letter dated 14/07/2010 from Mr. Rehan Ghani, PIO/Deputy
Director claiming that the Appellant had identified only 83 pages. The Commission, by its letter dated
05/08/2010 directed the Appellant and Mr. Rehan Ghani, PIO/Deputy Director to appear before the
Commission on 09/09/2010 to decided whether there was a non- compliance of the Commission’s
order dated 05/07/2010.
Relevant facts emerging at the hearing held on September 9, 2010:
The following were present:
Appellant: Absent;
Respondent: Mr. Rehan Ghani, PIO/Deputy Director;
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Mr. Rehan Ghani stated that by letter dated 08/07/2010, the Appellant was asked to come for an
inspection of the relevant records at the Construction Branch on 12/07/2010. By letter dated
13/07/2010, Mr. M. A. Khan, Assistant Director communicated to the PIO that the Appellant inspected
the relevant records on 12/07/2010. Mr. Khan also enclosed copies of the records identified by the
Appellant during the inspection so that the same may be forwarded to the Appellant by the PIO. The
Commission noted that as per the letter dated 12/07/2010, copies of only 83 pages were enclosed
therewith. Copy of the 83 pages was dispatched on 14/07/2010, which was received by the Appellant
on 19/07/2010.
On receipt of the Commission’s letter dated 05/08/2010, the PIO vide letter dated 16/08/2010 directed
the Branch Officer, Construction Branch to enquire into the matter and inform the PIO of the same. Mr.
Ghani stated that the Branch Officer vide letter dated 16/08/2010 replied that at the inspection, the
Appellant identified 83 pages from the file by putting flags on the file. The Appellant did not provide
any list of the documents identified to the Construction Branch office. The photocopies of the identified
documents were sent to the PIO for onward transfer to the Appellant. Accordingly, the PIO sent
photocopies of 83 pages to the Appellant on 14/07/2010.
The Appellant was not present at the hearing. The Commission received a letter dated 20/07/2010 from
the Appellant stating that he had inspected the relevant records on 12/07/2010 and identified 250 pages
of which he required copies. However, he was provided with only 83 pages.
Adjunct Decision:
In view of the aforesaid, the Commission directs Mr. Rehan Ghani, PIO/Deputy Director to facilitate an
inspection of the relevant records to the Appellant on October 4, 2010 during office hours. Mr. Ghani,
PIO/Deputy Director is further directed to ensure that an inspection report is prepared which shall list
the records that were provided to the Appellant for inspection. This shall also include a categorical
statement from Mr. Ghani, PIO/Deputy Director that he has no further records with regard to the
information sought by the Appellant other than that made available during the inspection. The report
must be sent to the Commission before October 11, 2010. Mr. Ghani, PIO/Deputy Director is also
directed to provide photocopies of the records identified by the Appellant during inspection free of cost
before October 11, 2010 up to 250 pages.
This decision is announced in open chamber.
Notice of this decision be given free of cost to the parties.
Any information in compliance with this Order will be provided free of cost as per Section 7(6) of RTI Act.
Shailesh Gandhi
Information Commissioner
September 9, 2010
(In any correspondence on this decision, mention the complete decision number.)(ARG)
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