No penalty under RTI in repeat cases

It is generally stated that unless penalties are imposed for refusing to give information to the applicant within time, the RTI Act will not be very effective. It’s true to a great extent. However, if the response to show cause notices in many cases show the reasonable cause, penalty cannot be imposed.
Explaining when penalties can be imposed, Section 20 of the Act says that where the Information Commission at the time of deciding any complaint or appeal is of the opinion that the Public Information Officer has, without any reasonable cause, refused to receive an application for information or has not furnished information within the time specified under sub-section (1) of the Section 7 or malafidely denied the request for information or knowingly given incorrect, incomplete or misleading information or destroyed information which was the subject of the request or obstructed in any manner in furnishing the information, it shall impose a penalty of Rs 250 each day till application is received or information is furnished; so, however, the total amount of such penalty shall not exceed Rs 25,000: Provided that the Public Information Officer shall be given a reasonable opportunity of being heard before any penalty is imposed on him: Provided further that the burden of proving that he acted reasonably and diligently shall be on the Public Information Officer.

If a PIO has without any reasonable cause persistently failed to receive an application for information or has not furnished information within the time specified under sub section (1) of Section 7 or malafidely denied the request for information or knowingly given incorrect, incomplete or misleading information or destroyed information, CIC shall recommend for disciplinary action against Public Information Officer under the service rules applicable to him. If the RTI request is a repeated one for which information was given earlier, the Commission cannot invoke this section and impose penalty or recommend disciplinary action.

Mr G, an appellant, sought information relating to implementation of an order NOV(A)/14/29/2008-278 dated 01.04.2009, its present position and the status of the appellant’s arrears from 01.01.2006 to 1.07.2008. The CPIO refused under the provision of Section 24(1), Second Schedule to the Right to Information Act, 2005, claiming that NTRO is exempted from providing any such information. The FAA upheld the decision of the CPIO. Finding that the CPIO has wrongfully denied the information under Section 24(1) of RTI Act, the Commission directed the CPIO to provide information within 15 days. In response to this order, Director (Estb.) Mr. V Sehgal, informed him that they would intimate the amount due if any in near future. The appellant said that by the order dated 1.4.2009, his emoluments were revised but the public authority did not pay totally, though there was a partial payment in 2013 in response to the order dated 14.01.2013, and Rs 41,000 is still due.

The CPIO responded on 12.03.2015 that NTRO is an exempted organisation under Second Schedule of Section 24(1), hence he regretted. The Commission directed the office of the National Technical Research Organisation, which is a part of PMO, to inform the applicant about the action taken on his application regarding revision and payment of emoluments. The contention that exempted organisation need not give any information is illegal, wrongful and absolutely baseless. Even an exempted organisation has to furnish the information if that could be disclosed under Section 4.

The information sought relates to governance, administration and management of affairs concerning employees and if the public authority refuses to give information regarding dues of payment to the employees, it becomes a matter of possible corruption. If the public authority maintains secrecy about such information, it will breed corruption. Every government entity is statutorily required to conduct its business through open, transparent processes to ensure that it is accountable to the citizenry. This modern practice of open government is viewed as both a key feature and a necessary condition of a contemporary democratic state. It is based upon the conviction that the people can effectively exercise their constitutional role as overseers of government action where their unfettered rights of access to information about government operations are secure.

Regarding Section 24 contentions, respondents have to understand that information sought is not ‘security’ or ‘intelligence’ related information, but only about details regarding his own pay, which is part of administrative decision-making-process by the authority concerned, disclosure of which would not harm anybody – nation, government or the organisation, while its denial could prevent the appellant from exercising his right to challenge the injustice. The decision of the respondent authority to deny information is illegal, and in serious violation of appellant’s recognised human rights besides the RTI Act.

In an earlier case FAA, Addl DGP CID of Haryana v CIC CWP No. 12904/2009 decided by Mehinder Singh Sullur J., on 27th Jan 2011, explained that all information sought not concerned with security and intelligence shall be given. Justice Sullur said: A combined reading of these provisions would reveal, only that information is exempted, which is directly effecting and co-related to the “Intelligence” and “Security” of that organisation of the State and not otherwise.

The judgment and order dated 13-10-2015 in W.P. (C) No. 880 of 2014 Abid Husssain v State of Manipur High Court of Manipur reiterated this principle, saying exemption does not, however, mean that all information relating to these organisations are completely out of bound of the public. …If there are any information which do not impinge upon the confidentiality of the sensitive activities of the organisation and if such information is also relatable to the issues of corruption or violation of human rights, disclosure of such information cannot be withheld.

The Manipur High Court in W.P.(C) No. 642 of 2015 Sri Phairemban Sudhesh Singh v State of Manipur, directed an exempted organisation to make disclosure of the information sought for by the petitioner, which was regarding his service – the initial appointment, suspension order, documents relating to departmental proceedings, termination order etc. In Superintendent of Police, Central Range, Office of Directorate of Vigilance & Anti Corruption v. R Karthikeyan W.P. No. 23507 and 23508 of 2009, Division Bench, Madras High Court held on 12.1.2010 [AIR 2012 Mad 84], “As all these particulars (sought by RTI applicant) would certainly relate to corruption, the Government Order has no application to the facts of this case.”

Referring to the aforementioned division bench judgment, the Madras High Court in another case stated that the exempted organisation shall comply with Section 4(1)(b)(v) in Superintendent of Police v. M. Kannappan, WP No 805/2012, D Hariparandhaman, J of the Hon’ble High Court of Madras, [2013(292) ELT 24 (Mad)]. Information claimed in this case is sanction for prosecution relating to charges of corruption. Information pertains to corruption, disclosure of which will enable appellant to challenge the validity of the order. This information does not relate to security or intelligence aspects of the CBI. Hence CBI cannot refuse it under Section 24, but has to give it under proviso to section 24. However, it is subject to the Section 8 of RTI Act.

The Commission issued show cause notice to PIO. The CPIO stated that this information was furnished to the appellant in response to 2011 and 2012 applications. He gave a list of dates on which the applications were processed. Those applications were taken up to the Commission which directed to provide the information and that was complied with. Appellant was given a copy of corrigendum in 2013 regarding revision of emoluments based on 6th Pay Commission recommendations as mentioned in the subject therein. The appellant filed another RTI request in 2013 and 2014, besides a representation in 2015. The CPIO submitted that he could not receive the hearing notice from the Commission. Then the hearing went on before the Chief Information Commissioner, who disposed of the matter.

The Commission found that the refusal to provide information citing section 24(1) was prior to the order of CIC dated 14.01.2013. The CPIO stated that the information was furnished as directed by the Chief Information Commissioner and the appellant is repeatedly asking the same information though given multiple times. In such circumstances, penalty cannot be imposed. (Based on decision in CIC/LS/A/2012/001368 relating to National Technical Research Organisation, on 14th September 2017)