What is "delay" and which "information can be disclosed"....?

[karira]

In a very strange decision/order, Hon'ble IC A N Tiwari seems to have totally misinterpreted and misunderstood the RTI Act !
The matter pertains to a request for information regarding service matters and promotion.
It seems that the RTI Application has been made by a Officer of Customs & Central Excise

1. On "Delay" in providing information:

“5. I'm afraid this surmise of the appellant/complainant is incorrect. CPIO has provided information to the appellant well within the time-limits. He also supplied information to the appellant after the orders of the Appellate Authority as directed by that Authority. That the Appellate Authority took a view different from the CPIO's cannot be construed to mean that the subsequent action of the CPIO following Appellate Authority's order amounted to a delay . I, therefore, reject this contention of the appellant/complainant.”

2. On which "information can be disclosed" by the PIA:

7. I’m afraid this surmise is equally incorrect. In the scheme of the RTI Act, a document to be liable for disclosure ought to be ‘held’ by a public authority, which in the first place was responsible for its creation/issue. Any other public authority subsequently coming to possess that information incidentally, or on account of the fact that the subsequent public authority was party to a proceeding such as a court matter, could not make that latter public authority the original holder of the information within the meaning of Section 2(j) of the RTI Act. This scheme is perfectly logical because the disclosability of the information is a function which can be performed only by the original holder of the information and not the others who come to hold that information incidentally. The court order is always in the public domain, in the sense, that it can be taken from the Court Registry on payment of the fee prescribed by the Court. No party can claim that another public authority, who for some reasons happen to possess a certain court order, must give copies to an applicant only because that request is made under the RTI Act. If this is allowed, every applicant would like to get copies of the Court orders from the parties to the Court case ⎯ who might also be a public authority ⎯ rather than go through the process of obtaining the same copy from the Court Registry. If allowed, it will amount to abuse of the RTI Act, and will also be offensive to the systems laid-down by the Courts.

8. This particular case is only one among several such matters which are reaching the Commission. The petitioners use the RTI route to access information held by a public authority which might have originated from another public authority. So long as this information is an open information, disclosure of this from any point should not really matter. But the matter becomes slightly complicated when the originator of the information wishes to treat that information as confidential or secret. In such a situation, for the respondents to disclose this information to an applicant without reference to the originator of the information may jeopardize the interest of the originator. In my view, all such matters should be examined within the purview of Section 11(1) of the RTI Act for the originator of the information becomes a third-party in the connect of an admittedly confidential information which has reached the hands of the public authority from whom the information is sought.

9. Regardless of the orders of the Appellate Authority, it would be, therefore, entirely incorrect to fault the CPIO for directing the appellant to obtain the court-related order from the source where such orders are kept, i.e. the Court Registry. There is absolutely no reason why a party to a court proceeding should be obligated to disclose the order of the court to other applicants, especially when the option to obtain that order from the Court Registry itself is always open.


The full order is attached to this post.


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[karira]

Sponsorer

It is amazing that one of the first lot of Information Commissioners can pass an order like this.

Hon'ble IC A N Tiwari should read his own previous orders ! It looks as if it was just a bad day in office.

1. Delay:

It is not clear from the order whether PIO rejected the applicants request for part of the information at the initial stage. Nor is the IC's order specifically state the grounds on which the PIO made such a rejection.

In any case Sec 7(1) gives the PIO 30 days to either provide the information or reject the request. In case the FAA rejects the PIO's stand and asks for disclosure of information (as in this case), it only means that the PIO took the incorrect position in the first place and the applicant got the correct and complete information after a delay beyond the 30 days.

Sec 7(1) read along with Sec 18(1)(e) and Sec 20(1) makes it obvious that the delay has to be counted from the time the reply was due till the correct and complete information was actually given:

18(1)e. who believes that he or she has been given incomplete, misleading or false information under this Act;

20(1). Where the Central Information Commission or the State Information Commission, as the case may be, at the time of deciding any complaint or appeal is of the opinion that the Central Public Information Officer or the State Public Information Officer, as the case may be, 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 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 two hundred and fifty rupees each day till application is received or information is furnished, so however, the total amount of such penalty shall not exceed twenty-five thousand rupees:

Provided that the Central Public Information Officer or the State Public Information Officer, as the case may be, 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 Central Public Information Officer or the State Public Information Officer, as the case may be.

This means that if the PIO has delayed the information without "reasonable" cause (his order was overturned by the FAA, so it was "unreasonable"), the CIC should give an opportunity to the PIO to hear him and the PIO has to prove that the information was delayed even though he acted reasonable and diligently.

The IC has not done that but blindly taken the applicant for a ride !

2. Which "information needs to be disclosed..." ?:

On this point also the IC has seriously erred.

The simple questions to be asked and answered by the IC, are:

- What has been asked - is it "information"?
- Is it "accessible" under the RTI Act ?
- Is that "information" held by or under the control of the PA to whom the application was made ?

2(f) "information" means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force;

2(i) "record" includes—
a) any document, manuscript and file;
b) any microfilm, microfiche and facsimile copy of a document;
c) any reproduction of image or images embodied in such microfilm (whether enlarged or not); and
d) any other material produced by a computer or any other device;

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 and includes the right to—
i) inspection of work, documents, records;
ii) taking notes, extracts or certified copies of documents or records;
iii) taking certified samples of material;
iv) obtaining information in the form of diskettes, floppies, tapes, video cassettes or in any other electronic mode or through printouts where such information is stored in a computer or in any other device;

If the Hon'ble IC had just remembered these basic definitions of the RTI Act, he would have been in a position to pass a more reasoned and just order.

I also cannot understand where did the Hon'ble IC A N Tiwari bring in issues like:

Who is the originator of the information ?
Sec 11 and Third party, in a matter related to a Court Order

Now, PIO's can:

1. Simply refuse information without assigning any reason whatsoever. Applicant will file First Appeal. First appellate Authority will also not reply. It will take 2 years to reach the SIC/CIC. They will order disclosure of information and not impose any penalty !

2. Any PIO will simply not give information just because the record was received or the matter pertained to another department. He will also claim that any further records or information generated on the subject in his own PA will not be disclosed because the principal matter has been generated by some other department/PA !

This order totally disregards the letter and spirit of the RTI Act and even ignores what is blatantly stated in the Act in black and white.

[vashisthvivek]

The views of the Hon'ble IC are totally against the provisions of the RTI Act. I think the IC has faulted in interpreting the definition of the information. It is not the question, from where the documents originated. The question is whether the information requested for is available in the record of the Public Authority or not? If it is available, then the information on the same has to be disseminated subject to the provisions of Sections 8 & 9. I think the IC is also not aware with the procedure of the Court. An applicant is required to give reasons for obtaining the copies of the Court Orders, whereas, under the RTI Act, same are not required. Further, if a person has to file an appeal in Superior Court, then he has to annex the copy of the Court Order of the lower Court. However, the copy of the Court Order received under the RTI Act can not be used to file an appeal in the matter and can only be used as information. Therefore, the observations of the IC are totally illogical and are against the provisions and spirit of the RTI Act.
However, as regards to "delay" it is submitted that from the order of the IC it appears that the CPIO has provided the information within the time stipulated in the orders of the Appellate Authority, who perhaps reversed the decision of the CPIO to disseminate the information.

[karira]

However, as regards to "delay" it is submitted that from the order of the IC it appears that the CPIO has provided the information within the time stipulated in the orders of the Appellate Authority, who perhaps reversed the decision of the CPIO to disseminate the information.

The issue before the IC was whether the PIO has a "reasonable" cause for delay.

He refused to disclose part of the information because he felt that it was denialble.
This stand of the PIO was overturned by the FAA.
It was overturned because the stand of the PIO was considered to be "unreasonable" by the FAA.
Therefore there was no "reasonable" cause for delay in providing information.

Unfortunately, the IC did not bother to go into the "reasonableness" of the delay. If it is "unreasonable", then as per Sec 20(1) of the RTI Act, the PIO needs to be penalised.

Here is a concrete example:

I applied for information.
No reply from PIO within 30 days.
I made First Appeal to the FAA.
No reply from FAA.
After the time limit (of 45 days) are over for the FAA, the PIO replies to me that none of the information asked for is "information" as defined in the RTI Act. This is 52 days after the mandated 30 days are over.
I filed "Addendum to First Appeal"
No reply from FAA.
Then the PIO replies with partial information and incomplete , incorrect and misleading information.
This is received by me 103 days after the mandated 30 days are over.

Questions:
Has the PIO delayed the information or not ?
Should his first reply, 52 days after the reply was due, stating that what I have asked for is "not information" be considered as provison of information ?
Should the PIO be penalised ?
How many days was the delay ?
How much amount should he be penalty ?

PS: This is a concrete example backed up fully by all documents. It is available completely on the forum. But, I will guide you to the thread after you reply to the above.

[vashisthvivek]

Respected Sir,
As regards to the example, it is respectfully submitted that the PIO is definitely at fault. As per S.7(1), the PIO is under obligation to provide the information as expeditiously as possible and in no case later than 30 days. Alternatively he has to reject the request. Now the question arises that in which cases the PIO can reject the request. The provision itself makes it clear that the request can be rejected for any of the reasons specified in S.8 and 9. The PIO has no authority to reject the request for information on any other ground. Further, if the PIO does not take a decision within a period of 30 days, then as per S.7(2), the same will be construed as refusal by the PIO. There is a difference between refusal and rejection. If it is a "refusal" the PIO is liable to be penalised. Further, if the request for information has been rejected on any other ground than stipulated under S.8 & 9, even then the PIO is at fault. Now it is a point of debate that when the PIO has rejected the request on any ground stipulated under S.8 & 9, but his version do not find favour with the Appellate Authority and the AA asks him to disseminate the information, then how the time to provide the information is to be calculated