Whether case pending in court may be used as ground not to provide information.

[sngupta]

http://jaipur.sancharnet.in/aaocompt...ger PR 001.jpg
I want comments of forum friends on the issue as in case the douments is not available in court and if there is not direction of court we may be denied for information on the ground that there is a case in judiciary and information seeker is not a party in that case.

[colnrkurup]

This issue is given in Section 8(b) of the act viz., "Not withstanding anything contained in this Act. there shall be no obligation to give any cityzen, information which has been expressly forbidden to be published by any court of law or tribunal or the disclosure of which may constitute contempot of court". This aspect has been repeatedly clarified in various judgements of the SIC.

[abhijeet]

Please give some example of judgments/clarification in this regard for our future effective use of RTI Act--Abhijeet

[karira]

sngupta,

1. Reply of PIO:

a) In case a application is rejected, the PIO must indicate in his reply
as to under which subsection(s) of Section 8 or 9 is he
rejecting the application.
b) Merely quoting the number of the relevant subsection(s) of the RTI Act
or quoting the relevant subsection "ad-verbatim" is not enough.
The PIO must indicate as to how that particular subsection is applicable
in the present case.

In support of above, I quote from CIC decision:

http://cic.gov.in/CIC-Orders/Decision_07072006_3.pdf

The Commission found that the PIO has not given the reasons for rejection of the request for information as required under Section 7(8)(i). Merely quoting the bare clause of the Act does not imply that the reasons have been given. The PIO should have intimated as to how he had come to the conclusion that rule 8(1)(j) was applicable in this case. This only shows the casual approach of the public authority to deal with a request under the RTI Act. The Commission is unable to appreciate this lackadaisical attitude.

In the instant case, niether a) nor b) have been done.
This will be the FIRST ground for appeal.
==============
2. The PIO has not informed you in his reply as to within what time frame
you can appeal to the appellate authority, whose name/designation/
address have been correctly given by him.

This is SECOND ground for appeal.
==============
3. Sub-judice matters:

The Section 8(1)(b) is very clear:

b.information which has been expressly forbidden to be published by any court of law or tribunal or the disclosure of which may constitute contempt of court;

Nowhere in the act it has been mentioned that information relating to matters which are "sub-judice" cannot be given. Only in cases where the information is expressly forbidden to be published by the court or which may constitute contempt of court can be denied.

In your case, the PIO has not informed you (with documentary evidence), if the information you have asked for has been forbidden to be published by the court or will constitute contempt of court.

In support of the above, I quote from the CIC decision:

http://cic.gov.in/CIC-Orders/Decision_20042007_06.pdf

" Sec. 7(8) of the Act states clearly that where a request
has been rejected under sub section (i) the CPIO shall communicate to the
person making the request the reasons for such rejection. Without citing any
clause of the Act, simply making a bold statement that the matter is sub-judice
and will amount to contempt of Court and, therefore, cannot be disclosed is not
adequate reason for rejection. In this case there is no clause of the Act which
exempts a matter simply because it is sub-judice. The sub sections of Sec. 8
which could be cited would be Sec. 8(1)(b) or 8(1)(h). In the former it is only
information which has been expressly forbidden to be published by any court of
law or tribunal or the disclosure of which may constitute contempt of court which
would have a bearing on this case. However, it has not been indicated that there
have been any orders of the tribunal not to disclose any such information as
sought by appellant, or that the disclosure of which information would impede the
process of investigation or apprehension or prosecution of offenders, necessary
for exemption u/s 8(1) (h), none of which can be invoked in the present case."

This will be the THIRD ground for appeal.


colnrkurup,

Whenever any PIO seeks the refuge under some "exemption clause" in the RTI Act, please consider it against the touchstone argument of whether the said clause is "restrictive" or "expansive".
Most of the clauses in Section 8 and 9 are "expansive" in nature and not "restrictive" due to the language and wording that has been used in the RTI Act 2005. (I do not know whether the drafters of the Act did this by accident or by design....but it is in the citizens favour !)

I quote from the CIC decision:

http://cic.gov.in/CIC-Orders/Decision_30082006_1.pdf

That the proviso is not restrictive but expands the scope of access to
information is borne by sub-Section 2 of Section 8 of the Act which makes it
abundantly clear that a public authority may allow access to information, if
public interest in disclosure outweighs the harm to the protected interests
notwithstanding the Officials Secrets Act or any of the exemptions
mentioned with sub-section 8(1). That clearly shows that the Act gives
paramountcy to the public interest and the exemptions do not constitute a
bar to providing information. If it were the intention that no aspect of
matters sub-judice can be considered under the Act, this would have been
expressly incorporated in clause (b) of sub-Section 1 of Section 8 alongwith
other matters prescribed in this clause.


Sub-Judice matters

Here is one more decision :

http://cic.gov.in/CIC-Orders/Decision_18092006_15.pdf

A perusal of the averments of the appellant and the respondents makes it clear that
there has been a serious error by the respondents in assuming that information in respect
of sub-judice matters need not be disclosed. The RTI Act provides no exemption from
disclosure requirement for sub-judice matters. The only exemption in sub-judice matter
is regarding what has been expressly forbidden from disclosure by a Court or a Tribunal
and what may constitute contempt of Court: Section 8(1)(b). The matter in the present
appeal does not attract this exemption. Presence of a different provision in the
Cantonment Act about supply of documents in sub-judice matters to a requester have had
no bearing on the disclosure requirement under the RTI Act. Seen purely from the
stand-point of the RTI Act, the right of the appellant to access the information requested
by him is unimpeachable.

[sngupta]

Karira,
You provided a lot which is enough to present the case. Thanks a lot. You please suggest me whether I have to file appeal or it is better me ask the orders of court under which you refused to provide the information.

[karira]

sngupta,

Please file a First Appeal stating ALL the three grounds for appeal as pointed out in post # 4 in this thread.
The PIO should know and learn how to give proper replies under the RTI Act.
This way you will be of benefit to others who apply to the same PIO for information.