Justifications not part of info under RTI: HC

[karira]

As reported by Gauree Malkanekar of TNN in timesofindia.indiatimes.com on 09 July 2009:
Justifications not part of info under RTI: HC - Goa - Cities - The Times of India

Justifications not part of info under RTI : HC


PANAJI: An order of the high court of Bombay at Goa, stating that the definition for information under the Right to Information Act cannot include answers to the question "why", which would be the same thing as asking the reason for a justification, has been circulated to Central ministries and departments.

Bringing relief to public information authorities, the high court of Bombay at Goa held: "The public information authorities cannot expect to communicate to citizens the reason why a certain thing was done or not done in the sense of justification because the citizen makes a requisition about information . Justifications are matter within the domain of adjudicating authorities and cannot properly be classified as information ."

The judgment was circulated by office memorandum dated June 1, 2009 to all ministries, departments and state information commissions of the government of India by the Centre's department of personnel and training. The judgment has also been circulated in the Rajya Sabha, the Lok Sabha, and offices of the President and Prime Minister.

The judgment, dated April 3, 2008, came in favour of Goa's director of education Celsa Pinto, who had challenged an order dated July 27, 2007 passed by the Goa Information Commission holding her responsible for furnishing "incorrect, incomplete or misleading information ".

Education department's legal officer Avinash Nasnodkar said that the judgment appears to have brought relief to several government officials across the country. "Several copies of the judgment were picked up from us by all government offices in Goa and the judgment has now been circulated all over the country by the central government. At times officials are harassed using the RTI act for wrong purposes. They are expected to have an answer to anything and everything. At least now they will not be challenged or penalised for not justifying things they have no control over."

The judgment states that section 2 (f) of the RTI Act defines information to mean "any material in any form, including records, documents, memos, e-mails, opinions, advises, 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."

The case pertained to information sought by Milan Natekar, a government servant, seeking to know from the education director, in this case also the public information officer , "why the librarian from the engineering college was not considered for promotion for the post of curator in the Central library when it had fallen vacant due to retirement" of the person holding the position.

Initially, the director had replied "N.A." to all questions posed by Natekar, and when the latter sought clarifications, the director replied that the abbreviation stood for "not available". To the question as to why the post of librarian was not filled up, the director stated: "I don't know". Natekar then approached the Goa Information Commission (GIC).

Ruling in the matter, the GIC held that the education director was guilty of furnishing incomplete, misleading and false information and imposed a penalty of Rs 5,000 which was "liable to be deducted from her salary from the month of August 2007".

Nasnodkar and advocate J A Lobo challenged the commission's order in the high court. Lobo argued that GIC wrongly held that the director provided incomplete and misleading information .

The court held that, "it is not possible to comprehend how the commission has come to this conclusion" and that it saw nothing wrong in the director's reply that she does not know the information because "PIO cannot manufacture the information ".

The court also held that "it is not possible to accept the reasoning of the commission. There is no substance in the observation that merely because the director said not available' and later on corrected her statement and said that she does not know and the petitioner provided incomplete and incorrect information .

"In this view of the matter, the order of the commission appears to suffer from a serious error of law apparent on record and results in the miscarriage of justice," the court held.

[colnrkurup]

I think that the case is not presented correctly before the High Court. The High Court cannot rule out Section 4(1)(d) of the RTI Act in cases the information on the reasons is "Held" by the public authority .

[gurkirat.dhillon]

As far as "appointment of librarian" is concerned, i think the applicant

has made a mistake by not quoting Section 4(1)(d) in his application.

Ofcourse, if he is affected by the act of not appointing a librarian.

And everyone in the chain including the HC and the Info commission

seems to have missed out on this !

[sandeepbaheti]

Sec 4(1)(d) requires every public authority (and not the PIO ) to give reasons for administrative decisions. But what if an administrative decision is actually made without giving reasons? Who is to be penalized? If later someone asks reasons from the PIO , he certainly can't be expected to "manufacture" reasons. Nor can he transfer the question to the person who made such decision because if that happens he also will only manufacture post facto reasons. To that extent, the High Court decision is acceptable to me.
Unfortunately, the RTI Act does not prescribe any penalty for non-compliance with Sec 4 .

[anusinha]

Standing alone the decision of the honorable court seems to be reasonable. If the information seeker was affected by the decision regarding the appointment of the librarian it means that the way he/she pursued the case was wrong. Its also evident that the RTI Act requires clarifications and further interpretations regarding various clauses and sections.

[sidmis]

The Goa High Court's decision is in line with the spirit of the act. Only pre-existing information can be accessed.

The Hon. HC may have stretched the issue a little bit.

It is a different issue that in this county most of the decisions are taken arbitrarily and without justification. (including CIC & SIC decisions)

Citizens' have to find alternate routes to remedy such arbitrary action.

Goa High Court order is reproduced below. Is this order binding on all other states or limited to Goa Only.

At the end of the order it was mentioned as "Rule is made absolute.". What does it mean?

Death of Sec. 4(1)d ?


1
IN THE HIGH COURT OF BOMBAY AT GOA
WRIT PETITION NO.419 OF 2007.
Dr. Celsa Pinto,
Ex-Officio Joint Secretary
(School Education),
Public Information Officer
(Under R.T.I. Act) Directorate
of Education, 18th June Road,
Panaji, Goa. ..... Petitioner.
Versus
1. The Goa State Information
Commission Through the State
Chief Information Commissioner
And the State Information
Commissioner, Ground Floor,
Shrama Shakti Bhavan, Patto
Plaza, Panaji, Goa.
2. Ms Milan G. Natekar,
Sadashiva Bhuvan,
Mapusa, Bardez, Goa. ..... Respondents.
Mr.J.A.Lobo,Advocate for the Petitioner.
Mr. D. P. Bhise U/LAS , Advocate for the respondent No.2.
Ms Sapna Mordekar, Advocate for the respondent No.1.
Coram :- S. A. BOBDE, J.
Date : - 03st April, 2008.
ORAL JUDGMENT :
1. Rule returnable forthwith.
2. Heard by consent.
2
3. The petitioner is Public Information Officer appointed as such under the Right to Information Act, 2005. She has challenged the order dated 27.7.2007 passed by the Goa Information Commission holding her responsible for furnishing incorrect, incomplete or misleading information to the respondent No.2 and also for providing false information .

4. The respondent No.2 had sought the following information from the P.I.O. under the Right to Information Act, 2005 (hereinafter referred to as “the Act”). Information sought by the Complainant Information provided
by the Opponent III 186/c letter from GPSC No.COM/1
/1/15/1705/754 dated 03/11/2006
N.A.
XIV 146/c letter No.COM/11/11/15(1)05 dated 12/06/2006 regarding filling up the post of Curator clarify
N.A.
XV 117/c letter from GPSC to communicate seniority list of Librarian may be sent if not then kindly clarify under what provision of Rule the department to fill up the post by promotion.
N.A.
1 Copy of the Seniority list of the Common Cadre of the Librarian post
from the Directorate of Education, Technical Education and Higher
Education.
N.A.
2. Why the post of curator was not filled N.A.
3 up by promotion after retirement of V.B.Hubli as the post filled by direct
recruitment through GPSC
3 Why the Librarian from the Engineering College was not considered for
promotion for the post of Curator in the Central Library when it was fallen
vacant due to retirement of Shri V. P. Hubli. N.A.
Item 1,2 & 3 are relevant for a decision of this case.
5. Initially the petitioner wrote the words “N.A.”against all
the 3 requisitions i.e. not available. Thereafter, the second respondent
sought clarification as to what the petitioner made clear by the
abbreviation “Not Available”. The petitioner clarified that it means
“Not Available”. As to other two questions the petitioner clarified by
stating “I don't know.” The respondent No.2 took the matter to the Goa
Information Commission.
6. The Goa Information Commission has held the petitioner
guilty of furnishing incomplete, misleading and false information and
has imposed the penalty of Rs.5,000/- which is liable to be deducted
from the petitioner's salary from the month of August 2007. This order
is under challenge. Mr. Lobo, the learned Counsel for the petitioner
submitted that the Goa Information Commission (hereinafter referred as
4 “Commission”) has wrongly held that the petitioner provided
incomplete and misleading information on the 3 points.

7. The Commission has with reference to question No.1 held
that the petitioner has provided incomplete and misleading information
by giving the clarification above. As regards the point No.1 it has also
come to the conclusion that the petitioner has provided false information
in stating that the seniority list is not available. It is not possible to
comprehend how the Commission has come to this conclusion. This
conclusion could have been a valid conclusion if some party would have
produced a copy of the seniority list and proved that it was in the file to
which the petitioner Information Officer had access and yet she said
“Not Available”. In such circumstances it would have been possible to
uphold the observation of the Commission that the petitioner provided
false information in stating initially that the seniority list is not
available.

8. As regards the requisition Nos. 2 & 3 by which the
petitioner was called upon to give information as to why the post of
Curator was not filled up by promotion and why the Librarian from the
Engineering College was not considered for promotion, the petitioner
had initially answered by stating that the information was “N.A.”(Not
Available). Thereafter, she had clarified by stating that it means “I don't
know”. The Commission has initially observed in para. No.13 that it
does not see anything wrong in the petitioner's reply that she does not
know the information because “P.I.O. cannot manufacture the
information ”. However, in para. No.14, the Commission has observed
that the petitioner has not supplied a correct information because she
corrected information on points No.2 & 3. It can be recalled that the
petitioner corrected the information by explaining that “Not Available”
meant she does not know. It is not possible to accept the reasoning of
the Commission. There is no substance in the observation that merely
because the petitioner initially said “Not Available” and later on
corrected her statement and said she does not know and the petitioner
provided incomplete and incorrect information . In the first place, the
Commission ought to have noticed that the Act confers on the citizen
the right to information . Information has been defined by Section 2(f)
as follows.
“Section 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; ” The definition cannot include within its fold answers to the question “why” which would be the same thing as asking the reason for a
justification for a particular thing. The Public Information Authorities
cannot expect to communicate to the citizen the reason why a certain
thing was done or not done in the sense of a justification because the
citizen makes a requisition about information . Justifications are matter
within the domain of adjudicating authorities and cannot properly be
classified as information .

9. In this view of the matter, the order of the Commission
appears to suffer from a serious error of law apparent on record and
results in the miscarriage of justice. In the result, the impugned order is
hereby set aside.

10. Rule is made absolute.
S. A. BOBDE, J.
SMA

[rajub]

Originally Posted by sidmis

The Goa High Court's decision is in line with the spirit of the act. Only pre-existing information can be accessed.

The Hon. HC may have stretched the issue a little bit.

It is a different issue that in this county most of the decisions are taken arbitrarily and without justification. (including CIC & SIC decisions)

Citizens' have to find alternate routes to remedy such arbitrary action.

Goa High Court order is reproduced below. Is this order binding on all other states or limited to Goa Only.

At the end of the order it was mentioned as "Rule is made absolute.". What does it mean?

Death of Sec. 4(1)d ?

I don't think it is the death of sec 4(1)(d) .

It is true that PIO can not manufacture information . It is also true that if reason is not recorded PIO cannot be held guilty for non supply of information .

But section 4(1)(d) puts obligation on PA that reason must be provided to affected person. The section does not say only recorded reason can be provided.

Even if the reason is not recorded for a particular decision the PA must direct the decision making officer to put the reason on record .

As rightly said by Sidharth (sidmis) many a times decisions are made arbitrarily and hence the reasons are not recorded. But the purpose of section 4(1)(d) itself is to curb the menace of arbitrary and vimsical decisions.

Also as said by sandeep the decision making officer may manufacture post facto reason but the reason will be recorded and provided to the affected person. One must not forget that originally reason was not recorded because it was inconvininet to record the reason. So it is equally inconvinient to "manufacture" the reason and the manufactured reason can well be used to pin down the guilty if intelligently analysed.

One may argue that what will ordinary person not having enough inteligence power to properly and effectively use the laws. But unfortunately this is how the things work all over the world.

One final thought. Can PA argue there is no reason behind a prticular decision? it cannot. Because only animals devoid of intelligence can act instinctively. A human being always takes a decision after he thinks the particular decision is proper and correct.

[SomeGuy]

Originally Posted by sidmis

"Rule is made absolute.". What does it mean?

It usually means that an initially contingent decision (rule) - stay order, or show-cause notice - is made absolute, i.e. is the final decision of the court. Google "rule-nisi".

N.A.
XIV 146/c letter No.COM/11/11/15(1)05 dated 12/06/2006 regarding filling up the post of Curator clarify
N.A.
XV 117/c letter from GPSC to communicate seniority list of Librarian may be sent if not then kindly clarify under what provision of Rule the department to fill up the post by promotion.
N.A.

This part of the RTI application appears not to have been addressed by the HC judgment, although I see "NA" sprinkled liberally here as well. Its hard to be sure since the formatting appears to be somewhat mixed up, but this appears to ask for a seniority list and alternately a rule, seperate from queries 1, 2, and 3. Does the SIC decision say anything about it? Justice Bobde states that seniority list in 1. has to be produced from files accessible to PIO to demonstrate that NA constituted false Information . What about provision of Rules, which seems to be an alternate query here. Is "NA" a valid response to a query asking for rules?

regards,
SomeGuy

[sidmis]

> Unfortunately, the RTI Act does not prescribe any penalty for non-compliance with Sec 4.


IPC may help.

IPC 166/167

[rajub]

If the stakes are high the applicant should file revision in HC with the help from some expert in RTI matters (all advocates are not expert in RTI matters).