Need Help: what information can be divulged?

[jbaskaran]

I am a public information officer in a state owned transport corporation. The request received from an advocate regarding the details of the bank account operated by the corporation was communicated to the Chief Accounts Officer to furnish the information in pursuance of the provisions under Section 5 (4) & (5) .He informed that the information required is in the nature of commercial confidence hence details of the bank accounts operated by the corporation cannot be divulged .Accordingly a reply has been sent to the petitioner with in the stipulated time. The petitioner preferred an Appeal. The Appellate Authority also rejected his claim on the same line. Further the petitioner preferred an appeal before the State Information Commission requesting to direct the Corporation to furnish the Bank details. On hearing, the Commission directed the Corporation to furnish the details required by the petitioner and also to initiate Disciplinary action against the Public Information Officer who rejected the petition.
I request you to kindly clarify on the following
1. Whether the disciplinary action has to be taken against the Public Information Officer or against the Officer who is having the information i.e. Chief Accounts Officer - Deemed PIO u/s 5(5) refused to furnish the information?
2. Whether the State Information Commission has the power to direct to take disciplinary action?

[taurus]

Basically it is the PIO who has the authority to decide whether an info can be furnished or not. If the holder of info conveys that the info cannot be furnished for some reason, the PIO should assess whether it is truly so. He has to take an independent decision. He cannot go by the decision of the holder of info. Once a decision is conveyed bythe PIO, it is the decision of PIO. If the CIC or SIC penalises, the PIO should suffer. He cannot hide behind the fact that the decision given by him is indeed not his but that of the information holder. It is not sustainable.

[jiwateshwar]

I dont really see any grounds for initiation of a disciplinary action against yourself or the accounts officer in this case. I would suggest that you file a plea before the Chief Inormation Commissioner of your SIC asking him to review the decision about the diciplanry action. Claim the following grounds for pardon:-
1> RTI Act is still in infancy in the state and that you have not yet fully absorbed it.
2> That you had sought help/assistance from the Chief Accounts Officer under ss5(4) and that it was his stand that the information is of commercial confidence and that it being his area of jurisdiction and expertise, you had no reason to doubt the statement of accounts officer.

By the way, these disciplinary proceedings are hardly anything for you to worry about as they dont result in anything. The only case you would have to worry about it is when the FAA is not really in your favour. Just sleep on it!

[opsharma]

Mr Baskaran,
You can not be subjected to disciplinary action,but the Accounts Officer whose assistant you officially asked for.
Please go through DOPT Office Memorandum No. 1/14/2008-IR dated 28th July,2008.

"The import of subsection (5) of section 5 is that ,if the officer whose assistance is sought by the PIO ,does not render necessary help to him,the Information Commissioner may impose penalty on such officer or recommend disciplinary action against him the same way as the Commission may impose penalty on or recommend disciplinary action against the PIO".

Therefore ,if you have substantive proof in writing of Accounts Officer refusing you assistance(in this case bank account information asked by the applicant) ,you can definitely take it up with your AA/PA
and bring the above quoted Memo to his notice.

[jbaskaran]

Sir,
I would like to have another small clarification. Where will I get a copy of this memorandum DOPT Office Memorandum No. 1/14/2008-IR dated 28th July,2008?
Regards
J Baskaran

[DineshK]

Please visit this link to get the above Memo.

.

[karira]

I will tend to agree with Taurus on this issue:

You sought the information from the Accounts Officer under Sec 5(4) and 5(5).
The Accounts officer gave his opinion stating grounds as to why the information cannot be disclosed.
The PIO has to then apply his mind and make a decision of his own.
In case you felt that the Accounts Officer is not correct, you could have taken up the matter with the Administrative head of the Public Authority and pointed out the differing opinions and gone ahead with disclosure.
In case you felt that the opinion expressed by the Accounts Officer was correct, then you have to defend your own decision.

Regarding the matter of disciplinary action or Penalty, you do not have to worry, if you have everything on "record" like your request to the Accounts Officer, his reply, etc. Also, you have stuck to the time limits specified in the RTI Act. Penalty can be levied or Disciplinary Action recommended, if the PIO has willfully and deliberately withheld information or delayed it. This is not the situation in your case.

Please file your reply with the SIC:

- Enclosing all evidences that you acted properly (like time limits, referring the matter to Accounts Officer, etc.)
- That there was no delay from your side or denial of information from your side.
- Justify why you agreed with the decision of the Accounts Officer not to disclose.

[jiwateshwar]

Karira,
Since the FAA in this case has backed the CPIOs decision to not divulge information, does it mean that the FAA too would be a under the scanner of the departmental enquiry or action? By the way I really dont understand how a SIC could have ordered an enquiry in this case, unless ofcos there is more to the case than just this.

[karira]

Originally Posted by jiwateshwar

Karira,
Since the FAA in this case has backed the CPIOs decision to not divulge information, does it mean that the FAA too would be a under the scanner of the departmental enquiry or action? By the way I really dont understand how a SIC could have ordered an enquiry in this case, unless ofcos there is more to the case than just this.

jiwateshwar,

Unfortunately, Sec 20(1) (Penalty) and Sec 20(2) (Disciplinary Action) do not mention anything about the Appellate Authority.
There are very few decisions of the CIC/SIC's which take a view on the AA's order/decision - that too letting off with just a warning.

[jiwateshwar]

Just thought this might be related! Seems like a pretty good decision.
Refer full decision at CIC/OK/A/2006/00448 Dated: 31 July 2008

5. The Commission has given thoughtful consideration to the explanations of S.K. Setia the then A.O.-cum-H.O.D. and has come the conclusion that the explanations submitted by him are not reasonable causes for denying the information due to following reasons:
......1. A responsible officer cannot escape his responsibility merely by saying that he depends on the suggestions of his subordinate staff. A senior and responsible officer has to apply his mind independently and take the appropriate final decision and he cannot blindly approve the decisions of his subordinate staff. If the decisions of the subordinate staff are to be approved in such a fashion, then what is the need of the senior officers? So Shri S.K. Setia should have taken the decision after applying his mind independently.
......2. The second contention of the Respondent is that decision making is a collaborative process and the Head cannot be held responsible for a collective decision. The commission does not find any force in the contention of Shri S.K. Setia, because the senior authority is created to filter the different views in the administrative set up. If the contention of Shri S.K. Setia is accepted, then it would be almost impossible to punish the erring officials because every decision is taken by seeking views from different sources and after that the final decision is taken by a senior authority, by applying his independent mind and the Head is always responsible for the decisions. Hence, keeping in view the facts and circumstances of the present case, the Commission is of the considered opinion that Shri S.K. Setia, the then A.O.-cum-H.O.D. denied the information without reasonable cause and has failed to discharge his burden of proof that he acted reasonably and diligently in discharge of his obligation of providing the required information to the Appellant. The Proviso of Section 20 is very relevant here, as it reads:
“Provided further that the burden of proving that he acted reasonably and diligently shall be on the Central Public Information Officer or State Public Information as the case may be.”
6. In this case, the Respondent has failed to provide proof that he acted reasonably and diligently in providing the information. It has been provided under Section 19(5) that: “In any appeal proceedings, the onus to prove that a denial of the request was justified shall be on the Central Public Information Officer or State Public Information Officer, as the case may be, who denied the request.” On this count also the then PIO has failed to justify his Order of
denying the information. As such the Commission has decided to impose a penalty of Rs.5,000/- upon Shri S.K. Setia, the then A.O.-cum-H.O.D. Govt. College of Art, Chandigarh, for violating the provisions of the RTI Act 2005. The First Appellate Authority is also warned to be careful in future while taking decisions on the First Appeal. The First Appellate Authority is not supposed to pass orders in a mechanical way, rather it is supposed to act independently and pass speaking orders after application of mind.

[taurus]

That is a refreshingly good decision. Thank you for posting it.

[jiwateshwar]

The First Appellate Authority is not supposed to pass orders in a mechanical way, rather it is supposed to act independently and pass speaking orders after application of mind.
I remember Sh. Ganpat having brought our attention to the part where the FAA is supposed to pass a speaking order. What exactly does the term speaking orders refer to?