CENTRAL INFORMATION COMMISSION
Appeal No. CIC/WB/A/2006/00274 dated 31/5/’06
Right to Information Act, 2005 – Section 19
- Appellant: Ms. Vishaish Uppal
- Respondent: Shri Kamal Dayani, CPIO. PMO
Ms. Vishaish Uppal of Gulmohar Park applied to Shri Kamal Dayani, CPIO,
Prime Minister’s Office on 22.11.2005 seeking to inspect files, papers etc. relating to the appointment of the Chief Information Commissioner and Information Commissioners.
She subsequently received a copy of a letter from Shri Kamal Dayani, CPIO indicating that the case had been transferred to the Dep’t. of Personnel & Training – Director Shri Hari Kumar. In response Shri Hari Kumar, Director in the Dep’t. of Personnel & Training invited Ms. Vishaish Uppal to inspect the records.
However, on 13.1.06 Ms. Vishaish Uppal reverted to CPIO Sh. Kamal Dayani in PMO stating that she had been shown only one file and informed by PIO Sh. Hari Kumar that files pertaining to the entire selection process are with PMO and not with DoPT.
She, therefore, asked that she may be allowed to inspect the relevant files. In response Shri Kamal Dayani held that it was not possible to allow inspection of the relevant records in PMO on the basis of which Ms. Vishaish Uppal made complaint to this Office, which has been dealt with, vide No. CIC/WB/C/2006/00027 and decision announced on 28.7.06.
As mentioned in the decision on that file response to complaint notice had also been received from PMO dated 22.2.06. Appellate Authority Sh. Jawed Usmani, Jt. Secy. in the PM’s Office, dismissed the appeal made to the Appellate Authority on 22.2.06. The Appellate Authority had held that the papers being classified confidential and no case having been made out for making any exception under sec. 8(2) of the Act, Ms. Vishaish Uppal could not be allowed to inspect the documents.
This Commission on 4.9.06 heard the matter. Ms. Vishaish Uppal had earlier
intimated inability to attend. Her authorized representative was Sh. Shekhar Singh. Shri Kamal Dayani, CPIO, PMO and Sh. Jawed Usmani, Appellate Authority, PMO represented the respondent’s office. Shri Shekhar Singh argued that the CPIO had held information to be exempt from disclosure u/s 8(j) of the Act, which Appellate Authority Sh. Jawed Usmani had rightly found to be invalid and legally unsustainable.
The Appellate Authority, however, refused to disclose the information on the ground that the papers in the files relating to the selection of the Chief Information Commissioner and the Information Commissioners have been given the security classification “Confidential” under the Manual of Departmental Security Instructions, 1994 read with the relevant provisions of the Official Secrets Act, 1923 and according to the said Manual, such documents should be addressed to and seen only by those persons who have a direct concern with the subject matter contained therein.
The Appellate Authority therefore stated that the Appellant cannot be allowed to inspect said file/document, as these documents are classified “Confidential”
The appellant, on the other hand submitted that it was not open to the
Appellate Authority to refuse disclosure on a completely new clause of the law on RTI. He, therefore, pleaded that the information be disclosed and CPIO Shri Kamal Dayani be suitably penalized for misinforming the appellant that the DoPT held the information, while it was in fact held in the Prime Minister’s Office.
The appellant also submitted that the denial of information by the Appellate Authority on new grounds was unjustifiable.
Shri Jawed Usmani, Appellate Authority, on the other hand argued that it is
open to the second Appellate Authority only to consider the decision made in appeal, since the decision of the CPIO was now closed having already been set aside by the Appellate Authority.
“Appeal” is defined in the Oxford Dictionary as the transference of a case from an inferior to a higher Court or tribunal in the hope of reversing or modifying the decision of the former. In the Law Dictionary by Bouvier an appeal is defined as the removal of a case from a Court of inferior jurisdiction to one of superior jurisdiction for the purpose of obtaining a review and re-trial. In the Law Dictionary by Sweet, the term “appeal” is defined as a proceeding taken to rectify an erroneous decision of a
Court by submitting the question to a higher Court or Court of Appeal. It is a settled law that an appeal proceeding is a continuation of the original proceeding. A decision by an appellate authority after issue of a notice and after a full hearing, in presence of both the parties, replaces the judgment of the lower court/ authority. The decision of the appellate authority is on merit and as such, it can vary, modify or substitute its own decision in place of the decision of the inferior authority. In appropriate cases, it can quash or set-aside the decision of the inferior authority and can pass its own decision, which may be altogether different from that of the original
decision. An Appellate Authority may re-examine the matter and take fresh evidence, if required, or if considered necessary.
In view of the legal position as stated above, the first Appellate Authority was justified in setting aside the order of the CPIO. The first Appellate Authority was well with in its ambit while taking up a new ground and to deny the information u/s 8(2) of the Right to Information Act, 2005.
On the same analogy, this Commission is perfectly justified in looking into and considering, not only what the first Appellate Authority decided but also what was decided by the CPIO. The submission of the first Appellate Authority that this Commission should only consider the decision of the
first Appellate Authority and should not look into or consider the order of the CPIO, is without any merit and as such, cannot be accepted.
The Appellate Authority has held that the matter has been classified
“confidential” under the Official Secrets Act, 1923. We find that it is, therefore, for the public authority, in this case PMO, to decide on access to information if public interest for disclosures out weighs harm to the protected interests. In the present case, as explained by the Appellate Authority during hearing, he has issued his decision on the basis of the directions of the public authority.
The appellate Authority has held that the matter has been classified
“confidential” under the Official Secrets Act, 1923. However, in view of the provisions of the Section 22 of the Act “The provision of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923, and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act” , the provisions of Official Secrets Act stands over-ridden.
Section 8(2) enables the public authority to disclose information notwithstanding anything in the Official Secrets Act, 1923 or any of the exemptions permissible under Section 8(1), if the public interest in disclosure outweighs the harm to the protected interests. Sec. 8(2) is, therefore, not a ground distinct and separate from what has been specified explicitly under Section 8(1) of the Act for withholding information by the public authority.
The Appellate Authority, therefore, cannot withhold this information either on the ground that the information is classified as “confidential” under the Official Secrets Act or under Section 8(2) alone. However, Sec 22 as described above only overrides anything inconsistent with the Right to Information Act, 2005. The Official Secrets Act, 1923 stands neither rescinded nor abrogated. While a public authority may only withhold such information as could be brought within any of the clauses of Section 8(1), it is open to that authority to classify any of these items of information as “Confidential”, thus limiting the discretion of any other authority in respect to these.
In this particular case denial of information is under the orders of the Public
Authority and it is open to the Public Authority to deny the information provided such denial can be justified under Section 8(1) of the Act. The Prime Minister’s Office will, therefore, re-examine the matter in view of the observations made above within fifteen days of the date of issue of the Decision Notice and it may disclose the information to the appellant, unless of course, the disclosure of the information can be denied or withheld under any of the provisions of the RTI Act, 2005. The Public Authority shall take an appropriate reasoned decision.
This Commission is also required to decide as to whether the Public Information Officer had without any reasonable cause knowingly given incorrect, incomplete or misleading information to the appellant. In such cases, the burden of proving that he acted reasonably and diligently is on the CPIO. CPIO Sh Kamal Dayani may, therefore, show that the information provided by him to the appellant in his letter of 22.11.05 was given with reasonable cause or without knowledge that the information so provided was misleading. The response to this Notice may be received from CPIO Shri Kamal Dayani within 15 working days from the date of issue of this order either in writing or by personal appearance failing which he will be rendered liable for imposition of penalty u/s 20(1) of this Act.
Notice of this decision be given free of cost to the parties.
Chief Information Commissioner
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