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Thread: How to avoid RTI Sec 8(1)(g)(h)

  1. #9

    Re: How to avoid RTI Sec 8(1)(g)(h)


    Did the PIO give you detailed reasons as to why he thinks Sec 8 (1)(g) and Sec 11 are applicable in the present case ?
    If there is any denial of information by the PIO under Sec 8 , he must justify as to how the matter on hand is covered by the exemption. Just quoting the Section number or quoting the section "ad-verbatim" is not enough.

    We get regular evasive replies like this. . However it is a good input to fight it out with PIO to ask him to explain how it comes under Section 8 clauses.

    Thanks



  2. #10

    Re: How to avoid RTI Sec 8(1)(g)(h)


    Ihave made a list of ground ofappeal which can be useful to you. Maximum information is from this forum only and others can also contribute more.modify depending upon the case.

    (a) Ground No1: PIO officer is using all possible excuses like ‘Not in
    Public interest’, ‘Section 8’, ‘third party excuse’ to deny me
    information , Fiduciary Relationship.

    (aa) Authority For The Ground. The government cannot wrongly classify its documents as Secret and then claim exemption from disclosure. (CIC/A/12/2006 dated 21.02.06) . The PIO has to give 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. (CIC/OK/C/2006/00010 dated 07.0706)
    (ab) Ground Per Se If there is any denial of information by the PIO under Sec 8, he must justify as to how the matter on hand is covered by the exemption. Just quoting the Section number or quoting the section "ad-verbatim" is not enough. Detailed reasons have to be given by the PIO after applying his mind

    (b) Ground No 2 The FAA is requested to explain the PIO that there is no third party clause in issues of corruption of officials


    (aa) Authority For The Ground on Third Part Excuse Refer CIC orders wrt seeking information of corrupt Excuse of Third Party Corrupt babus’ names can’t be kept secrets reported by Chetan Chauhan, Hindustan Times New Delhi, November 02, 2008 investigation or disciplinary action against an officer of the public authority is properly an activity of the public authority and cannot be said to be a third-party-information related to the officer enquired into. Although such information cannot be disclosed during the pendency of the enquiry / investigation; that is no reason why the information should be withheld from disclosure even after the enquiry or the investigation is completed. As such, the position taken by the respondents was not entirely defensible.

    (ab) Ground Per Se The applicant ie me and PA (not PIO) are first and second parties.
    Any person or organization other than PA in question is a third party. The concept of third party is brought into the RTI Act to protect any outside person or organization from any loss (commercial or otherwise) due to disclosure of information which was given to PA in question by third party with confidence that it will not be disclosed. However, any officer from the same PA ie MS branch cannot be treated as a third party as he is part of the PA.
    Secondly the exposure of corruption is the declared aim of RTI. Hence in larger public interest the info regarding must be disclosed even if otherwise non disc losable.


    (c Ground No 3 The FAA is requested to explain the PIO that there no private /personal information clause in issues of corruption of officials

    (aa) Authority For The Ground on Personal Information Refer .No.CIC/AT/A/2006/00075 Such an interpretation of the law will only help encourage those who tend to benefit from violating laws rather than complying with them. On the subject of whether the information solicited bore the characteristic of personal information, we are clear in our mind that this information does not answer to the definition of personal information. The CPIO, the AA or the Commission will not, and cannot, explore the motive of a person in seeking information to determine his eligibility to receive it. The principal factors determining, whether disclosure of an information can be authorized, is whether it answers to the definition of “information” and whether it is barred by exemptions provided in the Act.

    (ab) CIC Full Bench Decision - Appeal No. CIC/AT/A/2007/00490 In common parlance, the expression “personal information” is normally used for name, address, occupation, physical and mental status, including medical status, as for instance, whether a person is suffering from disease like diabetes, blood pressure, asthma, TB, Cancer etc. including the financial status of the person, as for instance, his income or assets and liabilities of self and other members of the family. The expression shall also be used with respect to one’s hobbies like painting, music, sports etc. Most of these mentioned above are information personal to one and one may not like to share this with outsider. In this sense of the term, such information may be treated as confidential since one would not like to share it with any other person. However, there are circumstances when it becomes necessary to disclose some of this information if it is in larger public interest. Thus, for example, if there is a doubt about the integrity of any person occupying a public office, it may become necessary to know about one’s financial status and the details of his assets and liabilities not only of the person himself but also of other close members of the family as well. Similarly, if there is an allegation about the appointment of a person to a public office where there are certain rules with regard to qualification and experience of the person who has already been appointed in competition with others, it may become necessary to make inquiries about the person’s qualification and experience and these things may not be kept confidential as such.


    (ac) Ref CIC orders Decision No. CIC in Appeal No. CIC/OK/A/2008/00605/. The respondent states that they have given partial information and refused to give information about ‘initial appointment, subsequent promotions/ up gradations and , appointment orders.’ These have been denied on the basis of Section 8 (1) (j). This denial is flawed, since ‘initial appointment, subsequent promotions/ up gradations and , appointment orders’ Are public activities and cannot be called ‘personal information the disclosure of which has no relationship to public activity’. The appointments, promotions, up gradations are all Public activity, hence the exemption has been wrongly applied.

    (ad) Ground Per Se I am sure these three ruling clear any notions of PIO official of no corrupt issue in public matters is a private matter


    (d) Ground No 4 The FAA is requested to explain the PIO that there no embargo of fiduciary relationship information clause in issues of corruption of officials

    (aa) Authority For The Ground on Appeal No. CIC/WB/A/2007/00999 – Decision dated 08-05-2008 - Satya Narain Shukla Vs UPSC –On a wholesome appreciation of the submissions advanced on behalf of the public authorities, there appears to be a frantic attempt on their part to shield the examiners. But should errant examiners be protected? The CBSE has even cited clause (e) of Section 8(1) as a ground for not allowing inspection of an answer script to any examinee. While we shall deal with this aspect a little latter, we find that the learned Judge has taken pains to consider the understandable attempt of the University to keep the identity of the concerned examiner secret and has suggested a procedure which we find is entirely workable and a complete answer to the apprehension expressed by the examining bodies. There is absolutely no reason to take a different view.
    The plea of fiduciary relationship, advanced by the CBSE has not impressed us. Fiduciary relationship is not to be equated with privacy and confidentiality. It is one where a party stands in a relationship of trust to another party and is generally obliged to protect the interest of the other party. While entrusting an examiner with the work of assessment/evaluation of an answer script there is no agreement between the examiner and the public authority that the work performed by the examiner shall be kept close to the chest of the public authority and shall be immune from scrutiny/inspection by anyone. At least nothing in this respect has been placed before us. Since the RTI Act has been enacted to promote transparency and accountability in the working of every public authority and for containing corruption, even if there be such a clause in the agreement between the examiner and the public authority the same would be contrary to public policy and thus void. We have no hesitation to hold that even if there be any agreement between the public authority and the examiner that the assessment/evaluation made by the latter would be withheld on the ground that it is confidential and an assurance is given in this respect, the same cannot be used as a shield to counter a request from an examinee to have access to his assessed/evaluated answer scripts and the RTI Act would obviously override such assurance. Having regard to our understanding of the meaning of the word ‘fiduciary’, there is little scope to hold that the etchings/markings made on answer scripts by an examiner are held in trust by the public authority immune from disclosure under the RTI Act. We find no force in the contention which, accordingly, stands overruled.”

    (ab) Ground Per Se FAA is requested to explain that fiduciary relationship cannot be used to counter manipulations in file notings to help the corrupt officers,


    (e) Ground No 5 PIO officer keeps referring to OSA rules to deny information on information I SEEK where corruption happened to benfit the corrupt officer


    (aa) Authority For The Ground Chief Information Commissioner Wajahat Habibullah has said he is “presuming” the Government is undertaking a review of the 1923 Official Secrets Act (OSA) —Major General (retired) V K Singh is its latest victim, booked for writing on corruption in the RAW — in view of the transparency regime ushered in by the 2005 Right to Information Act. Speaking to The Indian Express, Habibullah said: “I am very clear that when there is a direct conflict between the OSA and RTI Act, it is the RTI which prevails. The OSA cannot be used in a manner in which it is inconsistent with provisions of the RTI Act.” “The OSA is a colonial law that protects the Government from the public. In a democracy, the public is the Government. Earlier, OSA was the guiding principle in terms of custody of information held by the Government. Now custody of information held by the Government has been given to the RTI Act,” he said. According to Habibullah, even on the question of supplying information or documents marked “secret” (thereby, bringing it under OSA), the competent authority or information officer could use discretionary powers to disclose details. This, he said, was relevant, for instance, to Section 8 (j) of the RTI where a Central Public Information Officer can disclose personal information that has been sought provided “public interest in disclosure outweighs the harm to the protected interests.” As per provisions of Section 8 (d) and (e) of the RTI, in case the RTI request pertains to commercial information or information to a person in his fiduciary relationship, the competent authority, if convinced that “larger public interest” is served, may part with it. The “competent authority”, Habibullah said, is the Department of Personnel and Training which holds administrative supervision of the RTI. “Even documents marked secret or confidential, which would normally attract provisions of the OSA, can be disclosed since the discretionary provision is there in the RTI Act. And if these requests are turned down, the applicant can always appeal to the CIC and argue about the public interest served. With such RTI provisions, the relevance of OSA has become very limited,” he said. His comments are significant given the fact that the Second Administrative Reforms Commission has recommended scrapping of the OSA.

    (ab) Ground Per Se . FAA is requested to explain PIO the need of times to come in transparency and accountability mode as enough damage to the organization has happened with a few corrupt officer at hem of affairs who are ensuring they leave many more like themselves before they retire. All this is being openly and brazenly done only because the righteous officers are not able to counter the powerful corrupt lobby. The reforms have to come sooner or later but it will come at a price later with many more corrupt fleecing the organization resources in higher ranks.

    (f) Personal Information. PIO officer is presuming I am interested in personal information of the corrupt officer .

    (i) I am not seeking personal data consisting of information as to:
    (a) The racial or ethnic origin of the data subject
    (b) His political opinions
    (c) His religious beliefs or other beliefs of a similar nature
    (d) Whether he is a member of a Trade Union
    (e) His physical or mental health or condition
    (f) His sexual life

    (iv) Ref CIC orders Decision No. CIC in Appeal No. CIC/OK/A/2008/00605/. The respondent states that they have given partial information and refused to give information about ‘initial appointment, subsequent promotions/ up gradations and , appointment orders.’ These have been denied on the basis of Section 8 (1) (j). This denial is flawed, since ‘initial appointment, subsequent promotions/ up gradations and , appointment orders’ Are public activities and cannot be called ‘personal information the disclosure of which has no relationship to public activity’. The appointments, promotions, up gradations are all Public activity, hence the exemption has been wrongly applied.

    (g) Seeking Feedback on Complaint are not Private I am interested to know what has happened on checks and balances of complaint made by me. PIO in their reply has confirmed that they have done verification but without giving any details

    (i) Appeal No. CIC/WB/A/2007/00088 dated 22-1-2007 the CIC concluded that complaints made against an official that are taken cognizance of by a public authority cannot be deemed private as they concern issues raised in the exercise of his public activity by a public servant. Any official action taken thereon is also necessarily a public activity. Under the circumstances without setting aside the order of Shri Ashutosh Kumar, C.G.M. in respect of point 2, the PIO is directed to provide information to appellant regarding which Depot employees made complaints against the officer, and action taken thereon.

    (ii) Refer a CIC order Please also ref CIC decisions Appeal No. CIC/WB/A/2007/01273 dated 9.10.2007.“ It is not, therefore, understood why a copy of the enquiry initiated on his own complaint was not in fact given to the complainant, but he was given only an intimation of broad conclusions sent to him after conclusion of the enquiry. On the other hand, appellant’s protestation that the documents sought by him have been done away with as a “cover up” would imply that the documents are not in the possession of MHA to give and, therefore, outside the pale of RTI as defined u/s 8(2)(j). Since this enquiry was initiated on the basis of a complaint by Shri Khatri, who is appellant in the present case, it does not qualify as information to be disclosed under the RTI Act but indeed as the right of appellant Shri Khatri to receive at conclusion of the enquiry. Dr. A. K. Saxena Director will confirm that in fact no such copy has thus far been given to appellant Shri Khatri, and thereafter provide him with a copy of the enquiry report together with its enclosures within ten working days of the date of issue of this notice. Since a copy of this report is in any case due to appellant no fee will be charged. If appellant Shri Khatri finds flaws in the enquiry report of Shri R. K. Yadav, he will be free to approach the appropriate authority for redress, since then it will become a grievance. On this basis, he will also be in a position to prepare a case of corruption, if any, as he has alleged in the hearing before us, for which remedy lies with the Central Vigilance Commission.

    (h) Public interests The Right to Information Act 2005 does not define ‘public interest’ .No other Freedom of Information Law in the world does it.
    (i) Black's Law Dictionary (6th Edition) defines public interest as :“Something in which the public, the community at large, has some pecuniary interest, or some interest by which their legal rights or liabilities are affected. It does not mean anything so narrow as mere curiosity, or as the interests of the particular localities, which may be affected by the matters in question. Interest shared by citizens generally in affairs of local, state or national Government ".
    (ii) Public Interest Not Required However there is a latest order by CIC on this issues as the applicants were told by the commissions that certain information could not be provided as they did not come under the domain of the larger public interest or that candidates had did not cited valid reasons for obtaining the data under the RTI Act. The CIC, in a landmark order, not only directed the Public Information Officer (PIO) of Benaras Hindu University to provide the complete text of the question paper provided by the varsity to the examines of the MD/MS exams, but also stated that the clause of public interest could not be invoked for denial of information in this case. The Central Information Commissioner, Shailesh Gandhi, while passing the order, quoted the rarely used clause under Section 3 of the RTI Act, which states that subject to the provisions of this Act, all citizens shall have the right to information. "According to the Act, citizens' right to access information is absolute, subject only to limitations prescribed under the Act. The Section 3 forms the core of the Act and is a crisp, unambiguous declaration of the aims and objectives of the judgment. To make this right meaningful and effective, citizens are not required to give any justification for seeking information," the CIC order said. He said a certain data can be refused to be divulged only under Section 8(1) or Section 9 of the Act, which relates mainly to the integrity of the country, and also if the information pertains to "third party trade secrets"." The concept of public interest cannot be invoked for denial of information. In fact, sections in the Act empowers the PIO to provide the exempted information if it is in the larger public interest
    (iii) However I will still explain why my RTI Application is in Public Interest
    (aa) This RTI Application issues is a matter of the Organization and public interest as it involves and affects a lot of persons. The information sought is in fact directly concerning public activity since it is with regard to …………………how it can be abused by well connected officer.

    (ab) ………………..is a concern for every normal citizen to supreme legislative authority in the country, it is surely by no means a private activity. In our opinion, it is the right of every citizen of this country to know what kind of leadership is also selected and functioning ……………by loopholes and skewed polices of organization which can be easily manipulated on whims and fancies.

    (ac) The procedure and technique by organization corrupt lot should be informed at regular stage should be put in public domain. That will help to recognize these corrupt officers and enforce some sense and sensibilities wrt selection and working of Govt officers.


    (j) Use of Section 8: Ref CIC-Orders/Decision_12032008_01. In an increasingly knowledge based society, information and access to information holds the key to resources, benefits, and distribution of power. Information, more than any other element, is of critical importance participatory democracy. By one fell stroke, under the Act, the make of procedures and official barriers that had previously impeded information, has been swept aside. The citizen and information seekers have, subject to a few exceptions, an overriding right to be given information on matters in the possession of the state and public agencies that are covered by the Act. As is reflected in its preamble paragraphs, the enactment seeks to promote transparency, arrest corruption and to hold the government and its instrumentalities accountable to the governed. This spirit of the Act must be borne in mind while construing the provisions contained therein.

    Access to information under Section 3 of the Act, is the rule and exemptions under Section 8, the exception. Section 8 being a restriction on this fundamental right, must therefore is to be strictly construed. It should not be interpreted in manner as to shadow the very right self. Under Section 8(h), exemption from releasing information is granted if it would impede the process of investigation process cannot be a ground for refusal of the information, the authority withholding information must show satisfactory reasons as to why the release of such information would hamper the investigation process. Such reasons should be germane, and the opinion of the process being hampered should be reasonable and based on some material. Sans this consideration, Section 8(1) (h) and other such provisions would become the haven for dodging information.

    A right based enactment is akin to a welfare measure, like the Act, should receive a liberal interpretation. The contextual background and history of the Act is such that the exemptions, outlined in Section 8, relieving the authorities from the obligation to provide information, constitute restrictions on the exercise of the rights provided by it. Therefore, such exemption provisions have to be construed in their terms, there is some authority supporting this view (See Nathi Devi vs. Radha Devi Gupta 2005(2) SCC201; B. R. Kapoor vs. State of Tamil Nadu 2001 (7) SCC 231 and V. Tulasamma vs. Sesha Reddy 1977(3) SCC 99). Adopting a different approach would result in narrowing the rights and approving a judicially mandated class of restrictions on the rights under the Act, which is unwarranted

  3. Re: How to avoid RTI Sec 8(1)(g)(h)


    My case is as follow kindly guide.
    I had given an written complain to CVO of Kandla port trust for the corrupt practice to trace the proceding i had applied for RTI dated 22.5.2012, Now CVO has denied information under sec 8(1)h.
    can i get the information about what action taken based on my complain.?
    if yes than how.?

  4. Re: How to avoid RTI Sec 8(1)(g)(h)



    Dear Member

    8 (1) h. information which would impede the process of investigation or apprehension or prosecution of offenders;

    It seems that inquiry is not complete in the case.

    regards

  5. #13

    Re: How to avoid RTI Sec 8(1)(g)(h)


    Hon'ble member. According to section 8(1)(g), those informations are exempted from disclosure which would endanger the life or physical safety of any person or identify the source of information or assistance given in confidence for law enforcement or security purposes. According to section 8(1)(h), those informations are exempted from disclosure which would impede the process of investigation or apprehension or prosecution of offenders. Here Hon'ble member filed a complaint. Now respected member seeks the status and action taken on afforsaid filed complaint under subsection 1 of section 6 of R.T.I. Act 2005 but was denied on the basis of section 8(1)(g) and 8(1)(h). R.T.I. Act 2005 has been formulated by our Hon'ble law makers to enhance transparency and accountability in the working of public authority. How transparency and accountability will increase when even processing of complaint is not being disclosed on the basis of filmsy ground. Transparency is more necessary in the investigation wings as growing corruption in India is alarmingly on rise. Here information seeker did not seek any documents concerned with the any investigation, he only sought that whether they are taking any action on the complaint or put it into dustbin but clever PIO of public authority denied the simple information concern with the processing of complaint, denied on the basis of aforesaid section. They don't like transparency and accountability in its function and every one knows it well , why any public authority doesn't like transparency and accountability?

  6. Re: How to avoid RTI Sec 8(1)(g)(h)


    Please make use of following links and file first appeal:

    Sec 8:
    http://www.rtiindia.org/forum/blogs/...decisions.html

    CIC decisions CIC/SM/A/2010/001025 dated 28-03-2011 and CIC/SM/A/2009/001346 dated 21-06-2010

    PIO should justify how revealing information would adversely affect investigation or jeopardise safety of staff etc.
    It takes each of us to make difference for all of us.

  7. Re: How to avoid RTI Sec 8(1)(g)(h)


    Hello,

    My TEP application was rejected by ITO ward u/s 8(j) and produced a para extract what 8(j) is, esp it's personal information, no larger public interest, etc

    Kindly advise as i'm now planning to go for appeal after 2 months of this letter as my father was hospitalized due to heart attack and i was a care taker.

    - How to tackle FAA ?
    - How to frame my points so that its not rejected by FAA?
    - What best reasons to mention in my condone letter to FAA as its already 2months old?

    Please suggest.

  8. #16

    Re: How to avoid RTI Sec 8(1)(g)(h)


    Dare2win,
    Please give full details of the case for opinion. What is TEP application? What exactly did you ask and what exactly was the reply? Giving details will help members to address the issue effectively.

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