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MMANASARI,
CIC Habibullah,
CIC on RTI,

‘Govt Policies cannot be questioned through RTI Act’

Posted by rtiact2005 on November 11, 2007

‘Govt Policies cannot be questioned through RTI Act’
 
New Delhi, PTI:
 
 
 
The Central Information Commission (CIC) has held that citizens cannot question government policies and plans by utilising the Right to Information Act.
 

The Commission noted this while dismissing an application filed by a Mumbai resident Amin Merchant who had sought information from Finance Ministry as to why certain tariff policy was framed by the Centre.

“..it is not open to citizens to question the government about why a certain matter was handled in a certain way and not differently. The public authority owes him no explanation,” the Information Commissioner A N Tiwari said.

Merchant, in his application to the Ministry had questioned its policy for not issuing exemption notification against certain goods.

“While RTI Act entitles each citizen to seek and receive information from public authorities, it does not allow them any liberty to seek explanations and reasons from it,” the Commission said adding that such “freewheeling questioning” should not be encouraged.

Holding that the RTI Act is not a proper instrument for seeking such explanation from the government, the Commission said, “No explanation is owed to the appellant (Merchant) by the Centre, which pilots the budget before the Parliament and is answerable only to the Parliament and to no one else.”

“If he is not happy with some of the proposals such persons may even petition the appropriate department of the government or the Parliament or agitate the matter before a Court of law,” the Commission said.

http://www.deccanherald.com/Content/Nov112007/national2007111135175.asp?section=updatenews

Posted in A N Tiwari | 5 Comments »

DoPT the NODAL Agency to adopt RTI is CULPRIT on attacks on RTI:still RTI survives !!

Posted by rtiact2005 on January 30, 2007

DoPT is no good !!

DoPT is messing up eGovernance of INDIA.

All the Secretaries’s of  DoPT should be CRIMINALLY CONVICTED for having done this to CITIZENS of INDIA.

SALARIES and PENSIONS  of all DoPT Secretaries should be SUSPENDED for 20 years.

_______________________________________________

RTI survives another attack

FROM DoPT !!!

Aloke Tikku and Chetan Chauhan
New Delhi
Jan 29th, 2007
Hindusthan Times E paper

A QUIET second attempt to maul your right to information has been put down. The Central Information Commission (CIC) has tossed out the government view that individual commissioners had no powers to decide appeals and issue directions to government bodies, saying this interpretation would make the law “meaningless”.
“No such interpretation can ever be accepted which will make the Act, which confers the right on a citizen to access information, totally unworkable,” a full bench of the commission headed by Wajahat Habibullah held on Monday, staving off the second attempt by the department of personnel and training (DoPT) to take the sting out of the Right to Information (RTI) Act. RTI campaigners Arvind Kejriwal and Manish Sisodia welcomed the CIC ruling. “DoPT’s reading of the law had the potential to kill the appeals procedure,” said Kejriwal, a Magsaysay awardee.

The CIC also upheld public access to file notings under the law and rejected the contention that the commission had no powers to tell the department of personnel and training to remove a misleading portion of its website. “No public authority, government or statutory organisation can ever claim that it is above the law,” the commission held in its 25-page decision that asserted the autonomous character of the CIC.

The case had its origins in the railway ministry last year explaining its refusal to allow an applicant access to file notings on the plea that the website of DoPT– the nodal department for RTI – had excluded file notings out of the purview of the law. The commission consequently told DoPT to correct the misleading portion of its website. This was around the same time that the government was making its first abortive attack on the law; finalising amendments to the RTI law that campaigners feared would “cripple” the transparency law.

Posted in CIC | 1 Comment »

Resolutions passed at the National Convention

Posted by rtiact2005 on October 19, 2006

Resolutions passed at the National Convention

organised by

 Central Information Commission at Vigyan Bhawan, New Delhi

13th  to  15th  October  2006

  1. The Governments must provide required resources, facilities, funding and personnel to the Information Commissions to be able to implement the  Right To Information Act.

  2. All Public Authorities must fulfil the requirements of Section 4, and a compliance report should be submitted to the appropriate Information Commissions before 1 January, 2007.

  3. The Government must give an undertaking publicly that no changes will be made in the RTI Act until October, 2008.

  4. Commissions must give an opportunity for a personal hearing to appellants and complainants.

  5. Commissions should go by the letter and spirit of the law, ensuring that all denials of information are only as per the exemptions listed in the Act.

  6. The Governments must ensure a common name in whose favour the application fees can be made by demand drafts or postal orders, and increase the modes of payment of these fees.

http://cic.gov.in/Conference/resolutions.htm

Posted in CIC | Leave a Comment »

Decision on allowing file notings after RTI meet

Posted by rtiact2005 on October 12, 2006

Decision on allowing file notings after RTI meet

http://www.teluguportal.net/modules/news/article.php?storyid=17101
New Delhi, Oct 10 (IANS) A full bench of the Central Information Commission (CIC) will take a decision on whether to allow file notings to be made public after the national convention on the Right to Information (RTI) Act later this week.

“Till such time, file notings will be made public and there is no confusion on this count,” said Rita Sinha, secretary, CIC.

A three-day national convention on one year of RTI beginning here Friday will take stock of how this important piece of legislation has fared in states and also chalk out a roadmap for the future.

To be inaugurated by President A.P.J. Abdul Kalam, this convention will provide an opportunity for all stakeholders to review the implementation of the act in the last year and discuss both its shortcomings and successes.

“The deliberations are expected to be of a very wide group wherein some effective outcomes on various aspects of RTI and governance in the country are expected to emerge. This should help the Central Information Commission chart a course for the future,” said Sinha.

According to the CIC, most states had already set up their state commission except for Arunachal Pradesh and Jammu and Kashmir, which was outside the purview of the CIC.

However, CIC officials were unable provide any details how the RTI was faring in various states and if ordinary citizens were able to get information out of government offices and departments.

“This is precisely one of the reasons why this convention has been called to ascertain its success or failure and if it is working in states,” said Sinha.

Some of the discussions will centre on maximum disclosure of information, improving information storage, creating awareness at the grassroots level and simplification of procedures.

Posted in CIC | 1 Comment »

CIC wants govt to give it contempt powers

Posted by rtiact2005 on October 12, 2006

CIC wants govt to give it contempt powers
http://timesofindia.indiatimes.com/articleshow/2142575.cms

Posted in CIC | Leave a Comment »

Proposed RESOLUTIONS by RTI activists during October 14th 2006 CIC convention

Posted by rtiact2005 on October 11, 2006

Rakesh Agarwal <rakesh@nyayabhoomi. org> wrote:

A thought has been going around that RTI users/advocates/ participants should meet in the evening of 14th October during the CIC Convention. Venue of the meeting will be announced during the Convention on 14th.

The Proposed Resolution substantially prepared by Mr. Shailesh Gandhi is attached at the end of the email. Please  take a look at these points and come prepared with your own so that we can discuss them and prepare a comprehensive Resolution which could be presented to the Prime Minister on the 15th. Perhaps Anna Hazare or Aruna Roy could do this.

RAKESH AGARWAL
NyayaBhoomi

============ ========= ========= ==
Proposed Resolution
============ ========= ========= ==

  1. The CIC and the SICs should impose penalties as a matter of law and rule rather than as exceptions in order to effectively implement the Act and reduce the number of second appeals reaching the Commissions.
  2. The Central and State Information Commissions should ensure that by January 2007, not more than 5% of the Second appeals and complaints will be pending for disposal for over 60 days.
  3. An opportunity for hearing must be given to all appellants and complainants.
  4. Central and State Information Commissions should go by the letter of the law and ensure that denial of information is only as per the exemptions listed in the law.
  5. The Governments must provide the requisite staff and facilities to the Commissions.
  6. The Governments must appoint all ten Commissioners.
  7. All Public Authorities, Ministries and Departments must provide a monthly report to the Commission in accordance with Section 25 (2) of the Act, and action should be taken against officials who do not provide these.
  8. The Commissions must submit their reports latest by November end to the Governments so that they can be placed before the legislatures/ Parliament.
  9. All Public Authorities must fulfill the requirements under Section 4 and a compliance report submitted by them to the Commissions by November 2006.
  10. The Government must give an assurance of making no changes to the RTI Act for the next two years.

A LIVELY AND USEFUL DISCUSSION IS WELCOME.

Dhirendra Krishna <dhirendrakrishna@ yahoo.co. uk> wrote:Dear Rakesh,

Very well drafted resolution. I would like to add three administrative issues, to remove bureaucratic indifference and reluctance in implementing RTI Act:

  1. There should be  dedicated ” RTI  Audit Teams (RTIAT)”  under Central Government and each State Government to periodically review the implementation of RTI Act by the public authorities in various Departments, PSUs, autonomous bodies, etc. RTIAT  should report to Cabinet Secretary in respect of public authorities of the Central Government and to the Chief Secretary of States in respect of public authorities in his jurisdiction.  RTIAT  should report non-implementation of RTI Act to the Head of Department to enable him / her to work out a practical time bound action plan. The reports of RTIAT should also be sent to CIC /SICs.   Annual Report of CIC /SICs under section 25 of the RTI Act should be based on reports from each Ministry / Department under section 25(2),  as well as the findings of the RTIAT.
  2. Information Commissions should have the support of an RTIAT as an effective review/audit mechanism, to render reports under section 25 of the RTI Act.  NGOs and citizen groups may be encouraged to conduct independent audit of the implementation of RTI Act by the public authorities. Wherever non-implementation is reported to  CIC/SICs, he may ask the Government to take corrective action and report action thereon in their report under Section 25.
  3. Annual Confidential Report of all officers of officers at all level may specifically mention his / her contribution in  implementing RTI Act.

Dhirendra Krishna IA&AS (Retired)

Posted in CIC | 3 Comments »

High Court Order in DISCOMS under RTI saga

Posted by rtiact2005 on October 3, 2006

 FROM: sroy1947@yahoo.com 
DATE: Tue, 03 Oct 2006 03:09:50 -0000 
SUBJECT: Fwd:  High Court Order in DISCOMS under RTI saga 
Delhi High Court raps CIC for passing orders without giving hearing to
persons likely to be affected. Furthermore - "speaking orders" to be
given by CIC in decisions. BTW: I was the 4th Respondent in this
matter and it was my "common ground" with Petitioners concerning 3rd
party issues that resulted in this speedy order.

--- In rti_india@yahoogroups.com, "sroy1947" <sroy1947@...> wrote:

Here is the actual order of Justice S.R.Bhat concerning DISCOMS as
public authority etc. etc. I was the 4th Respondent in this matter.
Its a fair order and a much needed kick in the pants for the CIC since
they had their own foolish notions on "third party" issues (qv. "Aruna
Roy vs. PMO" where CIC similarly refused to consider ME as a third 
party).

http://courtnic.nic.in/dhcorder/dhcqrydisp_o.asp?pn=207938&yr=2006

<snip>
IN THE HIGH COURT OF DELHI AT NEW DELHI

  W.P.(C) 6833/2006

  N.D.P.L. ..... Petitioner
  Through Mr. A.N.Haksar, Sr. Adv. with
  Mr. Amit Kapur, Mr. Mansoor Ali,
  Mr.Shoket, Ms. Mini Rani and Mr. Udayan
  Jain, Advocates

versus

  THE CENTRAL INFORMATION COMMIS ..... Respondent
  Through Mr. Prashant Bhushan, Ms. Umang Pathak,
  Advocates
  Ms. Zubeda Begum, Adv. for GNCT

  AND

  W.P.(C) 6834/2006

  B.S.E.S.RAJDHANI POWER LTD. ..... Petitioner
  Through Mr. A.N.Haksar, Sr. Adv. with
  Mr. Amit Kapur, Mr. Mansoor Ali,
  Mr.Shoket, Ms. Mini Rani and Mr. Udayan
  Jain, Advocates

versus

  THE CENTRAL INFORMATION COMMIS ..... Respondent
  Through Mr. Prashant Bhushan, Ms. Umang Pathak,
  Advocates
  Ms. Zubeda Begum, Adv. for GNCT

  AND

  W.P.(C) 6835/2006

  B.S.E.S.YAMUNA POWER LTD. ..... Petitioner
  Through Mr. A.N.Haksar, Sr. Adv. with
  Mr. Amit Kapur, Mr. Mansoor Ali,
  Mr.Shoket, Ms. Mini Rani and Mr. Udayan
  Jain, Advocates

versus

  THE CENTRAL INFORMATION COMMIS ..... Respondent
  Through Mr. Prashant Bhushan, Ms. Umang Pathak,
  Advocates
  Ms. Zubeda Begum, Adv. for GNCT

CORAM:
   HON'BLE MR. JUSTICE S.RAVINDRA BHAT

   O R D E R
   21.09.2006

  1. The writ petitioners in these proceedings seek a direction to
quash the decision of the Central Information Commission, constituted
under the Right to Information Act, 2005, dated 16.3.2006. In that
decision the Commission opined that the DISCOMS, i.e. to BSES Rajdhani
Power Limited, BSES Yamuna Power Limited and the North Delhi Power
Limited, (Petitions in these writ proceedidngs) fall within the
definition of ?public authority? under Section 2(h) of the Right to
Information Act; certain consequential directions were also issued to
the Delhi Electricity Regulatory Commission.

  2. The common grievance of all the Petitioners in these cases is
that the impugned decision is not supported in law and more
fundamentally that it was arrived at without issuing notice or
granting opportunity of hearing to them. I am of the opinion that
since it is a common ground that the Petitioners were not issued
notice or granted opportunity of hearing. The Commission Central
Information Commission ought to re-consider the issue after granting
full hearing to all the concerned parties likely to be effected by its
decision.

  3. The parties in these proceedings agree to the above course of
action. The parties are therefore directed to appear before the
Central Information Commission on 16.10.2006 for directions. The
Commission shall issue notice to such other parties whose interests
may be affected or whose views may be relevant. After hearing the
submissions of all the parties, the Commission shall issue a speaking
order dealing with the contentions raised. The entire process shall be
completed as expeditiously as possible and in any case not later than
by 30.11.2006. All rights and contentions of the parties are kept open.

  4. In view of the above orders the consequential directions issued
by the State Government and the DERC need not be complied with; it is
open to the said authorities to issue necessary orders in light of the
fresh decision of the Central Information Commission.

  The writ petitions are allowed to the extent indicated above.

  Order dasti under the signature of Court Master.

  S.RAVINDRA BHAT, J
  SEPTEMBER 21, 2006

Posted in CIC | Leave a Comment »

Do not hold back, CIC tells babus

Posted by rtiact2005 on October 2, 2006

Do not hold back, CIC tells babus

Aloke Tikku

New Delhi, October 2, 2006

http://www.hindustantimes.com/news/181_1810919,0008.htm

Bureaucrats are playing safe, refusing to give information even when they ought to.

In a stinging commentary on the approach of the bureaucracy towards sharing information, the Central Information Commission has asked public authorities to use their minds and judiciously apply exemption clauses.

The immediate provocation for the observation was the Union Home Ministry’s refusal to reveal a fax sent by it to the West Bengal government on handing over investigations into the Purulia arms-dropping case to the CBI. The ministry refused to part with the information, saying the case was “highly sensitive” from the security point of view and it would not be possible to classify any part of the case as “non-sensitive”.

The Commission junked this argument, observing that the message had not even been classified under the Official Secrets Act. Information commissioner A.N. Tiwari noted that though the Commission allowed a “lot of leeway” to government agencies in claiming exemption under the national security clause, it was expected that this provision is not invoked “lightly or frivolously”.

Tiwari, a retired IAS officer, said the refusal to communicate in the arms-dropping case was not a one-off case but reflected the tendency of the bureaucrats to pass the buck. Presumably, this saves them from the ire of their superiors. “Passing the buck is a safer bet but, sadly enough, it is not conducive to accelerating decision-making or to building popular trust in the department’s commitment to transparency,” the information commissioner said.

Posted in CIC | Leave a Comment »

Functioning of Central Information Commission in public hearing

Posted by rtiact2005 on October 1, 2006

—– Forwarded Message —-
From: Dhirendra Krishna dhirendrakrishna@ yahoo.co. uk

Functioning of Central Information Commission

Report of public hearing held on 24th Sep 2005

A public hearing took place on 24th Sep 2005 on the functioning of
Central Information Commission from 2.00 pm to 6.00 pm. Annexure 1
contains the list of people who attended the hearing.

Preparations for hearing:

Letters were sent out to 824 people, who have had some kind of
experience at CIC. List of such people was obtained from CIC under
RTI Act. They were asked to share their experiences, both good and
bad, in dealing with CIC. Response was received from 182 people, out
of which 3 people expressed satisfaction, while the balance 179
people expressed varying degree of dissatisfaction with CIC’s
functioning.

All the orders passed by the Commission till 8th Sep 2005 and
published on their website were also analysed in great detail.

Violation of principles of natural justice by the CIC:

The CIC received 3059 cases till 8th Sep 2006. Out of these, CIC
claims to have disposed 1531 cases. But the website of CIC contains
only 800 cases.

Where are the balance 731 cases? All these cases were rejected
without any hearing by the staff themselves. According to Mr Singhi,
Director in CIC, “These cases were not found fit for admission.”
This appears contrary to judicial practices because in Courts, a
hearing is held even to decide whether a case is fit for admission
(except, when there is a technical error, where the registry issues
a deficiency notice and you are given a chance to rectify it). Cases
have not been rejected by the CIC staff merely on technical grounds.
They were rejected on substantive grounds also. For instance, P C
Shekhar wanted to know the number of people who applied for VRS,
after he did. His application was rejected, saying that he was
seeking opinion and not information. Ajay Goel’s application was not
only rejected but he was also reprimanded for filing such
application. Do the staff have the jurisdiction to reject cases and
reprimand appellants? Can the Commissioners delegate their judicial
functions to their staff? These questions were raised by the people
at the hearing. Interestingly, none of the rejection orders, which
were passed by the staff, are put up on the Commission’s website.

Even in those cases, which were heard by the Commissioners
themselves, they did not consider it necessary to hear appellants.
Of the 800 cases heard by the Commissioners, 353 cases were disposed
by them without calling the appellant.

So, out of 1531 cases disposed by the Commission till 8th Sep, 1084
cases i.e. 71% cases were disposed without giving an opportunity of
being heard to the appellant. The following is the Commissioner wise
statistic:

Who was called for a hearing?

Both parties Only CPIO Only appellant None
W.Habibullah 104 8 38 35
O P Kejariwal 20 4 0 1
P.Balsubramanium 8 10 0 72
M.M.Ansari 37 6 0 199
A.N.Tiwari 24 0 0 2

Large number of people are aggrieved that their cases are being
dismissed without hearing them. During public hearing, many people
presented their cases and many cases were read out.

Excerpts from some letters received from people are annexed as
Annexure 2. This is merely an illustrative list. Many more cases
were read out and presented at public hearing.

Mr Habibullah defended Commission’s practice of not hearing
appellants on three grounds that if they granted hearing in every
case, it would slow down their disposal rate; that if they were
giving a judgement in favor of the appellant, there was no need to
hear him; and that sometimes the case is so simple that it could be
decided on the basis of records itself.

These arguments did not find favor with the public. Arvind Kejriwal
of Parivartan said, “Commission’ s job was not to dispose cases but
to dispense justice. They cannot refuse a hearing to the appellants
on the ground that it would slow down their disposal rate. Imagine
if our courts also started doing that! Also, our analysis shows that
not hearing an appellant increases workload rather than decreasing
it. Almost every such appellant files a review petition, thus
increasing Commission’s workload.”

Mr Collin Gonsalves, senior advocate said, “You have to give an
opportunity to an appellant even if you pass a judgement in his
favor. Further, you cannot close a case by just passing an order
that information be provided. You should direct the PIO to provide
the information to the appellant and the appellant should submit a
letter to the Commission in the next hearing that he was satisfied
with the information received. Only then should you close a case.”

Mr Prashant Bhushan, senior advocate also expressed that the
Commission simply cannot dispose any case without hearing both the
parties. Mr Anna hazare also expressed grave concern at the
violation of principles of natural justice by the Commission. He
emphasized that the Commission should not dispose cases in this
manner.

When Mr Habibullah was still insisting that there was no need to
hear appellants before deciding cases, Mr T S Krishnamurthy, former
Chief Election Commissioner, suggested that perhaps all the
Information Commissioners may like to undergo training in judicial
processes by some retired Supreme Court judges. Mr Habibullah did
not agree to that idea.

At the end of this session, Mr Habibullah was requested for an
assurance that from now onwards, the Commission would hear
appellants in every case. To everyone’s disappointment, he refused
to give any such assurance saying, “We will do as per law.”

Penalty:

Of the 1531 cases disposed by the Commission so far, penalties have
been imposed only in two cases (this is as on 8th Sep). One of them
has been subsequently withdrawn. The other one is in the process of
being withdrawn.

This is having disastrous impact at the level of PIOs. A word has
spread that nothing happens to you whether you give information or
not. As a result, most of the PIOs have simply stopped responding to
RTI applications. Or they just reject your application citing some
section. So, almost all applications have to be taken in appeal.

On 8th Sep, there was a pendency of 1528 appeals. There is already a
waiting list of seven months at CIC i.e. if you filed an appeal
today, it will be heard seven months later. With every passing day,
the number of appeals received at CIC are increasing exponentially.
For instance on 4th Sep, which was a normal day like any other day,
89 cases were filed at CIC. At that rate, CIC is already receiving
2000 cases per month. CIC just cannot handle that kind of workload.
Within a few months, the wait period would increase to one to two
years. That would be the end of RTI. That would also be a situation,
which would be irreversible. It would be beyond redemption.
Therefore, the situation appears to be extremely urgent and
alarming. However, Mr. Habibullah did not share such pessimism.

During hearing, speaker after speaker said that it is only an
aggressive use of penalty clause, which could reduce inflow of cases
at CIC. Several cases were presented by the public and many cases
were read out, of how CIC refused to impose penalties even in very
gross violations of RTI Act also.

Under the law, it is compulsory for the CIC to impose a penalty, if
the PIO did not provide information within 30 days or provided false
or incomplete information, unless there was some reasonable cause,
which prevented the PIO to do so.

Several cases were presented during the hearing, in which the PIO
did not respond in 30 days. No response was received from first
appellate authority also in the next 30 days. Therefore, an appeal
was filed with the CIC. CIC issued notices of hearing. The PIO did
not turn up at the hearings at CIC also. Still, CIC refused to
impose penalties. Some of the reasons given for not imposing
penalties:

· The PIO was busy attending meetings and doing other work and
did not get time to attend to RTI applications.
· One of the Information Commissioners has dropped penalty
saying that though that was a fit case for imposing penalty, however
she was not doing it because she did not know the name of the PIO.
She has done this in two cases
· Many penalties have been dropped on the ground that the PIO
was still learning RTI Act.
· Maybe the PIO did not get the notice of hearing.

So far, CIC has issued show cause notices 59 cases to the PIO as to
why penalty should not be imposed on him/her. Time given in the show
cause notices has long elapsed. But the outcome of none of these
notices is there on the CIC website. What could have happened to
these show cause notices? In one case, which related to admission of
poorest children to public schools in Delhi, CIC issued notices to
Delhi Education Department on 27th March to show cause within 15
days as to why penalty should not be imposed on them. They were also
directed to provide information within 15 days. Delhi Government was
directed to explore whether that case should be handed over to CBI.
Information in these cases has not been received so far. But Mr.
Habibullah informed that he had dropped the penalty on the PIO, when
the PIO met Mr. Habibullah in his room and pleaded mercy.

So, have the balance 58 penalty notices also been dropped secretly?
And why are the orders dropping penalties not posted on CIC’s
website?

Mr E. A. S. Sarma, former expenditure secretary, said that RTI Act
would not take off until penalty clause was effectively invoked. Mr
Anna Hazare said that the bureaucracy never wanted penalty clause in
RTI Act, when this was being drafted. So, he will not allow the
Information Commissioners to dilute this provision in this manner.

However, Mr Habibullah did not give any assurance on this count.

Though many cases were presented and read out, however, we are
annexing a few grave cases for illustration. Please see Annexure 3.

Out of turn disposals:

When a person files an appeal with the Commission, he does not
receive any reply, not even an acknowledgement. He is at the mercy
of the babus at CIC. He keeps calling them up, e-mailing them,
visiting them to know the status of his case and to request them to
put it up to the Commissioner expeditiously. An analysis shows that
many cases were dealt within a few weeks of filing when so many
others were languishing for months. Many cases of out of turn
disposals have come to light. For instance,

In Mr. Habibullah’s bench
(The following are mere illustrations. Several out of turn hearings
have taken place in almost all benches)

Date of filing appeal at CIC Date of hearing
Dr Suresh 29.12.05 2.8.06
R K Gupta 19.4.06 15.5.06

R P Jain 16.2.06 1.9.06
Piyush Mohapatra 20.3.06 30.5.06

This creates a scope for corruption. Therefore, proper systems
should be immediately put in place.

Information denied on grounds of fiduciary relationship etc:

Overall picture of case disposals at CIC:

Information provided Information rejected
W. Habibullah 118 66
O P Kejariwal 20 13
Padma Blasubramanium 46 47
M.M.Ansari 47 207
Tiwari 11 15

(The above information is only for single member benches.
Information for double member benches has also been compiled, but is
not being presented here because the practice of double member
benches has been dispensed with by the CIC)

Please read some illustrations in Annexure 4, on how cases have been
rejected at CIC.

Many letters have been received and many people complained during
hearing that the cases were being rejected by the Commissioners in
an arbitrary and whimsical fashion. Many cases have been dismissed
on the ground that information asked for was fiduciary in nature.
Some instances:

1. Someone applied for a petrol pump. He did not get it. He
asked for the manner in which the interview board had evaluated the
applicants and how much marks did each one get. This information was
refused saying that the relationship between the interview board and
HPCL was fiduciary.
2. The relationship between examiner and Board of examination
has also been declared as fiduciary.
3. Relationship between government employee and government has
also been termed as fiduciary.
4. Every citizen files his income tax return to the government
in his fiduciary capacity.

Mr Collin Gonsalves strongly reacted to such an abuse of the word
fiduciary. He said that any information given by one agency to
another in confidence cannot be termed as fiduciary. There are some
relationships, which have been universally recognized as fiduciary
like that of a doctor and a patient, advocate and client. The above
examples do not qualify for fiduciary relationship by any stretch of
imagination.

Mr E A S Sarma also reacted very strongly saying that nothing would
be left for disclosure if the term “fiduciary” were given such an
interpretation.

Mr Prashant Bhushan also objected to such misuse of the term
fiduciary.

It was also discussed that many appeals had been dismissed on the
ground that the information sought was private and had no public
interest. Some instances:

· Someone made an application for something in a Government
Department. He lost his application. He applied under RTI for a copy
of his own application, which was rejected saying that this was
private information, which had no public interest.
· Someone was appointed as Deputy Director in Ministry of
Commerce despite being declared unfit. Someone asked for copy of his
medical report. This was rejected under the same clause.
· Someone applied for a kerosene depot. He filed an
application asking for the status of his own application. It was
rejected saying that this was private information and had no public
interest.

During public hearing, the above cases were considered as misuse of
this clause. Firstly, private information can be denied only if it
violates the privacy of an individual. My own information cannot
violate the privacy of any other individual. So, public interest
over ride should not be applied where a person is asking for his own
information.

Anna Hazare announced that if the Information Commissioners did not
improve their functioning within two months, he would launch a
nation wide agitation.

The meeting ended with an assurance from Mr Habibullah that he would
come for any such meeting, whenever it is organized in future.

Important note:

Since this is a very brief and quick summary of the proceedings, the
comments, presentations etc made by many individuals have not
figured here. A detailed transcript of the entire proceedings is
being made, which is likely to take time. Comments made by every
individual will find place in that transcript.

Summary of recommendations, which emerged during the hearing:

1. Opportunity of being heard should be given to both parties
in every case. It is upto the party to decide whether they wish to
be physically present or send their written comments or decide not
to avail of the opportunity.
2. No case should be closed, just by ordering that information
be provided in the next 15 days etc. In most of the cases, it
has been seen that the PIO does not comply with such an order. As a
result, the appellant has to again approach the Commission and again
wait for 7 months for his/her turn to come. Therefore, after passing
an order, the case should be adjourned, and not closed. On the next
hearing, if the appellant confirms having received information to
his/her satisfaction, only then should a case be closed. This is the
practice which is being successfully followed by Public Grievance
Commission in Delhi for the last five years and also by State
Information Commission of UP.
3. The Information Commissioners should undergo training in
judicial processes from some retired Supreme Court judges.
4. Penalty should be imposed in every case of violation by
government officials. Else RTI would soon be dead.
5. Some guidelines should be made on the terms
like “fiduciary”, “private information” and “public interest”, which
should be uniformly adhered to by all the Commissioners.
6. Appeal number should be given to every appellant/complaina nt
and it should be communicated to him within 24 hours of receipt of
his appeal/complaint. Within the next 24 hours, it should be put up
on the website. Status of every appeal should be provided on the
website, even if it is treated as inadmissible ab-initio.
7. No case should be taken up on out of turn basis, unless
there is some grave public interest involved, which should be
mentioned in the order.
8. There should be a public hearing every three months, which
should be attended by all Commissioners.

Annexure 1

From Central Information Commission:

Sh Wajahat Habibullah, Chief Information Commissioner
Dr O P Kejariwal, Information Commissioner
Sh L C Singhi, Director, CIC

List of panelists:

S. No Name
1. Dr P. C. Alexander Member of Rajya Sabha,Former
Principal Secretary to the Prime Minister of India,Former Governor
of Tamil Nadu & Maharashtra
2. Mr T. S. Krishnamurthy Former Chief Election Commissioner
3. Mr E. A. S. Sarma Former Expenditure Secretary
4. Dr Yogendra Narain Secretary General Rajya Sabha
5. Ms Nandita Haksar Human Rights activist and Senior
Advocate
6. Mr Anna Hazare Padma Bhushan & RTI activist
7. Mr Sandeep Pandey RTI activist and Magsaysay Awardee
8. Mr Surya Sethi Advisor Planning Commission
9. Mr Shankker Iyer Managing Editor, India Today
10. Mr Colin Gonsales Senior Advocate, Supreme Court
11. Mr Prashant Bhushan Senior Advocate, Supreme Court

Moderators:

The hearing was moderated by independent moderators, namely Mr
Siddharth Pandey and Mr Srinivas Jain from NDTV and Mr Yogendra
Yadav from CSDS.

Participants:

About 200 people, who had filed appeals at the CIC in the last few
months, participated and shared their experiences.

Annexure 2

Instances of cases dismissed without hearing people

Dr. Roop vs Office of the Director General of Income Tax [31.08.06]

“I have filed a complaint on 29.03.06 with CIC. I got a decision
regarding the complaint by post on 9.09.06. But I did not get any
copy of response from respondent to the honorable commission nor I
got any intimation from the commission about the date of hearing of
the matter. Thus I did not get any opportunity to put my comments on
the stand taken by the respondent.”

Pankaj Khanna vs. HPCL [14.03.06]

“The petitioner has sent ten appeals. Out of which an Information
Commissioner has disposed three off without considering Petitioner’s
reply and without giving him any opportunity of personal hearing. No
opportunity has been given on any one of ten appeals even on the
matter of Life and Liberty.”

Ketan Modi

Ketan Modi filed Second Appeal with CIC. He did not enclose the
correspondence with the CPIO/AA. So, it was assumed that he had not
filed first appeal and his case was dismissed, though he had filed
first appeal. If the Information Commissioner had called him, he
could have explained this fact. Ketan filed a review petition. The
Review Application was also dismissed without going into the merits
and without hearing him.

Sh. N. K. Sethi vs Indian Trade Promotion Organisation [12.06.06]

“I filed appeal with CIC dated 9.02.06. I followed in CIC
telephonically (talked to Mr. Ajay on 9.05.06 at 11.35AM). I made a
personal visit to CIC on 18.05.06 to check from Dr. Munish Kumar
regarding the status of my appeal. I was told the matter is under
submission with Mrs. Balasubramaniam. On 12.06.06, I sent an Email
to Mrs. Padma Balasubramaniam. Then suddenly on 13th June 06, I saw
on the website of CIC that decision on my appeal had been given on
12.06.06 without giving me a chance of personal hearing. I was
shocked to see my appeal having been rejected and I had not been
called even. My faith in justice under RTI Act from the Commission
was totally shattered. I again wrote to the CIC on 2.06.06
mentioning that justice had been denied to me as I had not been
called for personal hearing but till date nothing has been done.”

Vishwanath Poddar vs The Institute of Chartered Accountants of India
[09.08.06]

The CIC ruled:

“The appellant had filed certain complaints against M/s Bathiya &
Associates, Mumbai. In this regard, he sought information relating
to the status the action taken by the competent authority.

The CPIO and the appellate authority have given para-wise response
to his request for information, yet the appellant is not satisfied
with their responses.

Since there is no denial of information as per the provision of he
Act, the appellant may take up the matter relating to his grievances
to the appropriate authority.”

[This order has been passed without calling any of the parties. The
Information Commissioner believes that because a parawise reply has
been provided, hence there is no denial of information. But who
would decide whether information has been provided. If the
Commissioner had called the appellant for a hearing, he would have
told why he was dissatisfied. ]

Treesa Irish vs CPIO, Kerela Postal Circle, Trivndrum [06.02.06]

“The CPIO, Kerala Postal Circle, has declined to furnish a photocopy
of an evaluated answer sheet of the appellant, as sought for by her
on the ground that no public interest was involved in her request.
The appellate authority, while concurring with the decision of the
CPIO, has also added another reason for rejection that the
disclosure would compromise the fairness and impartiality of the
selection process… Therefore, we find that in case of evaluated
answer papers the information available with the public authority
is, in his fiduciary relationship, the disclosure of which is exempt
u/s 8(1)(e). In addition, when a candidate seeks for a copy of the
evaluated answer paper, either of his/her own or others, it is
purely a personal information, the disclosure of which has no
relation to any public interest or activity and this has been
covered u/s 8(1)(j) of the Act…”

[The Information Commissioner not only defended the CPIO/AA’s
opinion which failed to provide any reasonable cause for rejection,
but took the liberty to add another cause [denial u/s 8 (1)(e)] for
rejection without giving an opportunity to the applicant to respond.]

Annexure 3

Instances of gross violations of RTI Act. Still CIC refuses to
impose penalties

A case of blatant favoritism:

(Kusum Devi & Others vs. Delhi Development Authority)

Thirty-eight residents of East Delhi filed individual RTI
applications seeking status of the daily progress made on their
complaints to the DDA. On not receiving any response within the time
limit specified, the applicants filed first appeals. Again, no
response was received. The applicants then filed a second appeal in
the CIC. CIC issued notice of hearing to the DDA. DDA did not show
up for the first hearing on 29.05.06. Next date was fixed for
17.08.06. DDA again did not turn up. CIC’s office contacted CPIO on
telephone during the hearing but could not get any information about
his whereabouts. The CIC issued show cause notice to the CPIO why a
penalty should not be imposed on him in each of the 38 cases and
another date of hearing was fixed. Finally, CPIO turned up on the
next date. CIC was so happy to finally see him that he dropped the
penalty stating that the CPIO “has taken action on the applications
made in this case but has not informed appellants of the action
taken…CPIO has pleaded that the applicants of this nature were more
than 245, making it time consuming supplying information to all….”
The only action that CPIO had taken was to transfer all the cases to
the Education Department, whereas the applications pertained to him
and he was supposed to provide information. This order has not been
placed on the CIC’s website. The 38 applicants are yet to receive
any piece of information so far.

It was a question of the lives of slum children:

Bobby Verma and others vs. Directorate of Education, Delhi

Forty residents from East Delhi made individual requests for
information to the Deputy Director Education (East) on 1.12.05 on
the issue of admission of students from Economically Weaker Section
to Public Schools. Many of them did not receive any response in 30
days. First appeal was filed on 18.01.06. The applicants were
invited to the first appeal hearing on 10.02.06. The Appellate
Authority observed that information had been provided to the
satisfaction of appellants, which was blatantly wrong. A second
appeal was filed on 6.03.06 with the CIC. CIC scheduled a hearing on
23.03.06. The PIO was directed to provide information in 15 days and
was issued a show cause notice as to why he should not be penalized
for not providing information within 30 days. The CIC also ordered
that the Government of NCT would examine if there were any
suspicions of venality in admission warranting an enquiry by the
CBI. To date no response has been received. In the meanwhile, Mr
Habibullah dropped the penalty, when CPIO met him in his chamber and
pleaded mercy. This order of dropping penalty is also not there on
CIC’s website. When people came to know that Mr Habibullah has
dropped penalties, they filed a review petition. That review
petition has not come up for hearing in the last five months.

PIO caught lying. CIC refuses to impose penalty

Bina Popli vs. Ministry of Statistics & Programme Implementation

Mrs. Bina Popli is a widow of a former Senior Inspector in CSO,
Department of Statistics. She applied for information seeking copies
of documents in the personal file of her late husband Shri Popli. On
not receiving a response even after the lapse of 45 days, she
applied for inspection of files. No response was received on this
request as well and she filed an appeal. Her first appeal request
was dismissed on the ground, “Personal file of late Joginder Singh
Popli is not traceable in this office, as this is a 20 year old case…
his name has been struck off from roll of this Department.” The
appeal was heard by CIC and it noted that several documents
concerning Shri Popli are available within the public authority. The
CPIO/AA had in fact lied to the applicant. However, the CIC refused
to impose penalty on the ground ” CPIO who bears the principal
responsibility for ensuring that the appellant is kept informed is,
therefore liable to penal action u/s 20(1). However, he has retired
since. Also there were several officials who processed the papers
who become liable for penal action u/s 5(5) for misinforming the
CPIO and appellant regarding availability of the record”. But
despite making such strong observations, the CIC refused to impose
penalty. Even if a person has retired, a penalty could be imposed on
him and the amount could be recovered from his pensionary benefits.

CIC finds it a fit case for penalty but does not impose one

D. M. Solanki vs. DRM/SEC Railway, Nagpur

Mr. Solank is a senior citizen who attempted to file an RTI
application with the PIO, DRM SEC Railway, Nagpur. The PIO and the
chief cashier refused to accept his application and the application
fee. The applicant therefore filed his application with Divisional
Railway Manager. Mr. Solanki filed a complaint with the CIC. The CIC
ordered saying that it is a “fit case for proceeding against PIO u/s
20 (1) for levy of penalty. Four months have passed since, the
applicant is awaiting a response.” However, no penalty was imposed.

No Response received still no penalty

D. P. Sangar vs. Ministry of Environment & Forests

v Application filed on 18.11.05 NO RESPONSE
v Two reminders sent NO RESPONSE
v Appeal filed in the CIC on 19.04.06
v CIC holds it to be a case of malafide denial.
v Show cause notice for penalty issued
v No penalty imposed

Show cause notices but no penalties CIC barks but does not bite

Following are some cases where show cause notices were issued but no
penalties were imposed. No news on what happened to these notices.
Some of them were secretly dropped by Mr Habibullah without
informing appellant. Orders dropping penalties have not been put up
on website

Jai Dev vs. Dy. Commissioner (South) Revenue, MCD [07.08.06]

“…the information should have been provided…by not providing this,
PIO has rendered himself liable to penalty u/s 20 (1)…claiming
evidently fictitiously to have been forwarded information leads to
suspicion of malafide intent…he will show cause on 16.08.06″

D. P. Sangar vs. Ministry Environment & Forests [04.08.06]

“The letter of response to the application till such time as notice
was issued to the Public authority by the Commission leads to
suspicion of malafide denial…CPIO will u/s 20 (1) within fifteen
days show cause why a penalty should not be imposed…”

Dr. Anand Akhila vs. Council of Scientific & Industrial Research
(CSIR) [12.05.06]

“The PIO seems to have had no reasonable ground for delay in sending
the brief and slipshod response to the application…the complaint of
malafide intent has not been denied…he will show cause u/s 20 (1)
within ten working days why he should not pay the penalty…”

Piyush Mohapatra vs. Ministry of Environment & Forests [30.05.06]

“Since PIO has been held in violation of prescribed limits u/s 7(1)…
he may appear before the Commission on June 12, 2006 to show cause
why penalty u/s 20 (1) should not be imposed on him…”

Since I don’t know names of CPIO No penalty!

1. Ram Bhawan Singh vs. Chief Post Master General, Bihar Circle
[17.07.06]

Application for information as well as first appeal received no
response. The matter went into second appeal and the Information
Commissioner stated, ” the admitted fact is that information sought
for on 31.12.05 was provided in full only on 12.6.06, that is after
a period of more than 150 days, not withstanding the fact that in
terms of RTI Act…Neither CPIO or Appellate authority has cared to
explain the delay…it would have been proper to issue show cause
notice to them as to why penalty should not be imposed. However, in
the absence of the names of the CPIO and designated appellate
authority…”

2. R. N. Rai vs. Food Corporation of India [21.07.06]

“The appellant is justified in seeking for imposition of penalty for
the delay and also for the wrong stand taken in the reply. However,
since the penalty is imposed only on the CPIO and in the absence of
definite information relating to the designated CPIO…”

3. Nagendra Prasad vs. Allahabad Central Circle, CPWD [ 17.07.06]

“…there has been a delay of over 75 days…I would have to issue a
show cause notice to the CPIO…however, in the absence of details
like name of the CPIO and whether this application was handled by
any designated CPIO etc…”

Annexure 4

Instances of arbitrary rejection of cases

Manish Dnyaneshwar Thool Vs. HPCL Mumbai [20.04.06]

Munesh applied for a petrol pump. He did not get it. He asked for
copies of application forms of other candidates and other
information related to selection. CIC decision: “The Documents
submitted by individual applicants contain a lot of information of
confidential nature. The marks awarded by the panel experts to each
candidate under different parameters are of confidential nature and
this act has been carried out by them in fiduciary capacity which is
exempt u/s 8 (1) (e).”

Sunita vs Reserve Bank of India [19.06.06]

Some employees of Gurgaon Gramin Bank fraudulently withdrew money
from the account of a housewife, Mrs Sunita. She complained to RBI
and also filed a criminal complaint. Later, she filed an RTI
application in RBI asking for action taken on her complaint. RBI
rejected her request. When she appealed to CIC, CIC rejected her
request saying that relationship between RBI and Gramin Bank was
fiduciary:

“…the matter relates to the complaint of the appellant about the
alleged unauthorized withdrawal of Rs. 10,000/- from the saving
account of the appellant in Gurgaon Gramin bank. The appellant has
stated that she has filed a case in the court and she wanted to file
the reply of the Reserve Bank in the court…” CIC ruled “…In the
instant case, file notings in possession of RBI is furnished by the
Gramin Bank (third party) in fiduciary capacity. Therefore, the
exemption u/s 8(1)(e) has been correctly applied by the public
authority.”

Dr. K H Jambhulkar vs HPCL [31.08.06]

In response to an advertisement by the HPCL for retail outlet
(Petrol Pump) dealership at Nandanvan, Nagpur, under `freedom
fighters’ category, the appellant had applied and was finally
unsuccessful. Aggrieved by the decision of the HPCL, he sought a
copy of the application and other related documents submitted by the
first empanelled candidate. While part of the information was
furnished the other part was denied on the ground that the
information sought pertain to third party, the disclosure of which
does not fall under the public doman u/s 8(1)(d) &(j) of the Act.
The Commission ruled that “the marks awarded by the panel experts to
each candidate under different parameters are of confidential nature
and this act has been carried out by them in fiduciary capacity,
which is exempt u/s 8(1)(e). The appeal is accordingly disposed off.”

Bhagwan Chand Saxena Vs. Safdarjung Hospital [03.04.06] & EIC
[13.04.06]

The appellant sought for a certified copy of medical certificate
issued in respect of one Sh. Jaipalan who had been allegedly
appointed as Assistant Director in Ministry of commerce even though
he was declared as medically unfit. CIC ruled, “Disclosure of
medical reports of any citizen would amount to invasion of his
privacy. Appeal is dismissed.”

In several cases, people have asked for annual property returns of
officers. These have been denied saying that this is personal
information.

Mahender Kumar Vs NABARD [26.07.06]

The appellant asked for information on the number of vigilance cases
pending enquiry and other related information.

It was held that “the Appellant who is an Officer in NABARD, has
sought information related to administrative issues within the bank,
through various correspondence. “

CPIO denied information saying that there was no public interest

CIC held “There is no denial of information. “

A. X. S. Jiwan vs Commissioner Central Excise [29.03.06]

“In the present case information seeker has asked several questions
expecting the CPIO to reply in “yes” or “no”, which the CPIO ought
not to do.”

D. V. Rao vs Dept of Legal Affairs [21.04.06]

“RTI Act does not cast any obligation on public authority to answer
queries, as in the case, in which a petitioner attemts to elicit
anwers to his questions with prefixes such as “Why”, What”, “When”
and “Whether”.”

Posted in CIC | 1 Comment »

File of the matter

Posted by rtiact2005 on September 12, 2006

File of the matter

By O P KEJARIWAL

http://epaper. timesofindia. com/Daily/ skins/TOI/ navigator. asp?Daily= TOIA&login=singhyad&AW=1158034285671

The dust has settled, but may rise again. The government announced that it would not bring in Parliament the Bill for proposed amendments to the RTI Act, 2005. But the assurance was only for the monsoon session. The public agitation was, however, for setting aside the very idea of amendments.

   Since the threat to force these amendments into law remains, it is necessary to understand their implications. They revolve around four basic elements: Nondisclosure of file notings, except in social and developmental issues; non-disclosure of identity of individuals who put down file notings; non-disclosure of information pertaining to any examination conducted by any public authority; and nondisclosure of ministerial decisions till the matter is complete or over.

   If these amendments are carried, they could render the Act limp and infructuous. Although there are four amendments proposed, the basic one relates to file notings.

   In all government offices, any issue which comes up for a decision starts with a file on the subject. This file has two parts: On the left, you have the note-sheets on which officers dealing with the issue at various levels record their opinions. On the right, you have correspondence and other papers relating to the subject. Very often, the notings on the left refer to papers on the right, which would be termed as p.u.c. (paper under consideration) .

   Let us suppose a flyover was to be built in a certain area. A file would be created on the subject. The officer concerned would put up the proposal which would pass through different levels till it received the final approval, say, the minister of the department concerned.

   Finally, the tender would be floated, the quotations received, evaluated and the proposal put up for awarding the contract. The amount of the contract together with the party (in this case, the contractor) would have to be finalised. This would be the stage when pressures would be exercised, kickbacks determined, bribes taken. Notings on the file would reflect all these. If those at the helm of affairs want to award the contract to a certain party, either for monetary considerations or on account of family connections or friendly relationships, they would exercise their influence and ask their subordinates to put up the cost, among other things.

   The proposal then would again pass through three, four or even more levels of officials. Then, although a number of officials would put down notings influenced by their superiors, there would be one or two officers in the set-up who are upright and would record their opinions on the file to the effect that the decision being taken was wrong and not in the public interest. This officer would then be overruled by his senior (in most cases he would also be reprimanded verbally) and the contract awarded to the party being favoured by the powers that be.

   Take another example: A poor person applies for a ration card. His application would result in opening of a file. The officials concerned would sit on the file till the poor person greased their palms. With the introduction of the RTI Act, one could demand scrutiny of the file which would reveal names of officers delaying the case. With the opening up of the files for public scrutiny, people are getting their ration cards, passports, and electricity connections quickly, without paying bribes.

   Anything to do with the government process begins and ends with file notings. File notings reveal nuances of an issue: The element of corruption involved, who has exercised what kind of pressure and on whom, which officials have caved in, and who are the honest and upright officials (few indeed nowadays) who have opposed pressure.

   If the proposed amendments were to go through, we would be thrown back to an age of darkness after experiencing a very short phase of hope. By taking out file notings from public scrutiny, the government obviously wants to put a lid on corruption.

   The government will be in no position to take credit for introducing openness, transparency and accountability in public life, if it pursues these amendments. In a list of most corrupt countries of the world, our position is quite high. RTI gives us a chance to bring down our ranking in this respect. Let us not throw it away.

   The writer is commissioner, Central Information Commission .

Posted in CIC | 1 Comment »

 
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