-: [rti4empowerment] CITIZEN'S GUIDE ON HANDLING REJECTION OF RTI APPLICATION BY PIO

[YOU CAN ALSO READ THE BELOW ARTICLE ON MY GOOGLE - BLOG]

Dear Friends,

Many among you may have filed an RTI Application with the Government and many of you may have found yourself on the receiving end of the trickery of the Government Babu's (bureaucrat), who uses every trick in the book to reject your request for Information.

This article will try to provide you knowledge regarding the grounds on which your RTI Application can be rejected and the validity and scope of those grounds.

An Right to Information Application may be rejected under RTI Act if …

(i) The RTI application submitted is incomplete in any respect,

(ii) The RTI application submitted seeks information, disclosure of which prejudicially affects the sovereignty and integrity of the country, the security, strategic, scientific or economic interest of the State, relation with foreign State or lead to incitement of an offence,

(iii) The RTI application submitted, seeks information which has been forbidden to be published by any court of law or tribunal or the disclosure of which may constitute contempt of court,

(iv) The RTI application submitted, seeks information whose disclosure would cause a breach of privilege of Parliament or State Legislature,

(v) The RTI application submitted, seeks information involving commercial confidence, trade secret or intellectual property, the disclosure of which would harm the competitive position of a third party,

(vi) The RTI application submitted, wants information available to a person in his fiduciary relationship,

(vii) The RTI application submitted, seeks information received in confidence from foreign govt.

(viii) The RTI application submitted, calls for information the disclosure of which would endanger the life or physical safety of any person, or information given in confidence for law enforcement or security purposes,

(ix) The RTI application submitted, seeks information which would impede the process of investigation or apprehension or prosecution of offender, (mere existence of an 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.)

(x) The RTI application submitted, seeks information related to Cabinet papers including record of deliberations of the Council of Ministers, Secretaries and other officers unless the material on basis of which the decision were taken have been made public and the matter is complete or over, and provided the matters do not fall within the categories of exemption mention in Section 8 of that,

(xi) The RTI application submitted, seeks information relating to personal information, the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual, provided the information which cannot be denied to the Parliament or State Legislature shall not denied to any person,

(xii) The RTI application submitted, seeks information in respect of an occurrence, event or matter which took place, occurred or happened more than 20 years before the date of request for information,

(xiii) The RTI application submitted, seeks information which involves an infringement of copyright subsisting in a person other than the State,

2. Additionally, application for Information under RTI Act will not be eligible for information in the following instances as clarified during interaction with the office of CIC :

(i) cases where matter is under process or examination and final decision is yet to be taken,

(ii) data is sought in a processed form. The 'Information' will be furnished as per the definition in Section 2 (f) of the RTI Act.

3. Attention is invited to provision of Section 8 (2) of RTI Act which reads as follows :

"Notwithstanding anything in the Official Secrets Act, 1923 nor any of the exemptions permissible in accordance with sub-section (I), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests."

Decisions of CIC [Central Information Commission]:

A] "Through this Order the Commission now wants to send the message loud and clear that quoting provisions of Section 8 of the RTI Act ad libitum to deny the information requested for, by CPIOs/Appellate Authorities without giving any justification or grounds as to how these provisions are applicable is simply unacceptable and clearly amounts to malafide denial of legitimate information attracting penalties under section 20(1) of the Act." CIC/OK/A/2006/00163 dated. 7 July, 2006.

B] "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 dtd. 7 July, 2006.

C] 4. I have gone through the RTI request, CPIO's reply, AA's decision and also rejoinder submitted by the appellant and also the comments furnished by the CPIO. The main issue that he has raised in the appeal is that he has not been provided with the internal correspondence between the Branch and the Regional Office by citing the provisions of section 8.1(d) of RTI Act and the matter is of commercial confidence. As far as the inspection of relevant document pertaining to his educational loan is concerned the same has been allowed by the CPIO. Regarding the third item of his RTI application, the AA has very clearly clarified in his appellate decision regarding existing provision. In respect of item no.(ii) in regard to the internal correspondence, both the CPIO and AA have taken a stand that this information falls under the category of commercial confidence and hence it is exempted under section 8.1(d) of the RTI Act. The appellant has clearly brought out in his appeal dated 30.10.2006 that he is requesting information about his own loan application whereas section 8.1(d) speaks about competitive position of the third party. Even in that case if there is any public interest disclosure can be made by the CPIO. Both the CPIO and the AA have also stated that the case has been filed in the State Consumer Redressal Forum against the judgement of District Consumer Forum and therefore the matter is subjudice before the Court. I do not agree with the stand taken by the CPIO and AA quoting section 8.1(d) for not providing the internal correspondence exchanged between branch office and regional office regarding his educational loan. Secondly, a matter being subjudice is not a ground to deny disclosure of information under RTI Act. On account of the above provision, I direct the CPIO to provide internal correspondence exchanged between Vazirabad Branch office & Head office, Hyderabad, relating to his educational loan within a period of 15 days from the date of receipt of this decision. On this direction the appeal is treated as disposed of. CIC Appeal No.490/ ICPB/2007 F.No.PBA/07/328 May 17, 2007

D] Fiduciary relationship: Section 8(1)(e) of RTI Act is as follows : Information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information;

Please follow the link: CIC DECISION -FIDUCIARY RELATIONSHIP

This CIC Judgment will throw light on the meaning of fiduciary relationship and its limitation while invoking Section 8(1)(e) of RTI Act. Fiduciary relationship generally is a relationship of trust that is there to protect the interest of the one who puts trust on by the one who is trusted to protect. In Short, it is a relationship wherein one person places complete confidence in another in regard to a particular transaction or one's general affairs of business.

E] 1.In a recent decision of the Commission, the following was observed: (Decision No.216/IC(A)/2006 dated 31st August 2006):

"Transparency in functioning of public authorities is expected to be ensured through the exercise of right to know, so that a citizen can scrutinize the fairness and objectivity of every public action. This objective cannot be achieved unless the information that is created and generated by public bodies is disclosed in the form in which it exists with them.

Therefore, an information is to be provided in the form in which it is sought, u/s 7(9) of the Act. And, if it does not exist in the form in which it is asked for and provided to the applicant, there is no way that proper scrutiny of public action could be made to determine any deviations from the established practices or accepted policies."

F] Section 8.1.d relates only about such matters of commercial confidence, in possession of public authority obtained from third party, the revelation of which would harm that third party. This section does not provide protection to public authority. It provides protection to third party only.

Please refer Decision No. 1737/ICPB/2008 dated 24-03-2008 of CIC.

As per section 8(1)(d) unless some information is of commercial confidence it cannot be provided. I, therefore, direct the CPIO to go through the application as well as provisions of section 8(1)(d) and decide whether this information can be given or to take exemption under section 8(1)(d).

_______________________________________________________

HIGH COURT JUDGEMENTS

Judgement of HON'BLE HIGH COURT OF DELHI

in WP(C) No. 3114/2007 decided on 03.12.2007 :

"12………As is reflected in its preambular 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.13. 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 itself. Under Section 8, exemption from releasing information is granted if it would impede the process of investigation or the prosecution of the offenders. It is apparent that the mere existence of an 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 demands for information" _______________________________________________________

Dated 30-08-2010 of Hon'ble Kerala High Court in WP(C).No. 6532 of 2006(C)

Section 7(9) does not even confer any discretion on a public authority to withhold information, let alone any exemption from disclosure. It only gives discretion to the public authority to provide the information W.P.C. No. 6532/06 -: 24 :- in a form other than the form in which the information is sought for, if the form in which it is sought for would disproportionately divert the resources of the public authority. In fact there is no provision in the Act to deny information on the ground that the supply of the information would disproportionately divert the resources of the public authority.

DENIAL OF INFORMATION UNDER SECTION 7(9) OF RTI ACT 2005.

[Source: J. P. Shah's Blog]

Section 7 (9) of RTI Act 2005 reads as under:

An information shall ordinarily be provided in the form in which it is sought unless it would disproportionately divert the resources of the public authority or would be detrimental to the safety or preservation of the record in question.

In following cases it has been decided by CENTRAL INFORMATION COMMISSION, NEW DELHI that Section 7(9) of the Act does not provide ground for denial of information.

1. Decision No.CIC/OP/A/2009/000204-AD dated 12-01- 2010

………….As for information having been denied since its is voluminous, the Commission holds that Section 7(9) of the Act does not allow denial of information but denial of providing the same in the form in which it has been sought in the event this leads to disproportionate diversion of resources of the Public Authority………

2. Decision dated 12-03-2009 in appeal No.CIC/WB/A/2007/01042:This would mean only that allowance is given where compiling information already held would present the difficulties described in the law to the public authority concerned. Information can in no case be denied u/s 7(9), which has only a qualifying clause and no exemption such as is provided u/s 8 sub sec. (1). The decision of Dr. Aditya Arya is, therefore, flawed, and is set aside. He will now review his decision in light of the above observations and ensure that appellant Shri Ajit Kar is provided the information to which he is entitled under the law within twenty working days of the date of issue of this Decision Notice. Appellant Shri Ajit Kar specifically invited our attention to the information sought in Para 30, which may be taken into consideration by the First Appellate Authority Dr. Aditya Arya, Jt. Commissioner of Police (Operations) during his examination. The appeal is thus allowed.

3. Decision dated 25.2.06 in appeal No.10/1/2005-CIC "

…Sec 7(9) of the Act does not authorize a public authority to deny information. It simply allows the authority to provide the information in a form easy to access…."

4. Decision dated 26.3.2008 in appeal No.CIC/WB/A/2007/00349 "..

It was explained to respondents that section 7(9) does not authorize refusal of information but only disclosure in a form other than that asked for, for reasons given ion that Section.."

5. Decision dated 9.1.2009 in appeal No.CIC/OK/A/2008/01256

"…The denial of information on the basis of Section 11 and Section 7 (9) of the Act was without any basis in law. Denial of information can only be under Section 8 (1) or Section 9. Section 11 sets out a procedure for giving the opportunity to a third party to give his objections and Section 7 (9) can be invoked only to state that information in the format demanded by the appellant is not possible. However the PIO would have to offer the information in an alternate format when invoking Section 7 (9)…"

6. Decision dated 22.10.08 in Appeal No. CIC/WB /A/2007/00528-SM

"…It is true that the Section 7(9) provides that information sought in a particular form should be provided in that form unless it would disproportionately divert the resources of the public authority or would be detrimental to preservation of record in question. That means, the public authority concerned should provide the information sought in a different form if he thinks, on reasonable grounds, that the form in which it has been sought would disproportionately divert the resources of the public authority. This provision in Section 7 is not a license to deny information. .."

7. Decision No. CIC/OK/A/2008/01256/SG/0937 dated 09-01-2009.

Denial of information can only be under Section 8 (1) or Section 9.

Section 11 sets out a procedure for giving the opportunity to a third party to give his objections and Section 7 (9) can be invoked only to state that information in the format demanded by the appellant is not possible. However the PIO would have to offer the information in an alternate format when invoking Section 7 (9). Besides the queries do not lend themselves at all to using Section 11 or Section 7 (9). The PIO is directed to give the information to the appellant. He is also warned that denying information in this casual manner will invoke the penal provisions of Section 20 of the Act.

8. Extract from judgment dated 07-01-2010 of HIGH COURT OF JUDICATURE AT MADRAS in W.P.NO.20372 of 2009 and M.P.NO.1 OF 2009

"4.The Commission, after notice to the petitioner Archives and also to the Central Survey Office, held that Archives cannot refuse to furnish any information unless it is covered by Sections 8 and 9 of the Right to Information Act."

"13. The other objections that they are maintaining a large number of documents in respect of 45 departments and they are short of human resources cannot be raised to whittle down the citizens' right to seek information. It is for them to write to the Government to provide for additional staff depending upon the volume of requests that may be forthcoming pursuant to the RTI Act. It is purely an internal matter between the petitioner archives and the State Government. The right to information having been guaranteed by the law of Parliament, the administrative difficulties in providing information cannot be raised. Such pleas will defeat the very right of citizens to have access to information. Hence the objections raised by the petitioner cannot be countenanced by this court. The writ petition lacks in merit."

NOTE: THIS ARTICLE IS A CONTINUED PROCESS AND SEVERAL ADDITIONS WILL BE MADE IN FUTURE.

Thanks & Regards

Prashant Uikey

Founder - "It's My Right" Google group

Striving For Protection & Successful Implementation Of Citizen's Rights