-: [rti4empowerment] RTIFED CoRRESSPONDENCE - Landmark decision Kerala High Court: “…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…” [1 Attachment]

[Attachment(s) from RTIFED - Surendera M. Bhanot included below]

(THE COMPLETE TEXT OF THIS COMMUNICATION AND ENCLOSURE THERETO IS ATTACHED IN A COMBINED 23-PAGES pdf FILE WITH THIS MAIL FOR DOWNLOADING AND PRINTING FOR FURTHER PROCESSING IT)

RTIFED/SIC-Mizoram scores over DoPT /2015/0102

Matter of Implementation of Kerala HC Landmark Judgement

03 January 2015

THROUGH E-MAIL

Secretary,

Government of India

Ministry of Personnel, PG and Pensions

Department of Personnel & Training

New Delhi

secy_mop@nic.in

This Mail in original is also sent through e-mail to:

- Hon'ble High Court of Kerala at Ernakulum;

- Hon'ble Central Chief Information Commission; New Delhi;

- All Hon'ble Chief Information Commissioners of all State Information Commissions in India;

Landmark decision

Kerala High Court: "…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…"

References:

1. RTIFED earlier communication Sent vide RTIFED/Format for RTI Replies/2014/1203 dated 07 December 2014 (attached at Annexture-1);

2. State Information Commission Mizoram Memo No. C.31018/1/2014 – MIC Dated Aizwal, The 23^rd December 2014 (attached at Annexure-2);

3. Reference No. RTIFED/Format-for-RTI Replies/2014/1103 of 13 November 2014 on the subject line "Order of FAA Illegal if Appellant not heard"

Hon'ble Sirs,

First, one out of context intervention. I may take a liberty to point out that the postal address of the DoPT is nowhere mentioned in the website of the Department. So it is not possible for a layman to send a communication by snail mail. This is also a contravention of the pro-active disclosure to be made under Section 4(1)(b) of the Right to Information Act 2005, as well as your own instruction issued under the Circular No. 1/6/2011-IR dated 10 December 2013 and 22 September 2014 on "Guidelines on implementation of suo-motu disclosure under Section 4 of RTI Act, 2005-Compliance of".

It is hoped that this deficiency will be done away with and the Postal Address will be available on the website of the .

Please refer to RTIFED earlier communication referred to above (copy attached at Annexture-1). This communication was regarding the Landmark Judgment of The High Court of Kerala at Ernakulum in WP(C).No. 6532 of 2006(C) decided on 30 August 2010 Under Section 7(9) of the Right to Information Act 2005, the Public Authority can deny information in a particular form but it cannot refuse totally. 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 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 Para-25 and Para-26 the Hon'ble Kerala High Court in TREESA IRISH vs. THE CENTRAL PUBLIC INFORMATION OFFICER [WP(C).No. 6532 of 2006], with regard to Sec 7(9) of Right to Information Act 2005, (copy attached as Annexture-1) had observed :

25. The Standing Counsel for the Public Service Commission also raises a contention that if all the candidates apply for copies of answer papers, it would disproportionately divert the resources of the public authority and therefore disclosure of the same is exempt under Section 7(9) of the Act. I am of the opinion that the said contention is misconceived. That Section reads thus: "7. Disposal of request ....................................................................................

....................................................................................

(9) 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. That Section 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 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. Section 4 of the Act makes it compulsory on the part of a public authority to comply with the obligations prescribed therein including the obligation under sub section (1)(a), to `maintain all its records duly catalogued and indexed in a manner and the form which facilitates the right to information under this Act and ensure that all records that are appropriate to be computerised are, within a reasonable time and subject to availability of resources, computerised and connected through network all over the country on different systems so that access to such records are facilitated' and the obligation under sub section (1)(b), to publish within 120 days from the enactment of the Act the various particulars relating to the public authority described in clauses (i) to (xvii), the object of which is to facilitate easy supply of the information in their possession to those who apply for the same. Further under sub section 2 of section 4, `it shall be a constant endeavour of every public authority to take steps in accordance with requirements of clause (b) of sub-section 1 to provide as much information suo motu to the public under regular intervals through various menas of communications, including internet, so that the public have minimum use of resort to this Act to obtain information'. The difficulties a public authority may encounter in the matter of supply of information are no grounds to deny the information, if that information is available and not exempted from disclosure. Whatever be the difficulties, unless the information is exempt from disclosure, the public authority is bound to disclose the same. The facts that the information is voluminous, if all candidates apply for the information with the available infrastructure it may not be possible to cope up with the request, the authority will have to depute additional manpower to collect and supply the information etc. are not reasons available to the public authority to deny information to a citizen who applies for the same. The public authority can only insist on reasonable fees for supply of the information as per rules prescribed for the same. As such, the flood gate theory sought to be pressed into service by the Standing Counsel for the Public Service Commission is not a defence against supply of information under the Right to Information Act.

26. Even otherwise it is idle for a public authority to assume that if answer papers are held to be information which the authority is liable to disclose, all the candidates who have written the examination would apply for copies of answer papers and it would be difficult to supply the information to all. Only those candidates dissatisfied with the results would apply for copies of the answer papers, which would be a small fraction of the total number, if the valuation is fair and proper and if the valuation is largely unfair and improper, then it is in public interest that the truth should come out, whatever be the difficulties. Therefore unless the public authority has something to hide, they should not worry about those difficulties, which in any event are not likely to occur in the normal course. Therefore I do not find any merit in the contention of the learned Standing counsel for the PSC on that aspect also.

Taking recourse of the above Kerala High Court judgement, the Central Information Commission[1], therefore, issued Show Cause Notice to the CPIO for wrongly denying the information by citing Section 7(9) of the Right to Information Act 2005. The decisions can be read clicking here!

The commission observed that:

"CPIO cannot take protection of section 7(9) without any basis thereof. Under Section 7(9) of the RTI Act, the Public Authority can deny information in a particular form but it cannot refuse totally. The said subsection does not provide additional ground for denial of information. If section 7(9) applies to the ton text, the respondent authority has to give information in the same form as available."

(THE COMPLETE TEXT OF THIS COMMUNICATION AND ENCLOSURE THERETO IS ATTACHED IN A COMBINED 23-PAGES pdf FILE WITH THIS MAIL FOR DOWNLOADING AND PRINTING FOR FURTHER PROCESSING IT)

DoPT needs to take cognizance of this decision of the Kerala High Court, as was taken vide its OM/Circular No. 1/31/2013-IR of 08 January 2014 on the Order dated 20.11.2013 of the High Court of Kolkata pronounced in Writ Petition No. 33290 of 2013 in the Case of Mr. Avishek Goenka Vs Union of India regarding Personal details of RTI applications, to ensure the uniformity of the decision making process in the different information commissions by the various Information Commissioners.

It is therefore requested that dignity of 'Right of Information' bestowed to the citizen of India through Right to Information Act 2005, may be maintained by bringing about the uniformity in the decision making process.

RTIFED anticipates that Department of Personnel and Training will see reasons to quick need to do this.

The receipt of this communication may please be acknowledged. While replying, the number and date of this communication may please be invariably mentioned. If no acknowledgement is received,

I intend to file RTI Application after a month. to know the:

(i) status of implementation of these recommendations; &

(ii) status of action taken on this communication and its latest status,

This communication is sent through electronic media and as such does not warrant any signature.

Thanking you & with Warm Regards,

Very cordially yours,

Surendera M. Bhanot

President RTIFED[1]

rtifed@gmail.com

Enclosure: as stated please.

A copy is also sent to all RTI Activists and RTI NGOs as well as Human Right NGOs for making similar plea to concerned authorities in their state/area of operation.

[1]RTIFED (formerly known as RTI Activists' Federation and conceived and founded by the legendary Advocate H.C. Arora) is a body looking after the rights of the RTI Applicants and keeping an eye over the happenings of the RTI related matters in various states.