The Commission ordered that all Cabinet Notes regarding tabling of bills must be displayed on the website in fulfilment of the requirements of Section 4(1) (d) of the RTI Act. This is the 24th in a series of important judgements given by Shailesh Gandhi, former CIC, that can be used or quoted in an RTI application
The Central Information Commission (CIC) while rejecting the exemption under Section 8(1)(i) of the Right to Information (RTI) ordered that all Cabinet Notes regarding tabling of Bills must be displayed on the website in fulfilment of the requirements of Section 4 (1)(d) of the RTI Act. While giving this important judgement, Shailesh Gandhi, former Central Information Commissioner, said, “Citizens are certainly deeply affected by every law made by Parliament, and hence have a right to know the basis on which these laws are being made.”
“The Secretary, Department of Atomic Energy (DAE) is directed to ensure that the Cabinet Note mentioned above is displayed on the website of the Department before 20 July 2012 and all Cabinet Notes relating to proposals for new bills to be tabled in the Parliament should also be displayed on the website of the Department within seven days of tabling the bill in the Parliament,” the CIC said in its order issued on 26 June 2012.
Venkatesh Nayak, a resident of Delhi on 20 January 2012 sought information about a Cabinet Note regarding the Nuclear Safety Regulatory Authority Bill, 2011. Here is the information he sought:
1. A clear photocopy of the Cabinet Note prepared by your department seeking approval of the Union Cabinet for introducing The Nuclear Safety Regulatory Authority (NSRA) Bill, 2011, in the Lok Sabha along with all annexures. This Bill was introduced in the Lok Sabha on 7 September 2011;
2. The total number of records and live files held by the DAE Secretariat and its units that have been assigned the security classification: “top secret”, 'secret' and confidential' as on the date of this application. I wish to clarify that (would like to know) only the total number of records and files marked with each type of security classification mentioned above but not the total number of pages in each file. I also wish to clarity that I do not want information about any public sector undertaking or aided institution under CM;
3.The subject matter or topic of each record and live file that has been assigned the security classification “top secret”, 'secret' and confidential' as on the date of this application; and
4. A clear photocopy of the information submitted by DAE to the Central Information Commission under Section 25(3) of the RTI Act for the period: 1 April 2010-31 March 2011
The Public Information Officer (PIO) forwarded the query 1 to PIO of ER Section, DAE.
Point No.1: A copy of the RTI application is being forwarded to PIO/OSD(ER) for furnishing a reply to you as the subject matter is dealt by ER Section, DAE.
2. Point No.2 The information requested for is not available as no records are kept regarding the total number of such files centrally.
3. Point No.3 The information requested are exempted from disclosure under Section
8(a) of the RTI Act, 2005.
4. An extract of Annual return for the year 2010-Il submitted by DAE to CIC under Section 25(3) of the RTI Act is enclosed
The PIO of ER Section, DAE, while refusing to disclose the information claimed exemption under Section 8(1)(i) of the RTI Act.
Not satisfied with the reply, Mr Nayak then filed an appeal with the First Appellate Authority (FAA). The FAA in his order said, “...the use of the word ‘and’ appearing in Section 8(1)(i) between ‘after the decision has been taken’ and 'the matter is complete or over’ implies that both the conditions, i.e. (i) the decision has been taken; and (ii) the matter is complete or over, must be satisfied for disclosure of full information.”
The Department-related Parliamentary Standing Committee on Science & Technology, Environment & Forests had put the contents of the Bill in the public domain and invited comments on it. As is public knowledge, the Committee has deliberated on the report and forwarded its observations to the Chairman of Rajya Sabha and Speaker of the Lok Sabha.
“Thus, the matter stands and has to be taken forward, and the second condition i.e. ‘the matter is complete or over’ is not satisfied in this case. In view of the above, the information sought does not qualify for disclosure at this stage...” the FAA said.
Mr Nayak then approached the Commission with the second appeal. He said, “It is undisputed that the information relating to the Nuclear Safety Regulatory Authority Bill sought by me is in the nature of a Cabinet Note. However CPIO#1 has failed to appreciate the holistic position of the exemption provision that he has sought to invoke.”
“Upon securing the approval of the Union Cabinet, the minister of state for public grievances and pensions tabled the said bill in the Lok Sabha in September 2011. So the purpose of the Cabinet Note was completed upon securing Cabinet approval and the subsequent tabling of the said Bill in Parliament. The contents of the Cabinet Note now qualify for disclosure under the proviso to Section 8(1)(i) as the matter is over. The passage of the Bill is dependent upon the will of both Houses of Parliament and the Union Cabinet cannot undertake to get the Bill passed. Therefore the limited purpose of the Cabinet Note attached to the said Bill may be treated as over. However CPIO #1 has not appreciated this fact. Instead, he has mechanically invoked Section 8(1)(i) without paying any attention to the proviso underlying it, which entitles me to receive the said information,” Mr Nayak said in his appeal.
During the first hearing on 18 May 2012, the PIO was not present at the Mumbai NIC studio. When the Commission called up the Joint Secretary, he stated that he had not received the notice for hearing. The matter was then adjourned and a fresh notice was issued.
During the second hearing on 25 June 2012, both the parties agreed that that the Cabinet Note has been put up to the Cabinet, and after due approval a bill has been presented to the Parliament. While the PIO claimed that the matter is not complete and over until the Bill is enacted, duly gazetted, and a notification is issued that the bill comes into force, Mr Nayak contended that rather than nearly invoking 8 (1)(i) mechanically the PIO has a duty and a burden to demonstrate what interests are sought to be protected by the secrecy of Cabinet papers at this stage of the bill, which will outweigh the disclosure in public interest.
When asked by the Commission, if he can explain the harm which may accrue to the protected interest if the information is disclosed, the PIO stated that since the Bill has not been enacted, revealing the Cabinet Note may be inappropriate and should not be revealed.
Mr Nayak contended that the NSRA Bill has proposed amendments to the RTI Act while the Department of Personnel & Training (DoPT) has told the Parliament that no amendments are proposed to the RTI Act and therefore he needs to know the contents of the Cabinet Note to ensure that no amendments are made to the RTI Act without widespread consultation.
The PIO stated that the Bill was already in the public domain and therefore he was not able to appreciate the appellant’s contention. The Commission then reserved its order.
The Commission noted that the PIO has claimed exemption under Section 8 (1)(i) of the RTI Act whereas the appellant has stated that the Cabinet Note sought by him is not covered by the said exemption. The RTI Act has codified the fundamental Right to Information of Citizens guaranteed under Article 19 of the Constitution.
As per Section 3 of the Act, “Subject to the provisions of this Act, all citizens shall have the right to information. The provisions of the Act by which any information may be denied to a Citizen is defined in ten exemptions of Section 8 (1) of the Act. Section 8 (2) of the Act, which states, ‘Notwithstanding anything in the Official Secrets Act, 1923 nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interests in disclosure outweighs the harm to the protected interests’ would override the exemptions of Section 8 (1) if a larger public interest in disclosure is shown.
Section 8 (1) (i) under which the PIO has claimed exemption and that has been upheld by the FAA exempts, "cabinet papers including records of deliberations of the council of ministers, secretaries and other officers:
Provided that the decisions of Council of Ministers, the reasons thereof, and the material on the basis of which the decisions were taken shall be made public after the decision has been taken, and the matter is complete, or over:
Provided further that those matters which come under the exemptions specified in this section shall not be disclosed;"
Mr Gandhi, the CIC, said the Commission agrees with the FAA’s contention that the use of the word ‘and’ appearing in Section 8(1)(i) between ‘after the decision has been taken’ and ‘the matter is complete or over’ implies that both the conditions, i.e. (i) the decision has been taken; and (ii) the matter is complete or over, must be satisfied for disclosure of full information.
“If the decision has been taken and the matter is complete or over, the exemption under Section 8(1)(i) would not be available. If the decision has not been taken or the matter is not complete or over the information would be exempt. The PIO has argued that this means that the purpose for which the Cabinet Note was made—passing of the proposed Act—should be over. If such an interpretation were to be given it would mean that if an Act for which the Cabinet Note was made is either not passed by Parliament, or not Gazetted, or not Notified, such a Cabinet note would never be disclosed under the RTI Act,” it noted.
Mr Gandhi said it may be worthwhile to glimpse the mind of the Parliament when passing the RTI Act to understand the frame of mind of the elected representatives.
In Parliament when the RTI Bill was debated, Varkala Radhakrishnan, MP said, “Even Cabinet papers, after a decision has been taken, must be divulged as per the provisions of this amendment. It cannot be hidden from the knowledge of others. It must be divulged. But before taking a final decision, the Cabinet papers can be kept secret.”
“Thus it is clear that the intention to prevent disclosure was only until the time that the decision was taken by Cabinet on the Cabinet Papers/Notes. Once the Cabinet decision has been taken, the first part of the proviso that the decision had been taken would be fulfilled. With the tabling of the bill in Parliament the second part of the Proviso that the matter is complete or over would also have been met,” the Commission said.
The Commission ruled that the Cabinet Note is material on the basis of which a Cabinet decision is taken to table a bill in Parliament. “Once the decision is taken by the Cabinet to table the bill in Parliament the ‘decision has been taken'’ when the bill is tabled in Parliament ‘the matter is complete or over’ as far as the Cabinet is concerned. In the instant case, since the ‘the decision has been taken, and the matter is complete, or over:’ the exemption claimed under Section 8 (1) (i) of the RTI Act by the PIO is not upheld,” it said.
The Commission then directed the PIO to provide an attested photocopy of the Cabinet Note along with all the annexures in query-01 before 20 July 2012. The Commission in exercise of its powers under Section 19 (8) (a) (iii) of the RTI Act, also directed the Secretary, DAE to display this Cabinet Note and all Cabinet notes in future on the department's website where such Cabinet notes relate to proposing a new bill to be tabled in Parliament, within seven days of the bill being tabled in Parliament.
CENTRAL INFORMATION COMMISSION
Decision No. CIC/SG/A/2012/001023/19365
Appeal No. CIC/SG/A/2012/001023
Appellant : Venkatesh Nayak
New Delhi- 110017
Respondent : A Anandraju,
PIO & OSD(ER)
Department of Atomic Energy
Officer on Special Duty (ER) & CPIO
Chatrapati Shivaji Maharaj Marg
In a rare use of Section 8 (2) of the RTI Act, the CIC ordered disclosure of information as a larger public interest would be served by it. This is the 23rd in a series of important judgements given by Shailesh Gandhi, former CIC, that can be used or quoted in a RTI application
The Central Information Commission (CIC) while agreeing that the information sought was exempt under Section 8 (1)(e) of the Right to Information (RTI) Act ordered disclosure as per Section 8 (2) of the Act since a larger public interest would be served by the disclosure. While giving this important judgement, Shailesh Gandhi, former Central Information Commissioner, invoked Section 8 (2) that is rarely used.
“Given the fact that Jiwan Jyoti Co-operative Group Housing Society (Jiwan Jyoti) has defaulted for many years on its loan payment and a large amount of over Rs12 crore is outstanding, it is reasonable to argue that there is a large public interest in knowing the details and nature of such a loan,” the CIC said in its order issued on 10 June 2009.
MG Menghaney, a resident of Delhi on 16 January 2009 sought information about non-payment of loan by Jiwan Jyoti from the Delhi Co-operative Housing Finance Corporation (DCHFC). He sought the following information on:
1. Total amount taken by the society with amount
2. Total amount paid by the society from Day One till 31.12.2008
3. Copy of the agreement entered with … the society with date registration details
4. The date on which the above name society became defaulter with details
5. List of members who have taken the loan with amount taken which the society has submitted to you in repeat of disbursement of the loan
6. Has the society submitted any form and or request for granting loan by the individual member with enclosures
7. List of members who have directly paid the loan amount in full or part to you for which you have issued the receipts with date and amount receive with name of the members
8. Details members who have not paid in part/or full the 31 Dec 2008 to enable you to asses the amount yet to recovered vice versa the amount due to you.
9. Do you have any worksheet prepared by you of the total amount due to you and the members with amount due as on 31.12.2008. What is the amount payable by all the defaulting members?
10. Please provide details of recovery of loan amount from the above-named society which have initiated as to the recovery steps taken from the … of default by the society
11. Please confirm that you had sent notices to the individual members of the society who have taken loans and have defaulted in many payments
12. At any stage did you direct the society not to allow sell their flats as they were defaulters of loan amount
13. Copy of one such no dues certificate issued by the society to the members, which has been communicated to you by the by the society, please confirm
14. At any stage you were informed that the promoters the society or managing committee of the society has utilized any amount of loan amounts recovered from the members has been used for any other purpose than repayment to you
15. Please advise any specific reason that your corporation has not been pursuing recovery loan amount from the society
16. Please provide copies of loan confirmation issued by the society to your corporation as every financial year and if you stationary Auditors remark to the extant the loan amount recoverable as otherwise
17. Please provide copies of the Auditors Report in respect the loan of the society
18. Please allow inspection of file and records pertaining to the above-mentioned loan
The Public Information Officer (PIO) of the DCHFC denied the information sought under para 1 to 5 and 7,10,16,17 claiming exemption from disclosure under Section 8 (1)(d) and Section 8(1)(e).
Section 8(1)(d) says:
"notwithstanding anything contained in this Act, there shall be no obligation to give any citizen the information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that large public interest warrants the disclosure of such information”.
Section 8(1)(e) says:
“Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen- information available to a person in his fiduciary relationship, unless the competent authority is satisfied that a large public interest warrants the disclosure of such information" under Right to Information Act, 2005”.
The PIO said, “The information sought by the applicant under para 4, 6, 8, 9 and 11 to 15 are not covered under the definition of information as defined in Section 2 (f) of the RTI Act, 2005.”
There was no mention of the order or reply by the First Appellate Authority (FAA). Mr Menghaney then filed second appeal before the Commission.
During a hearing before the CIC, he said, “...there is a loan outstanding against my flat taken by me from DCHFC, the entire loan amount was Rs1.95 crore, which has amounted to Rs12.54 crore as per the information gathered by me from various sources. The defaulters are merely 25 to 26, therefore it is apparent that there is something wrong in account maintained by the society as well as DCHFC.”
“As a citizen I must know the status of my loan account so that the steps are taken to look at the same. As well as there is a dispute between the society and DCHFC as such both are not providing any information. It suits DCHFC as they have been debiting interest and penal interest therefore it does not affect DCHFC directly but it certainly effects the person who had taken loan,” Mr Menghaney told the Commission.
The PIO stated that the loan was given to Jiwan Jyoti by DCHFC after executing loan agreement and mortgage deed. “Since the loan was given to the society, DCHFC has been maintaining single loan account in the name of the society. The appellant is claiming to be the member of the said society and we are unable to work out his individual loan liability. However, the appellant may get the same information directly from the management of the said society under provision of Delhi Cooperative Society Act 2003 under Section 139,” he said.
“Since the information sought by the appellant pertains to loan transaction the same information is held in its fiduciary relationship, commercial confidence, trade secrets, etc and the same is exempted from the disclosure under Section 8 of the RTI Act,” the PIO claimed.
The PIO also admitted that there is a large default in the case. He stated that there is a consistent default for many years and the present outstanding (of Jiwan Jyoti) is over Rs12 crore. The Commission then reserved its order.
Mr Gandhi, in an order issued on 10 June 2009, said the Commission considered the PIO’s claim for exemption under Section 8 (1)(d) and was not able to see any justification how its commercial confidence or trade secrets would suffer by disclosing this information.
Under Section 8(1)(e), the traditional definition of a fiduciary is a person who occupies a position of trust in relation to someone else, therefore requiring him to act for the latter's benefit within the scope of that relationship. “An equally important characteristic for the relationship to qualify as a fiduciary relationship is that the provider of information gives the information for using it for the benefit of the giver. Hence the Commission agrees that the public authority has a fiduciary relationship with the Cooperative Society which has taken a loan from it,” Mr Gandhi noted.
He, however, said that given the fact that that the cooperative society has defaulted for many years on its loan payment and a large amount of over Rs12 crore is outstanding, it is reasonable to argue that there is a large public interest in knowing the details and nature of such a loan. “In matters where public financial institution which is a public authority, large and continuous defaults in loans could be the result of corruption or gross mismanagement and citizens have a right to know the details so that this acts as a check on such public authorities,” the Commission said.
Mr Gandhi said, “In view of this the Commission feels that as per Section 8 (2) public interest in disclosure outweighs the harm to the protected interest and hence the information must be disclosed.”
While allowing the appeal, the CIC asked the PIO to provide information sought by Mr Menghaney before 25 June 2009.
CENTRAL INFORMATION COMMISSION
Decision No. CIC/SG/A/2009/000898/3651
Appeal No. CIC/SG/A/2009/000898
Appellant : MG Menghaney,
Respondent : LR Garg, SPIO
Delhi Co-operative Housing Finance Corporation Ltd,
3/6 Shri Fort Institutional Area,
August Kranti Marg, New Delhi-110049
In a clear case of giving misleading information, the PIO of the Railway Board was found wrongly claiming exemption citing a stay obtained in a different case. This is the 22nd in a series of important judgements given by Shailesh Gandhi, former CIC, that can be used or quoted in an RTI application
A Public Information Officer (PIO) of the Railway Board was found giving misleading information and wrongly claiming exemption where none exists and was ordered to provide information to the appellant under the Right to Information (RTI) Act. While giving this important judgement, Shailesh Gandhi, former Central Information Commissioner, issued a show-cause notice to the PIO.
“From the facts before the Commission it is apparent that the deemed PIO SM Mathur is guilty of not furnishing information within the time specified under sub-section (1) of Section 7 by not replying within 30 days, as per the requirement of the RTI Act. It appears that the deemed PIO’s actions attract the penal provisions of Section 20 (1),” the Central Information Commission (CIC) said in its order dated 15 June 2009.
GPN Tiwari, a resident of Gorakhpur district on 14 November 2008 sought information about his answer books from the PIO of Railway Board. He appeared in about 3A Exams (main) from SO (Accts) group conducted by Director of Finance (CCA) of the Railway Board, during 2004 and 2006. He said he was fully confident that the papers were solved to his utmost satisfaction and the marks obtained by him seem to be very low. Therefore the appellant had asked for observing the following answer books in original for his personal verification and ultimate satisfaction:
Appx. 3A Exam-2004 (main)
Appx. 3A Exam-2006 (main) (from NCR/ALD)
The PIO replied that “Answer books of the Appendix-3 (IREM) Examinations are preserved in the Railway Board for a prescribed period. Recently, CIC has ordered disclosure of answer books of Appendix-3(IREM) Examinations by the Railway Board. Railway ministry has filed appeal in the High Court of Delhi against the said order which is the subject matter of CWP 9049/2008. Hon'ble High Court of Delhi has granted stay order on 19 December 2008 on the CIC orders of disclosure of answer etc. Hence, answer books of Appendix-3 (IREM) Examinations cannot be provided at present.”
Tiwari then filed the first appeal with the First Appellate Authority (FAA), whose order said that “I find that information as sought by you and available in this office as already been furnished by the PIO vide letter dated 31.12.2008. The appeal has been examined and a brief apprising you with the position you with the position have already been provided from the Directorate concerned.”
Not satisfied with the replies provided by both the PIO and the FAA, the applicant then approached the Commission. During the hearing, the Commission noted that the PIO denied information on a complete false representation and the stay order given by the high court does not cover the RTI application in the instant matter. The high court stay order referred to by the PIO states as follows:
WP(C) No.9049/2008 and CM.No.17383/2008 (Stay): “Learned counsel for the petitioner submits that the petitioner has complied with the substantial part of the order passed by the CIC, however, petitioner is aggrieved by the direction of the CIC whereby the petitioner has been directed to disclose and handover copies of the answer-sheets of other candidates, which he submits is against the decision of the Full Bench of the CIC itself as observed in para 42 of the Judgment.”
Para 42 of the CIC’s decision referred to in the said stay order states:
“42. However, in so far as the departmental examinees are concerned or the proceedings of Departmental Promotion Committees are concerned, the Commission tends to take a different view. In such cases, the numbers of examinees are limited and it is necessary that neutrality and fairness are maintained to the best possible extent. Disclosure of proceedings or disclosure of the answer sheets not only of the examinees but also of the other candidates may bring in fairness and neutrality and will make the system more transparent and accountable. The Commission, moreover finds that the proceedings of the Departmental Promotion Committees or its Minutes are not covered by any of the exemptions provided for under Section 8(1) and, therefore, such proceedings and minutes are to be disclosed. If a written examination is held for the purpose of selection or promotion, the concerned candidate may ask for a copy of the evaluated answer sheet from the authority conducting such test/examination.”
Mr Gandhi observed that the CIC’s decision in fact states that the case covered by this application is not covered by any of the exemption of the RTI Act and the Commission has ruled that the information must be provided. “This appears to be a clear case of the deemed PIO-Director (Finance) giving misleading information and wrongly claiming exemption where none exists,” he noted.
The Commission, while allowing the appeal asked the PIO to provide the information to the appellant before 20 June 2009.
It further said, “From the facts before the Commission it is apparent that the deemed PIO SM Mathur is guilty of not furnishing information within the time specified under sub-section (1) of Section 7 by not replying within 30 days, as per the requirement of the RTI Act. It appears that the deemed PIO’s actions attract the penal provisions of Section 20 (1). A show-cause notice is being issued to him, and he is directed give his reasons to the Commission to show cause why a penalty should not be levied on him.”
CENTRAL INFORMATION COMMISSION
Decision No. CIC/SG/A/2009/000966/3696
Appeal No. CIC/SG/A/2009/000966
Appellant : GPN Tiwari, AA
Dist. Gorakhpur (UP)
Respondent : CPIO (III)
Ministry of Railway, Govt of India