Section 11 does not give a third party an unrestrained veto to refuse disclosing information. It only gives the third party an opportunity to voice its objections to disclosing information. This is the 20th in a series of important judgements given by Shailesh Gandhi, former CIC, that can be used or quoted in an RTI application
While rejecting the Public Information Officer’s (PIO) contention of claiming exemption under Section 11 of the Right to Information (RTI) Act, the Central Information Commission (CIC) ordered a compensation of Rs3,000 and issued a show-cause notice to its own PIO. While giving this important judgement, Shailesh Gandhi, former Central Information Commissioner, said that the appellant has been unnecessary harassed and not provided information sought by him by an arbitrary action of the PIO.
“The Commission in exercise of its power under Section 19(8)(b) of the RTI Act awards a compensation of Rs3,000 to the appellant for the loss and detriment suffered by him in having to pursue the appeals and getting the information late. The Commission recommends that the secretary, CIC may consider recovering this amount from the salary of the persons responsible for this,” the Commission said in its order dated 12 April 2012.
Lucknow-based Chayan Ghosh Chowdhury, on 27 January 2010 sought information from the PIO of the CIC about replies received for some show-cause notices. Here is what he asked for...
1) Please provide certified copies of the explanation submitted by the Public Authority in compliance to the Show-Cause Notice issued by the CIC under Sec 20 of the RTI Act, in the following cases:
a) Appeal No.2888/ICPB/2008 (Dr Avinash Kumar Kaushal v/s Punjab & Sind Bank) dated 07/10/2008.
b) Appeal No.CIC/PB/A/2008/00999-SM & SM/A/2009/000287 (Yatish Kumar v/s Punjab & Sind Bank) dated 06/10/2009
c) Appeal No. CIC/SM/A/2008/000102 (P N Bajpai v/s Punjab & Sind Bank) dated 17/11/2009
d) Appeal No.CIC/SM/A/2009/000197 (Shiv Bahadur Yadav v/s Punjab & - Sind Bank) dated 15/12/2009
e) Appeal No.CIC/SM/A/2009/000200 & 1104 (Bharat Kishore Srivastava v/s Punjab & Sind Bank) dated 17/12/2009
2) Kindly provide the certified copies of the file noting containing final decisions of the Hon'ble Commission in the cases mentioned in pan 1(a) to 1(e).
The PIO in his reply stated that the information asked by Mr Ghosh Chowdhury pertains to third parties and under Section 11 of the RTI Act, he sent letters to obtain their consent before disclosing the information. The PIO stated...
1) The information asked by you in Item No.1 (a) to (e) pertains to third party and as such their consent under Section 11(1) of the RTI Act has to be obtained before its disclosure.
The third parties in respect of Item Nos. 1 (b),(c)&(e) of your letter dated 27.01.2010 have responded to the Commission's order in question and have been requested to give their consent within ten days from the receipt of the notice dated 15.02.2010 given to them. On receipt of their consent or otherwise necessary action in this regard would be taken.
As regards Item Nos. 1 (a) & (d), the response from the concerned CPIOs is still awaited.
2) As regards part 2 of your letter, the cases are yet to be processed. Therefore, providing of certified copies of the file noting containing final decisions of the Commission in these cases does not arise.
Not satisfied with the reply, Mr Ghosh Chowdhury, then filed first appeal with the First Appellate Authority (FAA). The FAA disposed off the appeal warning the CPIO that the he should consider the time lines provided in the RTI Act with regard to Section 11 and dispose of the matter accordingly within 10 working days.
Mr Ghosh Chowdhury, not satisfied with the incomplete and unsatisfactory information provided by both the PIO and the FAA, then filed second appeal before the Commission.
During the hearing, the PIO stated that he refused to give information under Section 11 of the RTI Act. "This refusal was erroneous since Section 11 is only a procedure which requires the PIO to inform the third party of his intention to disclose the information if the information was received in confidence. After receiving any objection from the third party if the information is exempt as per the provisions of Section 8(1) or 9 the information may be denied by the PIO after giving reasons. In the instant case the Respondent states that letters were sent to the third parties seeking their objections," Mr Gandhi noted.
Section 11 of the RTI Act, which is the basis on which the information, is sought to be denied to the appellant in the present case lays down:
'11. (1) Where a Central Public Information Officer or the State Public Information Officer, as the case may be, intends to disclose any information or record, or part thereof on a request made under this Act, which. relates to or has been supplied by a third party and has been treated as confidential by that third party, the Central Public Information Officer or State Public Information Officer, as the case may be, shall, within five days from the receipt of the request, give a written notice to such third party of the request and of the fact that the Central Public Information Officer or State Public Information Officer, as the case may be, intends to disclose the information or record, or part thereof, and invite the third party to make a submission in writing or orally, regarding whether the information should be disclosed, and such submission of the third party shall be kept in view while taking a decision about disclosure of information:
Provided that except in the case of trade or commercial secrets protected by law, disclosure may be allowed if the public interest in disclosure out weighs in importance any possible harm or injury to the interests of such third party.
(2) Where a notice is served by the Central Public Information Officer or State Public Information Officer, as the case may be, under sub-section (1) to a third party in respect of any information or record or part thereof, the third party shall, within ten days from the date of receipt of such notice, be given the opportunity to make representation against the proposed disclosure.
(3) Notwithstanding anything contained in Section 7, the Central Public Information Officer or State Public Information Officer, as the case may be, shall, within forty days after receipt of the request under section 6, if the third party has been given an opportunity to make representation under sub-section (2), make a decision as to whether or not to disclose the information or record or part thereof and give in writing the notice of his decision to the third party.
(4) A notice given under sub-section (3) shall include a statement that the third party to whom the notice is given is entitled to prefer an appeal under section 19 against the decision.'
The Commission noted that in Section 11 (1), it is cleared stated that “'submission of third party shall be kept in view while taking a decision about disclosure of information'. "Section 11 does not give a third party an unrestrained veto to refuse disclosing information. It only gives the third party an opportunity to voice its objections to disclosing information. The PIO will keep these in mind and denial of information can only be on the basis of exemption under Section 8 (1) of the RTI Act. The Respondent states that no reply has been received from the third parties,” Mr Gandhi noted in his order.
He said, harassment of a common man by public authorities is socially abhorring and legally impermissible. An ordinary citizen instead of complaining and fighting succumbs to the pressure of undesirable functioning in offices instead of standing against it. Therefore the award of compensation for harassment by public authorities not only compensates the individual, satisfies him personally but helps in curing social evil. It may result in improving the work culture and help in changing the outlook, Mr Gandhi said.
The Commission, in its order asked the PIO to provide information to the appellant before 10 May 2012 and send a cheque of Rs3,000 as compensation before 1 June 2012.
Mr Gandhi also noted that from the facts before the Commission it appears that the then PIO was guilty of not furnishing complete information within the time specified under sub-section (1) of Section 7 as per the requirement of the RTI Act. "It appears that the 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 penalty should not be levied on him," the Commission said.
CENTRAL INFORMATION COMMISSION
Decision No. CIC/WB/A/2010/000712/SG/18370
Appeal No. CIC/WB/A/2010/000712/SG
Appellant : Chayan Ghosh Chowdhury
Respondent : Vijay Bhalla
PIO & Dy. Registrar
Central Information Commission
2nd Floor, 'B' Wing,
August Kranti Bhawan,
Bhikaji Cama Place, New Delhi