In cases where sanction for prosecution is not given there would be no ground to claim that any prosecution would be impeded and mere apprehension is not enough, the CIC said. This is the 175th in a series of important judgements given by former Central Information Commissioner Shailesh Gandhi that can be used or quoted in an RTI application

The Central Information Commission (CIC), while allowing an appeal, directed the Public Information Officer (PIO) and director of Ministry of External Affairs (MEA) to provide file noting of matters where sanction of prosecution has been sought for Indian Foreign Services (IFS) officers, after severing the names of witnesses or sources as per the provisions of Section 10 of the Right to Information (RTI) Act.

While giving the judgement on 30 December 2011, Shailesh Gandhi, the then Central Information Commissioner said, "...in cases where sanction for prosecution is not given there would be no ground to claim that any prosecution would be impeded. For claiming exemption under Section 8(1)(h) of the RTI Act it has to be clearly shown that the providing the information would impede the process of prosecution and mere apprehension is not enough."

Mumbai resident Kishanlal Mittal, on 6 October 2010, sought from the PIO of Department of Personnel and Training (DoPT) information regarding prosecution against officials from the Indian Administrative Service (IAS)/Indian Police Service (IPS) and Indian Foreign Services (IFS). Here is the information he sought under the RTI Act...

(a) Kindly provide information with file notings about the pending cases of sanction of prosecution against IAS/IPS/IFS and other officers who require prior sanction for prosecution. The said information should include all correspondences received so far regarding the issue with file notings of alt concerned.

(b) Kindly provide copies of guidelines for awarding sanction of such prosecution.

(c) Kindly provide information on average time taken for providing acceptance/rejection of prosecution.

(d) Kindly provide details with file notings on number of prosecutions sanctioned or rejection since 2005 onwards.

(e) Kindly provide information on funds/schemes sanctioned for development of RTI in various states.

(f) Kindly provide information with file notings regarding sanction of staff/officers in Central Information Commission.

(g) Kindly provide minutes of meetings and other correspondences with file notings for the appointment of Information Commissioners/Chief Information Commissioner in

2010.

(h) Kindly provide details of compliance of section 4 by DOPT. IF the information is available on website, kindly provide separate web-link of each of the subsections of section 4(1)(a) & (b).

Since the PIO did not provide any information, Mittal, the applicant filed a complaint before the CIC. The Commission issued a notice to the CPIO of MEA (to whom the RTI application was forwarded by PIO of DoPT on 6 January 2011).

In his reply to the notice, the CPIO of MEA on 16 August 2011, stated, "The RTI application was received in this Ministry on 11 January 2011 from DoPT. Inputs were received from the concerned Division of the Ministry. However, it was felt that these inputs were not specific to the queries raised by the applicant in his application. Accordingly, the matter was reconsidered in consultation with the Division, and a response was finally sent to the applicant on 26 July 2011. It is emphasized that efforts have been made to furnish relevant information to the applicant, within the framework of the RTI Act, 2005, which was complex in nature. A copy of the response is enclosed, for kind information, of the Commission."

Similarly, the CPIO of Ministry of Personnel, Public Grievances and Pensions, in his reply to the CIC on 16 August 2011, stated...

"I am directed to refer to your letter No. CIC/AD/C/201 l/000793/SG dated 14 July 2011 on the subject cited above and to state that a copy of the complaint dated 7 March 2011 was not received. Nonetheless it is stated that a separate complaint dated 10 December 2010 on the same issue of non-providing of information has already been considered by the Commission to pass orders in Case NO. CIC/SS/C/2010/000661 dated 11 January 2011, in response to which the explanation of the undersigned CPIO and the information has already provided to the applicant/ complainant had been provided to the Commission vide letter No1 42/3/2009-AVD.1 dated 25 February 2011. A copy each of the said orders and the aforesaid communication dated 25 February 2011 are enclosed herewith for ready reference.

2. To recapitulate the facts relating to the matter, it may be stated that the request dated 6 October 2010 of Kishan Lal Mittal sought information on eight distinct points out of which only four points were required to be responded to by the undersigned CPIO. The applicant had sought the following information which was partially the concern of the undersigned CPIO:

(a) Information with file notings and correspondence about the pending cases of sanction for prosecution against IAS/IPS/IFS and other officers who require prior sanction for prosecution

                (b) Guidelines for awarding sanction of such prosecution

(c) Information on average time taken for providing acceptance/rejection of prosecution

(d) Details with file notings on number of prosecutions sanctioned or rejection since 2005 and onwards.

3. The request was duly responded to vide letter of even number dated 14 October 2010. Further the request also being related to IPS & IFS officers, a copy of the request was also forwarded to the Ministry of Home Affairs (MHA)and the Ministry of Environment and Forests (MoEF) for being duly responded to in respect of such officers by the concerned administrative Ministries directly. The information specific to the Department of Personnel and Training (DoPT) and specific to the Desk manned by the undersigned CPIO was provided to the applicant including copies of instructions containing the guidelines relating to sanction for prosecution, as sought by him.

4. As regards point (c) of the request, the applicant was informed of the various intermediate stages of the processing of the matter for accord of sanction so as to enable him to appreciate the causes of the perceived delays in processing of such cases.

5. However with respect to the last part of the request required to be responded by the undersigned CPIO it was regretted that the notings of the said files could not be provided as there is reasonable apprehension that information, as has been sought by him would impede prosecution of offenders. Further reasonable apprehension was also conveyed that providing of such information may endanger the life or physical safety of persons - witnesses (including those against other accused) or identify the source of information or assistance given in confidence to the law enforcement agency. Thus the said part of the request was denied in view of provisions of sections 8(g) and 8(h) of the Right to Information Act, 2005. But at the same time, the details of the sanctions accorded/denied since 1 January 2005 was provided however. It was also informed to the applicant that providing of the file notings of such large number of cases would also disproportionately divert the resources of the single man desk handled by the CPIO and in this regard his attention was invited to provisions of section 7(9) of the Right to Information Act, 2005. A copy of the said response of the undersigned CPIO dated 14 October 2010 is also enclosed herewith for ready reference.

6. It may also be pertinent to state that the applicant/complainant also preferred an appeal dated 16 November 2010 against the information provided to his vide this Department's letter dated 14 October 2010 inter alia indicating the by IFS he had implied to seek information about officers of the Indian Foreign Service. Accordingly while disposing of the appeal a copy of the request of the applicant was also forwarded to the Ministry of External Affairs (MEA). The position as regards 'other officers' was also clarified to indicate that the undersigned CPIO was not a custodian of such information. It was indicated that the statutory provision brings within its ambit all 'public servants' and as such the matters relating to proposals of the Investigating agencies are considered by respective administrative Ministries/ Departments. The desk manned by the CPIO handled cases relating to IAS officers serving the State or the Centre. In respect of other officers, the appellant was advised to approach the respective administrative authorities individually for such information.

7. The appellant had also referred to the specific response relating to the average time taken in disposing off such cases to point out that cases had been pending since the year 2000 to suggest that the said information was incorrect. In this regard also his perception was clarified referring to the details of such case which led to such perception being formulated. The applicant also suggested that the term 'IFS' used by him had been misconstrued to imply 'Indian Forest Service' as he had desired information with respect to 'Indian Foreign Service' officers. The appeal was also disposed off by the appellate authority on 6 January 2011, conveying the due clarifications to his observations and also providing him with the list of details of IAS officers 'here competent authority had taken due decision during the past five years though the same was already in the public domain being hosted on the official website of the Department] and also forwarding a copy of his request to the Ministry of External Affairs. It may be pertinent to state here that the Commission had also sought clarification from the Ministry of Environment and Forests in this regard thus implying that the perception of the undersigned CPIO to construe IFS to mean Indian Forest Service was not incorrect. A copy of the appeal and response thereto is also enclosed herewith for ready reference.

8. It will be appreciated that the very fact that an appeal had been preferred by Kishanlal Mittal on 16 November 2010, referring to the response dated 14 October 2010 of the undersigned CPIO, implied that the RTI request of the complainant was timely responded to. This fact indicates that the complainant on 7 March 2011 i.e. the date of his complaint has not right informed the Commission of having received the reply from the undersigned CPIO though by that time he had already preferred the first appeal specifically referring to the reply of the undersigned CPIO.

9. Thus, if at all there is any deficiency in the information as received by the complainant, the same is due to reasonable and statutory restrictions as indicated in para 5 of this communication, in so far as the information pertained to the undersigned CPIO of which one was custodian of. The other information could not have been available with the undersigned CPIO and could not have been provided by the undersigned and accordingly the concerned Public Authorities were requested to directly provide such information to the applicant for which due endorsements were made to the concerned authorities and the applicant was also advised to approach the concerned administrative units for information in respect of 'other officers'.

10. In view of the above facts, the Commission is requested to take an appropriate view in the mater based on the said facts, copies of the documents enclosed herewith as also the fact that a complaint on the same aspect has already been considered and disposed off by the Commission, as indicated in the opening paragraph of this communication.

In his reply on 26 July 2011, the CPIO stated...

1) No request for sanction for prosecution of IFS officer is pending.

2) Information cannot be provided in terms of Para 10 of DoPT OM No. I /4/2009-IR dated 5th October, 2009 providing that the Public information Officer is not supposed to create information: or to interpret information: or to solve the problems raised by the applicants; or to furnish replies to hypothetical questions.

3) The information cannot be disclosed under Section 8(1)(e)(h)&(j) of the RTI Act, 2005. The provisions relating to the information available in fiduciary relationship. Disclosure of which would impede the process of investigation and invasion of privacy respectively. Further. This information as relates to third party information, as provided under Section 11(1) of the RTI Act, 2005.

During the hearing, Mr Gandhi, the then CIC, observed that the information which has not been provided are the copies of the file notings in matter where sanction for prosecution has been sought. The PIO denied this information claiming that disclosing it would endanger the life and physical safety of the witnesses and sources of information and that it could impede prosecution also. Effectively the PIO was claiming exemption under Section 8(1)(g) & (h) of the RTI Act.

Mr Gandhi discussed with the PIO, how revealing the information could impede the process of prosecution. The Bench pointed out to the PIO that all names of witnesses or sources of information could be severed as per Section-10 of the RTI Act.

However, the PIO was not able to explain to the Bench that once the names of witnesses and sources are severed, how providing the file notings could lead to impeding any prosecution. The Bench also pointed out that in cases where sanction for prosecution was not given there would be no ground to claim that any prosecution would be impeded.

Not seeing any valid ground to claim exemption under Section 8(1) of the RTI Act, Mr Gandhi directed the PIO to provide file noting of matters where sanction of prosecution has been sought for IFS officers after severing the names of witnesses or sources as per the provisions of Section 10 of the RTI Act. The PIO will provide this information to the Mittal before 20 January 2012, the Bench said while allowing the appeal.

CENTRAL INFORMATION COMMISSION

Decision No. CIC/AD/C/2011/000793/SG/16694

http://ciconline.nic.in/cic_decisions/CIC_AD_C_2011_000793_SG_16694_M_73263.pdf

Complaint No. CIC/AD/C/2011/000793/SG

Complainant                                     : Kishanlal Mittal

                                                            Mumbai 400066

Respondent                                       : Manish Chauhan

                                                            Public Information Officer & Director (RTI)

                                                            Ministry of External Affairs

                                                            2025, "A" Wing, Jawahar Bhawan, 23-D,

                                                            Janpath, New Delhi