Moneylife: New Delhi: Friday, May
05, 2017.
Neither
lodging a first information report (FIR) with the police nor denying
information to a citizen under Right to Information Act (RTI) under the pretext
of a missing file is acceptable. Last week’s order by the Central Information
Commission (CIC) puts the onus further on the Public Information Officer (PIO)
to reconstruct the missing file. The order states, “It is the duty of the PIO
to make necessary efforts to trace the file and inform the same to the
appellant in the form of an affidavit.” The order also makes applicable the
Public Records Act as well as the Indian Penal Code for the PIO.
In several
earlier decisions, pioneered by Maharashtra’s former Information Commissioner
Vijay Kuvalekar, lodging of FIR was made mandatory for the PIO in case he or
she cannot trace the files which contain information required by the CIC.
However, FIRs would be merely lodged with no further action. The latest order
by Central Information Commissioner Prof Sridhar Acharyulu’ questions the
validity of the FIR in such a case, stating, “The Commission feels that lodging
of FIR is not the remedy in such cases, as one cannot expect the Police to come
to the office and trace the file. According to law, Police does not have any
responsibility to trace the missing files, as they will come into picture only
when there is theft of the files. It cannot be said that police should come to
office and search for the files or things misplaced by negligence or deliberate
action or by mistake etc.”
Holding the
PIO fully responsible for missing files and stating that every public authority
should designate a Public Records officer and the Public Records Act 1993
should be made applicable to a PIO, Mr Acharyulu stated in his order of 4 May
2017, “The public authority has a duty to designate ‘Public Records Officer’ as
per Public Records Act, 1993. This Act is made to regulate the management, administration
and preservation of public records of the Central Government, Union Territory
Administrations, public sector undertakings, statutory bodies and corporations,
commissions and committees constituted by the Central Government or a Union
Territory Administration and matters connected therewith or incidental thereto.
Bringing out
similarities between the two Acts, CIC Acharyulu stated that the definition of
‘Public Records’ U/S 2(e) of Public Records Act, 1993 (PRA 1993) is almost
identical with the definition of Records under the RTI Act 2005. These records
can be sought under the RTI Act, 2005 as ‘Information’ through RTI Application.
What does
the Public Records Act (PRA) 1993 say?
S 5 (1)
Every records creating agency shall nominate one of its officers as records
officer to discharge the functions under this Act. Under PRA 1993, Sec 6(1) the
records officer shall be responsible for:
•
Proper arrangement, maintenance and preservation of
public records under his charge;
•
Periodic review of all public records and weeding out
public records of ephemeral value;
• Appraisal of public records which are more than 25 years
old in consultation with the National Archives of India or, as the case may be,
the Archives of the Union territory with a view to retaining public records of
permanent value;
•
Destruction of public records in such a manner and
subject to such conditions as may be prescribed under sub-section (1) of
section 8;
•
Compilation of a schedule of retention for public records
in consultation with the National Archives of India or, as the case may be, the
Archives of the Union Territory;
•
Periodic review for downgrading of classified public
records in such manner as may be prescribed;
•
Adoption of such standards, procedures and techniques as
may be recommended from time to time by the National Archives of India for
improvement of record management system and maintenance of security of public
records;
•
Compilation of annual indices of public records;
•
Compilation of organisational history and annual
supplement thereto;
• Assisting the National Archives of India or, as the case
may be, the Archives of the Union territory for public records management;
•
Submission of annual report to the Director General or,
as the case may be, head of the Archives in such manner as may be prescribed;
• Transferring of records of any defunct body to the
National Archives of India or the Archives of the Union Territory, as the case
may be, for preservation.
The CIC’s
decision of 4th May was a result of a second appeal filed by a citizen,
Balvendra Kumar, who sought details with regard to the file notings of all
corresponding papers of a particular file in the Ministry of Labour and
Employment. The CPIO replied by stating the concerned file was not traceable.
An appeal was filed. The First Appellate Authority (FAA) provided two pages,
but Balvendra Kumar was not satisfied. He made a second appeal to CIC. The PIO,
during the CIC hearing, stated that “they made all possible efforts to find out
the missing file in question and even went to different sections of the
concerned departments but all their efforts bore no fruitful results”.
The CIC
referred to an earlier order of 2014 on the issue of missing files which stated
that, “... prima facie, public authority cannot deny the right of the appellant
to get an alternative plot, by putting forward an excuse of missing file. The
defense of missing file cannot be accepted even under the RTI Act. If the file
is really not traceable, it reflects the inefficient and pathetic management of
files by the Public Authority. If the file could not be traced in spite of best
efforts, it is the duty of the respondent authority to reconstruct the file or
develop a mechanism to address the issue raised by the appellant.”
The CIC also
observed that if the Right to Information Act, 2005 is read along with Public
Records Act, 1993 and Indian Penal Code, “it will lead to serious consequences
for those who lose the records, besides the disciplinary action from the top
administration. The Right to Information Act cannot be effectively implemented
without properly implementing the Public Records Act, 1993. But most employees
and their bosses do not know that a law called Public Records Act exists in
this country”.
If all these
laws are put together, the CIC said, “Appropriate action could be ordering an
inquiry and holding the persons responsible for the disappearance of the files.
There are three requirements, a) recovering the file, b) finding out which
employee was responsible followed by disciplinary action and c) addressing
problems arising out of ‘missing file’. No public authority has shown any such
record that reflected their ‘appropriate action’.”
The CIC has
directed CPIOs of the Ministry of Labour and Employment to give, by 12 May
2017, “report on action taken on the pathetic condition of their office losing
a very important record like this, and inform the Commission what kind of
measures they contemplate to address the grievance of the appellant…”
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