Moneylife: National: Thursday, July 05, 2018.
In an
interesting case, the alleged accused in a sexual harassment case invoked Right
to Information (RTI) to find out details of investigations against him. The
Central Public Information Officer (CPIO) denied information citing it to be a
‘trade secret’, ‘intellectual property’ and ‘commercial confidence’ under
Section 8 of the RTI Act. Last week, the Central Information Commission (CIC)
trashed it by ordering the PIO to supply the information. While slamming a
penalty of Rs25,000 on the PIO, the CIC wondered ”How can statements of witnesses be ‘trade
secret’, ‘intellectual property’ or of ‘commercial confidence’ under Section 8
of RTI?”
The Case
Balkrishna
Porwal, an employee of the Department of Posts, is facing an enquiry on a
complaint of alleged sexual harassment. Under the RTI Act, he sought
information of documents pertaining to the investigations and inquiry against
him by the Department. These included the decision that set off the
investigation against him, copies of statements of witnesses, correspondence
amongst the investigative officers regarding his case as well as file notings.
The CPIO
replied that he could part only with a portion and not the entire information
as most of it came under Section 8 (1)(d)& (g) of the RTI Act as well as
under Section 16 of Sexual Harassment of Women at Workplace (Prevention,
Prohibition and Redressal) Act 2013. His First Appeal also met with the same
reply, which compelled him to file his second appeal with the Central
Information Commission.
The
accused asks for natural justice
At the CIC
hearing last week, the RTI applicant Porwal argued that, “…as a charge sheeted
accused before internal complaints committee, the principles of natural justice
demand that certified copies of all documents relating to the inquiry report,
including copies of the statements of witnesses, should be given to him to
enable him to build up his defence and for the conduct of the enquiry in a fair
manner.”
CIC
observations
The CIC in
his order observed that, “The CPIO invoked exemption clauses 8(1)(d) and (g) of
RTI Act to deny the appellant the information, which should have been given as
per the principles of natural justice, rules of disciplinary inquiry, Act of
2013, rules made thereunder and the official handbook of the ministry
containing guidelines for the prevention of sexual harassment.”
CPIO has
not applied his mind at all: CIC
The CIC
observed that the CPIO used exemption clauses under RTI Act without attributing
any reason to do so. He has casually denied information under Section 8(1)(d)
of RTI Act, which states:
“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 larger public interest
warrants the disclosure of such information;” and
Section
8(1)(g) says:
“information,
the disclosure of which would endanger the life or physical safety of any
person or identify the source of information or assistance given in confidence
for law enforcement or security purposes…’
Central
Information Commissioner Prof M Sridhar Acharyulu, observed that, “The CPIO
neither explained nor justified how these clauses could be invoked in this
case. He has not applied his mind at all. How can the statement of witnesses
and other documents relating to sexual harassment complaint be considered as
‘trade secret’, ‘commercial confidence’ or ‘intellectual property’ of the third
party or public authority? This is absolute absurdity…These excuses are
laughable and amounts to misuse of law by authority to deny the right to
information to the appellant. It also reflects malafide intentions on the part
of the CPIO. If this is the way
information is denied and the accused is not allowed to defend himself, false allegations
will increase and the real purpose of the Act of 2013 and the RTI Act will be
totally defeated.’’
CIC Order
CIC Prof
Acharyulu ordered that the CPIO should provide the certified copies of most of
the documents, barring three. A show cause notice has been sent to the CPIO for
levying maximum penalty on him. The CIC stated, “…penalty needs to be imposed
in this case and then a show cause notice is to be issued …The penalty is for
denying the information (a) without reasonable cause, and (b) with malafide
intentions”.
Although the
CPIO pleaded absence of malice, the CIC contented that he can still impose a
penalty if the denial was without reasonable cause and was intentional.
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