Moneylife: Pune: Friday,
September 20, 2013.
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.
1.
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.
2.
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.
3.
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.
4.
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.
5.
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.
6.
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.
7.
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.
8.
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'.
9.
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.
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