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Right to information : New dimensions and interpretations


RAVEENA_O

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  • INFORMATION DISSEMINATED TO PUBLIC OR ACCESSIBLE TO CITIZENS UNDER SEC-4(1) & OTHER STATUTORY PROVISIONS ARE NOT INFORMATION ACCESSIBLE UNDER RTI ACT
  • INFORMATION “HELD BY OR UNDER THE CONTROL OF PUBLIC AUTHORITY” – INTERPRETED BY HON'BLE DELHI HIGH COURT

‘Right to information’, is defined as ‘the right to information accessible under this Act (RTI Act), which is held by or under the control of any public authority’. Way back in 2006, the issue regarding information accessible under another statute (Companies Act) came up before Central Information Commission for adjudication in the case of Arun Verma Vs. Dept of Company Affairs. Prof. M.M. Ansari, then Information Commissioner held that there is already a provision under the Companies Act (Sec-610) and the Appellant may accordingly approach the Registrar of Companies as advised by the Appellate Authority to obtain the relevant information.

 

Same issue came up again before Sh. A.N. Tiwari, Information Commissioner in the case of Sh. K. Lall Vs. Sh. M. K . Bagri, Assistant Registrar of Companies & CPIO, [CIC/AT/A/2007/00112] decided on 12/04/2007. The arguments raised by the Public Authority before the Commission was that once they have put some information in the public domain and put a price on accessing that information, they cannot be said to hold control of that information in terms of Section 2(j) of the RTI Act. If any application is made under RTI Act to access such already disclosed information, it would suffice if the public authority informed the applicant where and how to access that information and also the fact that it was already in the public domain. They have pointed out that the pricing of access to such documents is equivalent to putting a price on a publication brought out by a public authority. Once an information is either placed in the public domain through a website or through a public announcement about the availability of that information in public domain on payment of a predetermined price, or by bringing out a priced publication, the information is automatically excluded from the purview of the RTI Act, at least in regard to the methodology and the fee for accessing that information.

 

The Central Information Commissioner observed –

inferentially it would mean that once a certain information is placed in the public domain accessible to the citizens either freely, or on payment of a pre-determined price, that information cannot be said to be ‘held’ or ‘under the control of’ the public authority and, thus would cease to be an information accessible under the RTI Act. This interpretation is further strengthened by the provisions of the RTI Act in Sections 4(2), 4(3) and 4(4), which oblige the public authority to constantly endeavour “to take steps in accordance with the requirement of clause (b) of subsection (1) of the Section 4 to provide as much information suo-moto to the public at regular intervals through various means of communication including internet, so that the public have minimum resort to the use of this Act to obtain information” (Section 4 sub-section 2). This Section further elaborates the position. It states that “All materials shall be disseminated taking into consideration the cost effectiveness, local language and the most effective method of communication in that local area and the information should be easily accessible, to the extent possible in electronic format with the Central Public Information Officer or State Public Information Officer, as the case may be, available free or at such cost of the medium or the print cost price as may be prescribed.” The explanation to the subsection 4 section 4 goes on to further clarify that the word “disseminated” used in this Section would mean the medium of communicating the information to the public which include, among others, the internet or any other means including inspection of office of any public authority. xx xxx xx xx Once the information is brought into the public domain it is excluded from the purview of the RTI Act and, the right to access this category of information shall be on the basis of whether the public authority discloses it free, or at such cost of the medium or the print cost price “as may be prescribed”. The Act therefore vests in the public authority the power and the right to prescribe the mode of access to voluntarily disclosed information, i.e. either free or at a prescribed cost / price.

 

The chronology of CIC Decisions on information ‘held by’ or ‘under the control of the public authority’ would show that except Sh. Shailesh Gandhi, all other Information Commissioners concurred with the view of Prof M.M. Ansari in the case of Arun Verma Vs. Dept of Company Affairs decided on 29.03.2006 [CIC/MA/A/2006/00016] in which it was held that there is already a provision for seeking information under the Companies Act. The appellant may accordingly approach the Registrar of the Companies (ROC), as advised by the appellate authority, to obtain the relevant information. There is no question of denial of information to him.

 

This was followed by decision of Information Commissioner, Sh. A.N. Tiwari, in the case of Sh. K. Lall Vs. Sh. M. K . Bagri, Assistant Registrar of Companies & CPIO, [CIC/AT/A/2007/00112], decided on 12/04/2007 in which the Commission considered the issue with regard to interplay between Section 610 of the Companies Act and the rights of a citizen to obtain information under RTI Act. Sh. A.N. Tiwari by a detailed and considered decision held that information which can be accessed by resort to Section 610 of the Companies Act cannot be accessed by resort to the provisions of the RTI Act.

 

This view was again followed by Sh. A.N. Tiwari in a subsequent order dt 29.08.2007 in the case of “Shriram (Dada) Tichkule Vs. P.K.Galchor, Assistant Registrar of Companies ” [CIC/AT/A/2007/ 00723]. This view was also followed in the case of Sh. Sonal Amit Shah Vs. Registrar of Companies [CIC/MA/A/2008/00062 & 63] dt 31.03.2008 and various other decisions

 

Thereafter, Central Information Commissioner (Sh. Shailesh Gandhi) in the case of Dharmendra Kumar Garg Vs RoC [Decision No. CIC/SG/C/2009/000702/4128 & Adjunct Complaint No. CIC/SG/C/ 2009/ 000702] decided on 10-09-2009 took a different view and held that –

If a Public Authority has a procedure of disclosing certain information which can also be accessed by a Citizen using the Right to Information Act, it is the Citizen’s prerogative to decide which route he wishes to take
. The existence of another method of accessing information cannot be a justification to deny the Citizen his freedom to exercise his fundamental right codified under the Right to Information Act. If the Parliament wanted to restrict this right, it would have been stated expressly in the Act. Nobody else has the right to constrain or limit the rights of the Sovereign Citizen.

 

The Commission observed that there was no provision in the Right to Information Act which restrained the Citizen’s right to use it if another route to access information has been offered. It was a Citizen’s right to use the most convenient and efficacious means available to him.

 

It appeared to the Commission that information was being denied to the Complainant without any valid grounds and this delay had caused mental agony to the Complainant who was living under the constant fear of arrest.

 

The Complaint was allowed.
The Commission directed that complete information was to be given to the Complainant before 25 July 2009. If records were not available for any of the queries, this would be stated categorically. The Commission issued a show cause notice to the PIO directing him to give his written submissions to show cause why penalty should not be imposed on him as mandated under Section 20 (1) before 5 August 2009. He was also directed to submit proof of having given the information to the Complainant.

 

In the Adjunct proceedings, the show cause was closed since the information has been supplied and the commission felt that there was reasonable cause for denial of the information.

 

During pendency of the Adjunct proceedings, the Public Authority approached the Delhi High Court. Hon'ble Delhi HC decided the matter vide judgment dt: 01/06/2012 and held that :

The expression ‘held by or under the control of any public authority’ in relation to
information
, means that information which is held by the public authority under its control to the exclusion of others. It cannot mean that information which the public authority has already let to, i.e. shared generally with the citizens, and also that information, in respect of which there is a statutory mechanism evolved (independent of the RTI Act) which obliges the Public Authority to share the same with the citizenry by following the prescribed procedure, and upon fulfillment of the prescribed conditions. This is so, because
in respect of such information, which the public authority is statutorily obliged to disseminate, it cannot be said that the public authority holds or controls the same.
There is no exclusivity in such holding or control. In fact, the control vests in the seeker of the information, who has only to operate the statutorily prescribed mechanism to access the information.
It is not this kind of information, which appears to fall within the meaning of the expression “right to information”, as the information in relation to which the ‘right to information’ is specifically conferred by the RTI Act is that information which “is held by or under the control of any public authority”.
(emphasis applied).

 

Mere prescription of a higher charge in the other statutory mechanism (in this case Section 610 of the Companies Act), than that prescribed under the RTI Act does not make any difference whatsoever. The right available to any person to seek inspection/copies of documents under Section 610 of the Companies Act is governed by the Companies (Central Government’s) General Rules & Forms, 1956, which are statutory rules and prescribe the fees for inspection of documents etc. in Rule 21A. The said rules being statutory in nature and specific in their application, do not get overridden by the rules framed under the RTI Act with regard to prescription of fee for supply of information, which is general in nature, and apply to all kinds of applications made under the RTI Act to seek information. It would also be complete waste of public funds to require the creation and maintenance of two parallel machineries by the RoC one under Section 610 of the Companies Act and the other under the RTI Act to provide the same information to an applicant. It would lead to unnecessary and avoidable duplication of work and consequent expenditure.

During pendency of the WP before the Delhi HC, in the case of Smt. Dayawati Sharma Vs. Registrar of Companies [ CIC/SS/C/2011/ 000607] decided on 23.03.2012, once again the same issue had been raised and the Central Information Commissioner has preferred to follow the view of Sh. A.N. Tiwari in the case of K. Lall Vs. Ministry of Company Affairs [supra].

 

Subsequent to Delhi HC decision, in the Case of S.K. Sharma Vs CBSE [CIC/RM/A/2012/001337] decided on 07/08/2013, the issue of accessibility to the information through departmental route has been upheld by Central Information Commissioner Sh. Rajiv Mathur, and followed the ratio laid down by Delhi HC in RoC’s case

 

In summation, the right of the citizen under the RTI Act is to obtain information ‘held by or under the control of any public authority’ i.e. information, which is held by the public authority under its control to the exclusion of others. It cannot mean ‘information’ which the public authority has already disseminated and shared generally with citizens, and also that information, in respect of which there is a statutory mechanism evolved (independent of the RTI Act) which obliges the Public Authority to share the same with the citizenry by following the prescribed procedure, and upon fulfillment of the prescribed conditions. Information already disseminated under Sec-4 of the RTI Act, thus, do not fall within the ambit of Sec-2(j), i.e. ‘held by or under the control of any public authority’. Departmental procedure contained in other statutes for dissemination (inspection / copy ) of information as that of Sec-610 of Companies Act fall within the scope and ambit of Sec-4(xv). Right under the RTI Act can be exercised only in respect of information HELD BY or UNDER THE CONTROL OF THE PUBLIC AUTHORITY. Information disseminated to public, either free or on prescribed fee, are also not information accessible within the meaning of Section-2(j).

 

Cases referred:

 

[1] Arun Verma Vs. Dept of Company Affairs dt 29-03-2006 – CIC

[2] K.LAL vs M.K. BAGRI, Asst RoC dt 12-04-2007 – CIC

[3] SHRIRAM TICHKULE vs.P.K.GAICHOR, ARoC dt 29-08-2007 – CIC

[4] SONAL AMIT SHAH vs. RoC dt 31-03-2008 – CIC

[5] DHARMENDRA KUMAR GARG vs. REGISTRAR OF COMPANIES dt 10-09-2009 – CIC

[6] DAYAWATI SHARMA vs. RoC dt 23-03-2012 – CIC

[7] S.K. SHARMA vs. CBSE dt 07-08-2013 – CIC

[8] DELHI HC - ROC vs. DHARMENDRA KUMAR GARG dt 01-06-2012

 

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