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Sajib Nandi

Which law protects info seekers- Madabhushi Sridhar

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Sajib Nandi

Security for RTI applicant is an important subject not dealt with by the RTI Act. Does it mean that Act cares not for the lives of the applicants? No. If a person’s life is under threat simply because he asked for some information, which is a legally guaranteed right, who should be responsible?

 

Harinder Dhingra filed an urgent petition saying that he was receiving multiple threats to his life and safety in the past 24 hours, to stop his efforts to secure information about the impersonation scandal in the appointments of LDCs and SSO (Inspectors) in ESIC, Faridabad. He also stated that because the ESIC was not implementing the orders of CIC, threats to him had been started.

 

He wrote to the Commission that he filed representations to the official email IDs of Haryana police, the Ministry and the ESIC today (i.e, January 5, 2018). The appellant approached the Commission through his representative during the lunch time and also forwarded the copies of his representations to the three aforementioned public authorities.

 

The appellant filed various RTI applications wherein directions were issued on 24th March, 2017 which was partly compiled with by ESIC and the matter was also referred to the CBI. The Commission directed the ESIC to provide information regarding appointment/recruitment of Social Service Officers (Inspectors).

 

It was noticed that though there was a serious suspicion about impersonation, as visible from the contentions of both the parties, nothing tangible could come out of the exercise under RTI and other investigations. One of the reasons for this is weeding out of records like the copies of admit cards etc.

 

The officers representing the public authority represented to the Commission that the ESIC had learnt from its past experiences like this and was making foolproof arrangements to prevent any possibility of impersonation in the examination. The officers also submitted about the measures to increase the transparency and publish the results on website immediately after the completion of the evaluation along with the merit list to prevent the irregularities.

 

The Commission felt that there was a need to inquire into the allegations of impersonation and irregularities raised by the appellant. The Commission recommended a follow-up action on letter dated 09.08.2017 and reminder dated 30.09.2017 addressed to Joint Director (TFC), CBI, requesting them to use the services of the handwriting experts through CFSL to bring out the persons involved in the impersonation scandal in ESIC.

 

The Commission directed the Central Forensic Science Laboratory to inform the appellant when they would respond to the letter dated 25.09.2017 forwarded from the Additional Commissioner of ESIC and provide a certified copy of their conclusions to the appellant within 15 days from the date of preparing such letter/report, and the CPIO of ESIC is directed to forward this Order to CPIO concerned, Central Forensic Science Laboratory and follow-up accordingly. The Commission directs the respondent authority to inform the appellant about the progress in the investigation and action taken on the serious issue raised by the appellant.

 

The Commission also directed the public authority to provide certified copies of the extract of weeding out register and also directed the Chief Vigilance Officer, ESIC, to inform the status of inquiry, along with latest action status, within 15 days from the date of receipt of the order. Dhingra also submitted that: “I am pursuing this case of fraud played on deserving candidates, who lost out on the jobs to non-deserving candidates, which in turn turned this Mafia against me, who can be seen roaming around my residence enquiring about me.

 

The delay in not providing information by ESIC has exposed me to risk of being physically harmed and as such it is prayed that ESIC is directed to provide information and also put on public domain so that risk to the appellant is minimized.”

 

It was personally represented that after this Commission ordered the public authority to furnish the copies of report of Central Forensic Science Laboratory (CFSL), who analysed the admit-cards and attendance sheets, and the orders were uploaded on the official website of the Commission on 30.12.2017, the threats started pouring in.

 

It was represented that some unidentified people passing by him, when he was walking in his colony, threatened him to stop pursuing the RTI cases, and were leaving the scene immediately, even when Dhingra was asking him to come home and discuss.

 

The appellant said that such incidents happened at different times involving different people in the last 24 hours. The Commission found that threats were serious in nature and risk to life and liberty of appellant increased. He also wanted the action-related information on his representation for protection filed before the Ministry of Labour and Employment, Chairman ESIC and the Director General of Police, Haryana.

 

In view of the urgency and seriousness of the matters, the Commission considered that this complaint of non-compliance as an immediate extension of second appeals in the above referred numbers and directed the authorities concerned to initiate measures to secure the life and liberty of the appellant and his family members and inform him the steps taken to assure him of protection. The CIC order says:

 

A.The Commission directs Shri Raj Kumar, IAS, Director General of ESIC, to take necessary measures to ensure the life and safety of the appellant Mr. Harinder Dhingra and his family members, and file compliance report within 48 hours.

 

B.The Commission directs Shri Arun Kumar, Insurance Commissioner, (Revenue & Benefit, Recruitment, Inspection & Actuarial, Pubic Relations, P&A Except E-II, E-IV & E-VI), Ministry of Labour and Employment, to initiate necessary steps to secure the life and safety of the appellant and his family members, besides instructing speedy investigation and strict action against the culprits, who are obviously behind the threats, and because any delay in investigation might increase the risk of appellant and others, and file compliance report within 48 hours.

 

C.The Commission also directs Shri Baljit Singh Sandhu, Director General of Police, Haryana, to urgently act on this complaint and provide adequate security to Mr. Harinder Dhingra and his family members, besides, inform him the action taken and submit compliance report to the Commission within 48 hours.

 

D.The Commission also directs the CPIO, ESIC Hqrs., Faridabad, to comply the order dated 11.12.2017 and send the compliance report within 10 days.

 

The Whistle Blower Protection Bill 2011 is part of a drive to eliminate corruption in the country's bureaucracy and it was passed by the Lok Sabha on 27 December 2011 and by Rajya Sabha on 21 February 2014 and received the President's assent on 9 May 2014.

 

This is “an Act to establish a mechanism to receive complaints relating to disclosure on any allegation of corruption or willful misuse of power or willful misuse of discretion against any public servant and to inquire or cause an inquiry into such disclosure and to provide adequate safeguards against victimization of the person making such complaint and for matters connected therewith and incidental thereto”. The salient features are:

 

What: It seeks to protect whistle blowers, i.e., persons making a public interest disclosure related to an act of corruption, misuse of power, or criminal offense by a public servant.

 

Who: Anybody can be a whistle blower: Any public servant or any other person including a non-governmental organisation may make such a disclosure to the Central or the State Vigilance Commission.

Identity: It insists on disclosure of identity. Every complaint has to include the identity of the complainant.

 

Confidentiality: However, the Act protected identity from disclosure: The Vigilance Commission shall not disclose the identity of the complainant except to the head of the department if he deems it necessary. The Act penalises any person who has disclosed the identity of the complainant.

 

Penalising complainant: The Act has a controversial clause that prescribes penalties for knowingly making false complaints.

Whether this Act extends protection to the information seekers under RTI Act? Whether information seekers fall under the category of ‘persons who made disclosures to State or Central Vigilance Commissioner’?

 

(Based on decision in CIC/ESICO/A/2017/142254, Harinder Dhingra v. PIO, ESIC, Faridabad, on 5.1.2018)

 

The news article is available at: Which law protects info seekers?

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      CENTRAL INFORMATION COMMISSION




      Appeal No.ICPB/A-1/CIC/2006


      Right to Information Act – Sections 6/18

      Name of Appellant : Satyapal
      Name of Public Authority : CPIO, TCIL

      DECISION


      Decisions appealed against :
       
       
      The CPIO, TCIL has declined to supply a copy of a document on the ground that the same forms part of “file Noting” which, according to CPIO is exempt under the RTI Act. Appellate authority also has confirmed the decision of the CPIO. The appellant contents that he has the right to seek information contained in the “File Notings”.
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      Shri Satyapal – appellant, a resident of Delhi, applied to the CPIO, TCIL seeking for copies of certain documents by a letter dated 17th October, 2005. By a letter dated 14th November, 2005, CPIO, TCIL furnished copies of certain documents, however, stating that a particular document sought for was a file noting in the Department of Telecom and as such it was exempt from disclosure. By a letter dated 17th Nov. 2005, Shri Satyapal again wrote to the CPIO, TCIL pointing out that the information sought for by him did not fall within the ambit of Section 8 of the RTI Act and as such the same should be supplied. He also brought to the notice of CPIO, TCIL that in respect of information already furnished, a copy of a bill in respect of advertisement relating to independence day 1996 had not been supplied. By a letter dated 28th Nov. 2005, the CPIO, TCIL while furnishing a copy of the bill, once again reiterated that file notings are exempt from disclosure in terms of the clarification given by the Department of Personnel in their website. Aggrieved by this decision, Shri Satyapaul preferred an appeal to the appellate authority by a letter dated 14th Dec. 2005 stating that file notings are not exempt from disclosure in terms of Section 8 of the RTI Act. He followed up the same by letters dated 14th Dec., 31st Dec. 2005 and 5th January, 2006. The appellate authority by a letter dated 5.1.2006 rejected the appeal stating “The information sought by you pertains to the file notings of the Department of Telecommunication as also that of TCIL. I am of the view that TCIL is exempted from disclosing the information sought by you under Section 8(1)(d)&(e) of the RTI Act. UO No.7-17/95-PP dated 4.10.1995 is a part of file notings. You have mentioned in your appeal that the information has been denied misconstruing it as “file notings” by CPIO, TCIL. I confirm that these are notings in the file”. Aggrieved with the decision of the appellate authority, Shri Satyapal has filed this appeal before this Commission. According to Shri Satyapal, there is no specific exemption from disclosure as far as file notings are concerned in Section 8 of RTI Act.
      Commission’s Decision :
      It is seen that while the CPIO declined to furnish the information sought for on the ground that file notings are exempt from disclosure, the appellate authority, without confirming or rejecting the stand of CPIO that file notings are exempt from disclosure, has relied on Section 8(1)(d) and (e) of the RTI Act to deny the information.
      As is evident from the Preamble to the RTI Act, the Act has been enacted to vest with the citizens, the right of access to information under the control of public authorities in order to promote transparency and accountability in the working of any public authority. Conscious of the fact that access to certain information may not be in the public interest, the Act also provides certain exemptions from disclosure. Whether file notings fall within the exempted class is the issue for consideration.
      Section 2(f) defines information as “Any material in any form, including records, documents, memos, e-mails, opinion, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law or the time being in force”.
      Section 2(j) reads : “Right to information means the right to information accessible under this Act which is held by or under the control of any public authority and includes the right to (i) inspection of work, documents, records; (ii) taking notes, extracts or certified copies of document or records; (iii) …… (iv) …. “. In terms of Section 2(i) “Record” includes (a) any documents, manuscript and file;
      In the system of functioning of public authorities, a file is opened for every subject/matter dealt with by the public authority. While the main file would contain all the materials connected with the subject/matter, generally, each file also has what is known as note sheets, separate from but attached with the main file. Most of the discussions on the subject/matter are recorded in the note sheets and decisions are mostly based on the recording in the note sheets and even the decisions are recorded on the note sheets. These recordings are generally known as “file notings”. Therefore, no file would be complete without note sheets having “file notings”. In other words, note sheets containing “file notings” are an integral part of a file. Some times, notings are made on the main file also, which obviously would be a part of the file itself. In terms of Section 2(i), a record includes a file and in terms of Section 2(j) right to information extends to accessibility to a record. Thus, a combined reading of Sections 2(f), (i)&(j) would indicate that a citizen has the right of access to a file of which the file notings are an integral part. If the legislature had intended that “file notings” are to be exempted from disclosure, while defining a “record” or “file” it could have specifically provided so. Therefore, we are of the firm view, that, in terms of the existing provisions of the RTI Act, a citizen has the right to seek information contained in “file notings” unless the same relates to matters covered under Section 8 of the Act. Thus, the reliance of the CPIO, TCILO on the web site clarification of the Department of Personnel to deny the information on the basis that ‘file notings’ are exempted, is misplaced.
      However, it is seen from the decision of the appellate authority that he was of the view that TCIL was exempted from disclosing the information sought, under Section 8(1)(d)&(e) of RTI Act. In terms of Section 8, there shall be no obligation to give any citizen information relating to matters covered under subsections (a) to (j) of that Section. Section 8(d) exempts information including commercial confidence, trade secrets or intellectual property and Sub section (e) exempts information available to a person in his fiduciary relationship. Even then, at the discretion of the competent authority even these information could be disclosed if he is of the opinion that public interest so warrants. From the decision of the appellate authority of TCIL, which is not a speaking one, it is not clear whether the file notings, a copy of which was denied to the appellant, relate to commercial confidence or trade secret or intellectual property or is available to TCIL in its fiduciary relationship.
      Direction :
      Since we have held that file notings are not, as a matter of law, exempt from disclosure, the CPIO, TCIL is directed to furnish the information contained in the file notings, on or before 15.2.2006 to the appellant. However, if the CPIO, TCIL is still of the opinion that the said file notings are exempt under Section 8(d) & (e), he is at liberty to place the file notings before the Commission on 13.2.2006 at 11 AM to determine whether the same is exempt under these sections and even if so, whether disclosure of the same would be in the public interest or not.
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      Sd/-




      (Padma Balasubramanian)




      Information Commissioner




      Sd/-




      (Wajahat Habibullah)



      Chief Information Commissioner


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