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Pathetic situation in interpretation of exemptions even after 12 years of enactment

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RIGHT TO INFORMATION Public Interest - Accused in sexual harassment denied information under RTI by Postal Department

Vinita Deshmukh
04 July 2018 1  

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. 

 

(Vinita Deshmukh is consulting editor of Moneylife, an RTI activist and convener of the Pune Metro Jagruti Abhiyaan. She is the recipient of prestigious awards like the Statesman Award for Rural Reporting, which she won twice in 1998 and 2005, and the Chameli Devi Jain award for outstanding media person for her investigation series on Dow Chemicals. She co-authored the book, “To The Last Bullet - The Inspiring Story of A Braveheart - Ashok Kamte”, with Vinita Kamte, and is the author of “The Mighty Fall”.)

 

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