- RTI query reveals banking frauds of ₹ 2.05 Trillion reported in the last 11 years
- 509 per cent rise in cases under child labour law: Study
- The Central Information Commission has allowed disclosure of file notings on the mercy petition of a rape and murder convict, rejecting the government's contention that the records cannot be disclosed as these are privileged documents under Article 74(2) of the Constitution.
- Electoral bonds worth over ₹5,800 crore were bought by donors to fund political parties between March 1, 2018 and May 10, 2019, a Right to Information reply has said.
- Don't pay 500/- for answer sheet now- Supreme Court says if Answer sheet is asked under RTI, RTI Fees will be governed
News I read from The
Cronicle Herald.ca about Nosa Scotia Province Freedom of Information implimentation.
Better, but far from perfect
Province has gotten better, but N.S. charges highest fees for public info
By DARCE FARDY
Or as Alasdair Roberts, an expert in Canadian freedom of information legislation, and professor at Syracuse University, puts it: "Politicians and bureaucrats are not going to give up power easily. Given the opportunity they will try to reclaim it."
Outgoing federal information commissioner John Reid was upset by a decision of the new Conservative government to stall on an election promise to introduce a much stronger Access to Information Act. He wonders whether the governmentâ€™s plans were "simply hijacked by bureaucrats who saw their culture of secrecy threatened for the first time in decades."
I have concluded, after 11 years as Nova Scotiaâ€™s independent review officer under the Freedom of Information and Protection of Privacy Act, and after nine months as the president of the Right to Know Coalition of Nova Scotia, that things will not change as long as citizens give no indication they care. The evidence is that they donâ€™t, at least not in significant numbers.
Let me make it clear this is not a partisan issue. Information commissioners across the country do not expect, nor do they see, any improvement in access when a government changes, even when members of the new government, while in opposition, stood four-square in support of access to information legislation and often criticized the party in power for its lack of transparency.
I also want to say that the situation in this province does not match the one faced by the federal information commissioner.
Nova Scotia has one of the best freedom of information acts in the country. It is the only legislation that requires governments and other public bodies to be "fully accountable" to the public; the act covers all government departments and agencies with rare exception; cabinet records are subject to requests and the records are made available to the review officer in their entirety during a review of a government decision; all municipalities, universities, colleges, school boards and hospitals in the province are subject to freedom of information legislation.
Recently a provincial cabinet minister appeared at a public forum to discuss transparency and accountability in government and to face a critical public. Mark Parent, minister of the Environment and Labour, accepted my invitation to join a panel with other politicians. He answered questions, replied to criticism and stayed until the forum was over. I suspect there was no lineup of ministers wanting to appear in his stead.
For some years now, the deputy minister of Justice, whose department is responsible to the legislature for the Freedom of Information Act, has appeared publicly to explain and defend the legislation. To my knowledge, no other minister has done what Mr. Parent did and no senior bureaucrat has followed deputy minister Doug Keefeâ€™s example.
Many of the employees who handle applications under the act for government departments have improved their approach significantly. I said in public recently that some of them are now "advocates of access to information" though I suspect many of them would like more support from their bosses.
A recent audit by the Canadian Newspaper Association placed Nova Scotia fourth among the 10 provinces for its willingness to provide information on selected applications. Nova Scotia scored 89 per cent. Eight out of nine applications to different public bodies were met. The provinces ahead of Nova Scotia scored 100 per cent compliance. In a similar audit last year, Nova Scotia placed last in the country.
Applicants for information from public bodies can now look for support in some 28 Nova Scotia court rulings brought down since the existing legislation was passed in 1995. All but one came down firmly on the side of providing the information or most of the information requested.
So much for the good news. Nova Scotia has the highest freedom of information "user fees" in the country, inhibiting access to information from public bodies. I heard no good explanation for the substantial increase in fees five years ago from $5 for an application and no charge for a request for review by the Review Officer, to $25 for each step.
I did not buy into the reason made public: that it would stop frivolous applications. In my experience frivolous requests were rare, and these fees do stop genuine applications.
Revenue gathered from these fees is negligible. The government estimates that the act costs $1 million a year but this is likely a rough estimate.
However, we canâ€™t expect that this important program, like any other, can be done at no cost. It is money well spent.
Whatever the true cost of administering this act, the government has been slow to give its administrators the resources to allow them to get out among the public to explain to people how and why they should take advantage of their fundamental rights to information from public bodies.
As far as I know no government in Canada has claimed, as Sweden has, that its freedom of information legislation has made government more efficient. Freedom-of-information legislation no doubt has promoted efficiency because public bodies would require proper records-keeping in order to meet their obligations under the act.
The establishment of the Review Office reveals that the government at the time appeared to have no idea what resources would be required. Hence no budget was provided. The government believed that a "part-time" review officer working a few days a month could handle "rare" appeals from the public.
In my first year in the job I received 54 appeals, increasing in significant numbers each year until the fees were increased. Working alone at the time I found myself coming to the office six and sometimes seven days a week.
It took government several years to admit that the job required a full-time review officer and changed the legislation to confirm this. Only then was a budget applied to allow me to hire two staffers.
Nova Scotiaâ€™s Review Office had a staff of three before I retired. The freedom of information review office in Manitoba, a province of comparable population, had a staff of 15.
While the budget for the Review Office was increased over the years, this increase was hardly commensurate with the amount of work required by the office and left precious little to allow for public education.
The governmentâ€™s lack of attention to the Review Office is further reflected in its failure to appoint a new review officer. An acting review officer has been filling in for 10 months.
As far as other public bodies are concerned, many municipalities have not yet embraced their obligation to be open and transparent in their decision making. Some are unfamiliar with the legislation.
Few feel obliged to share their deliberations with the people who put them in office.
Apparently these municipal councils believe they work more efficiently if they donâ€™t involve the public. It no doubt hasnâ€™t occurred to them that citizens might have some good ideas worth considering.
Nova Scotiaâ€™s school boards have refused the Atlantic Institute for Market Studies student information that was provided by the other three Atlantic Provinces. The Halifax Regional School Board has warranted public scrutiny several times recently and, one would hope, would be anxious to demonstrate its openness and accountability. School boardsâ€™ decisions, after all, have a tremendous impact on children, parents and, probably, grandparents. We need to know more about the reasons behind information supporting the decisions made by these boards.
The committee organizing the Commonwealth Games may be losing public support by its reluctance or inability to provide enough information to assuage the concerns of those who fear the Games are going to lay too heavy a financial burden on the taxpayer. Even though Iâ€™m a supporter of the Games, I believe the organizers may have been receiving poor advice.
In too many municipalities, universities, hospitals and school boards, the culture of secrecy still prevails.
Let me return to a point I made earlier: politicians and governments are unlikely to improve the legislation, including reducing user fees, if the public demonstrates no interest. A campaigning politician once told me that not a single constituent he met on hundreds of doorsteps ever mentioned freedom of information, transparency or accountability.
Thereâ€™s evidence that thousands of Nova Scotians are unaware of their rights under the Freedom of Information Act and few of those who are aware take the time to exercise these rights. Although the annual audit by the Canadian Newspaper Association is welcome to all advocates of "open government," journalists themselves, at least in this province, are not frequent users of the act.
In some cases their editors and producers do not give journalists who are inclined to use it the time to do so. The public deserves better from the media. The rewards for an enterprising reporter can be significant and the results useful to all of us. Reporter Jeffrey Simpsonâ€™s recent articles on restaurant inspections in The Chronicle Herald attest to this.
Enter the Right to Know Coalition of Nova Scotia. Our mission as a non-profit agency is to educate the public about their rights to information and to advocate transparency in public bodies. The deplorable voter turnouts in recent elections make it clear that not enough Nova Scotians are engaged in the political process. This canâ€™t be in anyoneâ€™s best interest. The coalition believes the Freedom of Information Act is an important avenue to take to create a better informed electorate.
The members of the board of the coalition were encouraged by the turnout and vigorous debate at a recent forum at Kingâ€™s College. We intend to continue our efforts and expand on them when we acquire the necessary funding.
December 27, 2006
The Government Officer interpreted during second appeal at CIC said that under Section 8(1)(h) of the RTI Act the exemption from disclosure could only be claimed by CPIO only if any criminal investigation is pending and not under departmental proceedings. But deciding on the present case, the CIC upheld the decision of the Authority not to give information under RTI Act claiming exemption under Section 8 (1) (h) considering the fact that the appellant is a government servant, the term â€œinvestigationâ€ in Section 8(1)(h) has to be interpreted in terms of the Vigilance Manual.
The contention of the appellant in his appeals, rejoinders to the comments of the CPIO and during the hearing was:
The decisions of CPIOs are totally non-speaking and unreasoned. The provisions of Section 8(1)(h) of the RTI Act have been wrongly applied by them without any elaboration or justification. This Section can be applied only if furnishing of information would impede the process of investigation or apprehension or prosecution of offenders. A careful analysis of this Section would reveal that exemption from disclosure could be claimed only if any criminal investigation is pending. As far as the appellant is concerned, the CBI has already closed the case stating that no allegations could be proved against him and as such there is no criminal investigation is pending against him. Since no investigation is pending against the appellant, the question of â€œapprehensionâ€ or â€œprosecutionâ€ does not arise.
The term â€œinvestigationâ€ has not been defined in the RTI Act and therefore the definition given in Section 2 ( h) of the Code of Criminal Procedure, 1973 has to be adopted . As per that Section â€œinvestigationâ€ includes all proceedings under the Code for collection of evidence by a police officer and in terms of Thus, from this decision, it is apparent that this Commission has not viewed the term â€˜investigationâ€™ as used in Section 8(1)(h) to apply exclusively to criminal investigation as propounded by the appellant in the present case. Therefore, the contention of the appellant that only when criminal investigation is pending, the provisions of Section 8(1)(j) could be applied, has to fail. Section 2(n) of the said Code, offense means any act or omission made punishable by any law for the time being in force. Therefore, investigation means criminal investigation and since in the present case since the CBI has closed the case, the question of any criminal investigation pending against the appellant does not arise to apply the provision of Section 8(1)(h). A Departmental enquiry can not be considered to be an investigation in terms of Section 8(1)(h) of the RTI Act as this Section has not used the term â€œinvestigationâ€ simplicitor. It has to be read with the following terms â€œProsecution â€œapprehensionâ€ or â€œprosecution of offendersâ€.
If it is done so, it will be apparent that the term â€˜investigationâ€™ used in Section 8(1)(h) refers only to criminal investigation and does not cover fact finding in house enquiries. Since there is no pending investigation against the appellant, the question of appellant being offender who has to be apprehended or prosecuted does not arise. Investigation being a well known legal term, falls squarely within the confines of criminal investigation and in the absence of any other definition provided in the RTI Act, it has to be so construed in applying the provisions of Section 8(1)(h). In service jurisprudence, there is nothing like an investigation even during the disciplinary proceedings. Further, in view of the dismissal of SLP, there is a specific bar on the Department to initiate any proceedings against the appellant contrary to the final report of the CBI. Thus, not only there is any criminal investigation pending against the appellant, the Department cannot also initiate any disciplinary proceeding. Therefore, the contention of the CPIOs that pending disciplinary proceeding, being a matter of investigation, the information could not be disclosed, cannot be sustained. Instead of passing a speaking order and without giving any details of any investigations pending against the appellant, the CPIOs or AAs could not have come to the conclusion that furnishing of the documents sought for by the appellant would affect investigation. Considering the object of the RTI Act that there should be transparency in the discharge of functions of public authorities and that every citizen should have the right to access the information under the control of public authorities, the Commission should direct the CPIOs to provide the documents sought for by the appellant.
The stand of the CPIOs and AAs in their respective orders and the comments and during the hearing is:
According to the CPIO/AA, FCI, since the subject matter is under the examination with the CVC/Ministry and DOP&T, it assumes the status of investigation and therefore covered under Section 8(1)(h) of the RTI Act. In the comments to the appeal, the CPIO, FCI has stated that since the appellant has sought for correspondence etc. with other agencies, the same could not be furnished without the consent of these agencies as required under Section 11 of RTI Act. According to the Department, while serving as Sr. Regional Manager, FCI, the appellant was allegedly involved in a number of corrupt practices and irregularities and accordingly investigations were initiated by the Vigilance Cell of the Department. As on date, there are three disciplinary cases pending against the appellant besides matters pending in CAT, Chandigarh and Punjab & Haryana High Court. The findings of CBI have not found favour with the Department and investigation to the financial loss on account of irregularities committed by the appellant are pending.
The term â€˜investigationâ€™ used in Section 8(1)(h) of the RTI Act cannot be interpreted in the manner in which the appellant has tried to interpret. While interpreting any term, the concept of â€˜purpose and objectâ€™ or the â€˜reason and spirit; should be kept in mind. The textual interpretation should match the contextual. Section 5 of Cr. PC clearly specifies that specific provisions spell out in other Act would override the provisions of Cr. PC in identical matters.
Since admittedly the impugned matter is related to investigations under the Departmental proceedings as set out in the relevant Act, rules and procedures governing members of an All India Service, the definition given in Cr. PC cannot be applied in the present case. The contention of the appellant that with the withdrawal of the SLP and the consequent dismissal of the SLP by the Supreme Court bars further departmental action is not sustainable. As per the rules and legal provisions, once CBI enquiry is over and if the Department differs with the report of the CBI, further action is required to be taken as per para 3.16 of the CVC Manual. The CVC, to which the matter was referred, has advised for initiating disciplinary proceedings and therefore the Department of Personal, being the cadre controlling authority, would initiate appropriate action, if so decided. The High Court order dated 29.7.2005 only bars the department from conducting parallel investigation with the CBI and since CBI has already submitted its report, there is no bar in proceeding with the Departmental action and on so mentioning before the Supreme Court, the SLP was allowed to be withdrawn.
Therefore, it is absolutely wrong on the part of the appellant to contend that no criminal and/or disciplinary case is pending gainst him.
The CPIOs and AAs have declined to furnish the information applying the provisions of Section 8(1)(h) of the Act which reads:
According to the appellant, relying on Cr.PC, the term â€œinvestigationâ€ would mean criminal investigation which may result in apprehension or prosecution of offenders and since the CBI has given a clean chit to the appellant, no criminal investigation is pending and departmental proceedings cannot be considered to be investigation to deny documents sought for by him applying the provisions of Section 8(1)(h) of the Act.
It is true that the term â€œinvestigationâ€ has not been defined in the RTI Act. When a statute does not define a term, it is permissible to adopt the definition given in some other statute. If different definitions are given in different statutes for a particular term, then the one which could be more relevantly adoptable should be adopted taking into account the object and purpose of the Statute in which the definition is not available. It is not necessary to confine oneself to only one definition as propounded by the appellant.
In the present case, the appellant is a government official and is therefore, bound by the service Rules, which inter alia include the provisions in the Vigilance Manual. As a matter of fact, he got a stay from the CAT only on the basis of the provisions in the Vigilance Manual challenging that in terms of the Manual, departmental investigation cannot go on simultaneously with CBI investigation. His stand before the CAT was that even issue of show cause notice amounted to investigation, while in the present appeals, his stand is that investigation means criminal investigation.
One cannot interpret the provisions of a statute according to his own convenience. Be that as it may, as far as the present case is concerned, considering the fact that the appellant is a government servant, the term â€œinvestigationâ€ in Section 8(1)(h) has to be interpreted in terms of the Vigilance Manual.
I am extracting certain portions of Chapter 4 of the Manual, (2005 Edition) from which it could be seen that the terms â€œinvestigationâ€ and â€œenquiryâ€ have been used analogously, to indicate that investigation need not necessarily mean criminal investigation.
From the above extract, it can be seen that the term â€œinvestigationâ€ in respect of government officials could mean both investigation by the CBI, which could be termed as criminal investigation as well as investigation by the Department.
Therefore, I do not find any force in the contention of the appellant that â€œinvestigationâ€ means only criminal investigation. In this connection, I may refer to the Division Bench decision of this Commission in Shri Gobind Jha Vs Army Hqrs. (CIC/80/2006/ 00039 dated 1.6.2006).
In that case, the appellant sought for various information including a copy of the report of investigation carried out on the basis of his complaint. The CPIO and AA declined to furnish a copy of the report applying the provisions of Section 8(1)(h) of the Act. Examining the provisions of Section 8(1)(h) of the Act, the Division Bench observed -
Thus, from this decision, it is apparent that this Commission has not viewed the term â€˜investigationâ€™ as used in Section 8(1)(h) to apply exclusively to criminal investigation as propounded by the appellant in the present case.
Therefore, the contention of the appellant that only when criminal investigation is pending, the provisions of Section 8(1)(j) could be applied, has to fail.
The second limb of the contention of the appellant is that the Department is incompetent to initiate disciplinary proceeding after withdrawal of the SLP. As far as this contention is concerned, I would like to make it abundantly clear that it is not only beyond the scope of the proceedings before the Commission to examine whether the Department is competent to take disciplinary action or not but it is also beyond its jurisdiction. Therefore, when the Department has stated that three disciplinary proceedings are pending against the appellant, my examination will be restricted only to decide whether, the information sought by the appellant could be denied on the ground that investigation is pending. According to the Department, on the basis of the advice of the CVC, the matter is pending with the Department of Personnel. Any disciplinary process till such time a charge sheet is issued or the case is closed, has to be treated as a matter under enquiry/investigation, to be covered under Section 8(1)(h). In Shri D.L.Chandhok Vs. Central Wharehousing Corporation (Appeal No.121/ICPP/ 2006 dated 9.10.06), this Commission has held that -
In the present case, it is evident from the applications of the appellant themselves that he has sought copies of various documents connected with disciplinary/other proceedings against him. Therefore, I am of the view that the CPIOs and AAs have correctly applied the provisions of Section 8(1)(h) to decline to provide copies of the documents sought for by the appellant.
Before parting with the decision, I may also point out that the stand of the CPIO, FCI in his comments that the provisions of Section 11 are attracted in furnishing correspondence with other agencies is not correct. Section 11 would be attracted only when information relating to a third parry is sought for disclosure and not when the correspondence relates to the applicant himself.
In view of my finding that the CPIOs have correctly applied the provisions of Section 8(1)(h) of the Act in declining to furnish copies of the documents sought for by the appellant, the appeals stand dismissed.
The case was decided by Mrs. Padma Balasubramanian, Information Commissioner on 27th December 2006.