Taxmann's PIO's Guide to RTI by Taxmann

l.4iQ4SSm (a5O\A<:m5 m /3gP3TTm(a5O83^CUT\m ( m"^: m ,3L<\m m$3YI<^CT?m m m&=em*VB_4Jm*V4; m&=em =KBD m m S;D4m (AUT< m m 1<6\E`<m m f _4iQ4SS 9VQm R3EMm m ]4K=] _4hQ4SS 9VQ +<?: m '>8<m m m2=]_m)bSH47Dm 4@B m&=em =KBD m m S;D4m <c<LUW<:m5km .4Sm)ZDS_]m S;D4 m)d_ m#_; m m!Q m%DK=m-_VS= m&4_FVS4Km D@Be4j m*VB_4Jm*V4;m 0DNK4@=m*VB4; m D]__ m B4HH4[m 4[j4S4 m S;D4m R3Gm m ]4K=] _4SXZDS_] 9VQ C\8L3CP<Ym : 2AC 27C" 6C ,C+ C70C :0# C 22026C02C0+#66#0,6C#,C7"#6C19 (# 7#0, C ,C61#7 C0 C7"#6 C 22026C+ AC 2 1C#, C -AC+#67 & C 2202C02C 6 2 1 , AC,07 C+ AC C 209 "7C70C092C,07# C <"# "C6" )(C C7 & ,C 2 C0 C#,C7" C, @7C #7#0, C 7C#6C,07# C7" 7C, #7" 2C7" C19 )#6" 2C,02C7" C 97"02C02C6 )( 2C?((C C2 610,6# ( C 2C ,AC + C02C(066C0 C 7#0,C70C ,AC0, C0 C ,AC'#, C#,C ,AC+ ,, 2 C7" 2 0+ C 7C#6C69 67 C7" 7C70C :0# C ,AC 09 7C7" C2 2C6"09* C 2066 " &C )(C 7" C 76 C ( =C , C 0,7 ,76C 0 C7" C 19 )# 7#0,C ?7"C 03#!. (C 0: 5+ ,7C 19 )# 7#0,C 02C ,07# 7#0,6 C 0C1 27C0 C7"#6C 00&C+ AC C2 120 9 C02C 01# C#,C ,AC 2+C02C AC ,AC + ,6C 2 1"# C ( 720,# C02C+ " ,# ( C$. (9 #, C1"070 01B, C2 02 #, C7 1#, C02C#, 2+ 7#0,C2 74 : (C 6A67 +6 C 02C 2 120 9 C 0,C ,AC #6 C 7 1 C 1 2 2 7 C + # C 02C 07" 2C #, 2+ 7#0,C 6702 C ;# C 7 C>#7"097C8 C=2#77 ,C1 2+#66#0,C0 C7" C19 )#6" 26 C 2 "C0 C7"#6C 0, #7#0,C#6C(# ( C 2C( (C 7#0, C ((C #6197 6C 2 C69 % 7C70C ("#C%92#6 # 7#0,C0/A C

ABOUT THE AUTHORS

Dr. Rajesh Kumar Verma did his MBBS from GSVM Medical College, Kanpur and completed his MD (Medicine) from SN Medical College Agra in 1997. The same year, he cleared the Civil Services examination and joined the Indian Revenue Service. He has worked in different capacities in Customs and Central Excise at Barmer, Udaipur, Jaipur, Bhopal and Indore. He also held the charge of the Public Information Officer and First Appellate Authority which triggered his quest for finding solutions to the queries posed in the RTI applications. He did his LLB during his stint at Mumbai where currently, he is posted as the Commissioner of Central GST and Central Excise in the Mumbai Zone. He has been invited by many organisations to deliver lectures and conduct training programmes on varied subjects including RTI, which remains his favourite. He has published many articles and his interviews have been aired on different media platforms. A non-adversarial approach in dealing with RTI issues while dealing with the stakeholders has been his primary focus. Dr. Anuradha Verma [MSc (Zoology), Ph.D, LLB]. is a known expert in the field of right to information with an experience of more than 16 years. She has worked as RTI Consultant for IIM, Indore for over four years as and is currently working as RTI Consultant to IIM Vishakhapatnam since 2021. She also worked for the Institute of Chartered Accountants of India (ICAI) apart from doing freelance work offering legal and consultancy services in the field of right to information involving Third party RTI Audit, handling of RTI applications and appeals, implementing transparency as per section 4 of RTI Act, designing specific RTI training programme based on the needs of the organisations etc. She has conducted several workshops/trainings for different departments - both of Central and State government. This includes trainings for the Madhya Pradesh Police (Indore), Indian Audit and Account Department, I-5

ABOUT THE AUTHORS

I-6

National Institute of Public Cooperation and Child Development (NIPCCD), SEZ Noida, NACIN - CBIC, Power Finance Corporation, ICAI, MDP programs of IIM etc. At RCVP Noronha Academy of Administration (Bhopal), she has conducted many training programs which involved training the master trainers. She has been contributing articles on legal issues relating to RTI on various fora including her weekly column “DATE with RTI” at whispersinthecorridors.com since 2008. As the President of the NGO RTI Foundation, she also runs a website by the name http://www.rtifoundationofindia.com providing latest legal information free of cost to the readers. Their earlier book “Right to Information – Law and Practice” was well received by the readers and the second edition has been released.

PREFACE TO SECOND EDITION

Change is the law of life, similarly, a statute too undergoes change over a period of time. The RTI Act, 2005 has witnessed changes – both by amendments as well as by differing interpretations of its provisions. Between the time of publication of first edition of the book in 2011 and today, many judgments of the High Courts and Supreme Court have been pronounced which have a significant bearing on our understanding of the provisions of the Act. Amendments caused by the recent DPDP Act, 2023 have also been incorporated in the book. This edition is an effort to capture the changes over the years in a comprehensive manner and bring them to the readers for a clearer perspective. This book is the result of a study of over 1 lakh orders/judgments related to RTI. There has been nearly 30% churning of cases and many old orders have been removed to pave way for new. The topics have been rearranged with some additions and alterations. A numbering system has been newly adopted to make it easier to refer to the text and return back to it. Our endeavour has been to provide the latest information in a comprehensive manner to the Public Information Officer whose has been entrusted with the responsibility handling the RTI issues in addition to the regular work.

Issue wise arrangement of case laws is the USP of the book. It has been done to enable the PIO/FAA to look for a preceding judicial order which may be relevant to the RTI application before him thereby helping in a quick and legit disposal. In addition, the reader can refer to the issues section wise too. Do’s and Don’ts for a PIO would not only facilitate a swift handling of issues, but also prevent any penalty or compensation.

Fillers have been added at multiple places to explain the idea of fiduciary, the principle of investigation, the notion of privacy, the theory of parliamentary privileges amongst many other concepts.

I-7

PREFACE TO SECOND EDITION

I-8

Certain common issues such as APAR, examination, service and vigilance matters etc. where multiple sections are applicable, have been presented as individual chapters.

The expanding role of the RTI Act and the ways to deal with the misuse of the Act has been dealt with specifically at the end.

Readers may refer to the website www.rtifoundationofindia.com or Google search the citation in case the full case law is required.

Democracy is being questioned by citizens across the world and right to information provides a solution to those who wish to empower themselves. The Public Information Officer is the fulcrum assigned with the duty of implementing the provisions of the RTI Act and the Appellate Authority to undo any mistake. Before ending with the customary disclaimer that the views presented in the Book are personal, we hope that the Book would serve the purpose of helping the PIOs and FAAs in fulfilling their responsibilities in the spirit of the Act. Suggestions are welcome. Dr. RK Verma IRS Commissioner CGST and Central Excise (Mumbai Zone) rtiverma@rediffmail.com Dr. Anuradha Verma RTI Consultant (IIM Visakhapatnam) President (RTI Foundation) dranuradhaverma@yahoo.co.in

ABBREVIATIONS USED

–

Appellate Authority

APIO

–

Assistant Public Information Officer

CIC

–

Central Information Commission

CPIO

–

Central Public Information Officer

FAA

–

First Appellate Authority

–

High Court

PIO

–

Public Information Officer

RTI

–

Right to Information

–

Supreme Court

Sec.

–

Section

SIC

–

State Information Commission

SPIO

–

State Public Information Officer

U/s

–

Under section

I-9

CHAPTER-HEADS

PAGE About the Authors

I-5

Preface to Second Edition

I-7

Abbreviations Used

I-9

Contents

I-17

CHAPTER 1 ¾ INTRODUCTION

CHAPTER 2 ¾ WHICH ORGANISATIONS ARE COVERED?

CHAPTER 3 ¾ DESIGNATION OF OFFICERS - PIO, APIO, FAA

CHAPTER 4 ¾ PRO-ACTIVE DISCLOSURE

CHAPTER 5 ¾ WHO CAN FILE AN APPLICATION?

CHAPTER 6 ¾ WHAT CAN BE SOUGHT UNDER THE RTI ACT?

CHAPTER 7 ¾ HAS THE APPLICATION BEEN FILED PROPERLY?

121

CHAPTER 8 ¾ IS THE PAYMENT OF FEE AS PER LAW?

I-11

135

CHAPTER-HEADS

I-12 PAGE

CHAPTER 9

¾ HAS THE ‘LIFE OR LIBERTY’ BEEN CLAIMED?

156

CHAPTER 10 ¾ ACCESSING INFORMATION FROM THE RECORDS

165

CHAPTER 11 ¾ ROLE OF THE PIO/APIO/DEEMED PIO

178

CHAPTER 12 ¾ DEALING WITH AN APPLICATION

186

CHAPTER 13 ¾ DISPOSAL OF FIRST APPEAL

216

CHAPTER 14 ¾ THIRD PARTY INFORMATION

223

CHAPTER 15 ¾ APPLICATION SEEKING VOLUMINOUS INFORMATION

243

CHAPTER 16 ¾ OVERRIDING POWERS UNDER THE ACT

252

CHAPTER 17 ¾ ORGANISATIONS BEYOND THE PURVIEW OF THE ACT

267

CHAPTER 18 ¾ CONSIDERATIONS FOR PASSING AN ORDER

300

CHAPTER 19 ¾ INVOKING EXEMPTION UNDER SECTION 8(1)(a)

311

CHAPTER 20 ¾ INVOKING EXEMPTION UNDER SECTION 8(1)(b)

326

CHAPTER 21 ¾ INVOKING EXEMPTION UNDER SECTION 8(1)(c)

338

I-13

CHAPTER-HEADS

PAGE

CHAPTER 22 ¾ INVOKING EXEMPTION UNDER SECTION 8(1)(d)

349

CHAPTER 23 ¾ INVOKING EXEMPTION UNDER SECTION 8(1)(e)

374

CHAPTER 24 ¾ INVOKING EXEMPTION UNDER SECTION 8(1)(f)

392

CHAPTER 25 ¾ INVOKING EXEMPTION UNDER SECTION 8(1)(g)

396

CHAPTER 26 ¾ INVOKING EXEMPTION UNDER SECTION 8(1)(h)

413

CHAPTER 27 ¾ INVOKING EXEMPTION UNDER SECTION 8(1)(i)

443

CHAPTER 28 ¾ INVOKING EXEMPTION UNDER SECTION 8(1)(j)

459

CHAPTER 29 ¾ PUBLIC INTEREST

502

CHAPTER 30 ¾ INFORMATION OLDER THAN 20 YEARS

524

CHAPTER 31 ¾ INFRINGEMENT OF COPYRIGHT

529

CHAPTER 32 ¾ WORKING OF THE INFORMATION COMMISSION

534

CHAPTER 33 ¾ FILING OF APPEAL AND COMPLAINT

562

CHAPTER 34 ¾ PENALTY UNDER THE ACT

582

CHAPTER-HEADS

I-14 PAGE

CHAPTER 35 ¾ CLAIM FOR COMPENSATION

633

CHAPTER 36 ¾ RECOMMENDATIONS BY THE CIC

649

CHAPTER 37 ¾ MEDICAL CASES

657

CHAPTER 38 ¾ EXAMINATION

675

CHAPTER 39 ¾ BANKS AND OTHER FINANCIAL INSTITUTIONS

690

CHAPTER 40 ¾ INCOME TAX

708

CHAPTER 41 ¾ SERVICE MATTERS

729

CHAPTER 42 ¾ ACR/APAR

755

CHAPTER 43 ¾ VIGILANCE CASES

763

CHAPTER 44 ¾ EXPANDING SCOPE OF THE ACT

788

CHAPTER 45 ¾ CONDUCT OF AN APPLICANT

796

CHAPTER 46 ¾ MISUSE OF THE ACT

803

I-15

CHAPTER-HEADS

PAGE

APPENDICES APPENDIX 1 ¾ RIGHT TO INFORMATION ACT, 2005

827

APPENDIX 2 ¾ RIGHT TO INFORMATION RULES, 2012

SUBJECT INDEX

856 861

CONTENTS

PAGE

About the Authors

I-5

Preface to Second Edition

I-7

Abbreviations Used

I-9

Chapter-heads

I-11

CHAPTER 1

INTRODUCTION

1.1

Introduction to RTI Act, 2005

1.2

What is RTI Act, 2005?

1.3

Historical background

1.4

Constitutional provisions

1.5

What powers does it provide?

1.6

Preamble and its Role

1.7

1.8

1.6.1

Objectives of the RTI Act

1.6.2

Interpretation of the RTI Act

Criticism of the RTI Act

1.7.1

Only rights

1.7.2

Vexatious applications

1.7.3

Cost of implementing RTI Act

1.7.4

Lack of resources

1.7.5

No attitudinal change

1.7.6

No redressal of grievance

Expectations from the Government servants

I-17

CONTENTS

I-18 PAGE

CHAPTER 2 2.1

2.2

WHICH ORGANISATIONS ARE COVERED?

Public Authority

2.1.1

Concept of a public authority

2.1.2

Definition of public authority

Meaning of Terms

2.2.1

Established or Constituted

2.2.2

Authority or Body or institution of self-Government

2.2.3

Includes

2.2.4

Substantial financing

2.2.5

Substantially financed Non-Government Organisation (NGO)

2.2.6

Funding by appropriate Government

2.2.7

Owned or controlled

2.2.8

Appropriate Government

2.2.9

Competent authority

2.3

Function of the Organisation

2.4

Are different offices of an organisation different public authority?

2.5

List of some public authorities

2.6

Organisations not held as a public authority

2.7

Applicant has to produce evidence

2.8

Obtaining information about private organisations

2.9

Expanding scope of public authority

2.10

2.9.1

Public duty

2.9.2

Public Private Partnership (PPP)

2.9.3

‘State’ as per the Constitution

2.9.4

Judicial pronouncements regarding State

2.9.5

Organisations covered under ‘State’ are covered under RTI

DoPT is not the Jury

I-19

CONTENTS PAGE

CHAPTER 3

DESIGNATION OF OFFICERS - PIO, APIO, FAA

3.1

Who is a Public Information Officer (PIO)?

3.2

Designation of Public Information Officer (PIO)

3.3

3.4

3.2.1

Number of PIO

3.2.2

Rank of PIO

3.2.3

Central pool of PIO data

Deemed PIO

3.3.1

Who is a Deemed PIO?

3.3.2

Judge as a Deemed PIO

Assistant Public Information Officer (APIO)

3.4.1

Who is an Assistant Public Information Officer (APIO)?

3.4.2

The Responsibilities of the APIO

3.4.3

Post Office as APIO

3.4.4

Call Centre as APIO

3.4.5

Is the APIO liable for penalty?

3.4.6

Can an APIO sign the order?

3.5

Who is First Appellate Authority (FAA)?

3.6

Duties of First Appellate Authority (FAA)

3.7

Training of officials

3.8

Designation of transparency officer

CHAPTER 4

PRO-ACTIVE DISCLOSURE

4.1

Obligations of a public authority

4.2

What is section 4?

4.3

Manner of maintenance of records

4.4

Publishing the manuals

4.5

Policies or decisions

4.6

Administrative or quasi-judicial decisions

4.7

Section 4(2)

4.8

Pro-active dissemination of information

CONTENTS

I-20 PAGE

4.8.1

Modes of dissemination of information

4.9

Non-Implementation of section 4

4.10

Transparency officer

4.10.1

Who is a transparency officer?

4.10.2

Origin of the transparency officer

4.10.3

Rank of transparency officer

4.10.4

Job chart of transparency officer

4.11

Monitoring the implementation of section 4

4.12

What should be in public domain?

4.13

Effect of putting information in public domain

CHAPTER 5

WHO CAN FILE AN APPLICATION?

5.1

Citizen

5.2

Who should file an application?

5.3

Foreigner

5.4

Person

5.5

Association or company

5.5.1

Company cannot file an application

5.5.2

Director/manager filing an application on behalf of company

5.5.3

Application on letterhead of an organisation

5.6

Government officials can file an application

5.7

Joint filing of application

5.8

Can a minor file an application?

5.9

Proof of citizenship

5.10

Post Box Number

CHAPTER 6 6.1

WHAT CAN BE SOUGHT UNDER THE RTI ACT?

What is ‘Information’?

6.1.1

Record

6.1.2

Information should be ‘Held’

6.1.3

Information with private bodies

I-21

CONTENTS PAGE

6.2

6.1.4

File notings

6.1.5

Sample and model

6.1.6

Certified copies

6.1.7

Cost of certification

6.1.8

Video and photographs

What is not ‘Information’?

6.2.1

Opinion and advice

6.2.2

Clarification/Reason/Explanation

6.2.3

Interpretation or legal opinion

6.2.4

Consultancy/Views

6.2.5

Hypothetical question

6.2.6

Non-specific query

6.2.7

Information should be in ‘material form’

6.2.8

Information which is not ‘held’

6.2.9

Information in public domain

100

6.2.10

Letters written by applicant

101

6.3

Information about private bodies

102

6.4

Collection of information from third party

103

6.5

Creating or generating information

106

6.6

Collecting and compiling information

107

6.7

Non-existing information

109

6.8

Grievance resolution

110

6.9

Information not traceable

112

6.10

Inspection

113

6.10.1

Inspection of records

114

6.10.2

Inspection of various objects

115

6.10.3

Inspection of a process

117

6.10.4

Inspection of records in CIC

119

6.10.5

Photography/videography during inspection

119

6.11

Information in CD/DVD

119

6.12

Information provided by other PIO

120

6.13

Information about judicial proceedings

120

6.14

Safety of records

120

CONTENTS

I-22 PAGE

CHAPTER 7

HAS THE APPLICATION BEEN FILED PROPERLY?

7.1

Mode of application

121

7.2

Language of application

121

7.3

Format of application

122

7.4

Reasons for seeking information

123

7.5

Drafting of an application

125

7.6

Details of applicant and PIO

126

7.7

Application fee

127

7.8

Word limit for an application

127

7.9

To whom should an application be filed?

128

7.10

When can an application be filed?

130

7.11

Application should be specific

130

7.12

Single request per application

131

7.13

Applications to organisations under Schedule II

132

7.14

Number of applications that can be filed

132

7.15

Use of Post Box Number

133

CHAPTER 8

IS THE PAYMENT OF FEE AS PER LAW?

8.1

Provisions regarding fee

135

8.2

Quantum of fee to be paid

136

8.2.1

Central Government

136

8.2.2

State Government

137

8.2.3

Competent authority

137

8.3

Role of information commission

138

8.4

Court verdicts on quantum of fee

139

8.5

Fee accompanying the RTI application

140

8.6

Excess payment of application fee

141

8.7

Cost of providing information

142

8.8

Calculating of the cost of providing information

143

8.9

Cost of certification

145

8.10

Cost of compilation of information

145

8.11

Free of cost information

147

I-23

CONTENTS PAGE

8.12

Mode of payment of fee

149

8.13

Conflict in Fee Rules

150

8.14

Fee for citizens living below poverty line

153

8.15

Misuse of BPL status

154

CHAPTER 9

HAS THE ‘LIFE OR LIBERTY’ BEEN CLAIMED?

9.1

What is life and liberty?

156

9.2

View of the Supreme Court

156

9.3

When can the provision be invoked?

158

9.4

Dealing with application invoking ‘life or liberty’

159

9.5

Can a third party invoke ‘life and liberty’?

160

9.6

Illustrative cases

162

CHAPTER 10 ACCESSING INFORMATION FROM THE

RECORDS 10.1

What are records?

165

10.2

Record maintenance practice

165

10.3

Destruction of records

166

10.4

Destruction of documents after RTI application

167

10.5

Period for record retention is over

169

10.6

Old records

169

10.7

Records not maintained as per policy

171

10.8

Forged documents

172

10.9

Untraceable records

172

10.10

Overview of cases where records are not available

174

10.11

Tampering of records

176

CHAPTER 11 ROLE OF THE PIO/APIO/ DEEMED PIO 11.1

Responsibilities of a PIO

178

11.2

Judicial Observations about role of a PIO

179

11.3

Procedure under the Act

182

CONTENTS

I-24 PAGE

11.4

11.3.1

Rejection of application

182

11.3.2

Hearing before the Commission

183

11.3.3

Use of advocate

183

Protection to a PIO under the Act

185

CHAPTER 12 DEALING WITH AN APPLICATION 12.1

Types of questions

186

12.2

Role of PIO

187

12.3

12.4

12.2.1

Know the law

187

12.2.2

Provide reasonable help to the applicant

188

12.2.3

Each application should be responded to

189

12.2.4

Read the application carefully

189

12.2.5

Follow the time limit

190

12.2.6

The specified time frame

190

12.2.7

Deemed refusal

191

12.2.8

Use of Speed Post

191

12.2.9

Change of PIO

192

Issue of order by the PIO

192

12.3.1

Language of Reply

192

12.3.2

Pass a speaking order

194

12.3.3

Quote the proper section for exemption

195

12.3.4

Provide the details of the appellate authority

196

12.3.5

Retain proof of dispatch of information

196

12.3.6

Reply in the same Mode

197

Possible Actions by the PIO

197

12.4.1

Providing partial information

197

12.4.2

Information already available on website

197

12.4.3

Information with senior

198

12.4.4

Seeking help of deemed PIO

199

12.4.5

Notice to third party

200

12.4.6

Transfer of application to another public authority

200

12.4.7

Information relating to multiple authorities

203

I-25

CONTENTS PAGE

12.5

12.4.8

To whom should the application be transferred?

206

12.4.9

Generating Information

206

Acquiring the Information

207

12.5.1

Compilation of information

207

12.5.2

Complete or ‘all’ information

207

12.5.3

Records weeded out/not traceable

208

12.5.4

Inspection of documents

208

12.5.5

Procedure for inspection of documents

208

12.6

Sample format of an order by a PIO

209

12.7

Chronic information seeker

209

12.8

Identity of the applicant

211

12.9

Do’s and Don’ts for a PIO

211

12.10

Journey of RTI application

214

CHAPTER 13 DISPOSAL OF FIRST APPEAL 13.1

Responsibilities of FAA

216

13.2

Additional queries in appeal

217

13.3

Personal hearing by FAA

217

13.4

Disposal of appeal

218

13.5

Ground for refusal of information

220

13.6

Change of FAA

220

13.7

Review of own order by FAA

220

13.8

Can any penalty be levied on the FAA?

221

13.9

Passing of stricture

221

CHAPTER 14 THIRD PARTY INFORMATION 14.1

Who is a third party?

223

14.2

Meaning of third party information

223

14.3

Significance of third party information

224

14.4

Advocate is a third party

225

14.5

Section 11 is not a ground for rejection

226

14.6

Procedure regarding third party information

226

CONTENTS

I-26 PAGE

14.7

Should notice be issued in all cases?

229

14.8

Effect of not issuing a third party notice

230

14.9

Should personal hearing be given to the third party?

231

14.10

File notings by officers

231

14.11

Impleading the third party in a writ

232

14.12

Disclosure despite third party objection

232

14.13

Submissions made by the third party

233

14.14

Public Authority as a third party

234

14.15

Appellate remedy available to the third party

235

14.16

Appeal by public authority

235

14.17

No response by third party

237

14.18

Illustrative cases

237

14.19

Copy of complaint

239

14.20

Inadvertent or incorrect disclosure

241

14.21

Collection of information from the third party

242

CHAPTER 15 APPLICATION SEEKING VOLUMINOUS INFOR-

MATION 15.1

What is voluminous information?

243

15.2

Section 7(9)

243

15.3

Disproportionate diversion of resources

244

15.4

Can ‘disproportionate diversion’ be quantified?

246

15.5

Dealing with applications seeking voluminous information

247

15.6

In what form should the information be provided?

247

15.7

Inspection of records

247

15.8

Illustrative cases where information was provided

248

15.9

Seeking support of the RTI applicant

250

15.10

Asking a PIO to collect and tabulate data

250

CHAPTER 16 OVERRIDING POWERS UNDER THE ACT 16.1

Section 22

252

16.2

Laws conflicting with the RTI Act

254

I-27

CONTENTS PAGE

16.2.1

Digital Personal Data Protection (DPDP) Act, 2023

255

16.3

Meaning of ‘overriding’

255

16.4

Effect of section 22

256

16.5

Alternative procedure for obtaining information

257

16.6

Illustrative Cases

259

16.7

16.6.1

Departmental Instructions or Rules

259

16.6.2

Other laws

260

16.6.3

Rules/Law related to examination

264

Rules made by judiciary

265

CHAPTER 17 ORGANISATIONS BEYOND THE PURVIEW OF

THE ACT 17.1

Section 24

267

17.2

List of organisations

269

17.3

Designation of PIO/FAA

271

17.4

What information can be sought?

271

17.5

Information available with other organisations

273

17.6

Guidelines for public authorities

275

17.7

Allegation

277

17.8

Allegation in the original application

279

17.9

What is corruption ?

279

17.9.1 17.10

Types of corruption

What are Human Rights ?

280 281

17.10.1

Classification of Human Rights

282

17.10.2

Universal Declaration of Human Rights (UDHR)

282

17.11

Illustrative cases of corruption or human rights violation

283

17.12

Cases where information was provided

284

17.13

Cases where information was not provided

291

17.14

Administrative/service matters

294

17.15

Costs imposed

297

17.16

Retrospective effect to notification

298

17.17

Central Bureau of Investigation (CBI)

299

CONTENTS

I-28 PAGE

CHAPTER 18 CONSIDERATIONS FOR PASSING AN ORDER 18.1

Exemptions under the RTI Act

300

18.2

Denial only as per the RTI Act

301

18.3

How to invoke the exemptions?

304

18.4

Can part information be provided?

306

18.4.1

Severability clause

307

18.4.2

Examples of severability

307

18.4.3

Severability not applicable in all cases

308

18.4.4

Appeal against the order of severability

308

18.5

Order for denial of information

309

18.6

Grounds for Rejection of RTI Application

309

18.7

Constitutional provisions

309

18.8

Format of an order

310

18.9

Conflict between RTI Act and other Acts

310

CHAPTER 19 INVOKING EXEMPTION UNDER SECTION

8(1)(a)

19.1

Section 8(1)(a)

311

19.2

Meaning of the terms

311

19.3

Who should determine the applicability of exemption?

313

19.4

Reasons for claiming exemption

313

19.5

Declassification and disclosure policy

314

19.6

Illustrative cases of exemption

315

19.7

Illustrative cases where disclosure was ordered

321

CHAPTER 20 INVOKING EXEMPTION UNDER SECTION

8(1)(b)

20.1

Section 8(1)(b)

326

20.2

Meaning of terms

326

20.3

Contempt of Court

326

I-29

CONTENTS PAGE

20.4

Proving contempt of court

327

20.5

Information about Sub-Judice cases

327

20.6

Information held as per court orders

330

20.7

Information needed to defend oneself

330

20.8

Should the court be approached for information?

332

20.9

Information about judicial proceedings

334

CHAPTER 21 INVOKING EXEMPTION UNDER SECTION

8(1)(c)

21.1

Section 8(1)(c)

338

21.2

What is Parliamentary privilege?

338

21.3

Privileges based on rules of procedure and precedents

339

21.4

Committee of privileges

340

21.5

The Code of Civil Procedure, 1908

340

21.6

Parliament and RTI

341

21.7

Joint Parliamentary committee

341

21.8

Authority for determining Privileges

343

21.9

Illustrative cases

344

CHAPTER 22 INVOKING EXEMPTION UNDER SECTION

8(1)(d)

22.1

Section 8(1)(d)

349

22.1.1

Commercial confidence

349

22.1.2

Trade secret

349

22.1.3

Intellectual Property (IP)

350

22.2

Transactions by public authorities

351

22.3

Tender/Contract documents

354

22.4

Agenda/Minutes of meetings

357

22.5

Confidentiality clause in agreement

358

22.6

Agents of a commercial organization

359

22.7

Public Private Partnership (PPP)

360

CONTENTS

I-30 PAGE

22.8

22.9

What Information is commercially confidential?

363

22.8.1

Export and import data

364

22.8.2

Price list of items

365

22.8.3

Research

365

22.8.4

Quality of products

366

22.8.5

Copy of agreement

366

22.8.6

Inspection report

367

22.8.7

Balance sheet

367

22.8.8

Information about accidents

368

22.8.9

Genetically modified seeds

368

22.8.10

Cases related to copyright

370

22.8.11

Cases related to bank and financial institutions

370

22.8.12

Cases related to income tax

370

22.8.13

Complimentary tickets

370

What is not commercially confidential information?

371

CHAPTER 23 INVOKING EXEMPTION UNDER SECTION

8(1)(e)

23.1

Section 8(1)(e)

374

23.2

Meaning of fiduciary

374

23.3

Fiduciary relationship as per Indian Contract Act

375

23.4

Examples of fiduciary relationship

377

23.5

Illustrative cases of fiduciary

379

23.5.1

Legal opinion

380

23.5.2

Medical cases

383

23.5.3

Statement of witness/persons

384

23.5.4

Official transactions

385

23.5.5

Data Submitted by Government employees

386

23.5.6

Relationship between the Chief Justice and Judges

387

23.5.7

Details of phone

388

23.5.8

Vigilance cases

388

23.5.9

Financial institutions

388

I-31

CONTENTS PAGE

23.5.10

Income tax

389

23.5.11

Examinations

389

23.5.12

Service matters

389

23.5.13

Report of the expert committee

389

23.5.14

Charitable institution

390

23.5.15

President and Governor

391

23.5.16

Confirm or Deny

391

CHAPTER 24 INVOKING EXEMPTION UNDER SECTION

8(1)(f) 24.1

Section 8(1)(f)

392

24.2

Meaning of terms

392

24.3

Who is competent to decide?

392

24.4

Clearance from the foreign Government

393

24.5

Illustrative cases

393

CHAPTER 25 INVOKING EXEMPTION UNDER SECTION

8(1)(g) 25.1

Section 8(1)(g)

396

25.2

Meaning of terms

397

25.3

Disclosure of name

397

25.4

25.3.1

Names of officers or witness

397

25.3.2

Evidence of danger to a person

398

25.3.3

Whistle Blower’s name not to be disclosed

398

25.3.4

Identity of the person already known

399

Claim for Exemption

399

25.4.1

Investigation completed

399

25.4.2

File notings

400

25.4.3

Discreet enquiries

400

25.4.4

Complaints and Reports thereon

401

25.4.5

Income tax assessment

402

25.4.6

Interview Board

402

CONTENTS

I-32 PAGE

25.5

Search and seizure

403

25.6

Police cases

404

25.6.1

Daily Diary

405

25.6.2

First Information Report (FIR)

407

25.6.3

Discarded report

408

25.6.4

Batla House encounter

408

25.6.5

Visitor’s register

409

25.7

Statement of Witness

410

25.8

Illustrative examples

411

CHAPTER 26 INVOKING EXEMPTION UNDER SECTION

8(1)(h)

26.1

Section 8(1)(h)

413

26.2

Meaning of investigation

413

26.3

Investigation in taxation matters

414

26.4

Prosecution and apprehension

415

26.5

Meaning of ‘impede’

416

26.6

When is the ‘process’ complete?

418

26.7

Who decides whether disclosure impedes the process?

421

26.8

Illustrative cases of exemption

421

26.8.1

Quoting the proper section

422

26.8.2

Giving reasons

422

26.8.3

Pending investigation

423

26.8.4

Cases impeding the process

427

26.8.5

Information with Court

428

26.8.6

Charge sheet filed

429

26.8.7

Information needed for self defence

431

26.9

Information not affecting the process

431

26.10

Delayed investigation

435

26.11

Complaints

436

26.12

Vigilance cases

437

26.13

Informer

437

26.14

Witness

438

I-33

CONTENTS PAGE

26.15

De Novo enquiry

439

26.16

Ongoing enquiry

439

26.17

Interconnected enquiry

439

26.18

First Information Report (FIR)

440

CHAPTER 27 INVOKING EXEMPTION UNDER SECTION

8(1)(i)

27.1

Section 8(1)(i)

443

27.2

Meaning of terms

443

27.2.1

Cabinet

443

27.2.2

Council of Ministers

444

27.2.3

Cabinet papers

445

27.2.4

Cabinet note

445

27.2.5

Disclosure only after decision is complete

446

27.3

Is ACC included in cabinet?

447

27.4

Role of cabinet secretariat

448

27.5

Article 74 of the Constitution

449

27.6

Status of Disclosure of cabinet decision in India

451

27.7

Some illustrative cases

453

27.8

Potential papers

457

CHAPTER 28 INVOKING EXEMPTION UNDER SECTION

8(1)(j)

28.1

Section 8(1)(j)

459

28.2

What is personal information?

459

28.3

28.2.1

Information about oneself

461

28.2.2

Information about corporations

462

28.2.3

Examples of public activity

463

28.2.4

Documents submitted to a public office

465

28.2.5

Information pertaining to the public authority

466

What is Privacy?

467

CONTENTS

I-34 PAGE

28.4

28.5

28.6

28.3.1

Importance of privacy

467

28.3.2

Invasion of privacy

468

28.3.3

Laws related to privacy

468

28.3.4

Legal position in India

469

28.3.5

Illustrative cases of privacy

473

28.3.6

Privacy of a dead individual

475

Other issues concerning privacy

477

28.4.1

Caste certificate

477

28.4.2

Registration certificate

477

28.4.3

Telephone

478

28.4.4

Passport

478

28.4.5

Donation and subsidy

479

28.4.6

Details related to spouse

479

28.4.7

EPF Contribution

482

28.4.8

Residential address

482

28.4.9

Muntakhab

483

28.4.10

In camera proceedings

484

28.4.11

Social media

485

28.4.12

Examinations

486

28.4.13

Financial institutions

486

28.4.14

Income tax

486

Government servant and privacy

487

28.5.1

Privacy of a Government servant

487

28.5.2

Assets of Public Servants/IPR

490

28.5.3

Vigilance cases

493

28.5.4

Personal information of a Government servant

494

28.5.5

Retired employees

496

28.5.6

Service particulars of colleagues for disputes relating to confirmation, seniority, promotion

496

Proviso to section 8(1)(j)

497

28.6.1

Information available to Parliament

497

28.6.2

Powers beyond that of the Parliament

499

28.6.3

Can private information be disclosed?

500

I-35

CONTENTS PAGE

CHAPTER 29 PUBLIC INTEREST 29.1

Section 8(2) 29.1.1

29.2

Comparison with section 8(1)

What is Public Interest?

502 502 502

29.2.1

View of the Supreme Court

504

29.2.2

Criticism of public interest

506

29.2.3

Public interest has to be claimed

506

29.2.4

Public interest should not be used as an Exemption clause

507

29.2.5

Does it obliterate Official Secrets Act?

507

29.2.6

Examples of public interest

508

29.3

Notice to third party

512

29.4

Dealing with public interest applications

513

29.5

Mere allegation is not enough

515

29.6

What is not ‘public interest’?

516

29.7

Who decides whether ‘public interest’ is involved?

519

29.8

Processing of PIDPI complaints

521

29.9

Recording a finding of ‘public interest’

523

CHAPTER 30 INFORMATION OLDER THAN 20 YEARS 30.1

Section 8(3)

524

30.2

Maintaining records for 20 Years

524

30.3

Illustrative cases

526

CHAPTER 31 INFRINGEMENT OF COPYRIGHT 31.1

31.2

Section 9

529

31.1.1

Section 13 of Copyright Act

529

31.1.2

Section 51 of the Copyright Act

530

Illustrative Examples

530

CONTENTS

I-36 PAGE

CHAPTER 32 WORKING OF THE INFORMATION COMMIS-

SION 32.1

32.2

32.3 32.4 32.5 32.6 32.7 32.8

Information Commission 32.1.1 Central Information Commission (CIC) 32.1.2 State Information Commission (SIC) Powers of the Information Commission 32.2.1 Enquiry by information commission 32.2.2 Calling for documents 32.2.3 Illustrative examples of inquiry 32.2.4 Monitoring and reporting 32.2.5 Review of order by the commission 32.2.6 CIC (Management) Regulations, 2007 Jurisdiction of CIC Delay in hearing of cases Out of turn hearing Difference of opinion between different benches Framing of questions by the CIC Effectiveness of CIC

534 534 535 536 544 546 547 547 548 550 551 555 556 557 560 560

CHAPTER 33 FILING OF APPEAL AND COMPLAINT 33.1

33.2

Appeal to the first appellate authority

562

33.1.1

Procedure for filing the first appeal

563

33.1.2

Format for filing appeal to the first appellate Authority

563

33.1.3

Time limit for filing first appeal

564

33.1.4

Hearing by FAA

565

33.1.5

Disposal of the first appeal

565

33.1.6

Format of order by the FAA

566

Second appeal to the information commission

566

33.2.1

Process of second appeal

567

33.2.2

Filing of second appeal

568

33.2.3

The procedure for deciding appeals

568

I-37

CONTENTS PAGE

33.2.4

Hearing before the information commission

569

33.2.5

Delay in filing second appeal

571

33.2.6

Single appeal against multiple applications

572

33.3

Review of own order by CIC

572

33.4

Options before the RTI Applicant

572

33.5

What is a Complaint?

573

33.5.1

Difference between a complaint and an appeal

574

33.5.2

Can a complaint be converted into an appeal?

576

33.6

Conduct of an enquiry

578

33.7

Finality of the order of the information commission

579

33.8

Judicial Review

580

33.9

Withdrawal of pending appeal

581

CHAPTER 34 PENALTY UNDER THE ACT 34.1

What is penalty?

582

34.2

Need for penalty

582

34.3

Types of penalty

583

34.4

When can penalty be levied?

585

34.5

Should the complainant request for imposing penalty?

588

34.6

Interest on penalty

589

34.7

Procedure for levying penalty

589

34.8

How to avoid penalty proceedings?

592

34.9

On whom is the penalty levied?

592

34.10

Retired, transferred or deceased PIO

594

34.11

Nature and quantum of penalty

595

34.12

Examples of reasonable causes for delay

598

34.12.1

Non-receipt of application

600

34.12.2

Information not sought

600

34.12.3

Complex legal issue

600

34.12.4

PIO’s Understanding of Law

601

34.12.5

Absence of mala fide intention

602

34.12.6

Compilation from multiple agencies

605

34.12.7

Establishing the identity of applicant

606

CONTENTS

I-38 PAGE

34.12.8

Defective working of the system

606

34.12.9

Volume of work

607

34.12.10 Lack of staff

608

34.12.11 Voluminous information

609

34.12.12 Misplacing the application

610

34.12.13 Grievance settlement

611

34.12.14 Locating the place of information

611

34.12.15 Old records

611

34.12.16 Reply returned undelivered

612

34.12.17 Objective consideration by CIC

612

34.12.18 Information beyond the purview of RTI Act

613

34.12.19 Penalty after withdrawal of complaint

613

34.12.20 Stay against the order of CIC

613

34.12.21 Concealment of facts

614

34.13

Reasonable cause for non-supply of information

614

34.14

Mala fide denial of information

617

34.15

Orders directing improvement in the system

625

34.16

Improper transfer of application

626

34.17

Penalty on the first appellate authority

628

34.18

Penalty on the applicant

630

34.19

Participation of complainant in proceedings

631

CHAPTER 35 CLAIM FOR COMPENSATION 35.1

What is Compensation?

633

35.2

Who can grant compensation?

633

35.3

When can compensation be claimed?

633

35.4

35.3.1

Improper maintenance of record

635

35.3.2

Calling for inspection on a holiday

636

35.3.3

Unnecessary transfer of application

636

35.3.4

Delay in supply of information

636

35.3.5

Overcharging

638

35.3.6

Harassment

638

Forms of compensation

640

I-39

CONTENTS PAGE

35.5

Calculation of compensation

643

35.6

Rejection of claim for compensation

645

35.7

Vicarious liability

646

35.8

Directions to recover compensation from the PIO

647

35.9

Can public authority claim compensation?

648

CHAPTER 36 RECOMMENDATIONS BY THE CIC 36.1

Section 25(5)

649

36.2

Are the recommendations binding?

649

36.3

Examples of some recommendations

650

36.4

Advice to public authority

655

36.5

Impact of the recommendations of CIC

656

CHAPTER 37 MEDICAL CASES 37.1

Hospital related information

657

37.2

Personal information held in fiduciary capacity

658

37.3

Medical ethics

658

37.4

37.3.1

Hippocratic Oath

658

37.3.2

Indian Medical Council Regulations, 2002

658

37.3.3

National Medical Commission Regulations, 2023

661

Illustrative Cases

662

37.4.1

Medical opinion

662

37.4.2

Treatment

662

37.4.3

Medical reports

663

37.4.4

Records of third party

664

37.4.5

Medico-legal cases

667

37.4.6

Drug trial

669

37.4.7

Life and liberty

670

37.4.8

CGHS cases

670

37.4.9

Private hospitals

671

37.4.10

Improvement in system

672

37.4.11

Appointing alternative surgeon

674

CONTENTS

I-40 PAGE

CHAPTER 38 EXAMINATION 38.1

Reasons for denial

675

38.2

Full Bench decision of CIC

675

38.2.1

Views of public authorities

676

38.2.2

Observations of the CIC

676

38.2.3

Decisions of judiciary

678

38.2.4

The verdict of Full Bench of CIC

679

38.3

Supreme Court judgment

681

38.4

Different aspects of an examination

684

38.4.1

Question papers

684

38.4.2

Answer sheets

685

38.4.3

Answer key

686

38.4.4

Marksheet

687

38.4.5

Details of candidates

688

38.4.6

System of examination

688

38.4.7

Departmental examination

689

CHAPTER 39 BANKS AND OTHER FINANCIAL INSTITUTIONS 39.1

Commonly claimed exemptions

690

39.2

Bank account details

691

39.3

39.4

39.2.1

Details of bank account of a customer

691

39.2.2

Account in the name of a group/public body/ society/trust

693

39.2.3

Account details of the deceased

694

39.2.4

Change of name of account operator

694

Loans

695

39.3.1

Details of loan

695

39.3.2

Concessional loan

696

39.3.3

Non-Performing Assets (NPA)

697

39.3.4

Waived loan

699

Terms and Conditions of policy

700

I-41

CONTENTS PAGE

39.5

Dishonoured Cheque

700

39.6

Working of the financial institution

700

39.6.1

Policy and circulars

704

39.6.2

Distribution of coins

704

39.6.3

Investment pattern of funds

705

39.6.4

Stock exchange

705

39.6.5

ATM security

707

CHAPTER 40 INCOME TAX 40.1

PAN and Income Tax Return

708

40.2

Assessment order

711

40.3

Tax Evasion complaints

712

40.4

Investigation in taxation matters

716

40.5

Search and survey

717

40.6

Refund

719

40.7

Informer

720

40.8

Charitable trust

721

40.9

Conflict with Income Tax Act

723

40.10

Public interest

724

40.11

Adjudication orders

726

40.12

Other cases

727

CHAPTER 41 SERVICE MATTERS 41.1

41.2

Appointment

729

41.1.1

Creation or abolition of post

729

41.1.2

Recruitment

730

41.1.3

Compassionate appointment

731

41.1.4

Details of an employment seeker

732

41.1.5

Process of recruitment

733

41.1.6

Selection committee and panel

733

41.1.7

Appointment Committee of the Cabinet (ACC)

734

Promotion

736

CONTENTS

I-42 PAGE

41.2.1

Should the promotion proceedings be disclosed?

737

41.2.2

Departmental exams

737

41.2.3

Departmental Promotion Committees (DPC)

738

41.2.4

Sealed cover proceedings

740

41.2.5

Supersession

741

41.3

Transfer and Posting

742

41.4

Attendance

744

41.5

Leave

745

41.6

TA/Medical Bill

746

41.7

Arrears

747

41.8

Trade Union

748

41.9

Vigilance

748

41.9.1

Suspension

749

41.9.2

Termination

750

41.10

Retirement

751

41.11

Compulsory retirement under FR 56(j) of CCS (Pension) Rules

751

41.12

Pension

752

CHAPTER 42 ACR/APAR 42.1

Past view

755

42.2

Dev Dutt case

756

42.3

Legal position today

757

42.4

Recent orders in favour of disclosure of APAR

759

42.5

APAR of third party

760

42.6

Comments on APAR of Third Party

761

42.7

Summary

762

CHAPTER 43 VIGILANCE CASES 43.1

Vigilance Cases

763

43.1.1

Covered under - ‘Investigation’ u/s 8(1)(h)

763

43.1.2

Guidelines

764

I-43

CONTENTS PAGE

43.1.3

Vigilance enquiry is a public activity

765

43.1.4

Investigation in progress

765

43.1.5

Completion of vigilance process

765

43.1.6

Completed process

766

43.2

Role of Court

767

43.3

Opinion of the investigating agency

768

43.4

Disclosure of identity

768

43.5

43.4.1

Officers writing the notes

768

43.4.2

Officers under enquiry

770

43.4.3

Complainant or witness

773

Disclosure of documents

774

43.5.1

Investigation of third party

774

43.5.2

Confidential files

775

43.5.3

File notings in confidential files

776

43.5.4

Fate of complaint

778

43.5.5

Information in possession of consultant

778

43.5.6

Information needed to defend oneself

778

43.6

Illustrative cases where disclosure was denied

780

43.7

Illustrative cases where disclosure was ordered

783

43.8

Public Interest

786

43.9

Strictures/advice to vigilance department

786

CHAPTER 44 EXPANDING SCOPE OF THE ACT 44.1

Directions to do something

788

44.2

Directions to create information

790

44.3

Directions to providing reasons or explanations

791

44.4

Directions to provide clarification

792

44.5

Compilation of information

792

44.6

Providing fresh information

793

44.7

Strictures against the public authority

794

44.8

Directions to explore facilities

794

CONTENTS

I-44 PAGE

CHAPTER 45 CONDUCT OF AN APPLICANT 45.1

Responsibilities of an applicant

796

45.2

Hearing before the information commission

797

45.3

Change of appellant

798

45.4

Status of application on the death of the applicant

798

45.5

Can the contents of application be disclosed?

798

45.6

Harassment of an applicant

799

45.7

Protection to an applicant

801

CHAPTER 46 MISUSE OF THE ACT 46.1

Introduction

803

46.2

Objectives of Misuse

804

46.3

Ways of Misuse

806

46.3.1

Use of abusive language

806

46.3.2

Pseudonymous applications

807

46.3.3

Repeated applications on a single issue

807

46.3.4

Queries based on earlier RTI application

808

46.3.5

Applications seeking voluminous information

809

46.3.6

Applications seeking old and complex information

809

46.3.7

Misleading the commission

810

46.3.8

False claims of public interest or life and liberty

810

46.3.9

Misuse of BPL status

811

46.3.10

Blackmail

811

46.3.11

Vexatious litigation

812

46.3.12

Repeated submissions

813

46.3.13

Refusing inspection

813

46.4

Employees using the RTI route in vigilance enquiry

814

46.5

Impact of misuse

816

46.6

Are there any solutions?

817

I-45

CONTENTS PAGE

46.7

Steps that can be taken by the public authority

822

46.8

Think about it

823

APPENDICES ͳ ౧ǣ RIGHT TO INFORMATION ACT, 2005

827

ʹ ౧ǣ RIGHT TO INFORMATION RULES, 2012

856

SUBJECT INDEX

861

6 CHAPTER

WHAT CAN BE SOUGHT UNDER THE RTI ACT?

A PIO must understand the concept of ‘Information’ as the RTI Act vests the power to a citizen to seek the material that is covered under the ambit of the term ‘information’. If anything beyond what is defined as ‘information’ is demanded, the application is not maintainable under the Act.

6.1 WHAT IS ‘INFORMATION’? The Act empowers the Citizen to obtain ‘information’ which has been defined in section 2(f) as, “any material in any form including:

records, documents, memos, e-mails, opinions, 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 for the time being in force.”

Thus, the scope of the term ‘information’ is very wide and includes not only records in practically all possible forms of storage encompassing digital and physical data. Information not only includes the file notings, but also samples, models, videos and photographs. 6.1.a The effect of the provisions and scheme of the RTI Act is to divide “information” into three categories. They are: (i) Information which promotes transparency and accountability in the working of every public authority, disclosure of which may also help in containing or discouraging corruption [enumerated in Clauses (b) and (c) of Section 4(1) of the RTI Act. (ii) Other information held by public authority [that is, all information other than those falling under Clauses (b) and (c) of Section 4(1) of the RTI Act]. 82

WHAT IS INFORMATION

Para 6.1

(iii) Information which is not held by or under the control of any public authority and which cannot be accessed by a public authority under any law for the time being in force. Information under the third category does not fall within the scope of the RTI Act. In regard to the information falling under the first category, there is also a special responsibility upon the public authorities to suo motu publish and disseminate such information so that they will be easily and readily accessible to the public without any need to access them by having recourse to Section 6 of the RTI Act. There is no such obligation to publish and disseminate the other information which falls under the second category. [The SPIO and DSP and Anr v. SIC and Anr., WP (C). No. 5274/2020; 17.03.2021, HC Kerala].

6.1.1 Record As per section 2(i) of the Act, ‘record’ includes, (a) any document, manuscript and file; (b) any microfilm, microfiche and facsimile copy of a document; and (c) any other material produced by a computer or any other device.

6.1.2 Information should be ‘held’ Information which is held by a Public Authority can alone be provided to an applicant. Information which is already in the Public domain has often been claimed as not being held by the Public authority. 6.1.2.a The said expression “held by or under the control of any public authority” used in section 2(j) of the RTI Act deserves a wider and a more meaningful interpretation. The expression “Hold” is defined in the Black’s Law dictionary, 6th Edition, inter alia, in the same way as “to keep” i.e. to retain, to maintain possession of, or authority over. [Registrar of Companies v. Dharmendra kumar Garg, WP(C) No. 11271/2009; 1.06.2012, HC Delhi]. 6.1.2.b The words ‘held by’ or ‘under the control of’ u/s 2(j) will include not only information under the legal control of the public authority but also all such information which is otherwise received or used or consciously retained by the public authority in the course of its functions and its official capacity. There are any number of examples where there is no legal obligation to provide information to public authorities, but where such information is provided, the same would be accessible under the Act. For example, registration of births, deaths, marriages, applications for election photo identity cards, ration cards, pan cards etc. [Secretary General, Supreme Court of India v. Subhash Chandra Agarwal, LPA No. 501/2009; 12.01.2010, HC Delhi].

Para 6.1

WHAT CAN BE SOUGHT UNDER RTI ACT

6.1.2.c Freedom of Information Act - Delhi High Court in Secretary General, Supreme Court of India v. Subhash Chandra Agarwal, LPA No. 501/2009 judgment dated 12.01.2010 referred to Philip Coppel’s work ‘Information Rights’ (2nd Edition, Thomson, Sweet & Maxwell 2007) interpreting the provisions of the Freedom of Information Act, 2000 (United Kingdom). “Held” suggests a relationship between a public authority and the information akin to that of ownership or bailment of goods… information is “held” by a public authority if it is held by the authority otherwise than on behalf of another person, or if it is held by another person on behalf of the authority. The term ‘held’ does not include following information – 1. That is, without request or arrangement, sent to or deposited with a public authority which does not hold itself out as willing to receive it and which does not subsequently use it; 2. That is accidentally left with a public authority; 3. That just passes through a public authority; 4. That ‘belongs’ to an employee or officer of a public authority but which is brought by that employee or officer onto the public authority’s premises. 6.1.2.d It is important to ensure that the desired information are available with a public authority. No attempt should be made to seek information on the basis of presumption about the availability of information, as has been done in the instant case. [5293/IC(A)/2010]. 6.1.2.e The wording of Section 2(j) .... clearly demarcates the boundary between an information held or under the control of the public authority and, an information not so held, or under the control of that public authority who suo-motu places that information in public domain. It is only the former which shall be “accessible under this Act” viz. the RTI Act and, not the latter. This latter category of information forms the burden of sub-sections (2), (3) and (4) of Section 4 of this Act. [CIC/ AT/A/2007/00112]. 6.1.2.f Information held - Section 2(j), read with provisions of Section 4(1), makes it comprehensively clear that RTI Act envisions two classes of information one, which public authority holds and, has not yet - offered to disclose either free or through a certain level of price and, second, information in regard to which the previous action has not been taken. RTI Act applies only to the latter category and not to the former. [CIC/ SM/A/2009/001883AT]. 6.1.2.g Holding exclusively - 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 go’, i.e. shared generally with the citizens, and also that information, in respect of which there is a statutory mechanism

WHAT IS INFORMATION

Para 6.1

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”. [Registrar of Companies v. Dharmendra Kumar Garg, WP(C) No. 11271/2009; 01.06.2012, HC Delhi]. 6.1.2.h I respectfully disagree with this conclusion. Section 2(j) states: “right to information” means the right to information accessible under this Act which is held by or under the control of any public authority... The word used in the provision is ‘or’ and not ‘and’. Information may be sought either from the public authority holding the information or the public authority having control over the information. Parliament has deliberately drawn this distinction as in some cases these two public authorities may be two entirely different entities. Therefore, if a public authority holds the information, it must provide the same to the RTI Applicant in accordance with the provisions of the RTI Act. It is not at all necessary for that public authority to control that information as well. In the present case, the Trial Court may have control over the record, but the CBI is the public authority holding the SP report. Therefore, the SP Report can be sought from the Commissioner of Customs & Central Excise or from the Trial Court. Since the Appellant has sought it from the Commissionerate the public authority holding the information must provide the same. [Dissenting note in a majority decision Bench comprising of Shri AN Tiwari, Shri Satyananda Mishra and Shri Shailesh Gandhi - C. Seetharamaiah v. Commissionerate of Customs and Central Excise (CBI as third party), CIC/AT/A/2008/01238; 07.06.2010]. 6.1.2.i The expression ‘held’ or ‘under the control of’ used in section 2(j) of the Act are significant. These expressions mean that an information can be said to be under the control of a public authority only when such public authority holds that information authoritatively and legitimately. Information which a public authority might receive casually or, which it had returned to its point of origin for supplying omissions, will not qualify to be ‘held’ or ‘under the control of’ the public authority. [CIC/ AT/A/2007/00327].

Para 6.1

WHAT CAN BE SOUGHT UNDER RTI ACT

6.1.2.j Time period - Holding of information is not time-specific and as such even though the information is held for a very short period, nevertheless while the information is in a state of being ‘held’ it is ‘information’ for the time it is known to be held by the public authority through any of its officers or agents, within the meaning of section 2(f) and is covered by the right conferred on a citizen u/s 3 of the Act. It is immaterial as to whether the information is held by a lowly functionary or by the highest functionary. Also immaterial for the purpose of definition of information is the manner of the creation of the document. A document or a paper casually created as some sort out of an aide-memoire. E.g. “cause list”- is as much information u/s 2(f) as any other document or material under the control of the public authority. [CIC/WB/A/2006/00839 & 00900 and CIC/WB/A/2007/01118 Full Bench].

6.1.3 Information with private bodies Certain data available with a private organisation can be legally accessed by a government organisation under a law in force. 6.1.3.a The definition includes even the information available with the private bodies, which can be accessed by a Public Authority. There can be a situation where the public authority does not possess the information sought in an RTI application relating to a private body which the public authority can have access to under any law. In such a condition, the public authority would be required to obtain the information from the private body and provide it to the applicant after testing it against the exemption clauses of section 8(1) and following the procedure of section 11 relating to third party information. [CIC/WB/A/2006/00314].

6.1.4 File notings Please also refer to Para 14.10, Para 25.4.2 and Para 43.5.3. 6.1.4.a Doubts were raised in certain quarters whether file notings are to be disclosed under RTI as the definition of information u/s 2(f) does not specifically mention it. In the landmark Satyapal Case, the division bench of CIC held that 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 section 2(f), 2(i) & 2(j) would indicate that a citizen has the right of access to a file of which the file notings are an integral part. [IC(PB)/A-1/CIC/2006]. 6.1.4.b The CIC referred to the definition of the word ‘file’ as contained in the Manual of Office Procedure. Section 27 of Chapter II: ‘Definitions’ clearly states, ‘File means a collection of papers on a specific subject matter assigned a file number and consisting of one or more of the following parts: (a) Correspondence; (b) Notes; (c) Appendix to Correspondence and

WHAT IS INFORMATION

Para 6.1

(d) Appendix to Notes. This would imply that ‘notings’ are an inextricable part of a record as defined u/s 2(f) and further defined u/s 2(i)(a) of the Act unless it had been specifically exempted. Without that, by excluding ‘notings’ from a file, the DoPT would be going against their own Manual and established procedure mandated by them. [CIC/WB/C/2007/00080]. Vide Circular No. 1/20/2009-IR dated 23rd June, 2009, the DoPT clarified that file noting can be disclosed except those exempt from disclosure u/s 8 of the Act. 6.1.4.c There is a mention in the file that this extension has been given on the basis of the minutes dated 29.06.2005 issued by the concerned Minister. The minutes given by the Minister is also part of the file noting which should be supplied to the appellant. [PBA/07/751]. 6.1.4.d While, the definition of record in Section 2(i) includes a “file”. Having regard to the above, there can be no doubt that file notings and opinions of the JAG branch are information, to which, a person taking recourse to the RTI Act can have access provided it is available with the concerned public authority. [UoI v. Col V K Shad WP(C) 499/2012; 09.11.2012, HC Delhi]. 6.1.4.e File notings are disclosable to the information seekers unless they are non-disclosable under any specific provision of the RTI Act. [Shri G.S. Sandhu v. UPSC, CIC/SM/A/2011/001771; 01.05.2013]. 6.1.4.f Action taken - Provide file notings relating to registration of M/s Infomerics Valuation and Rating Pvt. Ltd from the date of the order dated 19.2.2013 passed by Hon’ble Supreme Court in the matter of SEBI v. M/s Infomerics Valuation and Rating Pvt. Ltd. severing third party information. [Ms Pooja Malik v. SEBI, in CIC/MP/A/2015/001709; 18.03.2016]. 6.1.4.g Implications of filed notings - The file notings obtained under the RTI Act, 2005 which contain statements about obligation of the then State of Andhra Pradesh to pay the dues of the petitioners are ‘acknowledgements of liability’ u/s 18 of the Limitation Act, 1963, and that they relate to a present subsisting liability and indicate the existence of jural relationship between the parties. [M/s. Agni Aviation Consultants v. WP No. 1135/2016, 21.04.2020; HC Telangana].

6.1.5 Sample and Model The Act gives the authority to inspect and take a certified sample. A citizen can even seek a model of an actual object on payment of prescribed fee. 6.1.5.a Sample of materials used - An information seeker is free to seek and obtain sample of materials used in any civil or electrical works, so as to determine the quality of work completed by the contractors, in terms of the standards prescribed in the contract between the parties. [3094/IC(A)/2008].

Para 6.1

WHAT CAN BE SOUGHT UNDER RTI ACT

6.1.5.b Sending samples to laboratory - The only matter in which the request of appellant has been refused is his request to send samples of material to Siri Ram Institute of Testing for quality, which he has made to Executive Engineer in a letter of 30.1.06 on which Chief Engineer in his letter to both Executive Engineers on 13.2.06 has rightly directed that whereas a person can indeed obtain certified sample of materials u/s 2(j)(iii), there is no provision to handover such samples to a testing laboratory. It was open to appellant to have taken the sample for testing to any laboratory of his choice. It is not open to him, however, to ask the public authority to do so. [CIC/WB/A/2006/00290-291]. 6.1.5.c Obtaining samples for testing - The Appellant is, however, allowed to obtain samples of the supplies of CG12 Rev 1 vinyl flooring, under provisions of Section 2(j)(iii) of the Act, which the Appellant may get tested from an independent expert on his own. [CIC/WB/C/2007/00224]. 6.1.5.d Sample of road - Appellant submitted that he had asked for a sample of the road for core testing by him as it is his belief that substandard material was used in constructing the Road. CIC directed to provide a realistic estimate (indicating the complete breakup) of money that needs to be deposited by the Appellant before the sample is handed over to the Appellant within ten days of receipt of the amount from the Appellant. The PIO is also directed to allow the Appellant to inspect the records relating to the construction of road and to provide him with attested copies of documents sought by him, free of cost upto 50 pages. [Shri Deepak Yadav v. Public Works Department, CIC/AD/A/2012/000740; 26.03.2012]. 6.1.5.e The samples are ‘information’ to which the appellant is entitled u/s 2 (j).....The samples are retained till the proceedings reach a finality cannot be totally disregarded in as much as an eventuality may arise when the AA may like to inspect these samples or have fresh tests conduct in regard thereto. Hence, to direct the Customs Department to supply the whole of samples to the appellant may not be expedient. A balance, therefore, needs to be struck in this regard. In the circumstances, the proper course of action appears to be to direct Commissioner of Customs (I&G), New Delhi, to apply the principle of severability u/s 10(1) of the RTI Act by way of retaining part of the samples for the purposes of pending adjudication proceedings and supplying another part to the appellant. [CIC/AT/A/2007/01377/LS].

6.1.6 Certified Copies A “Certified copy” is a copy of a document or record, signed or certified as a true copy by the officer to whose custody original is entrusted. The PIO has to provide certified copies of documents and certified samples

WHAT IS INFORMATION

Para 6.1

of materials if desired by an applicant as the RTI Act provides for the same [section 2(j)]. Certified copies are admissible as proof in courts of law u/s 77 of the Indian Evidence Act, and therefore, it is necessary that adequate care and caution is exercised before, a PIO decides to provide the certified copies of documents. The Section 76 of the IE Act describes the officer competent to issue a certified copy as the one ‘... who in the ordinary course of official duty is authorized to deliver such copies ...’ It follows from it that certified copies of a document can be issued only by an officer who is in control of that information/document in course of his official duty which by inference should be a duty cast on him through a statute, rule or regulation. If such an officer has given photocopies of the documents which he officially holds to another public authority, the latter will not qualify to be the holder of the information ‘by the ordinary course of official duty’, and thus will not be qualified to issue certified copies of such received documents to a requester. Vide OM No. 10/1/2013-JR dated 06.10.2015, the DoPT has directed that wherever the applicant has requested for ‘certified copies’ of the documents or records, the CPIO should endorse on the document “True copy of the document/record supplied under RTI Act”, sign the document with date, above a seal containing name of the officer, CPIO and name of public authority. In case the documents to be certified and supplied is large in number, information on RTI application should be supplied by a designated PIO but the certification of the documents, if need be, could be done by an other junior gazetted officer. 6.1.6.a It is necessary to draw a distinction between the original or the primary and, the secondary or the incidental, holder of the information within Section 2(j). [CIC/AT/A/2009/000584]. 6.1.6.b Since the original report is with the Police, the CPIO and the AA were correct in the decision taken by them as in the absence of the original, no certified copy can be given. However, if the appellant desires, he may apply for an uncertified copy of the same. [PBA/06/206]. 6.1.6.c The complainant has inter alia requested the Commission to recommend/direct the Govt. so that documents received under RTI suomotu become evidence before the Court of law. There are a number of cases decided by the Supreme Court and High Courts wherein Courts have relied upon documents procured from Public Authorities in deciding the cases. The rule which gets deduced from the practice is “The documents which are admissible and relevant is given due cognizance by the competent courts and courts here never raised this question that documents procured from a public authority through RTI application is not admissible.” [CIC/SG/A/2009/000206].

Para 6.1

WHAT CAN BE SOUGHT UNDER RTI ACT

6.1.6.d The stand taken by the respondent that the Act does not contemplate issue of certified copies of documents or records cannot be sustained. Likewise, I also find no merit or force in the contention of the respondents that grant of certified copies may give authenticity to the documents which may not be genuine or even fabricated. In the event of an applicant’s request for information being granted all that the Public Information Officer would have to do is to certify that the copy is one issued under the RTI Act, 2005. He is not called upon to certify that it is a copy of a genuine document. [John Numpeli (Junior) v. Office of The Town Planning Officer, Cochin Corporation, WP(C) No. 31947/2013; 31.01.2014, HC Kerala]. 6.1.6.e The information to be accessed/certified copies on the judicial side to be obtained through the mechanism provided under the High Court Rules, the provisions of the RTI Act shall not be resorted to. [Chief Information Commissioner v. High Court of Gujarat and Anr., CA No (S). 1966-1967 of 2020; 04.03.2020, SC].

6.1.7 Cost of certification Hypothetically, an appellant may desire a few thousand certified copies of documents which may be practically not possible to provide. Please refer to para 8.9 for dealing with such a situation.

6.1.8 Video and photographs 6.1.8.a Provide a copy of the video of Trade Test and copy of photograph taken during the test and also a copy of answer sheet of the Appellant within 3 weeks time on receipt of this order. [CIC/SS/A/2010/000453]. 6.1.8.b Whether the ATM in question had videography facility and, if yes, video clipping may be provided to the appellant if available. [CIC/ SM/A/2009/000735/LS]. 6.1.8.c The Commission directs the respondents to check the presence of the appellant in the CCTV footage of 23.8.2013 and provide the footage where she figures upon payment of fees prescribed. [Ms. Reena Richard v. SBI, CIC/MP/A/2014/000236; 28.11.2014]. 6.1.8.d The Commission has not been in favour of unconditional provision of footage of CCTV cameras to RTI applicants as it could endanger the security of the premises, where those cameras are installed. However, the Commission has directed provision of limited CCTV footage in cases where it pertained to the applicant himself. [Md. Shakeel Ahmad v. CPIO, Archaeological Survey of India, CIC/SH/A/2015/001336; 30.08.2016].

WHAT IS NOT ‘INFORMATION’

Para 6.2

6.2 WHAT IS NOT ‘INFORMATION’? There are certain areas which are beyond the scope of the term Information. Some illustrative examples are given below:

6.2.1 Opinion and Advice Only information as available in the form of records and documents which are held by or under the control of a public authority can constitute information to which a citizen has right to access. This Act does not provide for seeking information which are not recorded and therefore cannot be deemed to have been ‘held’ by the public authority. 6.2.1.a It is also not required to provide ‘advice’ or ‘opinion’ to an applicant, nor required to obtain and furnish any ‘opinion’ or ‘advice’ to an applicant. The reference to ‘opinion’ or ‘advice’ in the definition of ‘information’ in section 2(f) of the Act, only refers to such material available in the records of the public authority. Many public authorities have, as a public relation exercise, provide advice, guidance and opinion to the citizens. But that is purely voluntary and should not be confused with any obligation under the RTI Act. [CBSE v. Aditya Bandopadhyay CA No. 6454/2011; 09.08.2011, SC]. 6.2.1.b The queries raised by the appellant in his RTI application are more in the nature of seeking advice and clarification whereas under the provisions of the RTI Act, only information as is held by the Respondent in material form can be provided. The Respondent are not expected to create information or to give advise. The information sought by the Appellant therefore does not qualify as information as defined u/s 2(f) of the RTI Act. [Govind Mittal v. CPIO, National Highway Authority of India, CIC/SS/A/2012/003439; 29.08.2013]. 6.2.1.c An applicant u/s 6 of the RTI Act can get any information which is already in existence and accessible to the public authority under law. Of course, under the RTI Act an applicant is entitled to get copy of the opinions, advices, circulars, orders, etc., but he cannot ask for any information as to why such opinions, advices, circulars, orders, etc. have been passed. [Khanapuram Gandaiah v. Administrative Officer and Ors., SLP (C) No. 34868/2009; 04.01.2010, SC]. 6.2.1.d Opinions which are on record certainly have to be given, but the PIO cannot be expected to give his opinion on matters under RTI. [CIC/ WB/A/2008/00493/SG/ 0344, CIC/WB/A/2006/00383]. 6.2.1.e It is important to note that the expressions “opinions” and “advices” in this section refer to opinions, advices which form part of material such as advices and opinion present on files, documents records and so on. It would be wholly incorrect to read these expressions to mean that an

Para 6.2

WHAT CAN BE SOUGHT UNDER RTI ACT

information-seeker can demand from a public authority its opinion and seek its advice in a matter of the petitioner’s interest. Nothing which is intangible such as interpretations, opinions, advices, explanations, reasons can be said to be included in the definition of information in Section 2(f). [CIC/AT/A/2007/00940]. Similar view was taken in CIC/AT/A/2006/00446, CIC/AT/A/2006/00045. 6.2.1.f “Information”, therefore, can be something that is available in a material form and is retrievable from the official records. It cannot be something that is not a part of the record. An “opinion” or an “advice” which is not recorded cannot, therefore, be treated as “information” within the meaning of Section 2(f) of the RTI Act. Similarly, the CPIO cannot either confirm or deny some perception of the appellant, which he has about a particular set of information. [CIC/WB/A/2009/000381]. 6.2.1.g The words, “opinions” and “advices” in Section 2(f) only meant that subject to the exemptions of Section 8(1) and Section 9, opinions and advices available on the files and records of a public authority shall be liable for disclosure. It cannot be interpreted to mean that all public authorities shall act as advisors to RTI-petitioners. [CIC/AT/A/2007/01196]. 6.2.1.h Any ‘opinion’ to be provided must be recorded opinion. By the same argument, if there is no recorded opinion on a particular subject on which information has been sought, the CPIO is required to inform the applicant that there is no such record. [CIC/WB/A/2007/00329].

6.2.2 Clarification/Reason/Explanation The reasons available on record should be provided and the PIO is not expected to post facto create reasons. 6.2.2.a Reason or justification - The definition of information cannot include within its fold answers to the question “why” which would be same thing as asking the reason for a justification for a particular thing. The public information authorities cannot expect to communicate to the citizen, the reason why a certain thing was done or not done in the sense of a justification because the citizen makes a requisition about information. Justifications are matter within the domain of adjudicating authorities and cannot properly be classified as information….. Justifications are matter within the domain of adjudicating authorities and cannot properly be classified as information. [Dr. Celsa Pinto, Ex-Officio Joint Secretary (School Education) v. The Goa SIC and Anr., WP(C) No. 419/2007; 03.04.2008, HC Bombay]. 6.2.2.b A public authority is not obliged to answer any query regarding why it did not perform its function in a given manner. [CIC/AT/A/2009/000657]. 6.2.2.c While appellant shall be entitled to receive the information as it is on record, it is not his right to demand that the public authority

WHAT IS NOT ‘INFORMATION’

Para 6.2

explain to him as to why no action was taken on his appeal petition, or why action was taken in a particular way and, not another. [CIC/ SM/A/2010/000467AT]. 6.2.2.d The appellant is seeking clarification regarding validity of a course conducted by IGNOU for the purpose of career advancement scheme. This can be clarified either by UGC or IGNOU. They did not write to each other on this question. During the hearing of second appeal, the PIO states that clarifications could not be provided under the RTI Act. The Commission considers this as a policy-deficit in the public authority exposed by such RTI applications. The RTI Act mandates UGC u/s 4(1)(c) & (d) to voluntarily disclose such aspects of their educational policy to the people affected including the appellant in this case. In fact, the UGC has to understand the doubts of such students or parents and recognize the need for clarification arising out of such RTI applications and prepare the FAQs accordingly. The UGC should entrust a team to scrutinize such requirements out of the RTI applications and continuously increase the number of clarifications under FAQs. The increase in the number of RTI applications seeking such clarifications reflect on the public authority leading to an inference that the UGC is not properly communicating to the people about the validity of courses and degrees. The RTI Act has provided a tool to the people to find out such clarifications. Instead of physically approaching or telephonically asking the applicant has paid ` 10 in the form of RTI fee, creating an obligation on the public authority to respond. Hence, the Commission directs the respondent authority not to refuse to give clarifications. If not, the commission would be compelled to initiate penal proceedings and also direct the public authority to pay compensation to the appellants in similar circumstances because appellant’s RTI request was a necessity arising out of non-performance of its duty u/s 4(1)(c) & (d) of RTI Act. Though section 4 is not directly enforceable by the Commission, the information sought was to be voluntarily disclosed; the RTI application and this appeal demand the CIC to take necessary action to secure access to implement the RTI Act. The information unsought is not prohibited by any exemption. Even if appears to be a clarification which could be denied under first part of Section 2(f), it has to be given under second part of Section 2(f) as UGC Act provided access to that information held by UGC concerning the Universities- both public and private. [Ram Kishan Sharma v. PIO, UGC, CIC/CC/A/2014/001770-SA; 27.09.2016]. 6.2.2.e The appellant has sought very wide and general information which does not relate to only one public authority but multiple public authorities. The subject matter of the information sought are general in nature which requires identification of appropriate documents and furnishing information after analysing large no. of documents. Such

Para 6.2

WHAT CAN BE SOUGHT UNDER RTI ACT

an activity cannot be expected from the CPIO requiring him to make judgments on the basis of unspecified documents. The CPIO is not obliged to provide clarification and interpretation of the documents to the appellant as per the provisions of the RTI Act, 2005. This sort of queries seeking clarification from the CPIO regarding various aspects of import of crude oil by the oil companies is not covered within the definition of ‘information’ u/s 2(f) of the RTI Act. [Omprakash Kashiram v. The Commissioner of Customs (Import-II), CIC/CCUM1/A/2019/104378; 09.12.2020]. 6.2.2.f Appellant believes that RTI Act entitles him to demand explanations, reasons and elucidations from a public authority. For this, he has cited section 4(1)(d) of the RTI Act which enjoins public authority to provide reasons for administrative and quasi judicial decisions. From this to infer that an applicant acquires the right to interrogate a public authority about a decision it made or one that it did not make, would be little overstretched. This provision enjoins a public authority that whenever an administrative or quasi judicial decision is made the reasons for those decisions would be made known to the person these concerned. It would be entirely misconceived to stretch the provision of section 4(1) (d) to imply that a public authority may be required to furnish, post facto or at any point in time subsequent to the making of the decision, reasons for quasi judicial or administrative decisions that may be made. The provisions of section 4(1) of the RTI Act are more in the nature of directive principles for better governance and higher transparency. To quote these as binding obligations on the public authority enforceable under the provisions of the act would be contrary to the intent and the purpose of the Act. [CIC/AT/A/2007/01298, CIC/AT/A/2009/000657]. 6.2.2.g No information-seeker can demand from a public authority explanations, reasons, interpretation, etc. What the appellant is seeking is an interpretation of Section 194-I of the Income Tax Act, which lies manifestly beyond the scope of Section 2(f) of the RTI Act. [CIC/ AT/A/2007/00940]. 6.2.2.h The CPIO has understandably declined to enter into an exchange with him about why Trustees did not take a certain decision, or the authority through which certain Rules were amended. It would be incorrect on the part of the CPIO to conjecture about those situations as depicted by the appellant. This matter being so old, is also partly responsible for absence of the material appellant is seeking. [CIC/SM/A/2010/000458AT]. 6.2.2.i A citizen can seek only information, which is available with the public authority in material form leaving no provision to seek clarification by raising queries. It is not open to an applicant to ask, in the guise of seeking information, questions to the public authorities about the nature

WHAT IS NOT ‘INFORMATION’

Para 6.2

and quality of their actions. It may be noted that the public authority is not bound to answer queries like why and what and under what circumstances to an applicant. [PBA/07/137]. 6.2.2.j A perusal of the queries leaves one in no doubt that they were couched in a language which amounted to demanding explanations and reasons about certain points which the appellant had incorporated in these queries. [CIC/AT/A/2007/01331]. 6.2.2.k It would be a fallacy to conclude that all public authorities are obliged to provide post facto reasons in all administrative and quasijudicial matters previously decided as it would virtually amount to asking the present incumbent to read the mind of that authority which passed or took the decision, at an earlier point of time. [CIC/AT/A/2007/01298]. 6.2.2.l The information solicited by the appellant is, no doubt, unusual. He has asked not for any existing information, but for reasons for inaction on, what the appellant has mentioned, a newspaper report. I am afraid it is not open for any applicant to demand the explanation of a public authority for its alleged inaction on a newspaper report. [CIC/ AT/A/2007/00582]. 6.2.2.m The RTI Act clearly defines the information which can be solicited through a proper RTI request and this does not include explanations, reasons and decisions. The queries here are not request for information, but demands for explanations and reasons from the public authority. [CIC/AT/A/2007/00191, CIC/AT/A/2007/00357, CIC/AT/A/2007/00310]. 6.2.2.n The Commission notes that the appellant herein wishes to interrogate the respondents, in the guise of seeking specific information under the provisions of the RTI Act, about the reasons for their starting criminal proceedings against him. He cannot be authorized to do so. [CIC/AT/A/2007/01066]. 6.2.2.o It needs to be stated that it is not open to a petitioner to seek from respondents their reaction on implementation of a Court order no matter how valid or legitimate be the petitioner’s own case. The public authority as a litigant has a right to take position in a given case, for which it is answerable only to the Courts. The public authority is not obliged to reveal its action or inaction on Court orders, if any, to an applicant, even when such applicant is making this petition under the RTI Act. [CIC/AT/A/2007/00145]. 6.2.2.p Appellant seems to have a certain idea about the source of the power of the DGCEI and the jurisdictional Commissioners in the matter of issue of show cause notices and adjudication. This idea apparently is not in conformity with the impression which the central excise officers have in the same matter. RTI is not a forum where the correctness of the

Para 6.2

WHAT CAN BE SOUGHT UNDER RTI ACT

respective positions can be debated and established. Appellant’s RTI-query was well beyond the scope of Section 2(f) of the RTI Act as what he was seeking was more elucidation and explanation rather than any specific information - material in any form. [CIC/AT/A/2010/000039]. 6.2.2.q In simple words, information must exist in the form of a record or sample or as data in electronic form. The Act nowhere states that if a question is framed it would not be replied. [CIC/SG/A/2010/001035/7966].

6.2.3 Interpretation or Legal Opinion RTI Act has no scope for a petitioner establishing a dialogue with the public authority regarding what is the interpretation of a given set of Rules or the own ideas, interpretations or surmises of the PIO. 6.2.3.a CPIO cannot interpret the orders of the Supreme Court in any particular case. [CIC/WB/A/2006/00610]. 6.2.3.b If there is any specific recorded opinion sought that is in material form, with regard to any conduct by any specific justice, appellant Shri Sharma was free to ask for such a record. On the other hand, appellant’s argument before us that DNA Rules must cover the problem that he has projected holds no weight because these very rules are available to him as much as they are to any CPIO. Interpreting those rules, therefore, becomes a matter of legal opinion, which under the law, as unambiguously defined above, the CPIO is not authorized to provide. [CIC/WB/A/2009/0000151]. 6.2.3.c There was the great danger in CPIO providing to the appellant an information gleaning it from files and documents and this was that the CPIO made over in interpreting the information and thereby run into charges of providing to the appellant false or incorrect information. [CIC/AT/A/2010/000622]. 6.2.3.d The appellant is not happy with the reply and wants the PIO to give a specific provision of the law which would apply to his property. He is effectively seeking an interpretation of the law from the PIO, which is not ‘information’ as defined under the Act. [CIC/WB/A/2008/01329/ SG/0715]. 6.2.3.e To expect that a public authority would identify the extracts of the circular relevant to the appellant’s RTI queries for the benefit of appellant would amount to giving to him the public authority’s interpretation of Income Tax Laws/ instructions which the appellant is not authorized to receive, nor is the respondent obliged to provide, under the provisions of the RTI Act. [CIC/AT/A/2007/01074]. 6.2.3.f If any legal opinion has been obtained by the public authority which is the matter of record, it is covered under the definition of information. Whether it can be provided is a question which the PIO has to examine.

PIO’s Guide to

RTI AUTHOR

: R.K. VERMA, ANURADHA VERMA PUBLISHER : TAXMANN DATE OF PUBLICATION : OCTOBER 2023 EDITION : 2ND EDITION : 9789357785297 ISBN NO NO. OF PAGES : 912 BINDING TYPE : HARDBOUND

Rs. 2595 | USD 68

Description This book is a definitive guide to the Right to Information Act, 2005 (RTI Act). Drawn from an in-depth study of over 1,00,000 orders from the Central Information Commission and landmark court judgments, this book categorises a wide array of case laws topic-wise, allowing readers to swiftly pinpoint the relevant case law for their RTI application or appeal. Additionally, it provides a section-wise breakdown for ease of reference. This book is tailored to guide government officials responsible for the RTI Act’s implementation, including the PIO, deemed PIO, FAA, and nodal officer. It is also equally invaluable for lawyers, information commissioners, and curious citizens eager to familiarise themselves with authoritative case laws on the Act. The Present Publication is the 2nd Edition, authored by Dr. Rajesh Kumar Verma & Dr. Anuradha Verma, with the following noteworthy features:  [Real-life Cases] to gain a deeper understanding of the RTI Act’s intricacies  [Guidelines for PIOs and FAAs] to efficiently address issues and avoid potential penalties or compensations  [Evolving Role of the RTI Act and Strategies] to counteract its misuse  [Latest Amendments and Diverse Interpretations] of the RTI Act for a lucid perspective Comprehensive and detailed information The structure of the book is as follows: The book provides a comprehensive overview of the RTI Act, beginning with its background, objectives, primary provisions, and significance of the Preamble. It delves into various pertinent topics, including:  Interpretation of terms and concepts in the RTI Act  Definitions of ‘Information’ and ‘Public Authority’ from which one can procure details  The pathway of an RTI application, response timelines, fee structures, and regulations related to thirdparty information  Obligatory proactive disclosure criteria, its methods, and third-party audit compliance  Duties of the PIO, deemed PIO, and FAA  Exceptions under sections 8 and 9 for denying information access and their application  Management of records, especially regarding information over two decades old  Entities outside the RTI Act’s scope and scenarios where they must disclose information  Mechanisms for the first and second appeal processes  Various case laws related to grievances addressed to the Information Commission, be it for penalty imposition or compensation claims  Chapters dedicated to recurring topics like APAR, exams, service matters, vigilance and medical cases, banks, financial institutions, Income Tax, etc., where multiple Act sections come into play  The conclusion emphasises the growing role of the RTI Act in fostering transparency and accountability. It also addresses instances of the Act’s misuse

ORDER NOW