Inquiries into various matters are conducted with public money and the public has a right to know their findings. Keeping them under wraps for months and years serves no purpose except allowing wrongdoers to be protected. This is the 14th in a series of important judgements given by Shailesh Gandhi, former CIC that can be used or quoted in an RTI application

The Public Information Officer (PIO) or First Appellate Authority (FAA) should have applied Section 8(2) of the Right to Information (RTI) Act after which it would have realised that there is an overriding public interest in disclosing this information since it relates to alleged defalcation of funds. While giving this important judgement, Shailesh Gandhi, former Central Information Commissioner said, “…the Commission finds that no reason is assigned by the PIO or the first appellate authority as to how the investigation or apprehension of any offenders will be impeded by disclosing this report”.

“Inquiries into various matters are conducted with public money and public has a right to know their findings. Keeping them under wraps for months and years serves no purpose except allowing wrongdoers to be protected,” the Central Information Commission (CIC) said in its order dated 16 January 2009.

New Delhi resident Neeraj Kumar, on 24 June 2008, sought information about the report of an Inquiry Commission set up by the Jawaharlal Nehru University (JNU) and subsequent action taken on it. In the RTI application, he asked information for...

1. Copies of all the proceedings of the Inquiry Commission which was constituted to probe the defalcation of funds in Supervised Study Package (SSP) Programme, Centre for Studies in Science Policy (CSSP)/School of Social Sciences (SSS) against professor Ashok Parthasarthy.

2. Certified copies of all the documents tendered in evidence before the Inquiry Committee by Prof Ashok Parthasarthy and JNU Administration.

3. A certified copy of the final Inquiry Committee report.

4. Whether the findings of the Inquiry Committee have been implemented by the JNU Administrations, if yes, and then provide complete records and documents.

The PIO denied the information saying, “Since no final decision has been taken on the said inquiry report, the information pertaining to the inquiry, cannot be disclosed at this stage because it is barred in terms of Section 8(1)(h) read with 8(1)(g) of the RTI Act.”

Neeraj Kumar then approached the FAA, who also endorsed the decision of the PIO. The FAA said, “The information cannot be disclosed at this stage in view of Section 8(1) (h) read with 8(1)(g) of the RTI Act. The appellant was also informed of the two decision of the Information Commission, which are enforcement or security purpose.”

Not satisfied with this reply, Neeraj Kumar then filed second appeal before the Commission. During a hearing on 13 January 2009, he contended that for the past one year JNU Administration had failed to take any action as per the finding to the Inquiry Report. He emphasized on the fact that the object of the RTI Act is to prevent corruption, and increase the transparency in the functioning, decision making and governance of the Administration. Neeraj Kumar also highlighted the fact that large amount defalcation of public funds is involved.

The PIO reiterated his stand for refusing the information citing Section 8 (1)(g) of the Act. He also quoted two previous decisions given by the Commission in the matter of Govind Jha Vs DGW E in C Branch Army HQS - in Appeal No.CIC/AT/A/2006/00039 dated 01/06/2006 and Ravinder Kumar Vs Joint Commissioner of Police in Appeal No.CIC/AT/A/2006/00004 dated 30/07/2006.

Neeraj Kumar, however contended that even if the above two decisions support the stand taken by the respondent for denial of information but in Govind Jha’s case the Commission, asked the disciplinary committee to take a view within two months in respect of findings in the investigating report so that the appellant’s right to access the investigation report can be reactivated without any unconscionable delay.

The decision was reserved on 13 January 2009.

In next hearing, Mr Gandhi noted that as per Section 3 of the RTI, citizen’s right to information, is the rule and exemptions under Section 8, are an exception. Section 8 being a restriction on this fundamental right, must therefore is to be strictly construed. It should not be interpreted in manner as to take away the substantive right created by the Act, he said.

Section 8 (1)(g) and (1)(h) says...

(g)Information, the disclosure of which would endanger the life or physical safety of any person or identify the source of information or assistance given in confidence for law enforcement or security purposes;

(h)Information which would impede the process of investigation or apprehension or prosecution of offenders;

The Commission in its order on 16 January 2009, said, in the present case it finds that no reason was assigned by the PIO or the FAA as to how the investigation of apprehension of any offenders will be impeded by disclosing this report. "As a matter of fact since the report was submitted on 21 August 2007, there can be no reason to deny this or all the other relevant information. The PIO’s use of Section 8 (1)(g) claiming that disclosure of the information would endanger the life or physical safety or identify the source of information appears to a flight of fancy, in the absence of any cogent reasoning,” it said.

The Commission said the Delhi High Court in the matter of Bhagat Singh Vs Chief Information Commissioner and Ors dated 3 December 2007, at para 13 has held as follows:

"Under section 8, exemption from releasing information is granted if it would impede the process of investigation or the prosecution of the offenders. It is apparent that the mere existence of an investigation process cannot be a ground for refusal of the information; the authority withholding information must show satisfactory reasons as to why the release of such information would hamper the investigation process. Such reasons should be germane, and the opinion of the process being hampered should be reasonable and based on some material. Sans this consideration, Section 8(1)(h) and other such provisions would become the haven for dodging demands for information.”

“Thus no reasonable ground exists for denial of the information and the PIO and the first appellate authority have erred in their decision. While parting we must also point out that even if the PIO and the first appellate authority had made the error of taking refuge in these two sections, they should have applied Section 8 (2) of the Act and realised that there is an overriding public interest in disclosing this information since it relates to alleged defalcation of funds. If the inquiry report reveals defalcation there is a public interest in knowing about it, if it reveals that no defalcation has occurred it will exonerate the alleged perpetrators,” Mr Gandhi said in his order.

The Commission directed the PIO to provide complete information free of cost before 5 February 2009.

CENTRAL INFORMATION COMMISSION

Decision No. CIC /OK/A/2008/01303/SG/1145

http://www.rti.india.gov.in/cic_decisions/SG-16012009-41.pdf

Appeal No. CIC/OK/A/2008/01303/

Appellant                                          : Neeraj Kumar,

                                                            New Delhi-110067                                                       

Respondent 1                                   : Jit Singh,

                                                           DR (SC/ST Cell) & PIO,

                                                           Jawaharlal Nehru University,

                                                           Room No. 133, SC/ST Cell (Admn. Block),

                                                           Jawaharlal Nehru University,

                                                           New Delhi-110067