Exempted firms can’t deny RTI

Exempted firms can’t deny RTI

By Madabhushi Sridhar | THE HANS INDIA |   Aug 08,2017 , 05:38 AM IST

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An appellant sought information relating to implementation of an order relating to his pay-scale and arrears for a couple of years. The CPIO refused under Section 24(1), Second Schedule to the Right to Information Act, 2005, claiming that National Technical Research Organisation (NTRO) is exempted from obligations under RTI Act and they need not provide any such information. Initially, the Commission directed it to provide information within 15 days.

Then the Director (Establishment) informed him that they would intimate the amount due if any in near future. The appellant said that by the order dated 1.4.2009, his emoluments were revised but the public authority did not pay totally. There was a partial payment in 2013 but Rs 41,000 is still due.

The Commission directed the office of the NTRO, which is part of PMO, to inform the applicant about the action taken on his application dated 25.01.2015, regarding revision and payment of emoluments. The contention that exempted organisation need not give any information is illegal, wrongful and absolutely baseless.

Even an exempted organisation is under obligation to give salary-related information that falls under the category of 4(1)(b) which needs to be voluntarily disclosed. Part (x) of that section clearly includes: “(x) the monthly remuneration received by each of its officers and employees, including the system of compensation as provided in its regulations.”

The information sought relates to governance, administration and management of affairs concerning employees and if the public authority refuses to give information regarding dues of payment to the employees, it becomes a matter of possible corruption.

If the public authority maintains secrecy about such information it will breed corruption. Every government entity is statutorily required to conduct its business through open, transparent processes to ensure that it is accountable to the citizenry. This modern practice of open government is viewed as both a key feature and a necessary condition of a contemporary democratic state. It is based upon the conviction that the people can effectively exercise their constitutional role as overseers of government action where their unfettered rights of access to information about government operations are secure.

Regarding Section 24 contentions, respondents have to understand that information sought is not ‘security’ or ‘intelligence’ related information, but only about details regarding his own pay, which is part of administrative decision-making-process by the  authority concerned , disclosure of which would not harm anybody –nation, government or the organisation – while its denial could prevent the appellant from exercising his right to challenge the injustice.

The decision of the respondent authority to deny information is illegal, and in serious violation of appellant’s recognised human rights besides the RTI Act.  It is stated in “Proviso to Section 24 that, “Provided that the information pertaining to the allegations of corruption and human rights violations shall not be excluded under this sub-section; Provided further that in the case of information sought for is in respect of allegations of violation of human rights, the information shall only be provided after the approval of the Central Information Commission, and notwithstanding anything contained in section 7, such information shall be provided within forty-five days from the date of the receipt of request.”

In an earlier case FAA, Addl DGP CID of Haryana v CIC CWP No. 12904/2009 decided by Mehinder Singh Sullur J., on 27th Jan 2011, explained that all information sought not concerned with security and intelligence shall be given. Justice Sullur said: “A combined reading of these provisions would reveal, only that information is exempted, which is directly affecting and co-related to the “Intelligence” and “Security” of that organization of the State and not otherwise.”

The judgment and order dated 13-10-2015 in W.P. (C) No. 880 of 2014 Abid Husssain v State of Manipur High Court of Manipur observed: “… if any information sought for does not relate to any of these areas referred to in the Preamble which the Act seeks to protect and preserve and thus keep away from public domain but are also relatable to any allegation of corruption and violence of human rights, there is no reason why such an information should be withheld, if sought for.”  (Para 11)

The verdict further observed that: “This issue can be viewed from another perspective. The legislature in their anxiety to keep certain organisations which are engaged in activities involving sensitive information, secrecy of the State, have sought to keep these organisations away from the purview of the RTI Act by including such organisations in the Second Schedule of  the Act as far as Central Organisations are concerned and in the official gazette in respect of State organisations. 

It does not, however, mean that all information relating to these organisations are completely out of bound of the public. For example, even though the Central Bureau of Investigations is one of the organisations included in the Second Schedule to the Act, it does not mean that all information relating to it are out of bound of the public.

If one looks at the website of the Central Bureau of Investigation which is in the public domain, there are so many information about the organisation which are already voluntarily made open to the public. This is for the simple reason that disclosure of these information does not in any way compromise with the integrity of the organisation or confidentiality of the sensitive nature of works undertaken by this organisation. 

The purpose of excluding all these organisations from the purview of the Act as provided under Section 24 is to merely protect and ensure the confidentiality of the sensitive works and activities undertaken by these organisations. Therefore, if there are any information which do not impinge upon the confidentiality of the sensitive activities of the organisation and if such information is also relatable to the issues of corruption or violation of human rights, disclosure of such information cannot be withheld. Para 12

The Manipur High Court in W.P.(C) No. 642 of 2015 Sri Phairemban Sudhesh Singh v State of Manipur, reiterated their decision about the scope of S 24. In this case, the information sought for by the petitioner was regarding his service - the initial appointment, suspension order, documents relating to departmental proceedings, termination order etc. If the RTI Act is comprehended as a whole, it means, information sought should be disclosed.” 

In Superintendent of Police, Central Range, Office of Directorate of Vigilance & Anti Corruption v. R Karthikeyan W.P. No. 23507 and 23508 of 2009, Division Bench, Madras High Court held on 12.1.2010 [AIR 2012 Mad 84] as under:

In terms of Section 24(4), the State Government is empowered to notify in the Official Gazette that nothing contained in the Right to Information Act shall apply to such intelligence and security organization being organizations established by the State Government. Nevertheless, in the light of the first proviso, such power being conferred on the State Government to notify exempting such intelligence and security organizations, it cannot notify in respect of the information pertaining to the allegations of corruption and human rights violations.

As a necessary corollary, the power to exempt from the provisions of the Act is not available to the State Government even in case of intelligence and security organizations in respect of the information pertaining to the allegations of corruption and human rights violations. .... As all these particulars (sought by RTI applicant) would certainly relate to corruption, the Government Order has no application to the facts of this case.

Thereafter, the Division Bench upheld the order of the learned single Judge dismissing the writ petitions preferred by the Public Information Officer, the petitioner herein in refusing to furnish the information.

Referring to this order, the Madras High Court case stated that exempted organisation shall comply with Section 4(1)(b)(v) in Superintendent of Police v. M. Kannappan, WP No 805/2012, D Hariparandhaman, J of the Hon’ble High Court of Madras, [2013(292) ELT 24 (Mad)]. Information claimed in this case is sanction for prosecution relating to charges of corruption.

Information pertains to corruption, disclosure of which will enable appellant to challenge the validity of the order. This information does not relate to security or intelligence aspects of the CBI. Hence CBI cannot refuse it under Section 24, but has to give it under proviso to section 24. However it is subject to section 8 of RTI Act.

The Commission directed the authority to provide certified copies of the information as sought within 15 days. The CIC issued show-cause notice for illegal denial of information. (Based on decision in SVS Gahlot v. PIO, National Technical Research Organisation, CIC/LS/A/2012/001368, on 25.7.2017)

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