Case # 1 :
An applicant approached an organization - notified by a State Government in the official Gazette as a "intelligence and security organization" - with an RTI application. The applicant approached the designated PIO of that organization and asked for information that he claimed pertained to violation of his human right. At first, the PIO responded saying that the Public Authority concerned is not bound to give the information. When told that even an exempted organization has to give information pertaining to Human Rights Violation, the PIO argued that he was not convinced that the information involved human right violation. The applicant mentioned to the PIO that he is well-versed with the provisions of the RTI Act, 2005 and that he will not hesitate to pursue his case not just with the Information Commission concerned`, but if need be, he'd go all the way to the Supreme Court. Hearing this, the PIO felt that it would be o.k. to give information to the applicant right away to avoid any further hassles. In fact, the First Appellate Authority too had asked the PIO to do so.
Question (a) : Is the applicant right in thinking that he can go all the way to the Supreme Court seeking a remedy if he is not satisfied, because he thinks that the information he is seeking pertains to a violation of his human right? Why do you think so?
Answer: YES! The applicant is absolutely right in thinking that he can go all the way to SC seeking a remedy. His stand can be further justified with the provisions under Sec.24(4) of the RTI Act, 2005 which states that,"Nothing contained in this act shall apply to intelligence & security organisation established by the State Government as that Govt. may, from time to time, by notification in the Official Gazette that the information pertaining to the allegations of corruption & human rights violations shall not be excluded". This section further clarifies that the information in respect of allegations of violations of human rights shall only be provided after the approval of the SIC & within 45 days from the date of receipt of request. In this backdrop, PIO`s contention is wrong. Instead of commenting upon the obligations of PA and defining the human rights violations, he should have referred the case to SIC & seek his approval & then give decision to requester. Since PIO has shown his reluctance initially & the applicant`s own confidence about the provisions of section 24(4) of RTI Act, he was sure to get justice in SC if proceeded. Hence he is certainly right in his thinking to challenge in SC & seeking information pertaining to human right violations PROVIDED HE SHOULD EXHAUST ALL THE AVAILABLE APPORTUNITIES IN THE FORM OF 2ND APPEAL TO CIC/SIC BEFORE APPROACHING SUPREME COURT IN THIS REGARD; AS PER SEC. 19 (3) OF THE RTI ACT. Here no time limit has been fixed for ICs to decide upon 2nd appeals. That is why, the applicant has to maintain patience till his appeal is decided by such CIC/SICs.
Question (b) : Is the PIO right in giving information to the applicant and taking the applicant`s or anybody else's word about it pertaining to the violation of is human right and giving information held by an organization notified by the State Government as an `intelligence and security organisation`? Justify.
Answer: The action of furnishing the information on the part of PIO is absolutely justified in this case especially when it relates to human right violation issue in the exempted organization by SG which is notified by it. But as mentioned earlier, if the requester has demanded information from an institution exempted by State Government by its notification in the Official Gazette on the strength of human rights violation, then in terms of sec. 24 (4) of the RTI Act, PIO should seek the approval of the State Information Commission and after getting its approval PIO should furnish the desired information within 45 days from the date of the receipt of request. Here it appears prima facie that PIO acted hastily while furnishing the information without seeking approval from CIC/SIC. In this case, FAA of that PA has also opined PIO to furnish which is absolutely unwarranted because PIO is an independent authority under the RTI Act & he is not supposed to seek any advice/suggestion/opinion of anybody. On the other hand, FAA`s direction to do so is also unwarranted & unbecoming of FAA.
Case # 2 :
A PIO receives an application for information under the `RTI Act, 2005`. It turned out that the information asked for fell into three categories viz: (information absolutely exempted); (information which can be given to the applicant); and (information given in confidence by a Third party). The PIO is convinced that there is public interest involved in giving to the candidate the latter part of the information. Meanwhile, the Head of the Public Authority puts another spin to the situation citing that none of the information asked for involves `exempted information` and, hence, all of it can be given. Soon after, the applicant realized that he had unwittingly asked for exempted information and conveyed to the PIO that he need not be given the exempted information. But the applicant also asked for some other information pertaining to the same organization.
Question (a) : Should the PIO go with his judgment or heed his boss? If yes, what should he do in disclosing information or for rejecting the application or for doing both (as applicable)?
Answer: Under the peculiar situation narrated above I would like to suggest as :[1] First of all, PIO should go with his own judgment because the Head of the PA, i.e. FAA can not interfere in the working of PIO though he is senior in rank of PIO. PIO is independent authority under the act who supposes to take his own decisions without any pressure from anybody else. PIO alone is responsible for any decision taken by him & later if finds by IC that PIO has malafidely rejected the request, only PIO will be penalized & not the superior officer. In the given circumstances, PIO should inform the requester about his inability to provide the information which is absolutely exempted under section 9 of involving an infringement of copyright & thus finally withhold the information since it is not obligatory on the part of PIO to provide such absolute exempted information to any citizen. The opinion expressed by the Head of PA should be set aside while deciding the request by PIO. (2) As regards, the information which can be given to the applicant be provided as demanded because in terms of S. 7(1)&(9)& Sec.8 (1)(a)-(j)of the Act, it is his duty to provide information or reject a request citing valid reasons, as expeditiously as possible, subject to time limits as prescribed and generally in the form in which it has been sought. (3) While deciding the issue on information given in confidence by a Third Party, I would like to empathetically mention here that the PIO should send a written notice to third party, within 5 days inviting it to make an oral/written submission & take into consideration while making any decision on it. If the info is exempted under the Ss.8/9 of RTI Act because of being a trade or commercial secret protected by law, then it should be rejected citing valid reasons. The PIO should however apply the "Public Interest Test" while rejecting a request partially or fully as per exemptions in 8(1)(a)-(j)
(b) What should the PIO do in view of the applicant`s revised request? Please elaborate. Why? / How?
Answer: While considering the revised request of the applicant the PIO should simply ignore the post RTI application confession of requester about exempted information which does not make any sense on PIO`s earlier decision. As far as his supplementary information request, he should be asked to send separate RTI application for it paying prescribed fees. The applicants request to provide supplementary information in lieu of exempted information can not be entertained by PIO because of certain established procedure under RTI Act. Otherwise there will be no discipline on the part of requester & the burden of such additional information will not only increased but it will also become complicated/entail the process of deciding the RTI applications/supplementary applications within prescribed time limit. Resultantly, the overall effectiveness of RTI Act will be adversely affected in the eyes of general public. Hence PIO should not entertain his revised request at all.
