RTI Judgement Series_ Mere Existence of an Investigation Process Cannot Be Used to Deny Information - Moneylife

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Moneylife Life RTI Judgement Series RTI Judgement Series: Mere existence of an investigationprocess cannot be used to deny information

MONEYLIFE DIGITAL TEAM | 30/07/2013 03:35 PM |

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Ifinvestigating agencies in the country were to diligently enforce the

timelines laid down, they would not have to resort to Section 8(1)(h) to refuse

information, the CIC said. This is the 144th in a series of importantudgements given by former Central Information Commissioner Shailesh

Gandhi that can be used or quoted in an RTI application

The Central Information Commission (CIC), while allowing an appeal, directed the

Public Information Officer (PIO) Central Vigilance Commission (CVC) to provide the

information to the appellant. The PIO had denied information claiming exemption under

Section 8(1)(h) of the Right to Information Act stating that investigations are going on.

While giving this judgement on 13 May 2011, Shailesh Gandhi, the then Central

Information Commissioner said, The respondent (PIO) admits that CVC's guidelines for

completing all investigations is three months. In the instant case, it is admitted that over18 months have elapsed. In view of this, the Commission does not accept the denial of

information under Section 8(1)(h) of the RTI Act.

New Delhi resident Lalit Kumar Jha, on 16 July 2010, sought information about

complaints filed by AK Builders against PK Jam, in-charge of engineering/ EB (C) at

Jawaharlal Nehru University (JNU). Here is the information he sought from the PIO of

CVC under the Right to Information (RTI) Act:-

1. Copies of the all complaints/file notings /documents/material evidence (if any) by AK

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Khanna, Proprietor of AK Builders, K-lll-20, Lajpat Nagar, New Delhi-I 10024 against

PK Jam, in-charge of engineering/ EB (C) at Jawaharlal Nehru University, New Delhi-I

10067 and Commission's replies to the complainant at various stages from 2003 to till

2. Copies of all letters/ documents sent by CVC to chief vigilance officer (CVO) of JNU

after submission of CVO'spreliminary investigation reportto Commission.

3. The Commission must have its own investigation/ observation on CVO, JNU's

investigation report, copy of which may be provided.

4. The guidelines of the Commission relied upon while making opinion on the CVO's

report, stating the omission a blatant violation ofprocedure may be provided.

5. Copies of all file notings from dealing hand level to secretary level may be provided,

recorded on finding of the CVO report.

6. Please provide guidelines for prescribed procedure for conducting preliminary

investigation at CVO's level.

7. Has the Commission verified that the preliminary investigation conducted by CVO,

NU is in compliance to the prescribed procedure, which is in gross violation to the

Commissions guidelines, lacking technical expertise, statement/ version of facts of the

officer concerned, written explanation, and the certificate by the Committee that any

opportunity was given to officer concerned.

8. Kindly provide the guidelines/ basis relied upon by the Commission while forming

opinion on the basis of unilateral investigation report against the principles of natural

ustice and prescribed guidelines of the Commission.

9. Please state clearly whether the preliminary investigation report carries any

authenticity to be relied upon for making an opinion for suggesting an action.

10. If the Commission agrees that the preliminary investigation report is

constitutionally/ fundamentally wrong, will review its earlier opinion to issue a charge

sheet and advice the CVO, JNU for clarification or give an opportunity to the officer

concerned to submit his version of facts.

11. A copy of the Commission's guidelines on appropriate action/ remedy for an act/

lapse of omission carried out by an instrumental officer on orders and approval of the

Competent Authority may be provided.

12. Please provide a copy of Commission's guidelines which have been relied upon by

the Commission for suggesting major penalty for stated blatant violation of procedure

while the Commission has already issued established guidelines on limited tendering

rom the panel contractors and also allowed circumventive deviances in procedures in

compelling circumstances, whereas.

13. The Commission has already issued guidelines on restricted/limited tendering and

not objected to same under extreme urgency subjected to all necessary compliances.

Panel contractors registered with CPWD etc were telephonically informed by the

Section Clerk on orders of the Competent Authority/Vice Chancellor, without

involvement of the concerned officer PK Jam, ER (C), JNU. The Commission mayrovide guidelines on any lapse on part of the concerned officer in above

circumstances.

14. The University has appointed PK Jam, BE (C) as Presenting Officer against the

various arbitration claims of about Rs40 lakh of the complainant AK Khanna,

Proprietor of AK Builders, K-I-20 Lajpat Nagar, New Delhi-I 100024, which are under

sub-judiced inHigh Courtof Delhi andDistrictCourt at Delhi. The Commission may

rovide guidelines on handling such complaints by the Commission, which may

adversely affect the legal proceedings in the Courts only to provide financial benefits to

the contractor/ complainant. If the Commission desires, complete details on the subject

matter may be provided.

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The PIO provided information on all questions except at point1, 2, 3 and 5 claiming

exemption under Section 8(1)(h) of the RTI Act on grounds that the investigation was

not over.

Not satisfied with the PIO's reply, Jha filed his first appeal. There was no order from the

First Appellate Authority (FAA).

Jha then approached the CIC with his second appeal citing no order from the FAA and

wrong denial of information by the PIO under Section 8(1)(h) of the RTI Act.

During the hearing, Mr Gandhi, the then CIC, noted that the PIO has supplied some

information to Jha. However, the PIO refused to give information on queries 1, 2, 3 and 5

claiming exemption under Section-8(1)(h) of the RTI Act.

Section-8(1)(h) of the RTI Act exempts,

"information which would impede the process of investigation or apprehension or

rosecution of offenders;".

The Bench then asked the PIO to justify how disclosing the information on query-1, 2, 3

and 5 would impede the investigation.

The PIO stated "unless the preliminary investigation is over the element of

confidentiality should be maintained to ensure a fair and speedy investigation without

any attempt from the interested parties to interfere or jeopardize the investigation

process."

After this Jha, the appellant, produced a letter purportedly from Vinod Khadria, CVO

(JNU) addressed to Prabhat Kumar, director of CVC dated 18 February 2011. The letter

stated, "I therefore, conclude that the complaint of M/s AK Builders mentioned above do

not stand scrutiny of facts and therefore it be dismissed and the case closed. The CVC

may however advise any further investigation or course of action as deemed

appropriate."

The PIO stated that if CVC has closed the case he would have no hesitation in providing

all the information sought by the appellant. The CIC then adjourned the hearing to give

an opportunity to the PIO to check if the information can be provided.

During the hearing on 13 May 2011, the PIO stated the case was not closed so far and

was under examination. However, he was not able to establish how disclosing the

information would impede the process of investigation.

The PIO stated that it had been about over 18 months since the investigation has been

going on. Section 8(1)(h) of the RTI Act exempts disclosure of "information which would

impede the process of investigation or apprehension or prosecution of offenders".

In Bhagatsingh vs CIC WP (c ) no.3114/2007, Justice Ravindra Bhat has held...

"13. Access to information, under Section 3 of the Act, is the rule and exemptions under

Section 8, the 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

shadow the very right itself. Under Section 8, exemption from releasing information is

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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.

14. A rights based enactment is akin to a welfare measure, like the Act, should receive a

liberal interpretation. The contextual background and history of the Act is such that the

exemptions, outlined in Section 8, relieving the authorities from the obligation to

rovide information, constitute restrictions on the exercise of the rights provided by it.

Therefore, such exemption provisions have to be construed in their terms; there is some

authority supporting this view (See Nathi Devi vs Radha Devi Gupta 2005 (2) SCC 201;

BR Kapoor vs State of Tamil Nadu 2001 (7) SCC 231 and V Tulasamma vs Sesha Reddy

1977 (3) SCC 99). Adopting a different approach would result in narrowing the rights

and approving a judicially mandated class of restriction on the rights under the Act,

which is unwarranted."

Mr Gandhi said, "Denial of a citizen's fundamental right must be justified and the mere

act of continuing an investigation cannot be used to deny citizens' rights. Most

investigations and investigators in the country appear to take an enormous amount of

time to decide or conclude anything."

"If investigating agencies in the country were to diligently enforce the timelines laid

down, they would not have to resort to Section 8(1)(h) to refuse information. In view of

this, the Commission does not accept the denial of information under Section 8(1)(h) of

the RTI Act," he added.

While allowing the appeal, the Bench directed the PIO to provide the information to Jha

before 30 May 2011.

CENTRAL INFORMATION COMMISSION

Decision No. CIC/SM/A/2011/000249/SG/12387

http://www.rti.india.gov.in/cic_decisions

/CIC_SM_A_2011_000249_SG_12387_M_56399.pdf

Appeal No. CIC/SM/A/2011/000249/SG

Appellant : Lalit Kumar JhaNew Delhi

Respondent : Rajiv Verma

US & NODAL CPIO,

CENTRAL VIGILANCE COMMISSION,

Satarkta Bhawan,

GPO Complex, Block-A, INA,

New Delhi

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RTI Judgement Series_ Mere Existence of an Investigation Process Cannot Be Used to Deny Information - Moneylife