Vishwas Bhamburkar Vs. PIO, Housing & Urban Development Corporation Ltd. (Central Information Commission)
Commission records admonition against Dr. D K Gupta, present CPIO Mr S K Gupta and First Appellate Authority for illegally insisting on Aadhar Card etc. to prove citizenship, identity and address, and also demanding proof of citizenship. Denial of information for lack of Aadhaar card will be a serious breach of right, which was guaranteed by the RTI Act and also amounts to harassment of the applicant. The Commission requires the public authority to provide enough training in RTI to the CPIO, the First Appellate Authority and other concerned personnel as soon as possible.
1. The complainant apprehends embezzlement of funds of HUDCO and therefore filed RTI application seeking information about the amounts spent from the coffers of HUDCO on gifts for years 2013 to 2016, renovation of official residence of its Chairman and Managing Director in ASIAD village, electricity bills of official residence, whether Mr. Rajkumar and Mr. Harish are employed in capacity of Chairman and Managing Director respectively and remunerations paid to each of them, etc. The CPIO stated through reply dated 05.08.2016 that they could not verify the contents of the complaints made against Sr. Officers and HUDCO Management, despite their best efforts, and also sought documents of the complainant’s identity as the same was pre-requisite under RTI Act.
2. The CPIO Dr. D.K. Gupta wrote a letter on 5.8.2016 demanding the proof of identity and proof of address by producing Aadhar Card, Voter’s ID Card or Passport as proof of citizenship. He did not say anything about giving information sought. No information was given within 30 days. The applicant filed this complaint. He has also filed first appeal, asking for information without insisting on the proofs. But the First Appellate Authority Mr. Akhilesh Kumar confirmed the demand for proof of identity, verification of address and establishing citizenship of the appellant. Then applicant filed second appeal also. The Commission issued hearing notices, in response to which the CPIO was not present. Then Commission compelled to give interim orders as follows:
3. The Commission’s order dated 19.04.2017:
2. The Commission directs the CPIO to facilitate inspection of all the exhibits and files related to: (i) names and beneficiaries for whom amounts were spent from the coffers of HUDCO for gifts for years 2013 to 2016; (ii) renovation of official residence of its Chairman and Managing Director in ASIAD village (iii) Mr. Rajkumar and Mr. Harish employed in capacity of Chairman and Managing Director respectively and remunerations paid to each of them; (iv) appointment of Ms. ShwetaKulshreshtha as Management Trainee in Uttarakhand; (v) Vigilance clearance given to Mr. Ravi Kant. The respondent authority is directed to facilitate inspection on 20.04.2017 at 1130 hours.
3. The Commission directs the CPIO to show-cause why maximum penalty should not be imposed upon him for not furnishing the information sough within prescribed time limits, before 20.05.2017.
4. Dr. D.K. Gupta, CPIO (in-charge), HUDCO on 18.05.2017 submitted a detailed written explanation, as follows:
(a) “At the outset, I would like to submit that a few RTI applications were received by the then CPIO, HUDCO during the same period in the nature of motivated allegations, and it was found that in most of the cases, no such RTI applicant either residing at the addresses mentioned therein, or has already left the place given in the RTI applications. Therefore, a need has arisen for the then CPIO to ensure the genuineness of the applicants by seeking the identity proof of the applicants. The then CPI, HUDCO in order to discharge his obligations with utmost care and caution, requested the Applicant, Shri VishwasBhamburkarto confirm his identity, as a Citizen of India, by furnishing any proof. However, he understood differently & reacted harshly unbecoming of a responsible citizen of India.
(b) In this regard, it is important to explain the facts and summarize the background in chronological order, for the proper adjudication, which are as under:
|1.8.2016||The Applicant/Appellant, Shri VishwasBhambhurkar, submitted an RTI Application dated 1.8.2016 to the then Central Public Information Officer (CPIO) & GM, Shri. D.K. Gupta, wherein he has asked twenty four (24) questions in more than 500 words on different subjects about administrative aspects of a 47 year old HUDCO.|
|5.8.2016||The said application was received by the then CPIO on 4.8.2016 and was replied on 5.8.2016. The then CPIO, in order to discharge his obligations with utmost care and caution, requested the Applicant, Shri Vishwas Bhamburkar, to confirm his identity, as a citizen of India, by furnishing proof in any form to ensure the genuineness of the Applicant. Any denial was never ever made by the then CPIO to furnish the information as sought for by the Applicant/Appellant.|
|16.8.2016||In the meanwhile and in order to expedite the process, the then CPIO, wrote a letter dated 16.8.2016 to various Heads of the concerned departments, informing them about the application dated 1.8.2016 filed by Shri Vishwas Bhamburkar, and requested them to provide the requisite information that is relevant to their respective departments, available with them by 29.8.2016. It was specifically stated in the said letter dated 16.8.2016 that providing requisite information to CPIO for further action was mandatory, unless the same is specifically exempted under the RTI Act, 2005. |
The above mentioned letters dated 5.8.2016 and 16.8.2016 shows the intent of the then CPIO that he was prompt to take appropriate and timely action despite the fact that the Applicant/Appellant was not coming forward to submit his proof of identity in any form.
|24.8.2016 and 26.8.2016||I wish to bring to your kind attention that on 24.8.2016, the charge of the CPIO was given to ED, Dr. S K Gupta and he assumed charge on 26.8.2016. Dr. S.K. Gupta is also in-charge and heads the departments of Economics Wing, Official Language, Parliamentary & Statistical Unit, Public Grievances and ISO Cell.|
|31.8.2016 and 20.10.16 (response date of CIC)||The new CPIO considered the application of Shri V Bhamburkar, and on 31.8.2016 sought clarification from the Central Information Commission about the word-limit of any RTI Application and to provide a copy of any circular/Notification/Order issued in this regard. It is to be noted here that the CPIO was just following the procedure established by law, before giving the requisite information to the Applicant/Appellant. |
The Central Information Commission has responded to CPIO query on 20.10.2016 and it was informed by the CIC by making a reference to the RTI Rules, 2012, that ordinarily the word limit of any RTI application was 500 words only
|19.9.2016||In the meanwhile, the Applicant/ Appellant without furnishing the proof of identity, filed first appeal on 19.09.2016 before the First Appellate Authority, HUDCO, stating therein that the information sought for by him was not furnished despite the time-period of 30 days.|
|28.9.2016||The First appellate Authority by its letter dated 28.09.2016 directed the Applicant/Appellant to furnish the identity proof, as sought for by CPIO, and rephrase the RTI application bringing it within the word-limit and confine it to one subject. He further advised the Applicant/ Appellant to comply with the same and revert back, so that suitable action could be taken on his application.|
|22.12.2016||After the said letter of the First Appeal on 28.09.2016, First Appellate Authority awaited for the Applicant/ Appellant to comply with the terms of the First Appellate Authority’s letter. However, yet again, the Applicant/ Appellant to comply with the terms of the First Appellate Authority’s letter. However, yet again, the Applicant/ Appellant, instead of complying with the simple requirement of furnishing the proof of identity, etc., chose to file second appeal before the Central Information Commission on 22.12.2016.|
|06.4.2017||Central Information Commission on 6.4.2017 sent a Notice of Hearing to the then CPIO and the Applicant/Appellant to appear before Hon’ble Information Commissioner (Prof. Madabhushanam Sridhar Acharyulu) on 19.4.2017. It is a very important point to note here that even in this notice of hearing at Point No. 5, the Applicant/Appellant and other parties were directed by Central Information Commission to carry a “Proof of Identity”, which is a basic norm in Government offices. |
It is pertinent to mention here that there is an error apparent on the face of the records on the aforesaid Notice of Hearing regarding date of RTI Application which has been stated as 11.11.2014, instead of 1.8.2016, which may kindly be seen for rectification in records.
|19.4.2017||Though the CPIO in his capacity as ED (Official Language) to organize Hindi Advisory Committee meeting, chaired by Hon’ble Minister in Guwahati, he took risk by staying back in Delhi for the Hon’ble CIC hearing to plead & present facts. CPIO prayed to close the matter, as it’s premature and the procedure established by law was not followed. Honorable CIC heard the matter and vide CIC order dated 19.4.2017, out of 24 queries made by the Applicant/Appellant, five points were directed to be conceded by this Honorable CIC along with inspection to the Applicant/Appellant, besides a para on show cause to CPIO to answer why maximum penalty should not be imposed for not furnishing the information sought within prescribed time limits. Further, your kind attention is also drawn to the fact that there is another error apparent on the face of the records that in the show-cause notice the Second Appeal has been mentioned, instead of complaint, before the date 16.08.2016, besides Present Appellant instead of Complainant.|
|20.04.2017||It is submitted that despite the time given by Hon’ble CIC is less than 24 hours, the directions of CIC were complied with by the CPIO and the Compliance Report thereto has been submitted to your Honor vide Compliance Report dated 20.04.2017.|
|28.04.2017||Documents supplied to the Applicant/Appellant via Speed Post on 28.04.2017, which includes some of the documents as received from the concerned departments on 26.04.2017.|
(c) A perusal of the aforementioned facts would make it absolutely clear that CPIO and First Appellate Authority were always ready and willing to provide the information, as sought for by the Applicant/Appellant as per the provisions of the Right to Information Act, 2005. In furtherance of this, it is reiterated that the former CPIO even wrote letter dated 16.08.2016 to various officers directing them to take necessary steps to take action for furnishing requisite information as stipulated under RTI Act, 2005. The Right to Information Act, 2005 is a Special Act, empowering the citizens of India to obtain information from any Public Authority, therefore, right from the submission of application to the CPIO level up to any proceedings before the Central Information Commission, it is the duty of the Public Information Officers to ensure that such right is being exercised only by a citizen of India. As per the present mandate, a CPIO is empowered to deny furnishing of any formation, if not applied by a citizen of India. However, the Applicant/Appellant all along since August 2016 has been prejudicial and also adamant at not furnishing his identity proof, disregarding the specific requests made by the then CPIO as well as by First Appellate Authority, using manifestly-derogatory and palpably-objectionable language.
(d) In the above background, the CPIO submits that there is no delay or inaction on the part of the then CPIO. The CPIO, HUDCO is a law-abiding Government Officer and has performed all responsibilities with proper care and due diligence. It is reiterated that the then CPIO had sought essential information from the Applicant/Appellant to initiate action on the RTI application made by the Applicant/Appellant. It is submitted that despite less than 24 hour notice, the directions of this Honorable CIC has been duly complied with by the CPIO and the Compliance Report in this regard has been submitted to your Honour vide Compliance Report dated 20.04.2017.
(e) The CPIO has furnished information in 29 pages, which is more than what has been asked for, by the Applicant/Appellant and was sent by Speed Post on 28.4.2017, because Shri VishwasBhamburkar has the habit of misleading Hon’ble CIC by stating that the information has not been given.
(f) Your Honour may kindly infer from the sequence of facts as stated herein above and from the conduct of the Applicant/Appellant that all along he has failed to provide as small as documentary proof of his identity and also concealed relevant facts about the inspection provided to him and the documents supplied to him. It is, therefore, respectfully submitted that it seems that the Applicant/Appellant is acting in a prejudicial-manner for extraneous-considerations with false, frivolous and baseless apprehensions & actions to tarnish the image of HUDCO, which is a profit-making and dividend-paying company to Government. It is most respectfully submitted that we are trying our level best to implement the RTI Act in its letter and spirit.
(g) In these circumstances, we pray that in view of the submissions made above against the show cause notice dated 19.4.2017, and other proceedings pursuant thereto, if any, may kindly be withdrawn, in the interest of law & justice, and the matter may please be treated as closed”.
5. The Commission’s order dated 05.07.2017:
3. The appellant represented that: the CPIO Dr D K Gupta asked him to forward his identity proof only to ascertain whether information available will be useful to him either personally or socially or nationally; FAA further asked the appellant to rephrase the word limit or subject limit; dissatisfied, and approached this Commission.
4. The representative of appellant Shri Mukul Jain alleged that around five crore rupees worth malpractice is going on in HUDCO in the form of giving and receiving of gifts involving senior people in the Ministry, and it was not known who asked those gifts and who received. He said that gifts like iPhone, Mont Blanc Pens, and iPads were given to the senior authorities of their Ministry by Mr Ravi Kant IAS, Managing Director of HUDCO. He also said that the CPIO had no authority to demand the identity proof and to ascertain whether information available will be useful to him either personally or socially or nationally. Does he not know that they are spending public money on gifts, residence of the MD and his office, and it should be disclosing such information to the public in general as per RTI Act?
5. The appellant stated that the reply was given by one Mr. D.K. Gupta, who proclaims himself as Chief Information Officer and as per the RTI Act, only the Central Public Information Officer is authorized to respond RTI applications. He further alleged by the appellant that as per the information available from the website of HUDCO, Mr. D.K. Gupta’s designation is General Manager (Admn/OL). The appellant alleged that it was a serious scandal in HUDCO.
6. In a case No. CIC/HUDCO/C/2017/164658 on a similar matter filed by the same appellant, the Commission directed the CPIO to facilitate inspection of all the exhibits and files related to: (i) names and beneficiaries for whom amounts were spent from the coffers of HUDCO for gifts for years 2013 to 2016; (ii) renovation of official residence of its Chairman and Managing Director in ASIAD village (iii) Mr. Rajkumar and Mr. Harish employed in capacity of Chairman and Managing Director respectively and remunerations paid to each of them; (iv) appointment of Ms. ShwetaKulshreshtha as Management Trainee in Uttarakhand; (v) Vigilance clearance given to Mr. Ravi Kant. The respondent authority is directed to facilitate inspection on 20.04.2017 at 1130 hours. The Commission also directed the CPIO Dr D K Gupta to show-cause why maximum penalty should not be imposed upon him for not furnishing the information sough within prescribed time limits, before 20.05.2017.
7. In earlier case a date of inspection was fixed as agreed by both the parties on 20.4.2017. The appellant VishwasBhaburkar has submitted a noncompliance report saying records were not shown to him and the directions of CIC were not complied with. The appellant in his written submission stated that a letter was given by CPIO, HUDCO on 28.4.2017, saying “in this regard it is mentioned that concerned persons who are custodians of the information were not available and hence we have provided relevant information available and as provided by the concerned departments to you without any cost or fee as per the RTI rules”. Appellant claimed this as confirmation that inspection and information was not complete, and CIC orders were not complied. He also pointed out that the compliance report filed on 24.5.2017 by CPIO HUDCO clearly misleads the CIC as that stated on page 2 that “Shri VishwasBhamburkar visited HUDCO head office in the forenoon of 20thApril 2017 and he was shown all the relevant records and also given the information as required by him to his full satisfaction. He said that he was not shown the files that he did not receive any information and hence he did not give the CPIO any certificate of inspection.
8. On the date of hearing i.e., 16.5.2017, nobody represented public authority before CIC. The office of the Commission did not receive any response from Dr. D.K. Gupta to the show cause notice dated 19.4.2017 (part of the order dated 19.4.2017). On 11.5.2017, in a letter addressed to Registrar of CIC, the CPIO in charge (Name of the officer not given) stated that Mr. Gupta was out of country and requested for adjournment of the case beyond 10thJune 2017. The Commission postponed the finalization of the orders in this case with a hope that Dr. Gupta would respond after he arrives on 10th June 2017. Till today, Mr. Gupta did not respond.
9. It is not explained why in charge CPIO did not attend the hearing of second appeal on 19.5.2017. The in charge CPIO also did not bother to comply with the order of the CIC dated 19.4.2017.
10. It appears that the public authority is trying to cover up whole issue by avoiding the response to the RTI applications and appeals of this appellant. The public authority has a duty to inform details about gifts purchased; if given to any officer, to whom and why; what is the legal basis or justification for giving gifts, did they maintain any register of gifts purchased and delivered, if not the receipt of gifts, and about expenditure on the house and office of MD etc. The officers of public authority knew the CIC hearing date, and the managing director also aware of the same, as he came to the CIC to enquire about the dates.
11. The anti- RTI attitude of HUDCO officers in this case gives rise to suspicion that there was a serious scandal of purchasing gifts worth crores, and spending huge amount of public money on residence and office of the Managing Director, and hence the public authority, the office of MD and RTI section are trying to avoid responses by putting forward lame excuses just to consume time.
12. The Commission considers that CPIO Mr DK Gupta, in charge CPIO and Mr. Ravi Kant, IAS, the deemed CPIO, who know full well about the RTI application, its handling, seriousness, the order of the CIC, have violated the provisions of RTI Act. They have breached their duty to answer how many Mont Blanc Pens, iPhones and Ipads were purchased to whom they were given, quantum of money spent on MD’s residence and office. Hence Commission directs a) the Managing Director Ravi Kant, b) the CPIO Dr DK Gupta and c) in-charge CPIO to provide point wise information along with certified copies of relevant files as asked by the appellant by 15thJuly, comply with the orders of the CIC dated 19.4.2017 and file the compliance report to the Deputy Registrar of CIC(SA) before 20th July 2017, failing which the Commission will be compelled to initiate fresh penalty proceedings against each of them.
13. The Commission directs the CPIO Mr. DK Gupta to explain why Commission should not recommend disciplinary action against him for acting in defiance of RTI Act, 2005 and gives him, as a last chance, time up to 20thJuly 2017 to file his explanation to show cause notice, and also explain under what provisions of RTI Act he asked the appellant to forward his identity proof, and ascertain whether information will be useful to him either personally or socially or nationally.
14. The Commission directs the in charge CPIO to show-cause why maximum penalty should not be imposed against him for non-compliance of the order of CIC, not giving his name, and for not performing his duties as in-charge CPIO under RTI Act, especially in this case.
15. As the appellant alleged that costly gifts were purchased by HUDCO and distributed among the seniors in the Ministry the Commission directs the Deputy Registrar of CIC to mark a copy of this order to Dr. Nandita Chatterjee, Secretary to Government of India, Ministry of Housing and Urban Poverty Alleviation, and Shri Rao Inderjit Singh Hon’ble Minister for Housing and Urban Poverty Alleviation, for necessary action soon.
6. Dr. D.K. Gupta, General Manager (Admn/OL), HUDCO, the then CPIO on 19.07.2017 submitted:
“…2. It is submitted that the Honorable CIC vide ex-parte Interim Order dated 05.07.2017 (more particularly Para 12 of the ex-parte Interim Order) in the subject matter has issued Show Cause to undersigned to explain as to why disciplinary action should not be recommended against me in acting in defiance of RTI Act, 2005 and also to explain under what provisions of RTI Act, the appellant has been asked to forward his identity proof, and ascertain whether information will be useful to him either personally or socially or nationally.
3. In this regard, I, D.K. Gupta, General Manager (Admn./ Official Language) would like to submit as under for your kind consideration:-
(A) I served as CPIO, HUDCO from 08.06.2015 to 24.08.2016.
(B) Upon receipt of the RTI Application dated 01.08.2016 from the Applicant, I wrote a Letter No. HUDCO/RTI/CPIO/2015 dated 05.08.2016 to the applicant, requesting him to provide a copy of any identity document as proof of citizenship as per Section 3 of the RTI Act, 2005 which inter-alia says that RTI Act is applicable to citizen of India.
(C) I submit that the letter dated 05.08.2016 discloses the bone fide concerns on account of which I had sought the identity proof of the applicant. During my tenure as CPIO, HUDCO, I had received certain anonymous/pseudonymous RTI Applications. Therefore, it was only as a bona fide measure to confirm the identity of the applicant as a citizen of India that the undersigned sought the identity proof.
(D) It is pertinent to mention that the undersigned with positive intent had simultaneously taken action for obtaining the information from the concerned departments who are the custodian of the information vide my letter dated 16.08.2016, directing them to take necessary steps for furnishing requisite information as stipulated in Section 3 of the RTI Act, 2005. Thus, the undersigned had anyway begun the process of collecting information so that the same may be provided as soon as the appellant confirmed his identity.
(E) It is respectfully submitted that the approach of the undersigned in asking for identity proof of the applicant/appellant was lawful and proper. Section 3 of the RTI Act, 2005 confers the right to information only on citizens of India. Thus, in context of the fact that prior to the appellant’s RTI application dated 01.08.2016, the undersigned had received anonymous/pseudonymous applications, the undersigned was within his legal rights in requesting the applicant/appellant to confirm his identity as citizen of India through an identity proof.
(F) As regards ascertaining whether information will be useful to the appellant either personally or socially or nationally, it is submitted that the undersigned did not ask the appellant for the same.
(G) It may be noted that it was the Appellate Authority, HUDCO while disposing off the First Appeal by order dated 28.09.2016 that requested the appellant to disclose how the information is useful personally, socially or nationally.
(H) It is submitted that it has been held by the Honorable CIC in its Judgment dated 13.01.2012 passed in File No. CIC/LS/A/2011/001146 [Naba Kumar Deka v. BSNL, Guwahati], that “the information sought under the RTI Act should be useful to the information seeker either personally or socially or nationally”, otherwise it amounts to misuse of the provisions of law.
(I) As regards ascertaining whether information will be useful to the applicant/ appellant either personally or socially or nationally, it is submitted that the undersigned did not ask the applicant/appellant for the same.
(J) It is respectfully submitted that even the Central Information Commission on 06.04.2017 in its Notice of Hearing to First Appellate Authority/CPIO and the Applicant/Appellant to appear before your good self on 19.04.2017, in Point No. 5 of the notice of hearing has categorically mentioned that the Applicant/Appellant and other parties to carry their “Proof of Identity”.
(K) Therefore, there is no violation of the RTI Act by the undersigned, especially since no denial, whatsoever, was made by me as a CPIO to furnish the information as sought by the appellant.
(L) It is humbly submitted that the bona fides of the undersigned about furnishing the information sought are apparent from the fact that the undersigned as the then CPIO, wrote a letter dated 16.08.2016 to the concerned departments, directing them to take necessary steps for furnishing requisite information as stipulated in Section 3 of the RTI Act, 2005. Thus, the undersigned had anyway begun the process of collecting information so that the same may be provided as soon as the appellant confirmed his identity.
It is submitted that I am a law abiding person and have performed all my obligations as the then CPIO with proper care and due diligence. At the cost of repetition, it is submitted that I as a then CPIO has sought essential information from the Applicant/Appellant/Complainant to complete action on the RTI application made by him.
Hon’ble CIC may kindly see the conduct of the Applicant/Appellant/Complainant that all along he has failed to provide a small documentary proof of his identity in the right spirit of the RTI Act, 2005. It is respectfully submitted that the Applicant/ Appellant/ Complainant is acting in a malafide manner for extraneous reasons, best known to him, and making frivolous and baseless allegations to malign the unblemished image of the undersigned and other responsible officers of HUDCO.
It is further submitted that HUDCO is implementing the RTI Act in its letter and spirit. In these circumstances, I humbly pray your good self that keeping in view of the submissions made herein above, the instant Show-cause Notice and any other proceeding pursuant thereto, if any, may kindly be withdrawn qua the undersigned in the interest of justice, and the matter may be please be closed. Further, I request Honorable CIC for a personal hearing, if so desired/required, in the matter, in the interest of justice.
7. Mr. S.K. Gupta, present CPIO (from 26thAugust 2016 to this date), HUDCO on 06.10.2017 submitted a detailed explanation, as follows:
“…this is to submit that the directions of the Honorable CIC issued vide ex-parte Interim Order dated 05.07.2017 in the matter including the forwarding of the information to the Applicant/Appellant/Complainant w.r.t his RTI application dated 01.08.2016, has already been duly complied with within the stipulated time in total and the compliance report thereto has also been filed in the CIC on 19.07.2017, vide CIC Receipt No. 149838 dated 19.07.2017.
It is further submitted that HUDCO, being a public authority, is a transparent organization and implementing the RTI Act, 2005 in its true letter & spirit, which may be seen from the quarterly reports on RTI Act implementation by HUDCO for the year 2016-17. It clearly shows that the Applicant/Appellant/Complainant had made wrong allegations just to malign the image of 47 year old HUDCO in general, and the senior officials of HUDCO in particular.
It is humbly submitted that CMD, HUDCO had never ever interfered on the subject and all the correspondence, actions have been taken independently by the respective CPIOs.
Further, CMD is not holding any information related to this RTI Application, hence, he cannot be considered as deemed CPIO in the matter. The undersigned being the CPIO of HUDCO has fully complied with the ex-parte interim order dated 05.07.2017 of the Hon’ble CIC.
In the above facts & circumstances of the case, wherein point-wise information to the RTI Application dated 01.08.2016 has already been provided, along with the certified copies of the documents to the Applicant/Appellant/Complainant vide letter dated 13.07.2017, the compliance report dated 19.07.2017 to the Interim Order dated 05.07.2017, the Honorable CIC is requested to accept the same and close the matter, in the interest of justice.
8. In this case, there are two CPIOs during the first thirty days from date of RTI application, i.e., 1.8.2016. Dr DK Gupta should have given that information, which was not hit by any exception, within mandatory 30 days as he was holding office of CPIO till 24thAugust, 2016. He has spent 24 days without giving information or following up after demanding proof of identity etc. He raised suspicion about the citizenship of the applicant without explaining why he was suspecting. There is nothing to justify his suspicion even in his explanation to show cause notice. His contention that some others have filed anonymous or pseudonymous complaints is not valid. He mentioned about complaints being closed because of these reasons on the advice of CVC. Taking action against a complaint without bearing an identifiable name is different from objecting to the RTI application, which is properly filed with name, address and identity. In his response, CPIO Dr. DK Gupta says, because some others filed repetitive RTIs he wanted to verify bona fides of this applicant. This contention is not legal and hence not acceptable. He also failed to justify the denial of information, as he could not site any clause of exception under Section 8 or 9.From his submissions it is clear that the information sought did not attract any exception prescribed under RTI Act. In his explanation to show cause notice he admitted that he insisted on proof of identity, proof of address and also proof of citizenship. He claimed to have initiated to collect information but, he did not do anything before he left the office or made arrangements to dispatch it before expiry of 30 days time by successor.
9. In addition, his intention to deny was also established by his explanation to show cause notice. Dr. DK Gupta admitted that he insisted applicant to submit proof of identity, proof of address, proof of citizenship and specifically demanded Aadhar Card or Passport or Voter Id Card and refused to consider his RTI request otherwise. He reiterated he had a duty not to give information to noncitizens. Section 6(2) of RTI Act says:
An applicant making request for information shall not be required to give any reason for requesting the information or any other personal details except those that may be necessary for contacting him.
10. Applicant gave address to which information could have been dispatched. As per law he need not provide any confirmation for his address, name or citizenship. Dr. D K Gupta said he has a duty to give information only to citizen and has no duty to give information to non-citizen.
11. Section 7 explains the duties of CPIO under RTI Act, it says:
Subject to the proviso to sub-section (2) of section 5 or the proviso to sub-section (3) of section 6, the Central Public Information Officer or State Public Information Officer, as the case may be, on receipt of a request under section 6 shall, as expeditiously as possible, and in any case within thirty days of the receipt of the request, either provide the information on payment of such fee as may be prescribed or reject the request for any of the reasons specified in sections 8 and 9.
Section 7(2) says: If the Central Public Information Officer or State Public Information Officer, as the case may be, fails to give decision on the request for information within the period specified under sub-section (1), the Central Public Information Officer or State Public Information Officer, as the case may be, shall be deemed to have refused the request.
12. Not only in 30 days, but even after that information was not given until the CIC ordered. Thus, deemed refusal of RTI application was proved in this case and that should attract the penal proceedings.
13. The CPIO can deny information only under Section 8 and 9. He cannot invent new grounds for denial like lack of Aadhar Card, Voter Id Card, Passport etc. This Section was violated by Dr. D K Gupta as he did not give any information in 30 days and beyond also.
14. Burden of justifying the denial lies on the CPIO. Section 19(5) says:
In any appeal proceedings, the onus to prove that a denial of a request was justified shall be on the Central Public Information Officer or State Public Information Officer, as the case may be, who denied the request.
15. Dr. D K Gupta failed to prove that Mr Vishwas Bhamburkar was not a citizen as ground for denial, though it was not available to him. It is not proved that Mr Vishwas Bhamburkar is a non-citizen. Nowhere the RTI Act prohibited ‘person’ from securing the information, or authorized the PIO to demand the proof of citizenship. The RTI Act, 2005 uses expression of Citizen in Section 3, but these two CPIOs do not see that expression ‘person’ is used in Section 6 (Request for obtaining information)– “A person who desires to obtain any information under this Act, shall…”, Section 7 (Disposal of Request, duty of CPIO) proviso under subsections (1), (6), (8), Section 18 (complaint by any person), Section 19 (appeal by any person). A ‘person’ cannot be denied information on the pretext that he did not produce proof of citizenship. In addition the CPIOs and FAA was insisting on Aadhar Card to give information.
16. The fact that the complainant was not given information within 30 days is established by the admission of the CPIOs. This ground is enough to impose penalty on Dr. D K Gupta, who was CPIO up to 24thAugust 2016, (for 24 days out of 30 days) during which period he made it clear that he would not give information without verifying the address proof of identity and establishing citizenship. It is clear violation of Sections 3, 6(2) and 7(1) of RTI Act. Thus he has proved that he never had any intention to give information because the proofs like Aadhar etc were not given. His explanation to show-cause notice proved that his intention did not change. He raised additional illegal grounds by which he could have denied information, such as the RTI application was very long with more than 500 words etc.
17. The Right to Information Rules 2012, Rule 3 says—An application under sub-section (1) of Section 6 of the Act shall be accompanied by a fee of rupees ten and shall ordinarily not contain more than five hundred words, excluding annexures, containing address of the Central Public Information Officer and that of the applicant: Provided that no application shall be rejected only on the ground that it contains more than five hundred words. The RTI application cannot be rejected on this ground (of words limit) alone. What should PIO do when a lengthy RTI application with more than 500 words? Following are the alternatives:
i. Examine 500 words to find what applicant substantially wants. For instance, in this case applicant wrote point one with 36 words, in which he wanted “amount spent on gifts and list of recipients for three years”. The substantial aspect is within 10 words. If substance of what he sought is taken it does not go beyond 500 words. The PIOs did not take any initiative to understand the substance of his RTI request but enthusiastic to somehow deny it. This should be avoided. People with such attitude should not be appointed in RTI wing.
ii. Provide reasonable assistance to applicant to focus on a particular aspect as per his requirement, reminding him of 500 words limit.
iii. Give part information and ask him to point out what else he needs reminding him of 500 words limit.
iv. Offer to facilitate inspection of the relevant files.
18. Section 18(1)(c) of RTI Act, which explains:
(1) Subject to the provisions of this Act, it shall be the duty of the Central Information Commission or State Information Commission, as the case may be, to receive and inquire into a complaint from any person,—
(c) who has not been given a response to a request for information or access to information within the time limit specified under this Act;
Penal proceeding under Complaint:
19. For the reasons explained above, Dr. D K Gupta is liable and deserves maximum penalty. Dr. D.K. Gupta, CPIO is directed to pay a sum of Rs. 25,000/- in 5 equal monthly installments. The Appellate Authority is directed to recover the amount of Rs. 25,000/- from the salary payable to Dr. D.K. Gupta, by way of Demand Draft drawn in favour of ‘PAO CAT’ New Delhi in 5 equal monthly installments. The first installment should reach the Commission by 19.02.2018 and the last installment should reach by 19.06.2018. The Demand Draft should be sent to Shri S.P. Beck, Joint Secretary & Addl. Registrar, Room No. 505, Central Information Commission, Room No.313, CIC Bhawan, Baba Gangnath Marg, Munirka, New Delhi-110067.
20. Most unfortunately successor CPIO Mr S K Gupta also exhibited similar anti-RTI attitude and made it clear that his intention was also not to give information for the same reasons given by Dr. D K Gupta. However, as he assumed charge as CPIO only on 26thAugust 2016, he had only 4 days to provide information in response to the RTI application dated 1.8.2016. He continued as CPIO during first appeal, but First Appellate Authority has upheld, unreasonably, Dr. D K Gupta’s stand and denied the information until citizenship is proved by passport and identity is proved by Aadhar Card. Mr S K Gupta has furnished part information on the directions of this Commission, facilitated inspection etc. Hence penalty proceeding against him is dropped. However, the Commission records admonition against Dr. D K Gupta, present CPIO Mr S K Gupta and First Appellate Authority for illegally insisting on Aadhar Card etc. to prove citizenship, identity and address, and also demanding proof of citizenship. Denial of information for lack of Aadhaar card will be a serious breach of right, which was guaranteed by the RTI Act and also amounts to harassment of the applicant. The Commission requires the public authority to provide enough training in RTI to the CPIO, the First Appellate Authority and other concerned personnel as soon as possible.
21. The Commission issued further direction in the second appeal filed by Vishwas Bhamburkar v. PIO, Housing & Urban Development Corporation Ltd. vide file no. CIC/HUDCO/A/2017/195197 dated 26.12.2017.