Under RTI PIO not supposed to create info that is not part of record

The appellant re-iterated his submissions made during the last hearing and alleged that vide a letter issued in April, 2012, the CBEC had taken a decision to close the file but the Commissioner of Customs, Kolkata in its reply made during the hearing in a similar matter before the Commission in CIC/KY/A/2014/000304 dated 17.11.2014 and CIC/KY/A/2015/000393 dated 22.06.2015 had submitted that the case is under process hence the information sought was exempt from disclosure as per section 8 (1) (h) of the RTI Act, 2005. The appellant therefore submitted that there was a contradictory stand taken by the respondent at different times and thus questioned how a matter closed in 2012 could stated to be under investigation later in 2014 and 2015.

In reply, the respondent re-iterated the contents of the reply provided by the CPIO, vide letter dated 10.03.2016 and submitted that most of the queries raised by the appellant related to hypothetical questions which did not fall within the purview of Section 2 (f) of the RTI Act, 2005. In reply, the appellant contested that in a similar decision pronounced by the Commission in CIC/KY/A/2015/000247 dated 11.06.2015, the Commission had directed the respondent to provide issue wise complete and categorical information to the appellant within a period of 30 days from the date of receipt of order which was not yet complied with.

At the outset the Commission observed that under the provisions of the RTI Act, 2005, only such information as is available and existing and held by the public authority or is under control of the public authority can be provided. The PIO is not supposed to create information that is not a part of the record. He is also not required to interpret information or furnish replies to hypothetical questions. Similarly, redressal of grievance, reasons for non compliance of rules/contesting the actions of the respondent public authority are outside the purview of the Act.

In this context, the decision of the Hon’ble Supreme Court of India in Khanapuram Gandiah v. Administrative Officer and Ors. in SLP (C).34868 OF 2009 (Decided on January 4, 2010) can be cited where it was held as under:

6. “….Under the RTI Act “information” is defined under Section 2(f) which provides:

“information” means any material in any form, including records, documents, memos, e-mails, opinions, ad vices, press releases, circulars, orders, logbooks, contracts, report, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force.”

This definition shows that an applicant under Section 6 of the RTI Act can get any information which is already in existence and accessible to the public authority under law. Of course, under the RTI Act an applicant is entitled to get copy of the opinions, advices, circulars, orders, etc., but he cannot ask for any information as to why such opinions, advices, circulars, orders, etc. have been passed.”

7. “. . . . the Public Information Officer is not supposed to have any material which is not before him; or any information he could have obtained under law. Under Section 6 of the RTI Act, an applicant is entitled to get only such information which can be accessed by the “public authority” under any other law for the time being in force. The answers sought by the petitioner in the application could not have been with the public authority nor could he have had access to this information and Respondent No. 4 was not obliged to give any reasons as to why he had taken such a decision in the matter which was before him.”

Also the Hon’ble Supreme Court in SLP(C) NO. 7526/2009 (CBSE & Anr. Vs. Aditya Bandopadhyay & Ors) had held that:

“35. At this juncture, it is necessary to clear some misconceptions about the RTI Act. The RTI Act provides access to all information that is available and existing. This is clear from a combined reading of section 3 and the definitions of ‘information’ and ‘right to information’ under clauses (f) and (j) of section 2 of the Act. If a public authority has any information in the form of data or analysed data, or abstracts, or statistics, an applicant may access such information, subject to the exemptions in section 8 of the Act. But where the information sought is not a part of the record of a public authority, and where such information is not required to be maintained under any law or the rules or regulations of the public authority, the Act does not cast an obligation upon the public authority, to collect or collate such non-available information and then furnish it to an applicant. A public authority is also not required to furnish information which require drawing of inferences and/or making of assumptions. It is also not required to provide ‘advice’ or ‘opinion’ to an applicant, nor required to obtain and furnish any ‘opinion’ or ‘advice’ to an applicant. The reference to ‘opinion’ or ‘advice’ in the definition of ‘information’ in section 2(f) of the Act, only refers to such material available in the records of the public authority. Many public authorities have, as a public relation exercise, provide advice, guidance and opinion to the citizens. But that is purely voluntary and should not be confused with any obligation under the RTI Act.”

Furthermore, the High Court of Bombay in Dr. Celsa Pinto, Ex-Officio Joint Secretary (School Education) vs The Goa State Information on 3 April, 2008 (2008 (110) Bom L R 1238) has held as under:

“Section 2(f) -Information means any material in any form, including records, documents, memos e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; The definition cannot include within its fold answers to the question why which would be the same thing as asking the reason for a justification for a particular thing. The Public Information Authorities cannot expect to communicate to the citizen the reason why a certain thing was done or not done in the sense of a justification because the citizen makes a requisition about information. Justifications are matter within the domain of adjudicating authorities and cannot properly be classified as information.”

The definition cannot include within its fold answers to the question why which would be the same thing as asking the reason for a justification for a particular thing. The Public Information Authorities cannot expect to communicate to the citizen the reason why a certain thing was done or not done in the sense of a justification because the citizen makes a requisition about information. Justifications are matter within the domain of adjudicating authorities and cannot properly be classified as information.”

The High court of Madras in W.P.No.26781 of 2013 & M.P.No.1 of 2013(The Public Information Officer And others v. The Central Information Commission) decided on 17.9.20 14 had also held the following:

“Before we go into the merits of the case, let us consider the relevant provisions of the RTI Act for the purpose of deciding this case, which read as follows: The RTI Act defines “information” under Section 2(f) as follows: “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force.” Likewise, it defines “right to information” under Section 2(j) as follows: “right to information” means the right to information accessible under this Act which is held by or under the control of any public authority and includes the right to-(i) inspection of work, documents, records; (ii) taking notes, extracts or certified copies of documents or records; (iii) taking certified samples of material; (iv) obtaining information in the form of diskettes, floppies, tapes, video cassettes or in any other electronic mode or through printouts where such information is stored in a computer or in any other device.”

In the decision reported in 2010 (2) SCC 1 (Khanapuram Gandaiah Vs. Administrative Officer), the Honourable Supreme Court has observed that the applicant under the RTI Act cannot ask for any information as to why such opinions, advices, circulars, orders, etc., have been passed.”

Moreover as admitted by both the parties, similar issues were raised by the appellant in CIC/KY/A/2015/000247 dated 11.06.2015, wherein the Commission had already pronounced its decision. The Commission noted that RTI Act, 2005, does not confer any power of review of its own decision.

In this context the following extracts of the decision of the Hon’ble High Court of Delhi in Delhi Development Authority v. Central Information Commission and Another WP (c) 12714/2009 dated 21.05.2010 are relevant:

“35. Yet another instance of the complete transgression of the statutory powers is to be found in Regulation 23. The said regulation, inter alia, provides that an appellant or a complainant or a respondent may, notwithstanding that the decision or order of the Commission is final, make an application to the Chief Information Commissioner for special leave to appeal or review of a decision or order of the case and mention the grounds for such a request. It further seeks to empower the Chief Information Commissioner, to consider and decide such a request as he thinks fit. Neither the RTI Act nor the rules framed thereunder grant the power of review to the Central Information Commission or the Chief Information Commissioner. Once the statute does not provide for the power of review, the Chief Information Commissioner cannot, without any authority of law, assume the power of review or even of a special leave to appeal. Clearly, the said regulation is beyond the contemplation of the Act. Such a regulation is ultra vires the provisions of the Act.”

FINAL DECISION

Considering the facts of the case and the submissions made by both the parties, the judgments pronounced by the Honourable Supreme Court of India, the High Courts and the earlier decision on similar matter pronounced by the Commission, no further intervention of the Commission is warranted in the matter. For redressal of his grievance, the appellant is advised to approach an appropriate forum.