For BCAJ August, 2008

                       Words: 2,766

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  Right to Information 
         

 Narayan Varma
Chartered Accountant

Part A:  CIC’s Decisions

∙        PUBLIC NOTARIES

Mr. Dhiresh Shah, advocate and notary of Ahmedabad made an application-appeal to Central Information Commission in connection with the processing of the applications of Public Notaries for the renewal of their licenses issued by the Department of Legal Affairs.

During the hearing of the appeal, Mr. Shah pointed out that there were gross and avoidable delays in renewing the licenses of the Notaries, which not only frequently resulted in breaks in their service as Public Notaries, but also caused them financial hardship and mental worry, and in some cases, even loss of reputation. He pointed out that the main purpose of his coming before the Commission was to ensure that a transparent and accountable system was kept in place so that not only the renewal applications of Public Notaries were attended to with speed but also there was certain accountability about timely renewal of these licenses.

CPIO, Implementation Cell, Department of Legal Affairs, Ministry of Law and Justice, New Delhi submitted that the information as requested by the appellant was not centrally maintained. As such, it was beyond their power to collect and collate it in order to supply it to the appellant.

Upon hearing the parties, the impression the Commission got was that the respondents were aware of the shortcomings in the system of the renewal of the licenses of Public Notaries, which caused unexplained and avoidable delays in effecting these renewals. There was no centralised monitoring of the receipt of the renewal applications, their processing and the issue of renewal certificates.  

The Commission felt that this is one system which was crying out for reform. Commission recommended to the public authority – the Department of Legal Affairs – to institute a system of centralised monitoring of the receipt, the processing and the final approval of all applications received from Public Notaries for renewal of their licenses. This information should be placed on the website in order to enable those whose interest it touched to keep themselves informed about the progress of their renewal applications. Since the number of such applications in a year is not more than 500 to 600, there is no reason why centralised monitoring for it could not be put in place. The effort on the part of the public authority should be to renew the licenses well before the expiry of the time for which the licenses were initially issued. This system will not only save the Public Notaries a good deal of anxiety and botheration, it will help bring to the system much needed accountability and transparency.

Based on above, CIC directed the head of the public authority, viz. Secretary, Department of Legal Affairs, to apprise the Commission within two months of the receipt of the order as to the action taken by it in respect of the above recommendation of the Commission (Section 19(8)(a) of RTI Act).

In the course of the hearing, Mr. Shah also pointed out that the public authority was required to publish in an Official Gazette all notary related information which included the issue of notary licenses and their renewals. This has not been done for the past several years.

Commission also directed that a notice be issued to the head of the public authority as to why a compensation of Rs. 15,000 (Rupees fifteen thousand) only not be awarded to the appellant for the detriment suffered by him.

However, Mr. Shah pointed out that he was not interested in either imposition of a fine or penalty on the respondents nor was he interested in compensation. What he actually wanted was that the system must be so improved as to free it from its several shortcomings which affected a broad cross-section of Public Notaries. The Commission appreciated the appellant’s position.

*  We also appreciate Mr. Dhiresh Shah’s such spirit.

[No. CIC/AT/A/2007/01451 of 22.04.2008:  Shri. Dhiresh Shah v. Department of Legal Affairs, Ministry of Law and Justice, New Delhi]                

∙        Travel cost of RTI applicant:        

This is the case of complaint by Shri. Yogesh Mehta of Mumbai (BCAS Foundation assists him in his fights from time to time) requesting for penalty [section 20(1)] on SEBI and compensation from SEBI [section 19(8)(b)].

In one RTI–application received by SEBI on 06.02.2006, information was furnished on 14.07.2006. In the other RTI–application received by SEBI on 13.02.2006, information was furnished on 29.09.2006.

The Order of CIC is as under:

∙        The main contention of the respondents (SEBI) is that delay on their part was not intentional and occurred as the requested information was not readily available with SEBI and has to be obtained from BSE. They have emphasized the fact that, as acknowledged by appellant, all information has been provided to him. The respondents have maintained that the information requested by the appellant / complainant, Shri. Yogesh Mehta pertained to several transactions and agencies, collecting and collating the same naturally took time. They have urged that the delays were not without reasonable cause.

∙        On perusing the records and hearing the submissions of both parties, it is decided that no penalty need by imposed on the respondents because the delay that has occurred in providing the information to the complainant is attributable to the complex nature of the information requested, which needed time-consuming collection and collation process, which brings it within the ambit of “reasonable cause” under Section 20(1) of the RTI Act.

∙        However, the Commission cannot be oblivious to the fact that the delays in this matter has resulted in detriment to the complainant and has impacted the complainant’s rightful claim to timely information under the RTI Act. He has been compelled to attend CIC hearings on several dates at his own cost for pressing his complaints against the respondents. He has suffered avoidable expenditure in doing so. It is, therefore held that the complainant is entitled to a suitable compensation under Section 19(8)(b) of the RTI Act.

∙        In view of the above, it is directed that the public authority, viz. SEBI shall pay an amount of Rs. 10,000 (Rupees Ten Thousand) only as compensation to the complainant within 2 weeks from the date of the receipt of this Order and intimate the fact of payment to the commission within 1 week of effecting it. The compensation amount may be paid from the resources of the public authority, viz. SEBI.

[No. CIC/AT/A/2006/00591 & 00592 of 26.06.2008:   Shri. Yogesh Mehta v. SEBI]

∙        Income-tax records of a Charitable Trust:

Very significant issue of the concept of personal information vis-à-vis public charitable trust is involved in this case. Shri. J. K. Sachdeva sought information from Directorate General of Income-tax (Exemptions) of one NGO, the Institute of Business Studies and Research, Belapur, Navi Mumbai.

He sought following information:

1. Has the trustees filed income-tax returns for years 2004-05 and 2005-06.
2. If yes, how much income tax they have paid for the trust, copies of the audited statements be provided to me.
3. Have all the expenditure incurred by them are for charitable purpose?
4. How much salaries either in cash or in kind / movable properties been drawn the trustees?
5. Have they accounted for all the cash amount received as advanced premium from the students?
6. Have they submitted the purchase agreements of all the properties bought in personal name or in the name of trustees to the department? If yes, copies may be provided to me please.

Information was provided for ‘a’ above but PIO declined to disclose the rest citing exemption u/s. 8(1)(j) read with section 11(1) of the RTI Act and on relying on number of CIC’s decisions in similar cases.

The Commission, however, noted that this appeal is different from other petitions regarding access to Income-Tax-Return-related information, in the sense that the present appeal is about information regarding a public charitable trust. Given the character of a public charitable trust, it is important to decide whether the income tax related information of such Trust, when all of its activities are open to public scrutiny, at-all be allowed to remain confidential. In other words, whether or not to disclose such information will have to be examined in the context of the Indian Trusts Act, 1882 and whether there could be a public interest in disclosure of such information under Section 8(2) of the RTI Act. Applying Section 8(1)(j), which speaks about personal and private information, to a public charitable trust also needs to be closely examined.

Commission then felt that these matters should be first seen at the level of the public authority (Appellate Authority) given the public authority’s experience in similar matters. Income Tax Commissioners enjoy the power, under Section 138(b) of the Income Tax Act, to decide whether confidentially held information, such as certain classes of Income Tax Returns, be disclosed in public interest. A determination regarding whether to disclose in public interest Income Tax Returns of public Charitable Trust, is thus quite in order.

In view of the above, the Commission remitted back the matter to the Appellate Authority (AA), Shri. Laxman Das, Director General of Income Tax (Exemptions), with a direction that he shall give a hearing to the parties, including the third-party, and take a decision in this matter within 4 weeks from the date of the receipt of this Order.

We shall follow up this case with interest as to what is the final decision in the matter (hopefully shall report in BCAJ next issue).

[No.CIC/AT/A/2008/00170 of 30.06.2008:  Shri. J. K. Sachdeva v. Directorate of Income-tax (Exemptions)]  

Part B: The RTI Act

I am of the opinion that section 4 of the RTI Act, which provides for “Obligations of public authorities”, is the most important section of the Act to achieve it’s objectives. To enable the public authorities to comply and carry out these obligations effectively, the Act which received the assent of the President of India on 15.06.2005, vide section 1(3) read with section 4(1)(b) provided that every public authority shall publish within one hundred and twenty days (i.e. 12.10.2005) from the enactment of this Act (i.e. 15.06.2005) 17 different items of information.

It is the experience of all that many public authorities even more than 32 months after 12.10.2005 have not complied with these obligations.

Conference was held of all CICs and SICs on 17th October 2007. one of the topics of the discussion was:

“Enforcement of section 4 of the RTI Act and creation of ‘E-Districts’”. Some of the major recommendations (9 out of 17) of the conference are hereunder listed:  

1. The duty of Government is to pro-actively make available key information to all. The Public Authorities to ensure that all records that are appropriate to be computerised are, within a reasonable time and subject to availability of resources, computerised and connected through a network all over the country on different systems so that access to such records is facilitated.

2. It is suggested that strict directions be issued by the Central Government, that all the State Governments / Public Authorities should fulfill their obligations laid down under Section 4 of the RTI Act, 2005. Failing which, may lead to penal provisions being invoked against such Public Authority. Secretary of the Department may be held responsible in this regard and be clearly held culpable in case of non-compliance of Section 4(1)(b).

3. The Central and State Governments must necessarily make adequate fiscal allocations for computerisation and connectivity from Information Commission level to Mandal / Taluk level Public Authorities so as to effectively operationalise the provisions of the RTI  Act.

4. Standardisation of procedure is must for the disclosures mandated under Section 4 of the Act.

5. Make all Government services accessible to the common man in his locality, through common service delivery outlets and ensure efficiency, transparency and reliability of such services at affordable costs to realise the basic needs of the common man.

6. Citizen-centric approach to delivery of selected (bulk) services through Common Service Centres (CSC) involving back office enablement, by way of digitisation of relevant records, process redesign and automation of processes / workflow.

7. Notification of e-District services under section 4(1) of the Act to enable and legally enforce sharing of information as prescribed, electronically.

8. e-District to act as an enabler for facilitating objectives / services relating to RTI being achieved / delivered. RTI’s legal framework to be leveraged by e-District to make information sharing / e-services irreversible.

9. Need / feasibility of notifying CSCs as APIOs under the Act.  

Part C: Other News

∙        Personal Information:

Residential phone number, mobile number and e-mail fall under the category of personal information. So is decided by the Information Commission in response to the RTI application seeking such details for the President of India.         

∙        PIO provides false information:

PIO of the Brihanmumbai Municipal Corporation (BMC) replied in response to RTI query that BMC has already written to SSC Board when asked as to what BMC is doing to make instructions in Tamil medium possible upto class X which presently is only upto class VII in select BMC schools. Fact is that such letter was not written and was written few days after such a query was raised. Interesting point is that when BMC Commissioner Jairaj Phatak was informed on this issue, he said: “There must have been some technical error. What they would have meant is that the letter was in the process of being drafted.”    

∙        Cabinet documents:

Mr. Suresh Joshi, SIC, Maharashtra holds the view that under section 8(1)(i) of the RTI Act, all the documents brought before the State Cabinet are confidential and there is no access to such documents under the RTI. The senior official in the secretariat also says “Once decisions are taken, we will issue specific orders. However, applicants are asking for the cabinet note, which contains stringent remarks on all the departments. In our opinion, such documents should not be made public.”

However, it is the view of the Central Information Commission that all file notings are available for access in the RTI. Further, section 8(1)(i) which provides for exemption also has proviso thereto restricting the exemption. Clause with two provisos is as under:

8(1)(i) : cabinet papers including records of deliberations of the

    Council of Ministers, Secretaries and other officers:

Provided that the decisions of Council of Ministers, the reasons thereof, and the material on the basis of which the decisions were taken shall be made public after the decision has been taken, and the matter is complete, or over:

Provided further that those matters which come under the exemptions specified in this section shall not be disclosed:

∙        Information on FIIs under the RTI Act:

Acting on an RTI appeal over SEBI’s denieal to divulge details on yearly net investment figures by each FII during 2005, 2006 and 2007, the apex information panel has asked SEBI to consult other stakeholders like the finance ministry, the RBI and over 800 FII and decide on the matter afresh. SEBI has to take a call on his matter within two months.

        While issuing the order, Information Commissioner, A. N. Tiwari said: “SEBI would examine the matter closely in terms of extant practices/instructions, consult all or a section of stakeholders, examine international practices and obtain views of top functionaries in the field and the government, before formulating a response.”

        Even as the Commission had brought stock exchanges under the RTI last year, the Bombay Stock Exchange and the National Stock Exchange have challenged it before the courts. Ironically, in that case the SEBI stood against the finance ministry to argue that bourses should be brought under the transparency law.

∙        Air-travel on Air India of high-profile passengers:

Air India has requested the Government to exempt travel information on high-profile passengers – like politicians, businessman and film stars – from being divulged under the Right to Information (RTI) Act as it would hamper its business interests.

In the request made, it is stated: Aviation is a competitive industry and only Air India is covered under the RTI. We will loose out on business interests if we give out details.

Air India is also troubled with a recent query by a TV channel on how judges were holidaying at public expense, which class the judge (and his wife) traveled. According to some report, “The chief justice of India, K.V. Balkrishnan, made seven trips abroad in 2007 traveling first class with his wife at Rs. 39 lakh (air fare) – something that no other airline would ever divulge.”

Nv/jj (Sys.3/ RTI-new/(8) August ’08)