Right to Information Act , 2005

11.3 RIGHT TO INFORMATION ACT, 2005 (1) The Right to Information Act, 2005 was enacted by the Government for providing right to every citizen to secure access to information under the control of the Public Authority concerned. Every Public Authority covered under the RTI Act, 2005 receives a large number of applications from the public, seeking information on various issues and the requested information is to be given by the Central Public Information Officers (CPIOs) / Public Information Officers (PIOs) concerned of the Public Authorities. Under the provisions of RTI Act, 2005, an Applicant has the right to make an Appeal to the first Appellate Authority of the Public Authority concerned, in case, he is not satisfied with the reply / information provided to him by the CPIO / PIO concerned. (2) The necessity for First Appeal arises due to the fact that there are shortcomings / ambiguities in the reply / information provided by the CPIO / PIO of the Public Authority concerned. However, it has been observed that sometimes the First Appeal is made by the Appellant out of ignorance of the provisions of RTI Act, 2005 or his / her lack of clarity about the scope and limitation of the provisions of RTI Act, 2005. (3) Central Information Commission (CIC) is authorised under the RTI Act, 2005 to receive and enquire into a complaint and / or decide on Second Appeal relating to deficiencies in supply of information to the RTI Applicants by the Public Authority concerned. If the points mentioned in para 11.3.4 below are kept in view by the various Public Authorities, while replying to RTI Applicants, it may be useful in increasing the level of satisfaction among the RTI Applicants and increased awareness among the Applicants about the provisions, scope and limitations of RTI Act, 2005. With the increased knowledge about the provisions of RTI Act, 2005, Vigilance Manual 2017 293 Chapter - XI Some Relevant Issues the Applicants would be in a better position to make RTI Applications in an unambiguous manner, thus making it easier for the Public Authorities also to provide an appropriate, clear and specific reply to the Applicants, in letter and spirit of the provisions of RTI Act, 2005. (4) Common shortcomings noticed in the replies given by the CPIOs / PIOs to the RTI Applicants and corrective measures thereon to be taken by the authorities concerned are as under: - (i) Many a time, while rejecting the Applicant’s request for information sought by him, the reasons for such rejection / denial of the information are not given by the CPIOs / PIOs concerned, which is a violation of Section 7(8)(i) of the RTI Act, 2005. The CPIOs simply quote the Section of the RTI Act, 2005, under which the information is being denied or they state that the issue raised by the Applicant does not constitute ‘information’ as defined under Section 2(f) and 2(i) of the RTI Act, 2005, which is not sufficient. The ‘reasons’, why exemption is being claimed from disclosure and / or why the issue raised does not constitute ‘information’ and the relevant rulings of the CIC and / or constitutional courts, etc., must be explained to the Applicants. (ii) In cases where the information is denied and the Applicant’s request is being rejected, the period during which an Appeal may be preferred and the particulars of the Appellate Authority are not mentioned in the reply to the Applicant, which is a mandatory requirement under Section 7(8)(ii) and 7(8)(iii) of the RTI Act, 2005, in such cases. The CPIOs / PIOs should provide these details to the Applicants, in case, information / a part thereof is being denied to the Applicants. (iii) Sometimes the reply to the Applicants is given in perfunctory manner, without verifying the records of the organisation concerned. The information as sought by the Applicants, should be given to them after checking the records thoroughly. (iv) Adherence to the time limit is essential in handling Applications received under RTI Act, 2005. RTI Act, 2005 has specified time limits for different stages and actions to be taken on Applications received by the Public Authority concerned. Any applications / part(s) thereof, which are Vigilance Manual 2017 Chapter - XI Some Relevant Issues 294 required to be forwarded to other Public Authorities, should normally be forwarded within 5 days of the receipt of the Application, in accordance with Section 6(3) of the RTI Act, 2005. (v) Under Section 11 of the RTI Act, 2005, notice to the third party is to be given only for that information pertaining to third party, which has been treated as confidential by it. Such notice is to be given within 5 days of the receipt of the request and a final decision regarding providing the information is to be taken by the CPIO concerned, within 40 days of the receipt of the request. (vi) In many cases the CPIOs / PIOs delay the reply to the Applicants beyond 30 days’ time limit prescribed under Section 7(1) of the RTI Act, 2005, without assigning any reason either on file and / or without informing the Applicant. In case, it is not possible to give the information to the Applicant within 30 days, the CPIOs / PIOs should send an interim reply within 30 days’, informing the Applicants about the delay. (vii) Sometimes there is delay in providing information to the Applicants on the ground that the relevant files are under submission with the higher authorities. In such cases, the CPIOs / PIOs should withdraw the files ‘temporarily’ for providing information to the RTI Applicants. (viii) The CPIOs / PIOs while denying the information to the Applicants must records the reasons in the file also to justify the denial / rejection of the request of the Applicant. (5) Many times, a question arises regarding disclosure of information pertaining to disciplinary action / proceedings / show-cause notices / punishments awarded to a public servant and financial details of a public servant. The Hon’ble Supreme Court of India in its judgment in Special Leave Petition (Civil) No. 27734 of 2012 in the case of Girish Ramchandra Deshpande Vs. Central Information Commission and Ors. has ordered that— "The petitioner herein sought for copies of all memos, show cause notices and censure / punishment awarded to the third respondent from his employer and also details viz. movable and immovable properties and also the details of his investments, lending and borrowing from Banks and other Vigilance Manual 2017 295 Chapter - XI Some Relevant Issues financial institutions. Further, he has also sought for the details of gifts stated to have accepted by the third respondent, his family members and friends and relatives at the marriage of his son. The information mostly sought for finds a place in the income tax returns of the third respondent. The question that has come up for consideration is whether the abovementioned information sought for qualifies to be "personal information" as defined in clause (j) of Section 8(1) of the RTI Act, 2005. We are in agreement with the CIC and the courts below that the details called for by the petitioner i.e. copies of all memos issued to the third respondent, show cause notices and orders of censure / punishment, etc. are qualified to be personal information as defined in clause (j) of Section 8(1) of the RTI Act, 2005. The performance of an employee / officer in an organisation is primarily a matter between the employee and the employer and normally those aspects are governed by the service rules which fall under the expression "personal information", the disclosure of which has no relationship to any public activity or public interest. On the other hand, the disclosure of which would cause unwarranted invasion of privacy of that individual. Of course, in a given case, if the Central Public Information Officer or the State Public Information Officer of the Appellate Authority is satisfied that the larger public interest justifies the disclosure of such information, appropriate orders could be passed but the petitioner cannot claim those details as a matter of right. The details disclosed by a person in his income tax returns are "personal information" which stand exempted from disclosure under clause (j) of Section 8(1) of the RTI Act, 2005, unless involves a larger public interest and the Central Public Information Officer or the State Public Information Officer or the Appellate Authority is satisfied that the larger public interest justifies the disclosure of such information. The petitioner in the instant case has not made a bona fide public interest in seeking information, the disclosure of such information would cause unwarranted invasion of privacy of the individual under Section 8(1)(j) of the RTI Act, 2005. We are, therefore, of the view that the petitioner has not succeeded in establishing that the information sought for is for the larger public interest. Vigilance Manual 2017 Chapter - XI Some Relevant Issues 296 That being the fact, we are not inclined to entertain this special leave petition. Hence, the same is dismissed". (6) The above decision of the Hon’ble Supreme Court of India may be kept in view while deciding about disclosure of information relating to disciplinary action / proceedings / show cause notices / punishments awarded to a public servant and financial details of a public servant. 11.4 INTERNATIONAL COOPERATION AGAINST CORRUPTION Globalisation and rapid strides in technology have made territorial boundaries irrelevant. Corruption has increasingly assumed transnational ramifications afflicting nations all across. Hence, corruption can be tackled at global level only with international cooperation. Countries have to assist each other in investigations, prosecutions, judicial proceedings and in recovery of proceeds of crime, etc. Mutual legal assistance may be afforded by countries to the fullest extent possible through relevant laws, treaties, agreements and arrangements. International cooperation may be afforded in the area of law enforcement, joint investigation, extradition of accused, transfer of proceedings, sharing of information, recovery and repatriation of proceeds of crime, etc. The UN Convention Against Corruption lays great emphasis on international cooperation in the fight against corruption. 11.4.1 United Nations Convention Against Corruption (UNCAC): (a) United Nations Convention Against Corruption is a multilateral convention, which has been negotiated by members of United Nations. It is the first global, legally binding international anti-corruption instrument, which was initially adopted by the United Nations General Assembly on 31st October, 2003. It has since been ratified by a total of 178 parties upto 31st December, 2015, which includes 175 United Nations Member States, apart from the Cook Islands, the State of Palestine and the European Union. India has ratified the United Nations Convention Against Corruption in May, 2011. (b) United Nations Convention Against Corruption requires the State Parties to implement several anti-corruption measures including Whistle Blowing mechanism which may affect their laws, institutions and practices. These Vigilance Manual 2017 297 Chapter - XI Some Relevant Issues measures aim at preventing corruption, including domestic and foreign bribery, embezzlement, trading in influence and money laundering. UNCAC is intended to strengthen international law enforcement and judicial cooperation, providing effective legal mechanisms for asset recovery, technical assistance and information exchange, and mechanisms for implementation of the convention, including the Conference of the States Parties to the United Nations Convention Against Corruption. (c) Chapter IV of United Nations Convention Against Corruption deals with International Cooperation against Corruption. Article 46 provides for Mutual Legal Assistance which are: - (i) State Parties shall afford one another the widest measure of mutual legal assistance in investigations, prosecutions and judicial proceedings in relation to the offences covered by this Convention. (ii) Mutual legal assistance shall be afforded to the fullest extent possible under relevant laws, treaties, agreements and arrangements of the requested State Party with respect to investigations, prosecutions and judicial proceedings in relation to the offences for which a legal person may be held liable in accordance with Article 26 of this Convention in the requesting State Party. (iii) Mutual legal assistance to be afforded in accordance with this article may be requested for any of the following purposes: (a) Taking evidence or statements from persons; (b) Effecting service of judicial documents; (c) Executing searches and seizures, and freezing; (d) Examining objects and sites; (e) Providing information, evidentiary items and expert evaluations; (f) Providing originals or certified copies of relevant documents and records, including Government, bank, financial, corporate or business records; (g) Identifying or tracing proceeds of crime, property, instrumentalities or other things for evidentiary purposes; (h) Facilitating the voluntary appearance of persons in the requesting State Party; (i) Any other type of assistance that is not contrary to the domestic law of the requested State Party; (j) Identifying, freezing and tracing proceeds of crime in accordance with the provisions of chapter V of this Convention; (k) The recovery of assets, in accordance with the provisions of chapter V of this Convention. Vigilance Manual 2017 Chapter - XI Some Relevant Issues 298 (d) India is a member of Interpol and the NCB-Delhi which is the Interpol wing in India, functions as a branch of CBI. NCB-Delhi is the sole authorised agency in India for contacts with the Police agencies of other countries. Besides, India also has Mutual Legal Assistance Treaty (MLAT) with 39 countries, Extradition Treaty with 37 countries and Extradition arrangement with 7 countries which facilitate International Cooperation for the purpose of compliance with Article 46 of UNCAC. For more detail, Chapter 25 of Crime Manual of CBI may be referred. How to provide / seek assistance of Interpol is provided at the CBI web-link on Interpol / MLAT. (e) As per Government of India(Allocation of Business) Rules, 1961, the Ministry of Home Affairs is the nodal Ministry and the Central authority for seeking and providing Mutual Legal Assistance in criminal law matters. The Ministry of Home Affairs (MHA) receives all such requests, examines them and takes appropriate action. Cases pertaining to civil and commercial matters are required to be taken up with the Ministry of Law & Justice, which finalises and notifies treaties and arrangements with other countries as per the relevant statutory provisions in the Code of Civil Procedure, 1908. Therefore, all requests for seeking assistance from a foreign country including the service of all kinds of judicial processes or other documents are directly submitted to the Ministry of Home Affairs in criminal law matters and to the Ministry of Law & Justice in civil and commercial matters. (f) Article 33 of United Nations Convention Against Corruption provides for protection of Whistle Blower which says that "each State Party shall consider incorporating into its domestic legal system appropriate measures to provide protection against any unjustified treatment for any person who reports in good faith and on reasonable grounds to the competent authorities any facts concerning offences established in accordance with this Convention". (g) The ratification of United Nations Convention Against Corruption by India necessitated creation of an appropriate whistle blowing mechanism and review of the existing Prevention of Corruption Act, 1988. Accordingly, the Whistle Blowers Protection Act, 2011 was enacted in May, 2014. The Vigilance Manual 2017 299 Chapter - XI Some Relevant Issues same however, is not in force as the Govt. of India aims to modify certain provisions of Whistle Blowers Protection Act, 2011. A Bill to this effect has been introduced in the Parliament to carry out the amendments. The PIDPI Resolution 2004 contains provisions regarding protection to whistle blowers. It is described in detail in Chapter IV of the Manual. (h) The Whistle Blowers Protection Act, 2011 is an Act "to establish a mechanism to receive complaints relating to disclosure on any allegation of corruption or wilful misuse of power or wilful misuse of discretion against any public servant and to inquire or cause an inquiry into such disclosure and to provide adequate safeguards against victimization of the person making such complaint and for matters connected therewith and incidental thereto". (i) India being one of the signatories to the United Nations Convention Against Corruption has displayed its commitment to implement the provisions of the same, in order to fight corruption and prevent inappropriate activities in public life. A step in this direction was to amend some of the provisions of Prevention of Corruption Act, 1988 by bringing out the Prevention of Corruption (Amendment) Bill, 2013.