Friday, May 7, 2021

Can you deny Lok Pal file, because DoPT is not its ‘author’? – Exploring new illegal grounds to deny the RTI

An RTI Activist Anjali Bharadwaj had asked in November 2018 the Department of Personnel and Training, the copy of records related to the process of selection of the chairperson and members of the Lok Pal. This was denied by CPIO of DoPT, its first appellate authority and finally by the Central Information Commission.

Generally, any details of process of selection to high public office should be known to the public. But the CPIO of DoPT has denied the minutes of the selection process of Lok Pal on a very funny ground that they were not the ‘author’ of that file. The Lok Pal is an independent body constituted to decide whether corrupt public servants should be prosecuted. The selection to that high position is done by the Committee headed by Prime Minister, which is organized by the DoPT. The Lok Pal as an institution is the result of the people’s struggle against corruption. The civil society wanted a high-level body which can even question the allegations of corruption against judiciary and top political executives with necessary authority. The present ruling disposition was fighting against Congress regime for Lok Pal. It was great success for the civil society and BJP opposition to achieve the legislation in 2013. The Congress Government has sought applications for the Lok Pal but could not complete the process as it lost in elections in 2014. Surprisingly, after coming to power the BJP-led NDA Government was not ready to constitute the Lok pal. The civil society had to wage a legal battle for it. Even after the Supreme Court’s direction, the process did not begin. Only after contempt petition was pressed, the Selection Committee led by PM has met. As per the Act this Committee consists of the Prime Minister (Chairperson), Speaker of the House of the People, the Leader of Opposition in the Lok Sabha, the Chief Justice of India, or a Judge of the Supreme Court nominated by CJI and an eminent jurist, as recommended by the Chairperson and other members. As none was recognised as the Leader of Opposition (LoP) in the Lok Sabha after the 2014 elections, Committee met without the LoP and selected the Chair and other members of Lok Pal in 2019.  But the PMO thinks that the minutes about selection of Lok Pal by this committee is ‘the secret’. This could be an opinion of a subordinate CPIO who blindly follows superiors and totally ignores the RTI norms. Then what happened to first appellate authority of PMO or DOPT? 

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The concept of ‘authorship’

The DoPT invented a new restriction beyond Section 8 and 9 of the RTI Act, saying that it was not author of the file being sought, hence it could not be given. The DoPT refused to provide a copy of the minutes of the meetings of the Selection Committee claiming the authorship of such documents which include 3-5 high level dignitaries does not vest in the Department of Personnel and Training and that the same have been shared as secret document. Since the Selection Committee is headed by PM, the PMO is expected to organize the meeting and process the selection. The Minister with portfolio of PMO and DoPT conducts such activities.

This raises fundamental question – Who is the author of a file in public authority? Who should be considered the creator and writer of the file of a selection committee consisting details of applicants, their verification, interviews if any, and details of selection process? No copyright is generated on such documents and files. It is neither poetry nor a story written by any poet. Government posts are notified, applications are invited and submitted. Then selection committee conducts the process based on the norms. It is not possible for someone to be the author or owner of such a file. Any file is built on some application and ends with a decision. Everyone who adds a comment is a contributor.

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The authorship is irrelevant for RTI Act, and nowhere it is mentioned as a requirement to be examined by CPIO or any other authority.

Preamble of RTI Act says it is meant to provide for setting out the practical regime of right to information for citizens to secure access to information under the control of public authorities”.

Definition of ‘information’ under Section 2(f) refers to ‘holding’ and not owning the information:

“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.

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The definition of ‘Right to information’ gives a total clarification, saying:

“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….”

The RTI Act requires the public authority to share the file if it holds or controls such file. It does not talk about ‘owning’ it.

The RTI Act has not given any power to examine the authorship of ‘file’ and deny it to applicants on that ground. Any RTI request cannot be rejected except according to provisions of Section 8 and 9. The CIC has agreed with this baseless and illegal conclusion of CPIO and refused to consider the illegality of this contention. The CIC’s agreement with the baseless understanding of CPIO is a shock to RTI users as it laid down a new precedent of rejecting the appeal though no exception is attracted. Fortunately, the order of CIC has no legal value of precedence. But the CPIOs get emboldened to deny minutes of all appointments quoting this illegal conclusion of the CIC.

The PMO and DoPT dealt with the appointment process of Lok Pal and thus they either hold the files and materials about the selection. The files with details of selection of Lok Pal is not the property of selected Lok Pal nor his office, nor the PMO owns it. They either hold or control it. And they have no reason to deny it to the applicant.

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It is assumed that the people ‘own’ the entire information of governance activity which runs with tax-payers’ money. Being the sovereigns of the democratic republic, people have a right to know and public servants have a duty to report to the Sovereign rulers.

Sealed cover& secrecy

Another baseless ground taken by the CPIO was ‘confidentiality’ of the said record. Though PMO did not classify it as secrecy, the CPIO of DoPT says that ‘the confidentiality can be gauged by the fact that the averred minutes of the Selection Committee were received in a sealed cover by the DoPT and that it had been presented before the Supreme Court too in a sealed cover’. The CIC has agreed with this argument and did not explain who and why the minutes were categorised as ‘secret’ and on what grounds?  One can understand a subordinate employee of high office refusing in such an irrational manner. The CIC should have rejected this contention. Can CIC accept this as new concept that sealing the cover itself should be presumed as ‘secrecy’? The Official Secrets Act also prescribes a method and procedure for classifying a document as secret. If this logic of the CPIO is accepted very post and courier that goes in sealed cover, should never be opened?

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If the CPIO has understood, either because of lack of training or non-application of mind, that the information belonged to another partyon only one ground that it was given in a sealed cover. Why should CIC assume that anything given in sealed cover is ‘top secret’. It is a clear misuse of section 11 of RTI Act, the third-party provision as ‘exception’ though there are several judicial pronouncements that information could be denied only under Sections 8 and 9 of RTI Act.

This order also exposed the ill-perceived notions of CPIO of DoPT that consent of third party is needed. If he thinks that Minutes of Lok Pal is third party information of PMO or Lok Pal, he should have consulted them as per Section 11. It is pathetic that CPIO and first appellate authority of DoPT thinks that because third party is ‘higher level” committee, the information should be totally ‘secret’. The CIC should have bothered to ask CPIO why did he not pursue the process of consulting third party. It is a tragedy that transparency is at beating by the authorities under RTI Act. If CPIO is a subordinate officer in public authority, the CIC at least was expected to act as an independent authority.

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When cabinet decisions are disclosable along with entire material after decision was taken, how can any other body be considered as ‘high level authority’? How the ‘level’ of authority prevents the disclosability? The CIC should have questioned the public authority on these aspects or should have formed basis for directing the PMO to release the minutes regarding appointment of Lok Pal.

Another wonderful idea of CPIO of DoPT floated was that minutes of a decision-making committee ‘is holding it is fiduciary in nature’ and hence should be denied. The CIC did not find it unreasonable and did not give any reason.

Nowhere the order of CIC does support its conclusion that information sought ‘confidential’ ‘secret’ and ‘fiduciary’ in nature. One can find collegium conclusions in Supreme Court but not details of appointment of Lok Pal either from Lok Pal or DoPT. The order has no justification.

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(published on 15.2.2021)

Prof. M. Sridhar Acharyulu
Prof. M. Sridhar Acharyulu
Author is former Central Information Commissioner and Professor of Law at Bennett University

1 COMMENT

  1. Sir, it is a blatant violation of RTI Act, under which any information is likely to be categorised as either third party or secret. Once again it exposes the hallowness in the claim of Govt as transperant. Let us congratulate for the efforts of Anjali Bharadwaj.

    Sir, your analysis of the case is superb and deserves to be publicised in both english(other than *Prime Post* and telugu news papers.
    Please let me know whether this analysis is translated into Telugu.
    Thank You Sir.

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