Date: 9.12.2015
Very URGENT – REGISTRAR IS REQUESTED TO CIRCULATE THE COPY OF THE PRESENT REPORT AND ALL OTHER REPORTS TO SCIC AND OTHER FOUR ICs WHO CONDUCTED HEARINGS IN MY SECOND APPEALS AND COMPLAINTS:
REPORT SUBMITTED TO MR. K. RAMANUJAM IPS, CHIEF INFORMATION COMMISSIONER, MRS. B. NEELAMBIKAI, THIRU G. MURUGAN, THIRU MR. DAKSHINAMURTHY AND MR. THAMILSELVAN, STATE INFORMATION COMMISSIONERS IN RESPONSE TO ORDERS PASSED MRS. B. NEELAMBIKAI, THIRU G. MURUGAN, THIRU MR. DAKSHINAMURTHY AND MR. THAMILSELVAN IN CASE NOS. 11055/ENQUIRY/2012, CASE NO. 10219/2012 (23277/2012), 24204, 27263/2012 AND 27264/2012:
To
The Chief Information commissioner
And all information commissioners who conducted the enquiry
REPORT SUBMITTED TO MR. K. RAMANUJAM IPS, CHIEF INFORMATION COMMISSIONER, MRS. B. NEELAMBIKAI, THIRU G. MURUGAN, THIRU MR. DAKSHINAMURTHY AND MR. THAMILSELVAN, STATE INFORMATION COMMISSIONERS IN RESPONSE TO ORDERS PASSED MRS. B. NEELAMBIKAI, THIRU G. MURUGAN, THIRU MR. DAKSHINAMURTHY AND MR. THAMILSELVAN IN CASE NOS. 11055/ENQUIRY/2012, CASE NO. 10219/2012 (23277/2012), 24204, 27263/2012 AND 27264/2012:
To
The Chief Information commissioner
And all information commissioners who conducted the enquiry
DATE OF ENQUIRY CONDUCTED 13.10.2015 (FN)
Orders received by me: 07.12.2015
Appellant: B. Bharathi (myself)
Public information Officer: The Public Information officer, Chief Minister’s Cell,
Secretariat, Chennai-600009 - Public Authority
represented by Mr. Rajesh, Section officer, CM cell
Orders received by me: 07.12.2015
Appellant: B. Bharathi (myself)
Public information Officer: The Public Information officer, Chief Minister’s Cell,
Secretariat, Chennai-600009 - Public Authority
represented by Mr. Rajesh, Section officer, CM cell
I wish to submit the following for your kind consideration and favourable action. The Information commissioners assume their positions after taking an oath under first Schedule of RTI act 2005. I solemnly affirm that allegiance to the constitution of India as by law established, ……………………………………………….perform the duties of my office without fear of favour, affection or ill-will and that I will uphold the Constitution and the laws”.
But the recent hearings and subsequent orders passed by the two Benches of Information commissioners raised a vital question. The information commissioners failed to understand that the right to information flows from the fundamental right under Article 19 of Constitution of India and the very objectives of RTI act 2005 which are well pronounced in the first paragraph itself. They are not conducting the proceedings and performing their duties as per sections 18, 19 and 20 of RTI act 2005. The orders are passed without adhering to the provisions of RTI act 2005 and it is passed with the sole intention of harassing me and to protect the fraud of Public information officers. I am constraint to conclude that they are acting as the agents of Government which provide them post retirement positions. I like to remind them that they are paid from the public fund of Tamil Nadu. I request them that the norms has to be followed by everyone.
The Information commissioners have to pass orders based on the hearings and submissions of the appellants and PIOs not on their own whims and fancies. The ICs cannot act as a lawyer for the Powerful PIOs like special officer, CM Cell who refused to attend the hearings.
It is quite unfortunate that the Informtion commissioners did not go through my reports, my submissions in the hearings, complaints and appeals. The PIOs and FAAs are Government employees or employees of the respective public authorities and they have got dual responsibilities as (i) employee / officer of the PA and (ii) designate officer under RTI Act 2005. So, they have to provide information whether appellant approach them personally or under RTI act. It is constitutional right.
On 7.12.2015 I called the Registrar over phone to enquire about the orders of Mr. Thamil selvan and mr. Dakshinamurthy in eight cases heard on 12.10.2015 FN posted in the official website of TNSIC on 26.11.2015. He was shocked and he admitted he did not know about. I also pointed out to him that orders are issued without mentioning about reports and documents submitted to these information commissioners after the hearing as directed by them. Moreover the hard copies are not sent. He assured that he will look into it. On the same the orders of other bench also were sent to me but the covers are opened. The orders would have been perused by somebody. I filed a complaint to the Senior Superintendent of Post offices, Puducherry on 8.12.2015.
1. The powers and functions of information commissioners, appeal and penalties are well defined under section 18, 19 and 20.
2. The public information officer has to provide information or deny information within 30 days. If not, he / she shall be deemed to have refused the request for information under section 7 (1, 2) – disposal of request. The PIO need not take or wait for 30 days to respond but the PIO has to provide information as expeditiously as possible, and in any case within thirty days of the receipt of the request for information under section 7(1). The PIO has to provide information free of charge if he / she fails to comply within the time limits specified under section 7(1) as per section 7(6). If he denies information he has to follow the section 7(8). He has to provide reasons for rejection of request for information. The section 19(5) reaffirms it by stating that the onus to prove that a denial of a request shall be on the PIO who denied the request in any appeal proceedings.
3. In nutshell the PIO if failed to respond (provide information or deny information with reasons) within 30 days he has denied the information. So, he has to provide information free of cost and subject himself to penal action which may lead to penalty. Instead he denies information it is his duty to justify his denial in the appeal hearings. If they fail to attend the hearings the penalty has to be imposed and orders have to be passed to provide information to appellant / me. This is the essence of the RTI act but why information commissioners failed to do so without valid reasons.
4. Sections 8 and 9 are for exemption from disclosure of information and grounds for rejection in certain cases respectively. Sections 10 and 11 are for providing partial information and for procedure providing third party information respectively.
5. Sections 18, 19 and 20 are for procedure for handling complaints, appeals and penalties.
6. The purpose of enquiry in appeals and complaints is to find out (i) whether PIO provide information within 30 days or not (ii) whether information given is correct and complete or misleading and (iii) If information is denied the commission has to find out whether the justification is correct or not. Penalty will be imposed if the PIO did not provide information within 30 days or the denial of information is not justified. But the information commissioners played dual role of information commissioners and advocates of erring PIOs defending them.
7. The orders issued by the two Information commissioners in cases 13.10.2015 FN did not adhere to any of the norms or provisions of rti act 2005. The IC violates the provisions of the Act 2005. What are violations? (i) the PIO who denies the information has to attend the hearings for enquiry and prove his denial is justified. The Special officer, CM cell is the PIO. She denied information and she did not care to attend the meeting on 13.10.2015. I pointed out these lapses in each and every case. (ii) In none of the cases she did not provide information. If she provides information she has to provide proof in the form of postal receipts / acknowledgements or emails (iii) she did not transfer my rti applications under section 6(3) (iv) A section officer who is nothing to do (as PIO, APIO, FAA) with hearings under RTI act attended the meeting without knowing the subject matter (v) The order did not say anything about my objection to the absence of PIO who denied information (vi) The Appeal procedure rule (8) clearly states that PIO or APIO or FAA against whom complaint is lodged should be present in person. The PIO can be represented by FAA who is an officer of sufficient seniority. The section officer signed as PIO, CM Cell. (vii) Instead of issuing orders independently in each and every case five cases are clubbed together in a single order. It is a total violation of RTI act 2005. (viii) In all these five cases the PIO failed to provide information and PIO did not respond within 30 days. The ICs did not say whether information is given within 30 days or not. (ix) In the order the contention or objection or statement of PIO is not found which is very true. How the ICs incorporate thier own in the orders to protect the erring PIO. The officer who attended the hearing did not know anything and he did not provide any complete, legible information. My contention that the PIO has to provide me all information free of cost and the PIO has to be subjected to penal action for denial of information without justification.
The ICs are requested to read sections 19(8), 19(9) and 19 (10).
8. Hearings are between the PIO and appellant. The ICs are only conducting the proceedings and enquire the appellant and PIO, if necessary. But they are arguing for the PIO and sometimes they support his illegal action. Why? Under what authority?
9. In para 6 the ICs quoted a paragraph of an order of Madras High court in W.P. 26781 of 2013 which has no relevance here. First the provisions of RTI Act have to be considered. More over I explained clearly why I am asking for my representations. Any sensible and competent officer will pass an order or instructions to his sub-ordinates what action has to be taken with respect to my representation. By getting the copy of my representation we can verify whether the sub-ordinates took action as per instruction of the officer. Moreover the two judges did an error in passing the order in WP 26781 of 2013 which leads to national level uproar among senior lawyers, rti activists and Information commissioners. Later they revised their own orders in a suo motu fashion and they did not provide me natural justice to put forth my views. The first order’s copy is not given to me so far and so, I am unable to contest this judgement. The Information commissioners have to read many important landmark judgements passed in our Madras High court, other high courts and supreme court for and against appellants based on the merits of the cases not on their own. The Supreme court in Namita’s case revised its own judgement pertaining to the appointment of Information commissioner. The judgement of WP 26781 of 2013 has no relevance here. This judgement is quoted by the PIO in the hearing. If so, I would have given many judgements of Supreme court and high courts to defend my side.
10. The observation / conclusion in para 7 is neither relevant nor correct. The appellant has got every right to get the copies of his representations for the reason stated above. It is their right to information and it is the spirit of RTI act. When PIO did not deny such information why the Information commissioners and judges are particular in denying it. I explained it in the hearings and in my reports.
11. I am eligible for the information free of cost as stated in para 8 of the order because the information was not provided or not denied within 30 days. So, I am eligible for all information I requested that too free of cost. So, the ICs are duty bound to pass orders in my favour in such occasions. They misuse their discretion and they use discrimination instead of discretion.
12. The PIO did not open his mouth throughout the proceedings. The observations of commissioners in paras 9 and 10 are neither true nor relevant. Nobody objected to the transfer of applications to other public authorities. But they have to transfer my RTI applications to the concerned public authorities who hold the information under section 6(3). But the PIO failed to do so. For the same reason I am not getting information till date. So, intention of PIO is to deny information by these kinds of dirty tricks. Again the CM cell receive 2000 applications or 2 million applications is not the subject matter under rti act. The information available in the computer or online is also an information which can be accessed by the RTI applicant. Then I was ordered to peruse the information in the computer as assure by Mrs. B. Neelambigai, IC.
13. The judgements of supreme court of 1987, 1961, 1975 mentioned in para 11 are irrelevant today because the present RTI Act 2005 came into existence only in October 2005. The careful reading of Section 22 of RTI Act provides answer. The act has got overriding effect in providing information to public. The Judges and Judiciary are not above law. Kindly read the judgement of Delhi High court bench and division of bench of supreme court in the case of Mr. Subash Chandra Aggarwal. Still the case is pending before the full constitutional bench of Supreme court but the Judges are reluctant to pass orders. In Shah Banu case the government did injustice by overthrowing the landmark judgement of supreme court of India by enacting a law against it. Likewise the Supreme court has done a great injustice to democracy, republic and the citizens of this country in the judgement of emergency but it regrets after 30 years. The Judiciary have to respect RTI Act enacted in parliament like parliament respects orders of judiciary. If the information commissioners are really interested to know new orders pertaining to RTI act I can provide more than 10 orders in support of my contention. I already sent a few orders to the Registrar for placing them in the website. The file notes is one of the important information under RTI Act and it is the essence of information pertaining to the decision making process. There are judgements in favour of it.
14. Again I am constraint and compelled to state that the judges passed this order in WP 26781 of 2005 without knowing certain provisions of the act. That is why they are forced to retreat. The Information Commissioners are appointed to pass orders based on the facts presented before them by appellant and respondents and as per the provisions of the act. They have to make their own decisions based on merits of the case, facts, documentary evidence and law. The conclusion of ICs in para 13 based on a paragraph of judgement is not correct. The Information commissioners have to read the entire judgements of 17th and 23rd of Septemebr 2014 and of judgement passed in review petition no. 258 of 2014 in WP 26781 of 2014. File notes will tell us / public / appellant how the decisions are arrived at by the public authorities. We are not seeking information about why public authorities take a particular decision. But we are willing to know the reasons or facts that lead to a particular decision. It is of paramount importance. It is necessary for exposing corrupt practices prevailing in office of the various public authorities which is backed by many judgements. I have obtained many file notings from various public authorities.
15. The PIO did not provide any online information as stated in the para 14. The complete online information on action taken is denied. The online copy given is incomplete and nothing it say about action taken. The complete online information is not given. So, information is denied till date. Moreover the IC, Mrs. B. Neelambigai said that she will pass orders to allow me to peruse the online report in CM Cell but she did not do. Why?
16. I am filing ten applications for a particular information or one application for ten information is not the concern of PIO or public authority or Information commission / commissioners as observed in para 15. I paid rs. 10/ per rti application is important. Whether information can be given or not is the concern of PIO, FAA and ICs.
17. In para 15 the ICs observed that there is no larger public interest involved. How do the commissioners reach such conclusion? They did not mention any grounds or fact or reasons for the same. Their conclusion is irrational. Moreover under which rule or provision of RTI act it is stated that only information of highly public interest will be given. I request the ICs to read sections 2 particularly sections 2(f, I, j) and section 3 (subject to the provisions of the act all citizens shall have the right to information) in addition to other sections 4, 5, 6, 7.
18. Under section 8 (j) it is stated that highly public interest has to be considered for disclosing personal information. Provided that the information which cannot be denied to the parliament or state legislature shall not be denied to any person. So, no information can be denied to a citizen but only certain information are exempted in only certain cirucumstances. When the information is denied malafidely by PIO, he / she has to provide information.
19. In one of the paragraph the ICs have pointed I did not enclose supporting documents in my complaint and I also refused to give it during hearing. It is not correct. The Appeal procedure rule was introducted in 2012 that too because of our efforts. Previously no proper procedure was used to file complaints and appeals. I produced all documents and representations to the commission whenever they ask me to do so. The PIO of CM cell did not provide information as per directions of then SCIC, Mr. Sripathi IAS.
20. In paras 16 and 17 the observations of the commissioners are far from truth and law. My contention is if information is not provided within 30 days I will go for appeal I. So, the response from PIO after 30 days can’t be enclosed with appeals. If information is not given within 30 days the PIO has to provide all information sought free of cost. The commission has no authority to condone delay. If so, under which provisions of rti act or appeal procedure rules they inherit the power to condone delay. The commissioners has taken oath to pass orders according to the laws of the land. The information should be given as quickly as possible but within 30 days as per rti act. Here the PIO did not provide information. Why the ICs are silent? The PIO defied the act and the commission but the commission failed to penalize the PIO. Instead the commission surrenders before the erring, corrupt PIO for what? In para 17(ii) the observation of ICs are unfound. I never said that information given after 30 days is not information. If information is not given within 30 days I am eligible to get information including exempted information free of cost and the PIO has to be brought under penal action. This is the Provision of Act and duty of ICs and PIOs to the appellant. The Section 19(1) and 19 (6) has to be read with 19(5). The First Appellate Authority has to conduct appeal meetings with PIO and appellant. I showed an order of FAA how to conduct first appeal and pass orders. The first step i.e. filing application and providing information are between Applicant and PIO. The information to be provided is decided solely by the PIO. He can act unilaterally but he has to provide reasons for denial (section 19 (8)). The PIO is supposed to help disable persons (see section 19(4). But the second and third steps are appeals and they are quasi judicial procedure. Both sides are to be heard before passing orders. Natural justice has to be provided in first and second appeals. If the first appeal hearing is not conducted then we have to come to Information commission.
21. The information commissioners failed to consider the order of the former Chief Information Commissioner dated 2/4/2012 in the following cases 011055, 11052 & 11053/A/2012: “A copy of the representation dated 06/03/2012received from Thiru Bharathi B is enclosed. The Public Information Officer has been directed to send his remarks on the comments made by the petitioner to the Commission within 15 days from the date of receipt of this order.”
Memo No.10219 & 11040/A/2012 dated 20/04/2012: “(1) The second appeal of Thiru B. Bharathi dated 28.02.12, requesting perusal of records pertaining to the representations given by him and his family, has been perused by the Commission. 2) The Public Information Officer, O/o the Chief Minister’s Special Cell, Chennai 9 is directed to permit the petitioner to peruse and take copies of the relevant papers within ten days from the date of receipt of this order, subject to the provisions of the RTI Act.”
But PIO, CM Cell did not bother about the orders of SCIC of TNSIC. So, the PIO intentionally and malafidely deny information. But the information commissioners took pain to invent new ideas to defend her.
22. The ICs and PIOs did not say anything about the date of providing information and the proof for providing information. At the time of enquiry they did not provide any proof for information given. They have given me some incomplete information. In the afternoon I lodged the complaint to the Information commissioner. Here whatever information I sought are not given. The officers / public authorities to whom the representations were sent sent back their response or action taken report. But the PIO did not provide me the information even after directions of commission in 2012 and 2015.
23. The Information commission did not bother about the absence of PIO and her defiance to the commission and appellant. The Information commissioners instead of respecting the rti act attempt to defend the illegal action of the PIO of CM Cell. Individual orders are not issued in each and every case as per rti act and judgement in w.p. 26781 of 2013. As pointed out earlier the orders in the above cases are not passed in accordance with law. It has to be withdrawn. The appellant / myself is eligible for compensation and information free of cost while the PIO shall be subjected to penal action as per section 20 (1) and 20 (2) for consistently and persistently denied information. The Information commission has to recommend disciplinary action against the PIO under service rules applicable to her.
CONCLUSION: The chief information commissioner and other information commissioners should come forward to withdraw the order and a fresh order has to be passed based on merits and facts of the case. Their duties are not defend or offend PIO or appellant but to monitor the flow of information from PA to appellant / citizens to empower the citizens to expose corruption and fight against corrupt officers. The information commissioners have to facilitate the flow of information but in these cases it did not happen. Might is right policy is adopted.
I once again request the Chief information commissioner to come forward to address the issues raised by me by means of useful dialogues rather sitting over issues. The video conferences are allowed in the appeal procedure rules. Why it is denied to the appellants from far off places? Please introduce video conferencing in hearings of appeals and complaints which reduce time and money. Video recording is a must to remove such discrepancies in the orders of the commission. It should be allowed.
Thanking you,
Yours sincerely,
B. Bharathi.
But the recent hearings and subsequent orders passed by the two Benches of Information commissioners raised a vital question. The information commissioners failed to understand that the right to information flows from the fundamental right under Article 19 of Constitution of India and the very objectives of RTI act 2005 which are well pronounced in the first paragraph itself. They are not conducting the proceedings and performing their duties as per sections 18, 19 and 20 of RTI act 2005. The orders are passed without adhering to the provisions of RTI act 2005 and it is passed with the sole intention of harassing me and to protect the fraud of Public information officers. I am constraint to conclude that they are acting as the agents of Government which provide them post retirement positions. I like to remind them that they are paid from the public fund of Tamil Nadu. I request them that the norms has to be followed by everyone.
The Information commissioners have to pass orders based on the hearings and submissions of the appellants and PIOs not on their own whims and fancies. The ICs cannot act as a lawyer for the Powerful PIOs like special officer, CM Cell who refused to attend the hearings.
It is quite unfortunate that the Informtion commissioners did not go through my reports, my submissions in the hearings, complaints and appeals. The PIOs and FAAs are Government employees or employees of the respective public authorities and they have got dual responsibilities as (i) employee / officer of the PA and (ii) designate officer under RTI Act 2005. So, they have to provide information whether appellant approach them personally or under RTI act. It is constitutional right.
On 7.12.2015 I called the Registrar over phone to enquire about the orders of Mr. Thamil selvan and mr. Dakshinamurthy in eight cases heard on 12.10.2015 FN posted in the official website of TNSIC on 26.11.2015. He was shocked and he admitted he did not know about. I also pointed out to him that orders are issued without mentioning about reports and documents submitted to these information commissioners after the hearing as directed by them. Moreover the hard copies are not sent. He assured that he will look into it. On the same the orders of other bench also were sent to me but the covers are opened. The orders would have been perused by somebody. I filed a complaint to the Senior Superintendent of Post offices, Puducherry on 8.12.2015.
1. The powers and functions of information commissioners, appeal and penalties are well defined under section 18, 19 and 20.
2. The public information officer has to provide information or deny information within 30 days. If not, he / she shall be deemed to have refused the request for information under section 7 (1, 2) – disposal of request. The PIO need not take or wait for 30 days to respond but the PIO has to provide information as expeditiously as possible, and in any case within thirty days of the receipt of the request for information under section 7(1). The PIO has to provide information free of charge if he / she fails to comply within the time limits specified under section 7(1) as per section 7(6). If he denies information he has to follow the section 7(8). He has to provide reasons for rejection of request for information. The section 19(5) reaffirms it by stating that the onus to prove that a denial of a request shall be on the PIO who denied the request in any appeal proceedings.
3. In nutshell the PIO if failed to respond (provide information or deny information with reasons) within 30 days he has denied the information. So, he has to provide information free of cost and subject himself to penal action which may lead to penalty. Instead he denies information it is his duty to justify his denial in the appeal hearings. If they fail to attend the hearings the penalty has to be imposed and orders have to be passed to provide information to appellant / me. This is the essence of the RTI act but why information commissioners failed to do so without valid reasons.
4. Sections 8 and 9 are for exemption from disclosure of information and grounds for rejection in certain cases respectively. Sections 10 and 11 are for providing partial information and for procedure providing third party information respectively.
5. Sections 18, 19 and 20 are for procedure for handling complaints, appeals and penalties.
6. The purpose of enquiry in appeals and complaints is to find out (i) whether PIO provide information within 30 days or not (ii) whether information given is correct and complete or misleading and (iii) If information is denied the commission has to find out whether the justification is correct or not. Penalty will be imposed if the PIO did not provide information within 30 days or the denial of information is not justified. But the information commissioners played dual role of information commissioners and advocates of erring PIOs defending them.
7. The orders issued by the two Information commissioners in cases 13.10.2015 FN did not adhere to any of the norms or provisions of rti act 2005. The IC violates the provisions of the Act 2005. What are violations? (i) the PIO who denies the information has to attend the hearings for enquiry and prove his denial is justified. The Special officer, CM cell is the PIO. She denied information and she did not care to attend the meeting on 13.10.2015. I pointed out these lapses in each and every case. (ii) In none of the cases she did not provide information. If she provides information she has to provide proof in the form of postal receipts / acknowledgements or emails (iii) she did not transfer my rti applications under section 6(3) (iv) A section officer who is nothing to do (as PIO, APIO, FAA) with hearings under RTI act attended the meeting without knowing the subject matter (v) The order did not say anything about my objection to the absence of PIO who denied information (vi) The Appeal procedure rule (8) clearly states that PIO or APIO or FAA against whom complaint is lodged should be present in person. The PIO can be represented by FAA who is an officer of sufficient seniority. The section officer signed as PIO, CM Cell. (vii) Instead of issuing orders independently in each and every case five cases are clubbed together in a single order. It is a total violation of RTI act 2005. (viii) In all these five cases the PIO failed to provide information and PIO did not respond within 30 days. The ICs did not say whether information is given within 30 days or not. (ix) In the order the contention or objection or statement of PIO is not found which is very true. How the ICs incorporate thier own in the orders to protect the erring PIO. The officer who attended the hearing did not know anything and he did not provide any complete, legible information. My contention that the PIO has to provide me all information free of cost and the PIO has to be subjected to penal action for denial of information without justification.
The ICs are requested to read sections 19(8), 19(9) and 19 (10).
8. Hearings are between the PIO and appellant. The ICs are only conducting the proceedings and enquire the appellant and PIO, if necessary. But they are arguing for the PIO and sometimes they support his illegal action. Why? Under what authority?
9. In para 6 the ICs quoted a paragraph of an order of Madras High court in W.P. 26781 of 2013 which has no relevance here. First the provisions of RTI Act have to be considered. More over I explained clearly why I am asking for my representations. Any sensible and competent officer will pass an order or instructions to his sub-ordinates what action has to be taken with respect to my representation. By getting the copy of my representation we can verify whether the sub-ordinates took action as per instruction of the officer. Moreover the two judges did an error in passing the order in WP 26781 of 2013 which leads to national level uproar among senior lawyers, rti activists and Information commissioners. Later they revised their own orders in a suo motu fashion and they did not provide me natural justice to put forth my views. The first order’s copy is not given to me so far and so, I am unable to contest this judgement. The Information commissioners have to read many important landmark judgements passed in our Madras High court, other high courts and supreme court for and against appellants based on the merits of the cases not on their own. The Supreme court in Namita’s case revised its own judgement pertaining to the appointment of Information commissioner. The judgement of WP 26781 of 2013 has no relevance here. This judgement is quoted by the PIO in the hearing. If so, I would have given many judgements of Supreme court and high courts to defend my side.
10. The observation / conclusion in para 7 is neither relevant nor correct. The appellant has got every right to get the copies of his representations for the reason stated above. It is their right to information and it is the spirit of RTI act. When PIO did not deny such information why the Information commissioners and judges are particular in denying it. I explained it in the hearings and in my reports.
11. I am eligible for the information free of cost as stated in para 8 of the order because the information was not provided or not denied within 30 days. So, I am eligible for all information I requested that too free of cost. So, the ICs are duty bound to pass orders in my favour in such occasions. They misuse their discretion and they use discrimination instead of discretion.
12. The PIO did not open his mouth throughout the proceedings. The observations of commissioners in paras 9 and 10 are neither true nor relevant. Nobody objected to the transfer of applications to other public authorities. But they have to transfer my RTI applications to the concerned public authorities who hold the information under section 6(3). But the PIO failed to do so. For the same reason I am not getting information till date. So, intention of PIO is to deny information by these kinds of dirty tricks. Again the CM cell receive 2000 applications or 2 million applications is not the subject matter under rti act. The information available in the computer or online is also an information which can be accessed by the RTI applicant. Then I was ordered to peruse the information in the computer as assure by Mrs. B. Neelambigai, IC.
13. The judgements of supreme court of 1987, 1961, 1975 mentioned in para 11 are irrelevant today because the present RTI Act 2005 came into existence only in October 2005. The careful reading of Section 22 of RTI Act provides answer. The act has got overriding effect in providing information to public. The Judges and Judiciary are not above law. Kindly read the judgement of Delhi High court bench and division of bench of supreme court in the case of Mr. Subash Chandra Aggarwal. Still the case is pending before the full constitutional bench of Supreme court but the Judges are reluctant to pass orders. In Shah Banu case the government did injustice by overthrowing the landmark judgement of supreme court of India by enacting a law against it. Likewise the Supreme court has done a great injustice to democracy, republic and the citizens of this country in the judgement of emergency but it regrets after 30 years. The Judiciary have to respect RTI Act enacted in parliament like parliament respects orders of judiciary. If the information commissioners are really interested to know new orders pertaining to RTI act I can provide more than 10 orders in support of my contention. I already sent a few orders to the Registrar for placing them in the website. The file notes is one of the important information under RTI Act and it is the essence of information pertaining to the decision making process. There are judgements in favour of it.
14. Again I am constraint and compelled to state that the judges passed this order in WP 26781 of 2005 without knowing certain provisions of the act. That is why they are forced to retreat. The Information Commissioners are appointed to pass orders based on the facts presented before them by appellant and respondents and as per the provisions of the act. They have to make their own decisions based on merits of the case, facts, documentary evidence and law. The conclusion of ICs in para 13 based on a paragraph of judgement is not correct. The Information commissioners have to read the entire judgements of 17th and 23rd of Septemebr 2014 and of judgement passed in review petition no. 258 of 2014 in WP 26781 of 2014. File notes will tell us / public / appellant how the decisions are arrived at by the public authorities. We are not seeking information about why public authorities take a particular decision. But we are willing to know the reasons or facts that lead to a particular decision. It is of paramount importance. It is necessary for exposing corrupt practices prevailing in office of the various public authorities which is backed by many judgements. I have obtained many file notings from various public authorities.
15. The PIO did not provide any online information as stated in the para 14. The complete online information on action taken is denied. The online copy given is incomplete and nothing it say about action taken. The complete online information is not given. So, information is denied till date. Moreover the IC, Mrs. B. Neelambigai said that she will pass orders to allow me to peruse the online report in CM Cell but she did not do. Why?
16. I am filing ten applications for a particular information or one application for ten information is not the concern of PIO or public authority or Information commission / commissioners as observed in para 15. I paid rs. 10/ per rti application is important. Whether information can be given or not is the concern of PIO, FAA and ICs.
17. In para 15 the ICs observed that there is no larger public interest involved. How do the commissioners reach such conclusion? They did not mention any grounds or fact or reasons for the same. Their conclusion is irrational. Moreover under which rule or provision of RTI act it is stated that only information of highly public interest will be given. I request the ICs to read sections 2 particularly sections 2(f, I, j) and section 3 (subject to the provisions of the act all citizens shall have the right to information) in addition to other sections 4, 5, 6, 7.
18. Under section 8 (j) it is stated that highly public interest has to be considered for disclosing personal information. Provided that the information which cannot be denied to the parliament or state legislature shall not be denied to any person. So, no information can be denied to a citizen but only certain information are exempted in only certain cirucumstances. When the information is denied malafidely by PIO, he / she has to provide information.
19. In one of the paragraph the ICs have pointed I did not enclose supporting documents in my complaint and I also refused to give it during hearing. It is not correct. The Appeal procedure rule was introducted in 2012 that too because of our efforts. Previously no proper procedure was used to file complaints and appeals. I produced all documents and representations to the commission whenever they ask me to do so. The PIO of CM cell did not provide information as per directions of then SCIC, Mr. Sripathi IAS.
20. In paras 16 and 17 the observations of the commissioners are far from truth and law. My contention is if information is not provided within 30 days I will go for appeal I. So, the response from PIO after 30 days can’t be enclosed with appeals. If information is not given within 30 days the PIO has to provide all information sought free of cost. The commission has no authority to condone delay. If so, under which provisions of rti act or appeal procedure rules they inherit the power to condone delay. The commissioners has taken oath to pass orders according to the laws of the land. The information should be given as quickly as possible but within 30 days as per rti act. Here the PIO did not provide information. Why the ICs are silent? The PIO defied the act and the commission but the commission failed to penalize the PIO. Instead the commission surrenders before the erring, corrupt PIO for what? In para 17(ii) the observation of ICs are unfound. I never said that information given after 30 days is not information. If information is not given within 30 days I am eligible to get information including exempted information free of cost and the PIO has to be brought under penal action. This is the Provision of Act and duty of ICs and PIOs to the appellant. The Section 19(1) and 19 (6) has to be read with 19(5). The First Appellate Authority has to conduct appeal meetings with PIO and appellant. I showed an order of FAA how to conduct first appeal and pass orders. The first step i.e. filing application and providing information are between Applicant and PIO. The information to be provided is decided solely by the PIO. He can act unilaterally but he has to provide reasons for denial (section 19 (8)). The PIO is supposed to help disable persons (see section 19(4). But the second and third steps are appeals and they are quasi judicial procedure. Both sides are to be heard before passing orders. Natural justice has to be provided in first and second appeals. If the first appeal hearing is not conducted then we have to come to Information commission.
21. The information commissioners failed to consider the order of the former Chief Information Commissioner dated 2/4/2012 in the following cases 011055, 11052 & 11053/A/2012: “A copy of the representation dated 06/03/2012received from Thiru Bharathi B is enclosed. The Public Information Officer has been directed to send his remarks on the comments made by the petitioner to the Commission within 15 days from the date of receipt of this order.”
Memo No.10219 & 11040/A/2012 dated 20/04/2012: “(1) The second appeal of Thiru B. Bharathi dated 28.02.12, requesting perusal of records pertaining to the representations given by him and his family, has been perused by the Commission. 2) The Public Information Officer, O/o the Chief Minister’s Special Cell, Chennai 9 is directed to permit the petitioner to peruse and take copies of the relevant papers within ten days from the date of receipt of this order, subject to the provisions of the RTI Act.”
But PIO, CM Cell did not bother about the orders of SCIC of TNSIC. So, the PIO intentionally and malafidely deny information. But the information commissioners took pain to invent new ideas to defend her.
22. The ICs and PIOs did not say anything about the date of providing information and the proof for providing information. At the time of enquiry they did not provide any proof for information given. They have given me some incomplete information. In the afternoon I lodged the complaint to the Information commissioner. Here whatever information I sought are not given. The officers / public authorities to whom the representations were sent sent back their response or action taken report. But the PIO did not provide me the information even after directions of commission in 2012 and 2015.
23. The Information commission did not bother about the absence of PIO and her defiance to the commission and appellant. The Information commissioners instead of respecting the rti act attempt to defend the illegal action of the PIO of CM Cell. Individual orders are not issued in each and every case as per rti act and judgement in w.p. 26781 of 2013. As pointed out earlier the orders in the above cases are not passed in accordance with law. It has to be withdrawn. The appellant / myself is eligible for compensation and information free of cost while the PIO shall be subjected to penal action as per section 20 (1) and 20 (2) for consistently and persistently denied information. The Information commission has to recommend disciplinary action against the PIO under service rules applicable to her.
CONCLUSION: The chief information commissioner and other information commissioners should come forward to withdraw the order and a fresh order has to be passed based on merits and facts of the case. Their duties are not defend or offend PIO or appellant but to monitor the flow of information from PA to appellant / citizens to empower the citizens to expose corruption and fight against corrupt officers. The information commissioners have to facilitate the flow of information but in these cases it did not happen. Might is right policy is adopted.
I once again request the Chief information commissioner to come forward to address the issues raised by me by means of useful dialogues rather sitting over issues. The video conferences are allowed in the appeal procedure rules. Why it is denied to the appellants from far off places? Please introduce video conferencing in hearings of appeals and complaints which reduce time and money. Video recording is a must to remove such discrepancies in the orders of the commission. It should be allowed.
Thanking you,
Yours sincerely,
B. Bharathi.
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