Article 356 and reorganisation of J&K - Information regarding file movement and e- office was denied u/s 8(1)(e) as fiduciary - CIC directed the PIO to re-examine the RTI Application and provide an appropriate response by 30.09.2021
Information sought and background of the case:
The Appellant filed an RTI application dated 31.10.2019 seeking information on the following 18 points:-
- The exact date and time when the file pertaining to the recommendation for issuance of the 19th December 2018 proclamation of Hon Rastraptiji under Article 356 of the Constitution of vis-à-vis the erstwhile State of Jammu and Kashmir was received in the Rashtrapati Sachivalay;
- The exact date and time when the Rashtrapati Sachivalay put up the said file for the consideration of Hon. Rashtrapati ji;
- The exact date and time when Hon. Rashtrapati ji appended his signature to the Proclamation described at Para no 1 above;
- The exact date and time when the file pertaining to The Constitution (Application to Jammu and Kashmir) Order, 2019 (C.O 272) was received in the Rashtrapati Sachivalay.
- The exact date and time when the Rashtrapati Sachivalay put up the file described at Para no 4 above for the consideration of Hon. Rashtrapati ji.
- The exact date and time when Hon. Rashtrapati ji appended his signature to The Constitution (Application to Jammu and Kashmir) Order, 2019 (C.O 272)
- The exact date and time when the file pertaining to the draft Jammu and Kashmir Reorganisation Bill, 2019 was received in the Rashtrapati Sachivalay for the approval of Hon. Rashtrapati ji for referral to the Lok Sabha for its views;
- The exact date and time when the file described at para no 7 above was put for consideration Hon. Rashtrapati ji;
- The exact date and time when the Hon. Rashtrapati ji appended his signature to the file described at para no 7 above;
The PIO vide letter dated 02.12.2019 replied as under:-
1-18 The information as asked for in online application is fiduciary in nature and hence cannot be provided in view of Section 8(1)(e) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information; of the RTI Act, 2005. Moreover, the proclamation and constitutional orders are available in public domain in www.egazette.nic.in
Dissatisfied with the response received from the CPIO, the Appellant filed a First Appeal dated 27.01.2020. The FAA/JS vide order dated 25.02.2020 reiterated the reply of the CPIO.
Feeling aggrieved and dissatisfied, the Appellant approached the Commission with the instant Second Appeal.
Facts emerging in Course of Hearing:
A written submission has been received from CPIO and OSD, President’s Secretariat vide letter dated 29.07.2021 reiterating the response of the CPIO/ FAA.
In order to ensure social distancing and prevent the spread of the pandemic, COVID-19, hearing through audio conference was scheduled after giving prior notice to both the parties.
The Appellant participated in the hearing through audio conference. He stated that he had only sought generic information regarding the date and time of receipt of various files by the President Secretariat; when the President’s Secretariat had put up the files before the Hon’ble President of India and when the Hon’ble President of India appended his signature to the same. Thus, exemption was incorrectly claimed u/s 8 (1) (e) of the RTI Act, 2005 without any reason or justification. He further stated that the information sought is required to be routinely maintained by the public authority in the dak and file movement register and in the e-office system which requires entering the movement of files and papers between offices of a public authority on a computerised database in real time on its premises. Thus, the information sought can be easily retrieved from this database at a click of a button by expending little time and energy.
The Respondent represented by Shri R.K. Sharma, CPIO and OSD and Shri Ratnesh Kumar, ASO, Constitutional Affairs- I Section participated in the hearing through audio conference. The Respondent stated that since an element of confidentiality was involved in the information sought by the Appellant exemption under Section 8 (1) (e) was claimed. Shri Sharma further stated that information regarding the Bills that received the assent of the Hon’ble President were available in the public domain wherein the date on which the Hon’ble President gave the assent is also provided.
Keeping in view the facts of the case and the submissions made by both the parties, the Commission observes that exemption u/s 8 (1) (e) of the RTI Act, 2005 was claimed without providing proper reason or justification. Furthermore, no plausible explanation was offered during the hearing for claiming the exemption. On perusal of the records, it is difficult to comprehend as to how information sought is held in a fiduciary capacity by the President’s Secretariat. The Commission thus directs Shri R.K. Sharma, CPIO and OSD, President’s Secretariat to re-examine the RTI Application and provide an appropriate response strictly in accordance with the provisions of the RTI Act, 2005 to the Appellant. The above mentioned direction should be complied with by 30.09.2021 under intimation to the Commission.
The instant Second Appeal stands disposed off with the above direction.
Y. K. Sinha
Chief Information Commissioner
Citation: Shri Venkatesh Nayak v. PIO, President Secretariat in Second Appeal No. CIC/PRSEC/A/2020/675160, Date of Decision: 09.08.2021