Ignorance of Third party procedure - CIC: Customs to convene periodic conferences/seminars to sensitize, familiarize and educate the concerned officials about the relevant provisions of the RTI Act for effective discharge of its duties & responsibilities
14 Nov, 2019O R D E R
FACTS:
The Appellant vide his RTI application sought information on the following 04 points pertaining to certain consignments:-
1. Copy of Exit gate pass (delivery gate pass) with date and time;
2. Truck No. / Vehicle No. ……………. on which the Raw Material Loaded;
3. Copy of original bill of entry required;
4. MODVAT availed details, pertaining to above bill of entry;
The CPIO vide its letter dated 02.11.2018, provided information on point nos. 01 and 03 of the RTI application. However, information on points 02 and 04 was denied u/s 8 (1) (d) and (g) respectively. Dissatisfied by the response, the Appellant approached the FAA.
The FAA, vide its order dated 09.01.2019 concurred with the reply of the CPIO and denied disclosure of copy of Original Bill of Entry and IEC/ Address of Importer to the Appellant being third party information. Aggrieved by the order of the FAA, the Appellant approached the Commission. The Commission was in receipt of a written submission from the Appellant dated 26.09.2019 praying for expediting/ speedy disposal of the Appeal pending before the Commission. In the written submission, the Appellant inter alia stated that he was in great necessity of the information in order to help him prevent his father from being falsely convicted of the offence under Section 412/34 of the Indian Penal Code. The Appellant also enclosed a copy of the order of the Hon’ble High Court of Delhi in his matter in WP (C) 9972/2019 dated 16.09.2019 wherein it was held as under:
“Let the petitioner file an application before the Central Information Commission for early hearing based on the above ground. In case such an application is filed, the Central Information Commission may deal with the same as per law expeditiously taking into account the grievance of the petitioner.”
Subsequently, the DR- IC (BJ) vide his note dated 27.09.2019 stated that the matter was discussed with IC-BJ and directed to list the matter in the month of October, 2019. Accordingly, the notice for hearing dated 04.10.2019 was issued to the concerned parties.
HEARING:
Facts emerging during the hearing:
The following were present: Appellant: Mr. Satya Pal Kamboj Appellant’s representative; Respondent: Mr. Lalit Kumar Meher, CPIO & Assistant Commissioner of Customs, Commissionerate of Customs NS-I, III & V, through VC;
The Appellant’s representative reiterated the contents of the RTI application and stated that the information sought by him on points No. 02 and 04 had not been provided. It was further explained that the information was required in connection with their matter sub-judice at the Sessions Court, New Delhi to prove his bonafide. In its reply, the Respondent reiterated the response of the CPIO / FAA as also its written submission. On being queried by the Commission for following the procedure under Section 11 of the RTI Act, 2005, he feigned ignorance but informed that the Third Party was requested to be present at today’s hearing but they remained absent. Furthermore, the Appellant stated that the information was essentially required as it was being alleged that the consignment had been recovered from his premises and that he was reasonably confident that this bill of entry was forged. He had however not filed any complaint with the Vigilance Department or any investigating authority.
The Commission was in receipt of a written submission from the Respondent dated 18.10.2019 wherein it was stated that the information sought by the Appellant pertained to Third Party and was exempted u/s 8 (1) (d) and (g) of the RTI act, 2005. A reference was also made to the CIC order in F. No. CIC/PB/A/2008/656-SM wherein it was held as under:
“No person can seek information in respect of the loan account details of a third party from the bank as this would violate the privacy of that individual and also because such information does not have any relationship to any public interest or public activity. In this case, no person can seek copy of Bill of entry of third party as this would violate the privacy of that individual and because such information does not have any relationship to any public interest or public activity”
The Commission referred to the definition of information u/s 2(f) “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; “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; “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; of the RTI Act, 2005 which is reproduced below:
“information” means any material in any form, including records, documents, memos, emails, opinions, advices, press releases, circulars, orders, logbooks, contracts, report, 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.”
Furthermore, a reference can also be made to the relevant extract of Section 2 (j) of the RTI Act, 2005 which reads as under:
“(j) 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 ........”
In this context a reference was made to the Hon’ble Supreme Court decision in 2011 (8) SCC 497 (CBSE Vs. Aditya Bandopadhyay), wherein it was held as under:
35..... “It is also not required to provide ‘advice’ or ‘opinion’ to an applicant, nor required to obtain and furnish any ‘opinion’ or ‘advice’ to an applicant. The reference to ‘opinion’ or ‘advice’ in the definition of ‘information’ in section 2(f) “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; “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; “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; of the Act, only refers to such material available in the records of the public authority. Many public authorities have, as a public relation exercise, provide advice, guidance and opinion to the citizens. But that is purely voluntary and should not be confused with any obligation under the RTI Act.”
Furthermore, the Hon’ble Supreme Court of India in Khanapuram Gandaiah Vs. Administrative Officer and Ors. Special Leave Petition (Civil) No.34868 OF 2009 (Decided on January 4, 2010) had held as under:
6. “....Under the RTI Act “information” is defined under Section 2(f) “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; “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; “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; which provides: “information” means any material in any form, including records, documents, memos, emails, opinions, advices, press releases, circulars, orders, logbooks, contracts, report, 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.” This definition shows that an applicant under Section 6 of the RTI Act can get any information which is already in existence and accessible to the public authority under law. Of course, under the RTI Act an applicant is entitled to get copy of the opinions, advices, circulars, orders, etc., but he cannot ask for any information as to why such opinions, advices, circulars, orders, etc. have been passed.”
7. “....the Public Information Officer is not supposed to have any material which is not before him; or any information he could have obtained under law. Under Section 6 of the RTI Act, an applicant is entitled to get only such information which can be accessed by the “public authority” under any other law for the time being in force. The answers sought by the petitioner in the application could not have been with the public authority nor could he have had access to this information and Respondent No. 4 was not obliged to give any reasons as to why he had taken such a decision in the matter which was before him.”
In the context of seeking the consent of the Third Parties u/s 11 of the RTI Act, 2005, the Commission referred to the decision of the Hon’ble High Court of Gujarat in the matter of Reliance Industries Limited vs. Gujarat Information Commission AIR 2007 Guj 203 dated 16.08.2007, wherein it was held as under:
“9…………….In view of these provisions, I am of the opinion that Public Information Officer should give opportunity of personal hearing to third party before imparting information. In the facts of the present case, no such hearing was ever afforded before imparting the information relating to the petitioner and, therefore, the orders passed by respondent Nos. 1, 2 and 4 deserve to be quashed and set aside.
10. Speaking order to be passed, when information relating to or supplied by the third party and has been treated as confidential by that third party:
12………………To know, whether information 'relating to or supplied by the third party' has been treated as confidential by that third party, Public Information Officer has to give notice. Public Information Officer cannot unilaterally decide, on its own, that the information, sought for by the applicant, is confidential or not. Whether information has been treated as confidential, by the third party or not, that can be said only by the third party and upon getting such submission in writing or orally, Public Information Officer has to consider them while taking a decision about disclosure of information.”
Furthermore, in the matter of Mario Diniz vs. the Goa State Information Commission and Ors., WP No. 141/ 2012 dated 09.04.2012, the Hon’ble High Court of Bombay at Goa held as under:
“6......I find that it is well settled that before supplying the information sought by the Respondent no.2, the Petitioner was entitled for a notice within the provisions of Section 11 of the Right to Information Act. Admittedly, no such notice was given and, as such, the Orders passed by the Respondent nos. 1 and 4 stand vitiated............... Considering the facts and circumstances of the case and taking note of the fact that the Petitioner was not given a notice as contemplated in law, I find that the impugned Judgments passed by the Respondent nos. 1 and 4 cannot be sustained and deserves to be quashed and set aside.”
DECISION:
Keeping in view the facts of the case and the submissions made by both the parties, the Commission directs the Respondent to fulfill the formalities in accordance with Section 11 of the RTI Act, 2005 and furnish a suitable reply to the Appellant within a period of 21 days from the date of receipt of this order.
The Commission also instructs the Respondent Public Authority to convene periodic conferences/seminars to sensitize, familiarize and educate the concerned officials about the relevant provisions of the RTI Act, 2005 for effective discharge of its duties and responsibilities. The Appeal stands disposed accordingly.
(Bimal Julka)
(Information Commissioner)
Citation: Mr. Deepanshu Kamboj v. CPIO Asst. Commissioner of Customs JNCH, Sheva, Office of the Commissioner of Customs Commissionerate in Second Appeal No.:- CIC/CCUM1/A/2019/105236-BJ, Date of Decision: 31.10.2019