Copy of records which showed that 89 Kgs of Gold was replaced with scrap at the Delhi Airport’s strong room was sought - CIC: The onus to prove that denial of a request was justified shall be on the PIO who denied the request; Information to be proided
23 Sep, 2018O R D E R
FACTS:
The Appellant vide his RTI application sought information on 08 points regarding, copy of complete file/ record which showed that 89 Kgs of Gold had vanished/ replaced with scrap from the Delhi Airport’s strong room in the last three years, details of gold sold/ auctioned/ confiscated by the Respondent in last three years and issues related thereto.
The CPIO and Jt. Commissioner, O/o the Commissioner of Customs, New Delhi, vide its letter dated 24.03.2017, while providing a point wise response denied disclosure of information on point no. 01 and 08 as per Section 8 (1) (h) of the RTI Act, 2005 on the ground that the matter was still under investigation. Dissatisfied by the response of the CPIO, the Appellant approached the FAA. The order of the FAA, if any, is not available on the record of the Commission.
HEARING:
Facts emerging during the hearing:
The following were present:
Appellant: Mr. Tarun Dhingra Appellant’s representative;
Respondent: Absent;
The Respondent remained absent during the hearing, despite prior intimation.
The Appellant’s representative reiterated the contents of RTI application and stated that the Respondent erred while denying information on points 1 and 8 of the RTI application by claiming exemption under Section 8 (1) (h) of the RTI Act, 2005. While arguing that no reasons/ explanations were offered by the CPIO as to how the disclosure of information would impede/hamper the process of investigation, the Appellant’s representative referred to the decision of the High Court of Delhi in Bhagat Singh v. CIC & Ors. in WP(C) 3114/2007. He also referred to the decision of Supreme Court which considered the importance and scope of Right to Information citing the decision of Hon’ble Supreme Court in State of Uttar Pradesh Vs. Raj Narain (1975) 4SCC 428 as also referred the Hon’ble Supreme Court of India Civil Original Jurisdiction Transferred Case (Civil) No. 91/2015 (Arising out of Transfer Petition (Civil) No. 707/2012). It was further submitted that information sought by him was in the larger public interest since it involved Rs. 26 Crore of public money.
The Commission finds the following observation of the Hon’ble High Court Delhi in Bhagat Singh v. CIC & Ors. WP(C) 3114/2007 pertinent in this matter.
“13. Access to information, under Section 3 of the Act, is the rule and exemptions under Section 8, the exception. Section 8 being a restriction on this fundamental right, must therefore is to be strictly construed. It should not be interpreted in manner as to shadow the very right itself. Under Section 8, exemption from releasing information is granted if it would impede the process of investigation or the prosecution of the offenders. It is apparent that the mere existence of an investigation process cannot be a ground for refusal of the information; the authority withholding information must show satisfactory reasons as to why the release of such information would hamper the investigation process. Such reasons should be germane, and the opinion of the process being hampered should be reasonable and based on some material. Sans this consideration, Section 8(1)(h) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; and other such provisions would become a haven for dodging demands for information.”
Furthermore, the Hon’ble High Court of Delhi in B.S. Mathur v. PIO in W.P. (C) 295 of 2011 dated 03.06.2011 had held that :
“19. The question that arises for consideration has already been formulated in the Court's order dated 21st April 2011: Whether the disclosure of the information sought by the Petitioner to the extent not supplied to him yet would "impede the investigation" in terms of Section 8(1)(h) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; RTI Act" The scheme of the RTI Act, its objects and reasons indicate that disclosure of information is the rule and non-disclosure the exception. A public authority which seeks to withhold information available with it has to show that the information sought is of the nature specified in Section 8 RTI Act. As regards Section 8(1)(h) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; RTI Act, which is the only provision invoked by the Respondent to deny the Petitioner the information sought by him, it will have to be shown by the public authority that the information sought "would impede the process of investigation." The mere reproducing of the wording of the statute would not be sufficient when recourse is had to Section 8(1)(h) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; RTI Act. The burden is on the public authority to show in what manner the disclosure of such information would 'impede' the investigation...............
22. ...........The mere pendency of an investigation or inquiry is by itself not a sufficient justification for withholding information. It must be shown that the disclosure of the information sought would "impede" or even on a lesser threshold "hamper" or "interfere with" the investigation. This burden the Respondent has failed to discharge.”
Furthermore, the Hon’ble High Court of Delhi in Adesh Kumar v. UOI and Ors. W.P. (C) 3542/ 2014 dated 16.12.2014 had held as under:
“10. A bare perusal of the order passed by the FAA also indicates that the aspect as to how the disclosure of information would impede prosecution has not been considered. Merely, citing that the information is exempted under Section 8(1)(h) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; of the Act would not absolve the public authority from discharging its onus as required to claim such exemption. Thus, neither the FAA nor the CIC has questioned the Public Authority as to how the disclosure of information would impede the prosecution.”
The Commission also observed that as per Section 7 (8) (i) of the RTI Act, 2005, where a request for information is rejected, the CPIO shall communicate to the person making the request the reasons for such rejection. Also, as per Section 19 (5) of the RTI Act, 2005, in an appeal proceeding, the onus to prove that denial of a request was justified shall be on the CPIO who denied the request. The Respondents were not present to contest the submission of the Appellant or to substantiate their claims further.
DECISION:
Keeping in view the facts of the case and the submissions made by both the parties, the Commission directs the Respondent to provide the information on points 01 and 08 of the RTI application within a period of 15 days from the date of receipt of this order.
The Commission also instructs the Respondent 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 with the above direction.
(Bimal Julka)
Information Commissioner
Citation: Shri Harinder Dhingra v. Office of the Commissioner of Customs, IGI Airport in Appeal No.:-CIC/CCPDL/A/2017/142249-BJ, Date of Decision: 17.08.2017