RTI Judgement Series: Onus to prove denial of request is on the PIO
Moneylife Digital Team 16 August 2013

While rejecting the exemptions by the PIO of CBI, the CIC directed him to provide complete information about investigation report on HUDCO's investment of Rs1,300 crore in various bodies. This is 156th in a series of important judgements given by former Central Information Commissioner Shailesh Gandhi that can be used or quoted in an RTI application

The Central Information Commission (CIC), while allowing an appeal, directed the Public Information Officer (PIO) and Superintendent of Police (SP) of Central Bureau of Investigation (CBI) to provide complete information as available on records about final investigation report into investment of Rs1,300 crore by Housing and Urban Development Corp Ltd (HUDCO).  

 

While giving this judgement on 6 May 2011, Shailesh Gandhi, the then Central Information Commissioner said, “From the situation described by the appellant, it appears that Central Vigilance Commission (CVC) found clear evidence showing bribes having been taken. However, now the CBI and the Ministry have come to the conclusion that there was no wrongdoing. If corruption is to be curtailed and the Government and its instrumentalities are to be held accountable to the governed, citizens need to get information of this nature. This will ensure that they will act as monitor and check on the government.”

 

Noida resident AN Gupta, on 23 August 2010, sought from the PIO information about final investigation report of the CBI in investment by HUDCO in various institutions totalling to Rs1,300 crore . Here is the information he sought under the RTI Act...

 

i) Copies of the complete final investigation reports of the investigating officers and law officers in case of investment of:

a. Rs500 crore, Rs200 crore and Rs250 crore (aggregating Rs950 crore in Bonds of West Bengal Infrastructure Development Finance Corporation Ltd)

          b. Rs200 crore in Himachal Pradesh Infrastructure Development Board         and

          c. Rs150 crore in Vidharbha Irrigation Development Corporation.

ii) Photocopies of all the note sheets on which Investigation Reports in respect of West Bengal Infrastructure Development Finance Corporation Ltd, Himachal Pradesh Infrastructure Development Board and Vidharbha Irrigation Development Corporation were processed and finally approved/ rejected by the Competent Authority.

 

Here it the reply provided by the PIO...

 

"In this regard it is intimated that PE-1 (A)/2007/ACU-VI (relating to investment by HUDCO in West Bengal Infrastructure Development Finance Corporation (WBIDFC) Bonds), PE-2(A)/2007/ACU-VI (relating to investment by HUDGO in Vidarbha Irrigation Development Corporation (VIDC) and PE-3(A)/2007/ACU-Vl (relating to investment by HUDCO in Himachal Pradesh Infrastructure Development Board (HPIDB) Bonds were registered by CBI, ACU-VI Branch. But the said PEs were closed after conclusion of the enquiry as per the orders of Competent Authority.

2. Copies of enquiry report in PE-1(A)/2007/ACU-Vl and PE-3(A)/2007 containing pages 8 and 3 can be provided on deposit of the prescribed photocopying charge @ Rs2 per page.

3. Copies of the enquiry report/SP's Report in PE 2 (A)/2007-ACU-VI cannot be provided as the SP's Report is a privileged and confidential document, which cannot be disclosed either fully or in part. Moreover, SP's Report is submitted by the CBI to the department in fiduciary capacity, therefore exemption is claimed under sec 8 (1) (e) of RTI Act, Further, disclosure of the report even before a final decision by the competent authority would be inconsequential and the disciplinary/appointing authority to chooses to disagree in such case besides being against the norms of equity would cause irretrievable injury to the officer/persons (who would have been the subject of investigation) standing and reputation. Disclosure of an investigation/ enquiry report even before its acceptance/ rejection by a given competent authority will expose that authority to competing pressure which may hamper and compromise objectivity of decision making. Thus, the SPs Report is a privileged and confidential document being exempted under Section 8 (1) (e) of RTI Act which cannot be disclosed either fully or in part. Reliance is also placed on the decision of CIC in Appeal No. CIC/AT/2008/01238 dated 19.09.2008 (Date of decision 07.06.2010).

4. As far as providing photocopies of note sheet, it is to intimate that this is a document which contains comments of all officers of CBI and carries out the day to day investigation and the gist of the investigation recorded in the case diaries in order to prepare the decision of prosecution/ departmental action. Since the involvement of number of officers is discussed based on the day to day investigation recorded in the case diaries therefore, this document is held in confidence by the CBI. Thus exemption is sought u/s 8 (1) (g) of the RTI Act, 2005. Reliance is also placed on the decision of CIC passed in Appeal No.CIC/WB/2009/000503 dated 22 April 2009. (Date of Decision 27 July 2010)."

 

Citing information not provided, Gupta, the applicant, filed his first appeal. In his order, the First Appellate Authority (FAA) said the information was provided (by the PIO) on 29 September 2010, however, (the PIO) can again send the information.

 

Gupta then approached the CIC with his second appeal. In the appeal, he stated...

 

"a) The CPIO arbitrarily declined the disclosure of requested information.

b) The petition before the appellate authority has not been adjudicated upon.

The CPIO, CBI vide letter No163/87/RTI/CBI/AC-II/2010 dated 2 September 2010 (Annexure-V) had agreed to provide the enquiry reports in case of PE-1/2007/ACU-V1 and PE-3(A)/2007, i.e. investment by HUDCO in WBIDFC' and HPIDB respectively. However, vide his letter No5777/87/RTI/C8I/AC-II/20 10 dated 26 October 2010 (Annexure-VI), the CPIO, instead of providing the enquiry reports as sought for by the undersigned at i (a) (b) & (c) above, has simply provided self-contained notes, in respect of PE-1 and PE-3 only and not the enquiry reports, as mentioned by him."

 

During the hearing, the PIO provided written submissions claiming that the disclosure of information sought by the appellant would endanger the life or physical safety of certain persons and hence was exempted under Section 8(1)(g) of the RTI Act. The PIO had, in his original denial of information, claimed the exemptions under Sections 8(1)(e) and 8(1)(g) of the RTI Act, Mr Gandhi, the then CIC noted.

 

The PIO had stated that the SP's report was a privileged and confidential document and hence exempted from disclosure under Section 8(1)(e) of the RTI Act. He also stated that information about the investigation of CBI should not be revealed to people until a final decision was taken by the competent authority. The PIO stated that all the inquiries were made in 2007 and inadequate evidence had been found to proceed with the matter. 

 

Gupta, the appellant, told the Bench that he was seeking information about investment in various institutions totalling to Rs1,300 crore. He said, the CVC in its report on 27 March 2006 concluded that "in the four cases mentioned above there is adequate evidence to show that Commission's (by whatever name called) were made by borrowing agencies to various private firms for mobilizing funds from HUDCO……….Thus, in all these cases undue favours were caused to the private firms. It is also strongly suspected that part of these commissions may have been passed on to the officials of HUDCO."

 

He further stated that in all these cases the CBI had filed the closure report and sent it to the departments, which have in turn filed the closure report before the Supreme Court, asking for closure of the case. Ministry of Housing and Urban Development has filed an affidavit in the Supreme Court stating that based on the CBI closure reports, all cases have been closed, Gupta informed the Bench.

 

Mr Gandhi noted that the PIO denied information claiming exemption under Section-8(1)(e) & (g) of the RTI Act. When an exemption is claimed under Section-8(1), it is necessary that a public authority should be able to clearly justify its claim showing harm to a protected interest. The SP's report has been claimed to be protected by Section 8(1)(e) of the RTI Act.

 

Section 8(1)(e) of the RTI Act exempts, "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."  

 

"All relationships usually have an element of trust, but all of them cannot be classified as fiduciary. Information provided in discharge of a statutory requirement, or to obtain a job, or to get a license, cannot be considered to have been given in a fiduciary relationship. In the instant case the SP's report is provided to the department in discharge of official duties and this certainly cannot qualify for information provided in the fiduciary capacity," the Bench said.

 

The PIO also claimed exemption under Section 8(1)(g) which exempts, "information, the disclosure of which would endanger the life or physical safety of any person or identify the source of information or assistance given in confidence for law enforcement or security purposes."

 

Mr Gandhi said, "The nature of investigations is about alleged bribery and no specific argument has been claimed as to who may face physical harm or threat to their lives on disclosure of such information. Mere fears without any justification cannot be a ground for denying the citizens' fundamental right."

 

In addition, the PIO did not raise any argument to the effect that disclosure of the information sought to identify the source of information or assistance given in confidence for law enforcement or security purposes, as provided under Section 8(1)(g) of the RTI Act. Moreover, when the Bench asked him whether he would like to severe the names of any individual before furnishing the information sought, the PIO replied saying that he did not think it would serve any purpose.

 

Mr Gandhi said, "Section 19(5) of the RTI Act clearly places the onus to prove the denial of request is justified on the PIO and the Commission does not feel any clear justification has been given. The Bench does not uphold the contention of the PIO that the information sought is exempted under Section-8(1)(e) and (g) of the RTI Act."

 

While allowing the appeal, the CIC directed the PIO to provide complete information as available on records to Gupta before 30 May 2011.

 

CENTRAL INFORMATION COMMISSION

 

Decision No. CIC/SM/A/2011/000294/SG/12297

https://ciconline.nic.in/cic_decisions/CIC_SM_A_2011_000294_SG_12297_M_56108.pdf

Appeal No. CIC/SM/A/2011/000294/SG

 

Appellant                                         : AN Gupta,

                                                                  NOIDA

                                                            

Respondent                                    : Pradip Kumar,

                                                            Superintendent of Police & CPIO

                                                            Central Bureau of Investigation (HQ)

                                                            Anti Corruption Cell- II, 8th Floor,

                                                            Lodhi Road, CGO Complex,

                                                            NEW DELHI

Comments
nagesh kini
8 years ago
It is noticed that more and more authorities seem to take "Fiduciary capacity" to wriggle out and fob off the RTI query.
This CIC verdict goes a long way in laying down what it really means in no uncertain terms and will help numerous cases. Thanks Shaileshbhai for your landmark enlightening verdict.
nagesh kini
8 years ago
It is noticed that more and more authorities seem to take "Fiduciary capacity" to wriggle out and fob off the RTI query.
This CIC verdict goes a long way in laying down what it really means in no uncertain terms and will help numerous cases. Thanks Shaileshbhai for your landmark enlightening verdict.
Free Helpline
Legal Credit
Feedback