*TATTWASOOCHNA SABHA*
(A Body of Individual Citizens of India concerned with Right to Information)
_____________________________________________________
Add: MIWA Bhawan, Central Park, B-Block, Mayapuri Ph.1 New Delhi -28
Email : [EMAIL PROTECTED]
To:
The Chief Information Commission of India,
through Secretary to Commission,
2nd Floor, August Kranti Bhawan, Bhikaji Cama Place
New Delhi
BY EMAIL / BY HAND
Sir,
In the matter of:
K.K.Kishore
Appellant
v/s
Institute of Company Secretaries (Respondent)
case no: CIC/MA/A/2008/01085
AND in the matter of
The public notice of Hon'ble Commission on 27 October, 2008 seeking people's
views on a matter relating to the issue of further fee payable under the
Right to Information Act (RTI Act/principal Act).
WRITTEN SUBMISSIONS on behalf of members of Tattwasoochna Sabha in the above
matter, through Shri Sarbajit Roy.
Most Humbly Sheweth,
FACTS:
1) That the Tattwasoochna Sabha ("Sabha") is a national level body of
individual citizens of India consisting of persons concerned with public
issues arising as a consequence of decisions of the Central Information
Commission of India. ("CIC") Membership of the Sabha is open to individuals
who have filed at least 100 RTI requests or have at least one decided matter
at the Central Information Commission.
2) That the above cited public notice of the Hon'ble Commission in the above
cited matter was brought to the notice of the Executive Committee and tabled
at the Special Body meeting of Sabha held on 12-Nov-2008 at Delhi. On
perusing the text of the said public notice which stated as follows:-
"WHEREAS, in the aforesaid appeal case [Shri K K Kishore v Institute of
Company Secretaries of India (CIC/MA/A/2008/01085)], an important question
has arisen as regards the ambit and scope of Section 7(3) of the Right to
Information Act, 2005 which deals with charging of further fee to be
determined by the CPIO;
2. AND WHEREAS, it has been decided that a Full Bench of the Commission
shall hear the aforesaid case involving the above issue.
3. NOTICE is, therefore, given to the general public and to the interested
organizations that they may, if they so desire, file written submissions so
as to reach the Commission by 2nd December, 2008
4. The Commission is likely to hear the matter in the second week of
December, 2008.""
it was unanimously resolved by all members present to authorize Shri
Sarbajit Roy and/or Shri O.P.Kapoor to take all necessary steps to present
the views of Sabha in this matter on behalf of the Sabha before the Hon'ble
Commission and in the "larger public interest" of RTI Act users generally.
3) That , however, in the meantime a hearing was scheduled held before
Hon'ble IC Shri A.N.Tiwari on 2-Dec-2008 at 4:15 PM in matter of a member of
Tattwasoochana Sabha ie. Sh. Muzib-Ur-Rehman on the identical question of
tenability of further fees u/s 7(3)(a) of the RTI Act, pursuant to a
complaint lodged by him under section18 of the RTI Act on or about
15.Jan.2008. An interim order had been previously passed in the matter
sometime in May 2008 by Hon'ble Commission without affording opportunity of
hearing to Sh Rehman remanding matter to First Appellate for an opinion.
However, a copy of first Appellate's consequent orders was mischievously not
conveyed to Sh Rehman, thereby necessitating a cessation of proceedings on
02/12/2008. It was further agitated in the course of the said hearing by
parties (Sh Rehman was present and assisted by Sh Sarbajit Roy) that this
matter could also be better presented /considered before full bench to be
constituted for this important question hence also these submissions.
4) That, immediatedly pursuant to this hearing, Shri Sarbajit Roy emailed
the Hon'ble Commission, by its Secretary, on 02/12/2008 requesting for
formal impleadment in the present matter listing all other necessary parties
and also requesting to be served a copy of the hearing notice.
5) That from the public notice dt 27/10/2008and also from the order
dt08/09/2008 in CIC/MA/A/2008/01085, it is not clear what exactly is meant
by "ambit and scope of Section 7(3) of the Right to Information Act, 2005
which deals with charging of further fee to be determined by the CPIO;" The
actual grievance of Shri K.K. Kishore appears to be that he is being asked
to pay huge sum of money by way of unprescribed charges by the public
authority to be provided information readily available with the concerned
public authority. The grounds for Mr Kishore's challenge are not in public
domain. It is noteworthy that the impugned order of 08/09/2008 now under
larger consideration does not refer to 7(3) specifically, rendering us
unable to submit on this issue meaningfully or completely at the present
time.
6) That accordingly, and on behalf of Sabha in representative capacity, I
Shri Sarbajit Roy, Indian Citizen, r/o B-59 Defence Colony New Delhi 110024,
submit briefly at outset as follows:-
That the term "further fee representing the cost" referred to in sub-section
7(3) of the RTI Act represents nothing but a fee further to the application
fee of section 6(1) already deposited by the RTI applicant and by the
comprehensive scheme of the RTI Act must necessarily represent only the
actual cost of copying or creating the requested information to be disclosed
by PIO, and inter-alia necessarily to be prescribed by Fee and Cost Rules
under the RTI Act 2005 and not by any other previous Act. To make it amply
clear, I further say that the so-called "ambit and scope of Section 7(3) of
the Right to Information Act, 2005 which deals with charging of further fee
to be determined by the CPIO" is a mere procedural provision for the dealing
CPIO, flowing from (and a necessary adjunct to) sub-section 7(1) r/w 5(3)
which are the operative sections of law and to be especially read with Rule
4 of the duly notified Fee and Cost Rules of 2005 notified under section 27
of the Act which limits the discretionary powers of a CPIO to compute COSTS
in envisaged situations.
I say this for the following reasons:-
A) For by sub-section 7(1) of the RTI Act, the CPIO who receives the
requested is mandated to either provide the information to applicant against
payment of the prescribed fee or reject the request by relying upon a
permissible exemption from sections 8 or 9 of the RTI Act. Certain time
periods are also specified but these are not relevant to the issue at hand.
B) For by sub-section 7(2) of the RTI Act, it is amply clarified that a
CPIO who fails to discharge his duty in time is deemed to have refused (ie.
rejected) the request. This sub-subsection is not relevant to the issue at
hand.
C) For by sub-section 7(3) the impugned clause, the rigorous procedural
obligation on CPIO to discharge his statutory duty of subsection 7(1) is
specified completely. The first portion of the said section reads as
follows:-
"Where a decision is taken to provide the information on payment of any
further fee representing the cost of providing the information, the Central
Public Information Officer or State Public Information Officer, as the case
may be, shall send an intimation to the person making the request, giving"
The essential concepts flowing from this portion of the entire clause
are as follows:-
a) That the sole purpose / object of this clause 7(3) is to compulsorily
ensure that an "intimation" is sent to the applicant for the situation that
it is decided to release some or all of the information requested for.. As a
corollary, the onus to communicate the decision is placed on the CPIO and it
is not envisaged for the applicant to make enquiries about the progress of
his request..
b) In the phrase "Where a decision is taken to provide the information", the
term "decision" can only refer to the decision taken by the CPIO vide
sub-section 7(1) and to no other decision. The usage of the term "decision"
in this manner is further made clear from sub-sec. 5(3) of the RTI Act)
where the CPIO is obliged to "deal with the requests" which equally imposes
an obligation to act on the citizen's request by the CPIO and not to avoid
taking action on it as was hitherto the practice. Once a decision to provide
information is taken pursuant to 7(1), it next devolves upon the CPIO by
7(3) to decide the "form of access" to the permissible information. It is
pertinent that sub-section 2(j) defines some common forms of access to
information as follows:-
"2(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 the right to
(i) inspection of work, documents, records;
(ii) taking notes, extracts or certified copies of documents or
records;
(iii) taking certified samples of material;
(iv) obtaining information in the form of diskettes, floppies, tapes, video
cassettes or in any other electronic mode or through printouts where such
information is stored in a computer or in any other device;"
It is apparent from the "inclusive" nature of forms of access permissible
under the Act, that these cannot be limited or anticipated in advance
always. It is also self evident that from sub-section 7(1) that only
(implicit from wording of 7(1)) a "prescribed" fee is to be mandatorily
charged from applicants (other than BPL) for being PROVIDED the information.
It has been consistently overlooked that sub-section 7(3)(b) thereafter also
contains a procedural safeguard which permits an aggrieved applicant to seek
not only a "review" of the form of access (and its associated fees) from the
CPIO but also to appeal against the form of access and fees demanded to a
higher officer and thereafter to an Information Commission also. It thus
appears that the CPIO is not taking an administrative decision for 7(1) r/.w
7(3) but is actually initiating a quasi-judicial process for which he is
required to give reasons, details together with calculations previously by
sub-section 7(3)(a) (qua S.N.Mukherjee v. UOI in AIR 1990 SC 1984).
c) Fortunately for us, the term "prescribed" has been defined for purposes
of the Act at 2(g) where ""prescribed" means prescribed by rules made under
this Act by the appropriate Government or the competent authority, as the
case may be;" It is amply clear from this clause that the Rules are to be
prescribed "under this Act" by a Government or competent authority only. In
the case of "fees" or "fees representing cost" these fees are to be
necessarily prescribed "under this Act" and not by any other law or order
etc.
d) The above referred Rule making powers are conferred by sections 27 and 28
of the Act on the Governments and Competent Authorities respectively. We
find therein for example that the Rule making powers (in terms of a gazette
notification) are unfettered when it comes "to carrying out the provisions
of this Act.". The "generality of these powers" is further clarified by
language of sub-section 27(2) of the Act and sub-section 7(3)is not exempt
from it's scope. Undoubtedly reasonable costs to provide information such as
Regd Postal charges may be prescribed in future to provide the information
to the applicant, but this cannot be extended to "locating" or "searching
out" or "tracing out" the information already held by the public authority
as seems to be the lis in the majority of these 7(3) appeals to CIC.
e) When we examine 27(2) we find that it extends to notifying not only fees
but also costs to provide information to citizens. It is abundantly clear by
its wording that 27(2) is not a comprehensive prescription to prescribe each
and every fee or cost which may be required from applicants, for verily by
the inclusive definition of the term "information", the forms of access
cannot be limited or always anticipated. In fact we find that the Central
Government by Fee and Cost Rules of Sept 16 2005 has already provided for
Fees AND Costs for the vast majority of forms of access previously included
by 2(j) and for the particular cases of 4(4), 7(1) and 7(5). In fact we find
that the existing F&C Rules cover all the included cases for documentary
information as per 2(j).
f) Now the question has arisen (engendered by numerous decisions of a
particular Central Information Commissioner acting on his own), that
sub-section 7(3) supposedly (and on its own) allows a CPIO to determine
UNPRESCRIBED "fees representing the cost" TO THE PUBLIC AUTHORITY, such as
for locating and/or accessing the information PRIOR TO actually copying it
for PROVIDING TO the applicant. A case is sought to be made out that there
is a significant distinction between "fees" and "costs", and that whereas
"fees" being relatively anticipatable can be prescribed in Rules, "costs"
being variable / unquantifiable cannot. I say that this is specious and/or
untenable reasoning and does not consider the entire scheme of the Act. I
say that this reasoning is especially specious considering that the
concerned Information Commissioner at the centre of this controversy was the
Secretary of the concerned Ministry at the time when these F&C Rules were
framed and notified in September 2005.
g) We find for example that in 7(3) the term "further fee" is used. Now the
obvious question is "further to what"? Obviously the only fee demanded /
collected previously (or even referred to in the Act) is the application fee
of Rs.10 vide 6(1). So I say the term "further fee" refers only to a fee
further to that of 6(1) and which necessarily means the "prescribed" fee of
7(1).
h) Now the question may arise "but 7(1) refers only to fees and not to
costs". I say this is bogus since the Fee and Cost Rules actually notified
u/s 27(2) make it clear that for purposes of 7(1) the fees represent actual
costs of creating a copy that shall be "provided to" the applicant. This is
made amply clear by Rules 4(b) and 4(c) wherein the CPIO is given the
discretion to determine COSTS for non-standard "forms of access". I hence
say that the existing prescribed Rules (for section 7(1)) lawfully notified
under the RTI Act (sec.27) already confer a DISCRETIONARY power to CPIO to
determine further fees representing COSTS for purposes of sub-section 7(3)
However, that this power is not to be arbitrarily applied or be high-handed
is clear from a subsequent clause ie. 7(5) wherein it is specifically
provided "that the fee prescribed under sub-section (1) of section 6 and
sub-sections (1) and (5) of section 7 shall be reasonable and no such fee
shall be charged from the persons who are of below poverty line as may be
determined by the appropriate Government." This view is amply reflected in
the preamble to the Act which says "And whereas revelation of information in
actual practice is likely to conflict with other public interests including
efficient operations of the Governments, optimum use of limited fiscal
resources and the preservation of confidentiality of sensitive information;"
The "optimum use of limited fiscal resources" not being confined to the
instrumentalities alone but also equally to public interests of the
applicant citizens.
i) I am accordingly compelled to say that the disputed term "further fees
representing the cost of providing the information as determined by him"
refers to the fees already specified and covered in "fees representing
actual costs" of Rule 4 of the duly notified Fee and Cost Rules 2005. I
further say that these are lawfully notified Rules actually in existence
and there is no need to go searching about for hypothetical situations to
harass and victimize public spirited citizens such as our Sabha's members
like Shri Muzibur Rehman has been by SECL.
j) I shall further rely upon a double bench decision of this Hon'ble
Commission in support of my argument. Namely the order in case number
CIC/PB/A/2006/00063 d/d 19.06.2006 (ie as a consequence to CIC meetings of
07.03.2006 and 14.03.2006 where this question was internally discussed at
length and eventually decided before all the then Information
Commissioners). The ratio therein being
""BSNL wrote back to him asking him to deposit Rs.9810/- which included
Rs.9732/- for the man hours used to collect the information to be supplied.
The first Appellate Authority communicated to him that the additional fee
was justified. DECISION:
After perusing the provisions of Section 7 of
the RTI Act and the fee rules prescribed thereunder the Commission concluded
that such action of the department was only a subterfuge for avoiding
supplying the information to the applicant. ... There was no doubt in the
Commission's mind that calculating and demanding the fee from the applicant
showed an utter disregard for the letter and spirit of the Act and was
obviously a malafide attempt on the part of the CPIO, BSNL for denial of
information."
k) It is a matter of considerable concern to Sabha that a long pending
complaint of our member Shri Muzib-Ur-Rehman u/s 18(1)(d) where he has
complained of being "harassed" and "victimized" by being overcharged u/s
7(3)(a) by SECL was not taken up properly by this Commission as a Complaint
and actually ignored for a very long time to the extent that even a copy of
the Rules requested by him could not be provided to him. We are concerned
that Sh Rehman is being thus victimised for a long pending Writ Petition
filed by him in the High Court of Delhi against the high-handedness of this
Hon'ble Commission. We are equally concerned that the said Complaint was
malafidely assigned as an Appeal instead (and without any formal appeal
petition from Shri Rehman) to the very Commissioner whose string of
decisions going against the flow of consensus on this question evidenced by
CIC minutes of meeting of 07.03.2006 and 14.03.2006 was specifically
impugned by Shri Rehman in his complaint. Mr Rehman's own grievance is
identical to that of the aforesaid decision against the BSNL, namely that
SECL's PIO demanded Rs. 837 and Rs. 3,348 as manpower charges to trace out
and provide him information prescribed by Rules for mere fees of only Rs. 2
and Rs 4 respectively- comprising about 3A4/A3 pages in total. It is
pertinent that the information requested by Mr Rehman pertains to a recent
rehabilitation scheme (for under-privileged deprived and displaced persons)
of the year 2000 or so with the information being readily available to hand,
and the said manpower charges are patently perverse and preposterous. It is
thus required that this Commission cause no harm Shri Rehman or the
displacees by the present proceedings or by not considering these
submissions filed on his behalf also.
l) In conclusion I wish to refer to subsection 4(1)(a) of the RTI Act 2005.
This clause enjoins / mandates every Public Authority to maintain ALL its
records duly catalogued and indexed in a manner and form to facilitate the
right to information. Regrettably this clause which is mandated to be in
operation by 13 Oct 2005 is honoured more by its breach than by its
observance. A recent series RTI requests to leading public authorities in
Delhi by our Sabha member Shri Ravinder Balwani, and including to this
Hon'ble Commission's CPIO, has revealed that despite the passage of 3 years
of the Act being in force, the prerequisite catalogs and indexes to access
information are not in place at even a single Public Authority applied to
and including this Commission and of these Public Authority's, half
evidently deny that any such binding clause as 4(1)(a) exists at all. In the
circumstances, the so-called "further fee of 7(3)(a) representing the cost
of providing information as determined by CPIO " is nothing but a malafide
device devised to deny information to public spirited citizens (who
incidentally are routinely characterized as "trouble makers" by the errant
PIO of non-transparent and manifestly corrupt public authorities) to cover
up the fact that the Public Authorities have failed to maintain their
records properly as enjoined by the Act. To turn this failure on its head so
as to unreasonably deny information indirectly to applicant public spirited
citizens is a gross abuse of the Act and demands the strongest possible
strictures against the errant PIOs and Public Authorities who are being
coached in this reprehensible strategy from within this Hon'ble Commission
(as may be clearly seen from orders / decisions which I crave leave to refer
to at time of oral arguments).
Accordingly and considering the above averments, I PRAY as follows:-
1) That these brief submissions, somewhat hastily drafted consequent to
hearing of 02/12/2008, be formally taken on record at time of arguments, A
copy is being filed in advance to the Registry.
2) That I be impleaded as respondent in my own personal capacity, and also
separately on behalf of Tattwasoochna Sabha and its members referred herein
who particularly wish to be heard individually in person or by
representation.
3) That I may be allowed to be heard on a few of these important submissions
especially in the context of the submissions of other parties /
intervenors.
4) That this Hon'ble Commission upholds its numerous previous decisions
which have consistently held that "charging of further fee to be determined
by the CPIO"" vide section 7(3)(a) is not independent of the "letter and
spirit" and scheme of the entire Act, and that "further fees" under
challenge are only those prescribed by gazetted Rules for purposes of 7(1)
or 7(5), and that no unprescribed or unregulated fees or costs may be
demanded from applicants.
5) Any other reliefs as may arise or be deemed necessary by Hon'ble
Commission.
Most humbly,
(Sarbajit Roy)
B-59 Defence Colony,
New Delhi 110024
Tel : 011-2433-4262
And on behalf of the general body of
"Tattwasoochna Sabha"
MIWA Bhawan, Central Park
B-Block, Mayapuri Indl AreaPh-1
New Delhi 110064
[Non-text portions of this message have been removed]
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