By Enabling Information Blockade on Lokpal Appointment, CIC Has Violated the RTI Act

The department of personnel and training (DoPT), which has information on the selection of the Lokpal committee, has recently denied information on frivolous grounds to an RTI applicant. The CIC did not question, but upheld the move.

Upholding the denial of the minutes concerning the appointment of Lokpal under the Right to Information (RTI) Act recently, the Central Information Commission (CIC) has developed an unusual concept of lack of ‘authorship’ of minutes file. The question is: who is the author of the minutes regarding the selection process of the prime minister-led committee appointing the chairman and members of Lokpal?

During the early years of the 2010 decade, the civil society agitated for a high-level independent body that can even sanction the probe into the allegations of corruption against the judiciary and top political executives with necessary authority. The then opposition Bharatiya Janata Party (BJP) was fighting against the Congress regime for an institution – Lokpal. Their agitation resulted in great success leading to the legislation for Lokpal in 2013. The Congress government sought applications for the Lokpal but could not complete the process as it lost power in elections in 2014.

The BJP-led National Democratic Alliance (NDA) government was somehow not willing to constitute the Lokpal for a long time necessitating a public interest litigation (PIL) battle. Though the Supreme Court directed the Centre to act soon, the process was not completed. Only when a contempt petition was pressed, the Selection Committee led by the Prime Minister met. The other members of this high power committee were speaker of the house of the people, the leader of opposition in the Lok Sabha, the chief justice of India (CJI), or a judge of the Supreme Court nominated by CJI and an eminent jurist, as recommended by the chairperson and other members and appointed the chairman and members of Lokpal in 2019.

Also read: CIC Refuses to Disclose Lokpal Selection Committee Meeting Minutes Under RTI Act

Generally, any details of the process of selection to high public office should be known to the public. But the central public information officer (CPIO) of the department of personnel and training (DoPT) has denied the minutes of the selection process of Lokpal on the very funny ground that DoPT was not the ‘author’ of that file.

RTI activist Anjali Bharadwaj asked in November 2018 DoPT for the copy of records relating to the process of selection of the chairperson and members of the Lokpal.

The DoPT invented a new restriction beyond Section 8 and 9 of the RTI Act saying that their department was not the author of the file, including the minutes of the high-level meeting led by the prime minister being sought, hence it could not be given.

Central Information Commission.

The DoPT claims that the authorship of such documents of three to five high-level dignitaries does not vest with it and that the same has been shared as a ‘secret document’.

This raises a fundamental question – who is the author of a file in public authority? Who should be considered the creator and writer of the file of a selection committee consisting of details of applicants, their verification, interviews if any, and details of the selection process?

No copyright is generated on such documents and files. It is neither poetry nor a story. Government posts are notified, applications are invited and submitted. Then selection committee conducts the process based on the norms. It is not possible for someone to be the author or owner of such a file. Any file is built on some application and ends with a decision. Everyone who adds a comment is a contributor. The authorship is irrelevant for RTI Act, and nowhere it is mentioned as a requirement to be examined by CPIO or any other authority.

Also read:The Right to Information Is Dead. Here Is its Obituary.

The preamble of the RTI Act says it is meant to provide for setting out the practical regime of Right to Information for citizens to secure access to information under the control of public authorities.  Definition of ‘information’ under Section 2(f) refers to ‘holding’ and not owning the information:

“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.”

The definition of ‘Right to Information’ gives a total clarification, saying:

“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….”

The RTI Act requires the public authority to share the file if it holds or controls such a file. It does not talk about ‘owning’ it.

The RTI Act has not given any power to examine the authorship of ‘file’ and deny it to applicants on that ground. Any RTI request cannot be rejected except according to provisions of Section 8 and 9. The CIC has agreed with this baseless and illegal conclusion of CPIO and refused to consider the illegality of this contention.

The CIC’s agreement with the baseless understanding of CPIO was a shock to RTI users as it laid down a new precedent of rejecting the appeal though no exception is attracted. The order of CIC has no legal value of precedence. But the CPIOs get emboldened to deny minutes of all appointments quoting this illegal conclusion of the CIC.

The prime minister’s office (PMO) and DoPT had dealt with the appointment process of Lokpal and thus they hold the files and materials about the selection. The files with details of the selection of Lokpal are not the property of selected Lokpal nor his office, nor the PMO own them. They either hold or control them. Hence, they have no reason to deny them to the applicant.

It is assumed that the people ‘own’ the entire information of governance activity which runs with tax-payers’ money. Being the sovereigns of the democratic republic, people have a right to know and public servants have a duty to report to these Sovereign rulers.

Sealed cover secrecy 

Though PMO did not classify it as secrecy, the CPIO of DoPT says that “the confidentiality can be gauged by the fact that the averred minutes of the Selection Committee were received in a sealed cover by the DoPT and that it had been presented before the Supreme Court too in a sealed cover”.

The CIC has agreed with this argument and did not explain who and why the minutes were categorised as ‘secret’ and on what grounds, and under what legal authority?  Is it ‘secret’ under Official Secrets Act?

One can understand a subordinate employee of high office refusing in such an irrational manner. The CIC should have rejected this contention. Can CIC accept this as a new concept that sealing the cover itself should be presumed as ‘secrecy’?

RTI Act. Illustration: The Wire/Public domain images

The Official Secrets Act has rhyme, reason, method, and procedure for classifying a document as secret. If this logic of the CPIO is accepted, then every postal card and courier which comes in sealed covers should never be opened!

If the CPIO – either because of lack of training or non-application of mind – thinks about the information it received only on one ground that it was given in a sealed cover, why should CIC assume that anything given in sealed cover is ‘top secret’. It is a clear misuse of Section 11 of the RTI Act, the third-party provision as ‘exception’ though there are several judicial pronouncements that information could be denied only under Sections 8 and 9 of the RTI Act.

Also read: It’s Been 15 Years Since RTI Act Was Passed, But Is it Really Working?

This order also exposed the ill-perceived notions of CPIO of DoPT that consent of third party is needed. If the CPIO thinks that the minutes of Lokpal are third-party information of the PMO or Lokpal, he should have consulted them as per Section 11.

It is pathetic that CPIO and the first appellate authority of DoPT think that because the third party is a ‘higher level” committee, the information should be totally ‘secret’. The CIC should have bothered to ask CPIO why did he not pursue the process of consulting third party. It is a tragedy that transparency has taken a beating by all ranks of the authorities under the RTI Act. If CPIO is a subordinate officer in public authority, the CIC at least was expected to act as an independent authority.

When cabinet decisions are disclosable along with entire material after decision was taken, how can any other body be considered as ‘high level authority’? How the ‘level’ of authority prevents the ‘disclosability’? The CIC should have questioned the public authority on these aspects or should have formed a basis for directing the DoPT/PMO to release the minutes regarding the appointment of Lokpal.

Yet another wonderful idea of CPIO of DoPT floated was that minutes of a decision-making committee ‘is holding it is fiduciary in nature’ and hence should be denied. The CIC did not find it unreasonable and did not give any reason. Even the Collegium of Supreme Court is disclosing the information about recommendations and appointment of judges.

The CPIO of DOPT has breached its own two office memoranda. The nodal agency for implementation of RTI Act all over the nation, DoPT issued an Office Memorandum No, 1/34/2013/IR on June 29, 2015 mandating disclosure of information relating to recruitment, promotion and transfer should be brought into public domain promptly. But DoPT did not follow its own mandate by making a suo motu disclosure of details of recruitment of Lokpal, and its CPIO thinks the information about recruitment of Lokpal and others should not be disclosed even in response to an RTI application.

Guidelines on suo motu disclosure under Section 4 of the RTI Act issued under another Office Memorandum dated April 15, 2013 says:

“It is obligatory under Section 4(1)(b)(xiv) of the RTI Act for every Public Authority to proactively disclose ‘details in respect of the information, available to or held by it, reduced in an electronic form.”

Though the file of selection of Lokpal is held by it, the DoPT says it did not ‘author’ it and made it a reason for denial of the disclosure. The CIC allows the nodal agency to defy RTI Act, its own Office Memoranda and puts its seal of approval for secrecy of minutes of anti-corruption body without any application of law and mind.

The CIC should have issued should have initiated penalty proceedings against the CPIO of the DoPT, for breaching the RTI Act, their own Office Memoranda and the RTI jurisprudence.

M. Sridhar Acharyulu is a former central information commissioner and dean, School of Law, Bennett University.