Records missing or not traceable not a valid excuse for denial of information under RTI
Under section 6(1) of RTI Act 2005, any Indian citizen can seek information from any Public Authority defined under Section 2(h) of RTI Act 2005, where the onus of giving information is with PIO (Public Information Officer), defined in Section 5 of RTI Act 2005. But there are numerous occasions when the unwilling PIOs have blatantly claimed to CIC (Central Information Commission) that Information is lost or not traceable or readily not traceable or currently not traceable or not held.
Even though there is no such exemption available under section 8 or 9 of the RTI Act, 2005, many PIOs have been frequently using such excuses to deny information. Use of such excuses in large scale takes away the soul of RTI Act, which is to preserve the paramountcy of democratic principles in the country while striking balance with other public interests such as efficient operation of the Government. Where the efficient operation of the government is only possible if the day today records are maintained properly in a defined way. But our practices are standing far away from claimed, if not buried, principles shaping the law, leaving the perplexed information seeker with one more query, WHAT IS THE WAY OUT ? Thus, I am going to produce relevant clauses or paras of various acts and orders that will answer this question. This article will provide various legal positions that shows that Records missing or not traceable not a valid excuse for denial of information under RTI.
Legal positions that support “Records missing or not traceable not a valid excuse for denial of information under RTI”:
Public Record Act, 1993 makes a way for information seeker and comes for bolstering RTI Act, 2005. Public Record Act defines the ground rules for maintaining the government documents and responsibilities for executing such work is defined in the Public Record Act 1993. Some the useful sections of Public Record Act are:
Sec 5(1) every records creating agency shall nominate one of its officers as records officer to discharge the functions under this Act.
Sec 6(1) the record officer shall be responsible for –
- Proper arrangement, maintenance and preservation of public records under his charge;
- Periodical review of all public records and weeding out public records of ephemeral value;
- Appraisal of public records which are more than twenty-five years old in consultation with the National Archives of India or, as the case may be, the Archives of the Union territory with a view to retaining public records of permanent value;
- Destruction of public records in such manner and subject to such conditions as may be prescribed under subsection (1) of section 8;
- Adoption of such standards, procedures and techniques as may be recommended from time to time by the National Archives of India for improvement of record management system and maintenance of security of public records;
- Compilation of annual indices of public records;
- Compilation of organizational history and annual supplement thereto;
- Submission of annual report to the Director General or, as the case may be head of the Archives in such manner as may be prescribed
- Transferring of records of any defunct body to the National Archives of India or the Archives of the Union Territory, as the case may be, for preservation.
Sec 7(1) the records officer shall, in the event of any unauthorized removal, destruction, defacement or alteration of any public records under his charge, forthwith take appropriate action for the recovery or restoration of such public records.
Sec 9. Whoever contravenes any of the provisions of section 4 or section 8 shall be punishable with imprisonment for a term which may extend to five years or with fine which may extend to ten thousand rupees or with both. The public records act and rules ban government departments from destroying documents that are more than 25 years old, unless they have been “appraised”.
There are few similarities between RTI Act and Public Record Act, such as the definition of “Public Records” under section 2(e) of Public Record Act, 1993 is almost identical with the definition of “Records” under section 2(i) of RTI Act 2005 and just like Public Information officer being responsible for giving the records, Public Record Officer is responsible for keeping and safeguarding the record.
Thus, these two acts can be combined and leveraged for information gathering as officials can be held accountable under Public Record Act for not maintaining the records which can lead to investigation and punishment under section 9 of Public Record Act.
Also, if the records lost are considered as evidence in a case, then missing of the record would be serious crime of destroying the evidence and invites criminal complaint against those officials under sections 201 of IPC, punishable with imprisonment from 7 to 10 years or life which is directly proportional to seriousness of the offence charged. With all these weapons in our arsenal, Can we make CIC to act against an unwilling PIO? Perhaps YES.
The above clauses supports that records missing or not traceable not a valid excuse for denial of information.
In the matter of Union Of India vs. Vishwas Bhamburkar [2013(297)ELT500(Del.)], Hon’ble Delhi High Court has dealt with issue of record being not traceable, which can be summarized as follows:
1. The RTI act should be interpreted in such a way that it leads to maximum dissemination of information,
2. It’s duty of Public Authority:
- to designate an officer as Record Officer and protect the record,
- to inquire to find out the responsible person and hold accountable under Public Record Act,
- to reconstruct the alternative file,
- to relief the person affected by the loss of the basic actions the Public Authority is legitimately expected to perform.
3. Even in case where PIO/CPIO takes a plea that information was never available, but commission on the basis of the material available believes that said information was in fact available with the Government can inquire into the matter by themselves or direct an inquiry by a responsible person Public Authority.
The above decision supports that records missing or not traceable not a valid excuse for denial of information under RTI.
Hon’ble Central Information Commissioner Prof. M. Sridhar Acharyulu, while hearing the appeal registered under File No. CIC/DS/A/2013/001788SA, quoted IPC 201, and Public Record Act, 1993 along with RTI Act. The case is a classic example of development related displacement and pathetic condition of rehabilitation measures in our country, where the appellant is seeking the information related to alternate plot assigned to him against the land acquired by government. In this case, while passing the order, CIC:
- asked PIO to give an affidavit regarding the time and date of efforts made to trace the file,
- asked PIO to show cause, why maximum penalty should not be levied on him,
- asked Public Authority to consider issue seriously and find out the responsible person under Public Records Act 1993,
- directed Public Authority to provide relief to the appellant who is seeking information about his right to get alternative plot.
The above order of CIC also supports that records missing or not traceable not a valid excuse for denial of information under RTI.
Thus, if next time PIO says information is lost, then gather information which prima facie proves information was expected to be maintained, then ask CIC to take action based on above facts. The legal positions produced above clearly supports that records missing or not traceable not a valid excuse for denial of information under RTI.
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