Divya Prakash Sinha DECISION
Divya Prakash Sinha, Information Commissioner
Information sought:
1. The Complainant sought information regarding under construction officer's mess, accommodation in Coastal Regulatory Zone in terms of copy of the NOC obtained from KCZMA, copy of Form-I of Annexure IV (CRZ) filled by LMA and submitted to KCZMA and site plan submitted to KCZMA.
Grounds for the Complaint:
2. The CPIO caused him harassment upon filing the RTI Application under reference and that no information has been received by him till date.
Relevant Facts emerging during Hearing on 27.06.2017:
The following were present:-
Complainant: Present through VC.
Respondent: Lt. Col. T. Srinivasrulu, Company Commander & CPIO, Station Headquarter, Kannur present through VC.
3. Complainant stated that he has not received the information till date and reiterated the grounds of his Complaint, wherein he has stated that Col. Purushothaman of the Respondent office harassed him and his family, by sending a police complaint against him on the grounds of suspecting him as a spy. He also enclosed a copy of this Police Complaint along with his Complaint. The Police Complaint is dated 27.06.2016, lodged at City Police Station, Kannur, signed in the name of SSO, Station Cell, C/o DSC Centre, Pin- 901277, C/o 56 APO.
4. The crux of the police complaint is that, Complainant has been seeking various information related to 'infrastructure development, employment of personnel, name and appointment of Commanders, location of various establishments in Kannur Cantonment through RTI and other sources'. It was also recommended that activities of the Complainant be suspected, his movements be tracked and action be initiated against him by registering a FIR and asked to employ various state agencies for this purpose.
5. During the hearing, CPIO present i.e., Lt. Col. T. Srinivasrulu was asked to explain as to why no information has been provided on the RTI Application and his comments on the allegations of the Complainant.
6. CPIO submitted that no reply could be provided as the case took a 'different turn', when it came to their notice that the Complainant on 02.06.2016 filed a RTI Application with the District Collector, wherein he enclosed an annotated Google map of the Cantonment Area, which is seen as a threat to national security as the same may fall into the hands of anti-national elements.
7. It is pertinent to note that this particular issue finds mention in the above referred police complaint also.
8. At this stage, Commission inquired as to who was the then CPIO, i.e at the time of filing of the RTI Application, to which, Lt. Col. T. Srinivasrulu stated that he himself was the CPIO. At this instance, question arose as to who filed the Police Complaint, and it was brought on record that Col. Purushotaman filed the same in the capacity of being the Station Staff Officer. Commission further inquired as to what was the interest of Col. Purushotaman in the matter since he was not even the CPIO, to this, Lt. Col. T. Srinivasrulu informed that Col. Purushotaman is the custodian of information of Station HQ.
OBSERVATIONS:
9. In the facts of the case, Commission deems it appropriate to direct an inquiry into the matter in as much as, filing a police complaint primarily citing suspicion upon accessing information under RTI Act appears far too stretched. In this particular case, the police complaint has been clearly filed subsequent to the filing of the RTI Application under reference. Even if the police complaint was filed following any stipulated protocol, the CPIO or the custodian of information had no right to deny the information to the Complainant unless they could exempt the same under any of the provisions of Section 8 and/or 9 of the RTI Act. The conduct of the CPIO amounts to deemed refusal to provide information on the RTI Application under reference.
10. Regard shall be had of Section 22 of the RTI Act which provides that:
"....The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act."
11. The implication of this Section has to be read into the present matter, wherein, even if protocol of any other nature subsisted, it was the statutory duty of the CPIO to respond on the RTI Application by either providing the information or denying it under appropriate exemption clause of the RTI Act.
12. Mere suspicion of a RTI Applicant being a spy does not in any way justify the deemed refusal of the CPIO to provide information on the RTI Application. It will not be out of place to say that in the given circumstances, the conduct of the CPIO and Col. Purushotaman appears to be nothing short of causing harassment to a citizen who chose to file RTI Applications.
Interim Decision on 05.07.2017
13. In view of the foregoing, a copy of this order is marked to the GOC-in-C, Karnataka & Kerala Sub-Area, Cubbon Road, Bangalore- 56000 with a direction to conduct an inquiry either by himself or through a designated officer into the matter. Copy of the Complaint alongwith its annexure is enclosed herewith.
14. The inquiry report should inter-alia reflect on the following points:
1) Is the Station Staff Officer competent to file a police complaint based on RTI Application of the Complainant? Since a RTI Application is a matter between the applicant and the CPIO under the RTI Act, the role of Station Staff Officer being a custodian of information in filing a police complaint should be enquired into. In doing so, an explanation from the concerned Station Staff Officer who in this case is said to be Col. Purushotaman, shall be sought after serving a copy of this order to him.
2) Rules regulation(s), if any, which empowers a Station Staff Officer to interfere in the matters of RTI Act.
3) Was any instruction given to the CPIO asking him to not reply on the RTI Application under reference? If so, under what authority, as RTI Act bestows a mandatory duty upon the CPIO to respond on RTI Applications. It follows then, if any such instruction has been given, the same amounts to obstructing a statutory mandate.
15. The inquiry report should be sent to the Commission within 45 days from the date of receipt of this order along with copy of relevant supporting documents, for taking further action.
The Complaint is reserved for final order.
FINAL DECISION PROCEEDINGS
16. In furtherance of the Interim Order dated 05.07.2017, Commission received a letter dated 09.08.2017 vide which PIO, RTI Cell, HQ K & K Sub Area informed that an inquiry as directed has been convened vide their letter dated 13.07.2017 and further sought additional time period of 60 days for submission of its report due to the superannuation of Col. Purushothaman M from service and his subsequent moving out of Kannur.
17. Later, vide letter dated 06.12.2017, Commission received the inquiry report. The primary opinion of the GOC, K & K Sub Area inquiry is that the police complaint and RTI Application under reference are not related to each other. That the police complaint was ostensibly filed in response to a complaint dated 02.06.2016 filed by the Complainant with the District Collector office wherein he enclosed an annotated google map of the Cantonment area giving away location of DSC Centre Officers Mess, training area and other establishment. That, said action has serious security implications and could have led to incidents akin to those that have taken place in Pathankot and Uri in J & K in recent past. That, keeping in view the volatility and security situation of Kannur District the FIR was lodged.
18. Statements of Col. Purushothaman M incorporated in the inquiry report can be put forth briefly in the following points for consideration:
• That, firstly being a retired officer (retired w.e.f 28.02.2013) he is not liable to answer to any BOO constituted by Army on the subject under reference. Nonetheless, he has given a detailed written statement, stating that he was not aware of the case until their Station Commander, Col Yudhvir Singh discussed the same in a conference. The points discussed in the conference pertained to the conduct of Mr. Raghunanthan (Complainant) in pursuing matters of DSC Centre in a manner which necessitated the Station Commander to consider having an inquiry undertaken by the local police so that even a meagre chance of compromising security of the nation could be ruled out. That, at the end of the conference, Station Commander, Col Yudhvir Singh directed OIC Legal Cell to prepare a draft FIR against Mr. Raghunathan based on the points discussed and being the SSO he was asked to sign the draft FIR once approved by Station Commander. That, it is in this context, duly approved FIR was sent to him by the OIC legal for taking up the case with Kannur City Police Station. He further explains that since Station Cell Kannur was an ad hoc organisation functioning under DSC Centre Kannur, no separate PIO/CPIO was authorised to the Station Cell. That, he was a re-employed officer on contractual basis as per extant Army Rules for performance of specific duties assigned by the employer. He also stated that any further clarification on appointment of PIO or circumstances leading to lodging of FIR against Complainant may be sought from the Station Commander and Commandant DSC Centre who ordered OIC Legal to lodge the FIR.
• Col. Purushothaman M asserts that filing of FIR has no connection with any of the RTI Applications submitted by the Complainant. That, infact Complainant has been seeking information since long and administration has been promptly replying to his queries. That, main content of the FIR was the annotated map submitted by the Complainant, while mention of the RTI Application was only a secondary input given to the local authorities to understand the implications of Complainant's action.
FINAL DECISION
19. Commission has perused the inquiry report and all facts on record extensively and comes to the conclusion that it has been established beyond reasonable doubt that lodging of FIR was in relation to the Complaint filed by Complainant with District Collector Office and not particularly with regard to the RTI Application under reference. The gravity of the issue as brought out in the inquiry report leaves little scope for the Commission to question the rationale of Station Commander in having recommended the lodging of FIR.
20. However, as from the point of view of RTI Act, Commission is of the considered opinion that if lodging of FIR was an independent action, and RTI Application under reference or any other RTI Application filed till date was being cited only as ancillaries, there should have been a reply furnished on the RTI Application under reference by the PIO.
21. As observed in the interim decision, PIO's action of not having provided any reply on the RTI Application amounts to a deemed refusal to provide information. If PIO had reservations that the disclosure of information would compromise on national security, he could have replied on the RTI Application citing the appropriate denial clause of RTI Act. Merely apprehending that disclosure of information would impede on security aspects does not warrant inaction on a RTI Application.
22. Since the intention of the PIO in not having replied on the RTI Application was explained during the hearing on 27.06.2017 and additionally from the findings of the inquiry report, Commission is convinced that there was no malafide intention per se in the deemed refusal.
23. Notwithstanding, the CPIO is severely warned to remain careful in future while dealing with matters under RTI Act. CPIO is not at liberty to take upon him the decision of not replying on RTI Applications, as it is a statutory duty cast upon him, it cannot be abdicated as has been done in the instant case.
24. A copy of this order is marked to the Station Commander, Kannur and GOC-in-C, K & K Sub Area for them to take note of the admonition of the Commission for the CPIO. It shall also be strictly noted that mere apprehensions of misuse of information or alleged inconspicuous actions of a citizen cannot take away their right to information. CPIO or any officer of Respondent office does not have the right to obstruct or intervene with a citizen's right to information in the manner it has been done in the instant case. Commission hereby warns all concerned for future against the same.
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