Good news about DVAC

There was an order passed at a hearing hearing yesterday (24th September 2009) at the SIC, which in effect brings DVAC (Directorate of Vigilance and Anti-Corruption) back under RTI, in spite of the GO No.158 by P&AR which exempted it more than a year back. This is what happened. I have talked about it here and here.

Close to a month after DVAC was exempted, I filed an RTI application with the DVAC, seeking information about completed cases of investigation into corruption complaints. I had also sought details of those who were convicted. There was no reply to the RTI application and the first appeal. So I filed an appeal with the Commission. This appeal was filed last december and the hearing came up today. The argument I took up was, that the proviso to section 24(4) says "Provided that the information pertaining to the allegations of corruption and human rights violations shall not be excluded under this sub-section:" and since the information I had asked for was related to corruption, DVAC has to disclose the information.

The Commission (which had the Chief and GR sitting today) ordered that since the information I had was related to corruption, this has to be disclosed since the proviso is clear. If at all, information can be exempted only under 8(1)(h) which says "information which would impede the process of investigation or apprehension of offenders;". The commissioner also notes that if the information would cause embarrassment to the official concerned before the investigation is complete, then such information has to be exempt from disclosure. The commissioner also pointed out that if the organisation has any "intelligence and security" related information then that can be exempt from disclosure. Of course, I am yet to get a copy of the order since the hearing happened only yesterday, but this decision, in effects, blunts the effect of the GO, since this still keeps DVAC under RTI act when it comes to corruption related information and since the DVAC is all about corruption cases, they have to disclose most of the information. The commission has ordered the PIO to give me the information.

DVAC might still challenge the decision in the high court. But the fact that the SIC has given such a decision shows the absurdity of the GO in the first place. The case number is 39170/08.

Some quick updates

I was trying to get some information from the SIC regarding their staffing problems. I had asked for the number of vacancies there, and the communication between them and the Government regarding staff requirement. The information I received showed that there are 4 sanctioned posts in the Information Commission which have not been filled by the government. Also repeated letters from the Information Commission have also not helped the cause. I gave this information to Shyam of the Hindu, and he has put out a report which can be seen here.

A few important hearings are coming on 24th September 2009. They include
1. Hearing regarding assets statements disclosure of IAS officers
2. Hearing regarding information from DVAC (which was exempted from the RTI act). Here is a related post.
3. Hearing regarding an RTI application where I had asked for appointment procedure of Information Commissioners, which was not replied to at all by the P&AR department.

Sometime back, I had filed an RTI application with the Chief Minister's Office, which in turn was replied to by the PIO of the Public Department (that too a rejection). Wondering if there was no PIO in the CMO, I filed an RTI asking the name and designation of the PIO and the Appellate Authority for which, I got a reply that there was no PIO or an Appellate Authority. So I filed a complaint with the State Information Commission. This was in October 2008. Now the Commission has directed the Government to appoint a PIO to the CMO. This was covered by the Times of India and the Hindu. In the Hindu, it appeared only in the online edition. The links are
http://www.thehindu.com/2009/09/18/stories/2009091852930400.htm
http://tinyurl.com/lwdrg2

In the original RTI application to the CMO, I had asked for inspection of certain registers, including the incoming mail register, but it was rejected saying that I had not asked for any specific registers and so the inspection cannot be allowed under section 7(9). Against this I appealed to the Commission and a hearing is scheduled for September 30th.

Asset disclosure of IAS officers

In February 2009, I had filed an RTI application seeking inspection of assets disclosure statements of the last 5 years of the Chief Secretary of Tamil Nadu and the secretaries of 9 other departments. This was rejected citing 8(1)(j) of the Right to Information act, 2005, which says that

"there shall be no obligation to give any citizen information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information:"

So I went in for first appeal, where I received the same reply. So I filed a second appeal. As mentioned, in passing, in the post (http://adropinanocean.blogspot.com/2009/09/assets-disclosure-of-government.html), the Chief Commissioner is of the opinion that assets statements of IAS and IPS officers need not be disclosed since they come in sealed covers. A hearing for the appeal I filed was scheduled for yeaterday (24th September 2009). It will be a very crucial hearing, since, if successful, this would bring to the open, the assets details of ALL the government servants of Tamil Nadu, right from the Chief Secretary. I will briefly list down the information I had gathered and presented in the case.

1. The Tamil Nadu SIC has already ordered that assets details of Government Servants ought to be made public. This has been seen in the case no. 16294/08 on 9th Feb 2009. I am yet to get hold of a copy of this judgment, but I have seen this order since this was the case of Mr.Retnapandian who is an RTI activist.

This is important since, this establishes that assets details as such have to be public documents. Thus the issue is whether information from sealed covers ought to be disclosed or not.

2. There has been a case where the applicant asked for some Property details of the Managing Director of Karnataka State Coir Development Corporation. Information denied under Sec 8(1)(j). The first appeal was also rejected. But Karnataka SIC allowed disclosure. So the PA filed a writ in the high court. In that case High Court ruled that the order of the SIC is correct. This is not of much consequence now, as the TN SIC has also ruled that assets details have to be public. I tried to find out whether this Managing Director is an IAS officer, but from what I could see on the website of Karnata State Coir Development Corporation, that is not the case. So this might not be of much help in my case.

3. The commissioners agreed that the assets details information was not private, and hence 8(1)(j) is not applicable.

3. There have been a few decisions in the CIC saying that assets of IAS officers need not be disclosed. In one case, it has been especially pointed out that since the assets details come in sealed covers, it cannot be disclosed (The decision can be seen here). This is exactly the stand that the TN Chief Commissioner is also taking. But there is one decision of the Chief Central Information Commissioner, who has ruled that assets details of IAS officers should be disclosed. This decision can be seen here. This is what I will cite in the hearing. I will have to argue that the Chief Information Commissioner, having, been an Ex-IAS officer himself, will definitely have known that assets details are submitted in sealed covers. Thus, the fact that in spite of this knowledge, he has ordered that assets have to be disclosed clearly showed that the information being in held in sealed covers is no reason to exempt it from disclosure.

4. Moreover, any exemption from disclosure, should come under one of the exemptions of section 8 and 9. No such section can be cited here. Exemption of personal information will not hold here, since it has already been held that non IAS Government Servants' assets have to be disclosed. If at all, anything, it should be the 8(1)(e), information held under fiduciary capacity, should be the one cited. But even that argument wont be good since the Delhi High Court, in its recent judgment in the case of Assets disclosure details of the judges of the Supreme Court, has, ruled that the CJI was not holding the assets details of other judges in fiduciary capacity. The judgment can be downloaded from here. Here para numbers 54 to 59 clearly explains this.

5. The PIO's argument is that the information comes in sealed covers and hence cannot be disclosed. The Chief Commissioner too said that breaking the seal open is not possible. The commissioner also argued that, the case was not that of information being being personal information or being exempt under any of the subsections under 8 of the RTI act, but that information was "not available" with the PIO since it is present in sealed covers.

This was an argument I had not anticipated. But my reply to this was as follows. I told them that the purpose of sealing the covers was confidentiality. And before the RTI act came into force, there were many other documents which were held confidential, but the RTI act brings all of them into public domain. Similary the practice of sealing covers is also a means of ensuring confidentiality. Before RTI, if a document has been marked as confidential, it is in effect the same as sealing it, except that sealing is a physical thing, and marking it confidential is not such a physical thing, but both are with the intent of keeping the information confidential. But since RTI throws away the confidentiality of documents that are marked as such, even the sanctity of sealed covers should go. The Commission was not sure, and said that it was reserving its judgment and asked me if I had a written affidavit. I said that I will submit the affidavit in a day or two. Let me see what happens.

Experience of RTI with a police station

In November 2008, I saw a Police Station (R3-Ashok Nagar) where there were old rusted cars parked lying on the pavement right outside the walls of the Police Station. It completely blocked access to the pavement, and I was also wondering why those vehicles were left there to rust. So I filed an RTI with the Public Information Officer of the Police Station, asking questions like, why those cars are lying there, since when are they lying there, why they have not been removed etc. I sent the RTI through a private courier company. But the courier was returned to me saying there was "no such person". So I browsed through their website (http://www.tnpolice.gov.in/RTA.html) and then found that the PIO was the Assistant Commissioner of Police, T.Nagar Police Station for this area. So I filed an RTI application addressed to that person.

What happened was that, on seeing that this was an RTI application (I had written "Right to Information" on top of the envelope), the person at the police station refused to take it and redirected it to the office of the Police Commissioner of Chennai. When the RTI reached there, the person there too refused to take it and redirected it back to the T.Nagar Police Station. So the courier person again went back to the place he first went to. There they again refused to take the application, and so they returned it to me. After this I filed a complaint with the State Information Commission. This was taken up for hearing on 26th August 2009.

Once the summons for the hearing was sent, the Assistant Commissioner of police called me up and asked me whether the envelope was returned. I told him what happened and he asked me if I could send a copy of the envelope so that he can conduct an inquiry into why the envelope was not received. He also asked me to whom the envelope was addressed. I told him that it was addressed to the Assistant Commissioner of Police, I sent him a copy.

At the hearing, the Asst. Commissioner of Police brought a letter from the courier company saying that the person who was delivering the courier at that time had left, and that it was the courier company's mistake that the delivery was not made. Of course, the Commissioner saw through this farce and told the Policeman that he knew that the policeman had threatened that courier company into writing this letter . But the commissioner also noted that since the letter was given, there was not much he could do.

But at the hearing the Asst. Commissioner also brought a reply to my RTI application from the concerned officer of the Ashok Nagar police station. The reply just said that the information I had asked for did not fall under the definition of the "Information" under the Right to Information act, 2005 and hence information could not be given. The commissioner looked at my RTI application, and said that except for 1 question, the rest have to be answered, and issued a Show Cause Notice for penalty.

But what I learnt out of this whole experience, is to use only the Government's postal service. Since in such a case, the policeman cant extract such guilt admitting letters from the postman.

Assets Disclosure of Government Servants and Councillors

I have been purusing the case of assets disclosure of Government Servants, People's Representatives and to a lesser extent, of Judges. A good news that came in yesterday was that Madras High Court Judges have decided that they will make their assets public. A report can be seen here. Though the story ends well in case of Judges, there is some struggle ahead with getting the assets statements of people's elected representatives, and Government servants. In the last few weeks, there has been progress on my efforts on Government Servants.

On the issue of assets disclosure of Government servants, I had filed an RTI with 4-5 departments and regarding IAS and IPS officers, asking WHETHER they had filed their assets statements. A couple of them refused. One department said that there were no violations at all, but refused to give any numbers. Another department said that the practice was not being followed and that it will soon be taken up. All these cases came up for hearing. And the Chief Commissioner ordered them all to give me information within two weeks. But there were some interesting aspects of the hearings.

The PIO of the Public Department (which is the most high profile department in the secretariat) initially said that these were personal information. The Chief Commissioner said that the personal clause wont hold here, since I had asked only for WHETHER assets statements have been submitted or not. He also mentioned that even assets of government servants have to be disclosed. And before I could heave a sigh of relief for that statement, he added that assets statements of IAS and IPS officers alone need not be disclosed since they are submitted in sealed covers. This stuck to me as odd. When everybody else (like Governmnet Servants, Politicians and even Judges) have to disclose assets what is special about IAS and IPS officers. Though this was not relevant to the hearing on hand, I have an appeal related to an RTI application I had filed asking for inspection of assets declration statements of the Chief Secretary and the Secretaries of 10 other departments. And if I dont get my arguments ready for that hearing, there is a good chance that I might lose the case, since the Chief Commissioner thinks that sealed covers is a good reason for non disclosure of information. I have made some enquiries on that and will put it down as a separatepost.

An RTI filed in November revealed that revealed that 25 of the 155 (16%) Chennai Corporation councillors have furnished their Assets Declaration Statements which they should do annually. The full details are available here. After a report of this was out in the Hindu, the Mayor of Chennai Corporation (who himself was a defaulter) promised that he would ensure that everybody filed their assets declaration statements. After this I filed an RTI in May to find out what the present status was, and to see whether the Mayor has kept up his word. This RTI showed that after that initial RTI and the report in the Hindu, a circular was sent out to all the councillors to file their returns of the last two years and so far 96 councillors (61%) have submitted their returns. There are still close to 60 councillors who have still not submitted their returns. But when I first filed the RTI application, I had asked for details of the councillors of the previous council too. This was not give to me. I had filed a second appeal for which hearing happened on September 3. In this the PIO promised that she will give me the details I had asked for within 2 weeks time. That will throw some light on the levels of disclosure of the previous council too.

Moreover, I had also asked for inspection of the assets declaration statements. This was rejected by the PIO, saying that it was personal information, so I had filed a first appeal. This too came up at the hearing, when the PIO raised this. I told the commissioner that this was a separate RTI application, and so the Commissioner refused to discuss it. But talking about it with the PIO, outside the hearing, she told me that her seniors had asked her to cite the personal information clause in rejecting the RTI application. I told her that I also filed a first appeal and that there was no reply, she said that she will consult with her seniors and give me a reply.