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.

Understaffing of the TN Information Commission

On July 17th 2009, I was part of a set of 4 people who met the Chief Secretary of Tamil Nadu a week back, to discuss government implementation of the RTI. Mr.AKV organised the meeting with the hope of bringing in some mechanism like a regular meeting where NGOs/Citizens, Information Commission and Government Officials could interact and evolve solutions over the problems plaguing the implementation of the RTI act. The Chief Secretary did not agree that there ought to be a regular meeting and also refused to admit that awareness levels among officials were poor. When I gave him an example, he refused to believe me. Finally, where I raised the issue of understaffing. It was pretty obvious that the Chief Secretary was very antagonistic towards the commission. He told me that, that was the problem of the Chief Commissioner and not mine. I told him that it was indeed mine too, since it is my appeal that gets delayed upto 10 months because there are not enough staff. At this the P&AR secretary said that they have sanctioned all the staff that were asked for.

After the meeting I just searched the internet for a few details and found that the background of the Chief Secretary. He was the State Vigilance Commissioner when DVAC and TSVC were exempted from the RTI act here under section 24(4). With him at the helm of the TN bureaucracy, I have little hope that the Commission will be given enough resources to function properly. This, I think, will become a huge problem as the Commission staff are working even on saturdays (not all saturdays though) to clear the backlog.

Sit-in at the Information Commission

As a follow up to the letter asking for reasons for passing a two line order mentioned here, I along with Mr.Rajkumar (who are previously working with 5th Pillar) went to meet the PIO yesterday. The PIO tried to explain to us things like they dont come under section 4(1) of the act and that there is no time limit etc. The discussion at some stages bordered on the insane, like saying that the Information Commission is not a Public Authority, and at other times saying that the department is not the Public Authority but the head of the department who was the Public Authority. I really did not have the patience to argue with him. At the end when I demanded a reply to my letter, he just asked me to meet the Chief Commissioner. When I met him he rudely told me that reasons will not be given. When I pressed that some form of reply needs to be given to my letter, he said that I might or might not get it. At this I went back to the PIO and sat in front of him and told him that I will not leave the seat till I get the reasons properly explained. He kept telling us to leave and that he will send a reply soon. When I asked him when the reply would come, he refused to commit to anything. So I told him that we are not leaving. He tried to cajole us, and he also tried to threaten us. We just asked him to do what he can, and that we wont leave. We sat there for an hour. Then the PIO left for lunch. We were still sitting there. But since it was a cabin sort of thing, not many people knew that this kind of a sit in was happening. The PIO also kept telling us that if at all we wanted to sit we had to sit in the cabin near the reception where there is place for visitors to sit, since our sitting in his cabin means listening to what all orders he was passing etc, which according to him, we are not supposed to know. I used this opportunity to move out of his cabin and sat right next to the reception on the floor.
And this did the trick.

The office assistants kept asking us why we were sitting on the floor. We explained to them the whole issue. Then the officers started coming to us. First the assistant registrar, with whom I had been in regular contact. He was surprised at the sit-in. He said that he didnt expect us to do such a thing. But to him too we explained the whole thing. And soon the whole commission knew that something like this was happening. All through this I kept Nityanand informed, so that in case were arrested, we will need help. He was not in town but he had informed his colleague about us just in case something happened.

Mr.Retnapandian, who is an RTI activist, had coincidentally come to the commission and met the Cheif Commissioner, who told him that we were sitting on a dharna outside. He came and met us. He asked me not to do such things and told me that this was liable to be arrested and could be brought out only on bail. I knew this well. Sometime back I had checked this with Nity and the general procedure is this. If you do a protest OUTSIDE the premises of any orgn without permission you will be arrested and let out in the evening. But if you do it inside the premises, you would be arrested but not let out in the evening, but it will be a proper arrest, needing a bail to be let out. I told him that I knew that, but told him that I have been patient for two years and that I cannot wait any longer. He said that he too was anguished at the way the commission was functioning, and that he planned to file a writ in the high court. I told him that I will support that too, but that does not mean I have to give this up. Eventually even after a lot of discussion I refused to leave. He finally told me that he felt that we should not be doing it and left.

Then we sat there till about 5.45 PM. Close to 5 hours. At the end of it the Under secretary (adiministration) came and asked us to come and talk to the Chief Commissioner. We refused. We explained to him the whole issue and told him that our deamands were that Show Cause Notices for penalties should go out in the summons itself (Here I showed a copy of the Maharashtra Information Commissions' summons where such a practice is being followed) and also in the interim directions that are passed. I talked with him for about 15 mins at the end of which he requested me to come and talk to the Commissioner and that he would also accompany us. Finally I relented and both of us along with the official went into the Chief Commissioner's room. Here he told me that I should chose whether I wanted to be treated the way I was till sometime back or that I wanted to do it the dharna way. I was about to say that I dont mind being treated anyway, and that if needed I will use any tactics for achieveing my goals, but before I completed my sentence he moved on to soemthing else. There he discussed how not havin enough staff cripplied the commission's functioning and we also had discussion on some legal points of issuing Show Cause Notices for penalty in the summons itself. At one point, when I showed him the Maharashtra Information Commission's summons, he told me that it was not a Show Cause Notice. His argument was that the summons did not have the words "Show Cause Why", but I told him that it was indeed a show cause notice. To this he asked his official who was with us to give his opinion since he was a lawyer. This official, a very meek person, said that if the Chief said it was not, then it was not. I could not control my laughing at it. That he did not confidently say that it was not a show cause notice was a dead giveaway that it was indeed a show cause notice. But the Chief refused to agree. I told him that he had given so many promises so far but have not fulfilled them, to which he replied with statistics of how the TN commission had the most number of appeals even higher than the CIC and that he was able to handle those appeals with very few staff. But he said that he will consider this suggestion of issuing show cause notices in summons. I told him that I wanted something in written in a month as to how the suggestion was considered and if not implemented why it was not implemented. He said he will do it in a month. Since the other official was also there, I agreed to it and decided to wait for a month. If he does this it will be a very important move. Let us see. And hope.

High Court Judges' disclosure of assets

Last year there was a report in the Hindu saying that the Tamil Nadu High CourtJudges have agreed to disclose their assets. But the Chief Justices said that these records cannot be accessed under the Right to Information act, 2005. I wondered how the Chief Justice can make such a statement without passing appropriate rules. So I filed an RTI to know the status of how many judges have declared assets so far and the copies of those declarations. I did not get any reply for a month and so I filed a first appeal. Since I did not get a reply even for my first appeal, I filed a second appeal on 4th February 2009 with the State Information Commission. To this I received a 2 sentence order from the Commission in which the PIO was asked to give me the information I had asked for.I went and enquired which commissioner it was who passed such a direction.

So I went and confronted him as to why he did not issue a SCN. I also told him bluntly that such an order will not have any effect, and also that he was legally wrong and that he should have issued a SCN since there was already a delay. First he tried to confuse me saying, that the prime intention of the RTI act was to get information and so that was his priority. He said that penalising will come in later. When I persisted that he should have penalised, he said that since the order is a formal order issued by the Commission, he will not allow me to discuss it. He also told me that if I was not happy with the order, then I had to file a writ in the High Court. I told him that it was not just about my order, but also about the general practice of sending such useless directions in many cases. If the directions have no effect, then we need to complain again to the commission which means another 8 month wait. He refused to talk anything about this, and told me that he will not discuss a formal order since his was a judicial forum. I tried a couple of times, but he did not budge. So I walked away.

After coming back from the Commission, I did some amount of checking on various aspects with respect to what the Chief Commissioner told me. I talked to RTI activists from Kerala, Andhra Pradesh and Maharashtra and learnt that Tamil Nadu is the only state where directions are given without a hearing. The essential points of what I learnt were.


1. First of all, is the question of whether the State Information Commission is a judicial or a quasi judicial body? This is important since this is what decides whether the Information Commission can pass orders without giving an opportunity to the parties to present their cases. There seems to be a strong consensus among lawyers and activists, that the Information Commissions are indeed Quasi-Judicial bodies and hence that is how they have to be dealt with.

2. There are two consequences of it being a quasi-judicial body. The first one is that the Chief SIC was correct in his stand that he cannot discuss his order with me without the other party being present. But the second, and the more important, consequence, is that quasi-judicial bodies cannot pass orders without giving the parties an opportunity for hearing. In my specific case and in most other cases where orders are passed without a hearing at the Commission, the commission's orders are favourable to the applicant in that, the order says that the information has to be disclosed. Though we might think that the SIC is erring in our favour, the problem is that if the PIO does not comply with this, we have to file a follow-up again with the SIC which will again take 8-10 months (in addition to the delay already had for getting the written order). In case of hearings, we can at least insist on a Show Cause for penalty. But since these written orders are passed without any hearings, we cannot even insist on that.

As a consequence of this being a quasi Judicial body, the SIC should not pass such orders. This has been clearly established in the Supreme Court judgment that can be found here. Please read point number 35 of the judgment. Thus, a second problem with such orders is that though it is in our favour, the order becomes illegal since no hearing was done. Thus if this order goes to the high court, our case will become very weak if there was no hearing. As far as I have checked, no other state in India or the CIC passes orders without a hearing. Tamil Nadu is the only state where this practice is followed. For both these reasons, I think I should insist on a hearing. I realise that given the present backlog of cases, it is impractical to have a hearing in all cases, but I really wonder if that is a good enough justification for allowing the SIC do something that is illegal.

I think such a practice of passing orders which dont carry Show Cause Notices for penalties, is detrimental to the RTI act in the state, since it doubles the time taken to resolve a case. In my case, what I did was this. Sometime back, I remember Mr.Krishnaraj Rao an RTI activist from Maharashtra, using section 4(1)(d) of the Right to Information act, which says that

“Every Public Authority shall provide reasons for its administrative or quasi-judicial decisions to affected persons”.

So I gave a letter to the Public Information Officer of the State Information Commission with a copy to the Chief Commissioner asking me to give reasons for not imposing Show Cause Penalty and not stipulating time limits for the High Court within which they should furnish information. Let me see what happens on thursday.

While on this issue of Judges assets declaration, it has come has a real good news, that the Judges assets bill, which prevented public access of the assets declaration statements of judges has been withdrawn (at least for now).