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'File Missing' Pretext Could Invite Penalty

Monday, March 03, 2014

A Central Information Commissioner’s assertion that baseless claim of ‘file missing’ could invite a penalty nails the real issue, writes Gajanan Khergamker

Each time, a high-profiled, influential entity finds itself in the news ‘vital’ incriminating files go ‘missing’ particularly when needed for investigation. The Coalgate Scam, Adarsh Scam, the 2G Spectrum Scams are just a few of the recent cases where files have gone missing or are untraceable. Missing files are the ‘easiest excuse’ officials use when they don’t want to disclose information to the public.

After the introduction of RTI Act in 2005, it became almost impossible for officials to refuse to share most of the official data with the public when demanded.
So, the pretext of a “file going amiss,” became the favourite reply used by the official each time an RTI application was filed asking details of such a case.

Just a while ago, a compendium of best practices on implementation of RTI Act was released by Union Minister V Narayanasamy. A press release by issued by the Ministry of Personnel read, “The best practices covered in the compendium include write-ups by public authorities or citizens on areas such as transparency provisions in certain government schemes, use of information technology tools to facilitate citizens for more effective use of RTI and innovative methods to create awareness about RTI.”

Looking at the way things are going, this ‘compendium’ might just be the right thing officials need to ‘encourage public authorities to adopt similar practices for effective implementation of RTI Act.’ 

Recently, Central Information Commissioner Madabhushi Sridhar said that the baseless claim of ‘file missing’ would invite a penalty under RTI Act.

While hearing the case of a husband allegedly cheated upon, found that the information sought by the appellant was essential for a defence against the criminal cases filed by his wife.

In an order issued, Sridhar said “claiming that a particular file is missing establishes the fact that the file was with them, till it was found missing or misplaced or deliberately removed…thus it is the responsibility of the Public Authority to share that information.”

This order can act as a precedent for all the upcoming cases where ‘missing files’ is often used as an excuse for various reasons.

Earlier this month, it was revealed that the file carrying details of proposed inquiry into Home Minister Sushilkumar Shinde’s blunder of disclosing names of Bhandara minor rape victims in Rajya Sabha is not “traceable” in the ministry.

An RTI application was filed by an activist regarding this matter. After maintaining silence on an application for nearly six months, the ministry has admitted before the Central Information Commission that the ‘concerned files’ were not traceable in the ministry.

The ministry was issued a show-cause notice demanding an explanation for not responding to the RTI application in the mandatory period, “It is clear from the hearing and the material on record... that the respondent (Home Ministry) had contravened the legal provisions,” Information Commissioner Vijai Sharma was reported saying. The Central Public Information Officer (CPIO) when asked about this had responded stating that they could not send any response as the file was not traceable.

It was almost a year ago when, in a statement on the issue of alleged rape and murder of three minor girls in Bhandara, Maharashtra, Shinde had made public the identity of the victims.

The RTI applicant had asked whether an inquiry, as suggested by Shinde, was conducted in the matter and also about other details related to the purported inquiry. But, the ministry did not respond to the applicant, neither was the joint secretary level appeal, filed by applicant, given any hearing.

So, the applicant approached the transparency panel with a complaint against the CPIO seeking imposition of penalty as mandated under the RTI Act.

The Commission directed the CPIO to show cause within 30 days “why action should not be taken against the respondent under section 20(1) of the RTI Act for contravening the provisions of the Act.”

In the last few years, a lot of such cases have made the headlines and later files have gone “missing.” The coal scam files too were ‘misplaced’ during the investigation on the matter. It was in August last when files containing ‘crucial’ information about the coal blocks allocation deal went amiss.

It was reported that records of applications for 45 coal blocks allocated between 1993 and 2005 were nowhere to be found.

And, it wasn’t just that, apart from the fact that applications and records for coal blocks issued from 1993 to 2005 having turned untraceable, recommendations made by Congress MP Vijay Darda and subsequently forwarded to the PMO for the bander block were reported untraceable as well.

It must be noted that, in connection with Coalgate, the Central Bureau of Investigation (CBI) had raided Mr. Darda and registered a case against him last year. Also, records of at least 157 private companies, which applied for the coal blocks but were not allocated to them, had gone missing.

A few months back, it was reported that the CBI had managed to recover the ‘crucial’ missing files pertaining to coal block allocations done between 2006 and 2009.

The CBI, reportedly, has also found Congress MP Vijay Darda’s letter to Prime Minister Manmohan Singh advocating allocation of a coal block to one of his companies.

In 2009, the Central Information Commission (CIC) had rebuked the Delhi government’s department of women and children for allowing a critical file linked to the purchase scam to go missing and ordered that the appellant seeking the file as part of a reply to an RTI be compensated with Rs 10,000.

“The unsuccessful efforts made by the department to search and trace the file early show that the appellant’s right to seek information has not been duly honoured in the letter and spirit of the Act, for which he needs to be compensated under section 19 (8)(b) of the Act for all kinds of losses and detriment suffered by him,” the CIC had noted back then.

The officials or departments responsible for ‘misplacing’ official files need to be held responsible for every file that goes missing for reasons within their control. Claiming a file has gone missing and then shrugging off all responsibility has gone on too long for comfort.

The government needs to ensure the RTI Act is not mistreated by some officials with vested interest.

(With inputs from Prerna Pandey)

Readers keen on seeking help on drafting RTI applications may write in to rti@draftcraft.in or call Gajanan Khergamker on 022-22841593022-22841593 for any assistance on RTI or to have their findings / issue featured on this page.

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