RTI On A South African Safari

By R S Tolia • Without Fear or Favour • 20 May 2013

As I was preparing to remind the editor of Garhwal Post about the inadvertent omission of a few suggestions made in my Good Governance article which could not find place in page II of its 15 May edition, I came across a most bizarre news-item in Amar Ujala, a report that the State Information Commission was unable to direct the state government to make available to an appellant details of expenses incurred on one State Cabinet Minister and his entire entourage which consisted of an MLA, and more than three senior state officials belonging to the Forest department ! The information requested for related to simple details of public expenses incurred on a visit of this official delegation to the Republic of South Africa in 2006.  According to the news item, covering the disposal of the second appeal, the respondent department could not produce either the related file or make available details of a single item of expenditure incurred during this official state visit. Disbelieving and apprehensive of its net import on the future of RTI in this state, if the story was true, I quickly cross-checked, and was confirmed, that it was not only true but this judgement dated back to February 2013. This added another dimension to the gradual enfeebling of the Commission’s existing system of urgent sharing of all news-worthy decisions with the public at large by every week-end.

Not the First Case

As the founding Chief Information Commissioner I have had several occasions on which at the first instance a similar plea was attempted to be made but on “ further interim directions of the Commission ”, not only the respondent public authority was compelled to fix a clear responsibility on some accountable public servant or the other, based on the facts of the case, and where after providing adequate opportunity to the public authority the records were said to be not ‘readily available’ or ‘not available at all’, the Commission had ordered the public authority to ensure the following, before the second appeal was finally disposed off. This consisted of the following steps :

( a ) Based on facts of the case fix clear accountability of safe-keeping of the related documents or records on one specific public servant whose job it was to ensure such safety of records/files and file an official FIR in the concerned police station regarding loss or theft of the related records ( criminal liability i.e. theft or destruction of an existing official record ),

( b ) Fix administrative accountability of the concerned responsible public servant and proceed against him as per the departmental conduct rules, or initiate departmental proceedings taking administrative disciplinary action ( administrative responsibility ) against responsible official and even his or her supervisory officer whose job it was to ensure that all official records are kept safely, maintained till they are officially destroyed, according to the Destruction of Records Act and Rules ?, and more importantly

( c ) Immediately ensure that public records, reportedly lost or stolen or destroyed, are “re-constructed” and such officially “reconstructed records” ( which is the usual process when official records are destroyed by fire, floods or any other natural calamity ) are made available to the applicant/appellant, with a covering certificate that as the requested for documents were found to be not available due to ( any cause ) these “reconstructed records” are being made available so that the appellant could make use of these “re-constructed” records as if these were the originally sought records/files.

If I am not mistaken, in some cases at least, the ‘readily not available’ file or records, were suddenly discovered or found ‘mixed up, mistakenly with some other bundle of file/s”, within a few days of Commissions ‘interim directions’ for three-fold action, cited above. This standard practice was consistently followed in any number of cases, where such ‘ready availability’ was an issue in some highly disorganized public authority office. This excuse very quickly lost favour with recalcitrant public offices and they soon went hunting for other more plausible excuses. Remember, the transparency is being brought about essentially for fixing the accountability, under the RTI ( see the preamble ), and not for observing a ritual of going through the motions of it. This is the cardinal principle, the spirit as it were, and the rest of the RTI Act is just to ensure observance of this principle.                                                                                                                                                                                                                

Safari Raises Many Issues

Issues that readily come to one’s mind, restricting this discussion germain to just the efficacy of the RTI Act 2005 and the autonomy enjoyed by the State Information Commission in enforcing its provisions, in letter and spirit, in Uttarakhand. Obviously, it also revived the debate that ensued post notification of the Uttarakhand RTI Rules, 2012, which was recommended for withdrawal by this writer after the civil society raised some valid objections to their unilateral notification without consultation with other stake-holders. This South African Safari case details might perhaps be illustrative of some of the apprehensions that have been raised over the provisions now included in the RTI Rules, 2012. The civil society would also do well to pursue their unfinished agenda by following-up and securing the information which has been denied to the appellant, nothwithstanding the existence of an Information Commission in the state. One thing is certain, if such information and records are held back, it amounts to going back to the pre-2005 era of official secretiveness and non-accountability, covered by denial of access to information which should have been in public domain.

In the meanwhile this writer has also received part-records of the Cabinet decision which had given approval to the proposed RTI Rules, 2012, including details of the efforts that were made prior to drafting of these Rules. All that can be said about the entire Cabinet approval process, especially the quality of due diligence deployed by the concerned departments, that it does not show any wing of the government which was involved in the whole process of drafting the RTI Rules, covering itself with glory. Second Appeal to the Information Commission alone is likely to yield the remaining information, and through that alone the Rules will have to be made compliant of the letter and spirit of this important law. Back to the issues thrown up by the case related to the South African Safari and the stench it has left behind.

Facts and Aberrations High-lighted by the Info Commission

The most alarming revelations that the Information Commission Order of 8th February 2013 in the Appeal No. A-6994/2011 ; R.D. Pathak vrs PIO, PCCF Office, and 10 others bring to public notice, after as many as  7 rounds of hearings, between 14 Feb 2012 to 08 February 2013, are as follows :

( i ) From 07.07 2006 to 15.07. 2006 the then Minister Forest, Uttarakhand Government, a Study Group, consisting of an MLA and three four Forest officials was sent to the Republic of South Africa via Dubai,

( ii ) On this trip a sum of Rs 6.88 lakhs were spent it was paid through a bill presented by Leisure Hotels Lt Hari Bhawan, a Naini Tal based travel agent, which has been shown by way of adjustment; and in its repeated hearings the Information Commission wished to see all original files related to this Study Visit,

( iii ) In its final orders the Information Commission has observed that this case of one Cabinet Minister, an MLA and four senior Forest officials of their Study Tour of South Africa, is one of few such unfortunate cases where despite all possible efforts ( in Hindi “lakh Koshisho ke babjud”, paragraph 10 of the final order ) the Commission has failed in making available all information and records to the applicant/appellant,

( iv ) For this journey a sum of Rs 20 lakhs cash were made available from the Centre for Forestry Development ( CFD, Haldwani, Forest Training Academy ) were made available to a Range Officer, R.K. Tewari,

( v ) Out of this sum a sum of Rs 10 lakhs was paid in cash by this Range Officer to a private company’s accounts officer and the remaining Rs 10 lakhs cash were given to the then Director of Corbett National Park ( who was also a member of the Study Group accompanying the Cabinet Minister ),

( vi ) A total sum of Rs 6.88,926 was paid to the referred to private Hotel by way of adjustment,

( vii ) The Most alarming facts high-lighted by this Order is that no records of this Study Tour were reportedly not available either to the Forest Department nor the State Government,

( viii ) Affidavits to the above effect have been, that no records are available about the Study Visit either with the PCCF Forest, Uttarakhand or the Chief resident Commissioner, New Delhi, who is supposed to be responsible for co-ordinating all arrangements related to Administrative, Govt of India and all related clearances required for foreign trips both of the Ministers, MLAs and public servants,

( ix ) Even though it is an established fact that public money was spent, from the public exchequer, and the Cabinet Minister, an MLA and four senior officials did visit South Africa yet no details, no expenditure vouchers, no expenses details are available with any one and no documents related to this Study Tour were made available to the Information Commission, and it has been admitted that these do not exist,

( x ) The Applicant/Appellant and also the Information Commission has been informed that the official records have been lost and can not be found, and

( xi ) In conclusion, the Information Commission has insisted in admitting sadly that the issue of records of such public importance having been lost or removed has been brought to the notice of the state government but the latter has not taken no notice of it and have not taken the trouble of instituting a high level investigation in to the whole matter.

South Africa safari Case : A Case Study for RTI Training   

The Case File of this South African Safari, to high-light the issues it throws up wrt to the enforcement of the RTI Case in Uttarakhand in year 2012, ought to be made a Case Study File in all Training Institutions in order to debate various issues related to enforcement of the RTI Act, 2005. Some of the Issues which could be debated, both within the Information Commissions, Public Authority Offices and Training Institutions could possible be as follows :

Q. 1.  Was the Information Commission competent to hold as many as 7 rounds of hearing in a single case, looking into records of various offices, making accountable officers file affidavits, as is now not permitted during the hearing of Second Appeal under the Uttarakhand RTI Rules, 2012. And, even if the Commission transgressed the procedure and tried as many as 7 times in as many hearings why was it not successful in making available all related records of huge public expenditure to the applicant/appellant, even though it was admitted by a responsible that it should have been a routinely available information ? Thus the new RTI Rules would be greatly facilitating such destruction of public records, open defiance of the Commission by Secretary level officials of the state government, and thus make Uttarakhand an exampler state in facilitating looting and abuse of public money in the name of Study Tours by public officials. The new RTI Rules would thus be a role model Rules in this respect.

Q.2. Why not a single Show Cause Notice has been issued to any of the PIOs or “deemed PIOs”, of whom there should have been as many as those who took part in the Study Tour, were thus public servants in possession of whole of part of the sought for information/record not impleaded as “deemed PIO” and issued show cause notice as to why they should not be levied punishment for not furnishing of information, records related to the Study Tour. It is obvious that every member of the Study Tour, who admitted to have participated in this celebrated Study Tour, was a custodian of entire information about his own travel, and was also aware of all other participants, who were an integral part of this Tour ? Prima facie, each member should have been transferred a copy of the request by the addressee PIO and made a “deemed PIO” in respect of information at least about his part and expenses of the tour. Why wa this process not followed by the first PIO, and why this was also not ensured by the First Appeal Officer, even if the first PIO,  failed in capturing this nuance of the RTI Act ! The new RTI Rules, 2012, it deserves to be examined by experts, must be made to ensure such leakages in future.

Q.3  Who initiated this Study Tour, what was the role of the then Secretary, Forest, in respect of clerances secured for the Cabinet Minister and the MLA, the Chief Minister’s Office, Chief Secretary Office, Chief Resident Commissioner’s Office, the Senior Managers who look after Protocol Services of Ministers and officials on 24×7 basis in Delhi Bhawans and CRC’s office, Financial Controller’s looking after the CFD, Haldwani, and the entire series of Finance department officer, who look at these files and have to clear all tangles, not impleaded in such a case involving big amounts of money, beats all logic. This raises the issue of knowledge of the governance system, which makes a n Information Commission, make related officials to respond to such requests, question the very criterion of selection of and training subsequent to incumbent’s selection as Information Commissioner. This would be treated as a classic case of either not asking difficult and related question or not being aware of the entire process involved, which led into such a pathetic display of ( should we say utter helplessness of ) Information Commission. This again raises the criterion for selection of Information Commissioner and whether or not they should be hearing cases singly, or always in a bench ?

Q.4. Reporting loss of a public record, or statements like “records not being readily available”, have already been addressed by the same Commission, in not one but in a number of cases. Is there  a system of informing the new Info Commissioners, as to what is the accepted practice in a particular Commission followed. This at least does not apply to at least Uttarakhand Information Commission, where not only this issue has been discussed very early but printed documents exist in the Commission related to the Destruction of Record Rules and the Public Authorities have been hauled up on so many occasions for not ensuring Destruction of Records under the Rules for Destruction ? Here the Chief Information Commissioner may consider enforcing a system where the existing Info Commissioner know as to what is the stand of the Commission, on such matter.

Q.5  This was easily a first class case for being referred to not only the Chief Secretary but also the AG Office for considering special audit of such a blatant looting of public money, display of defiance of a Court established by law ( a criminal offence under the Cr PC, which was proposed to be resorted to by the Central Information Commission in the notorious Office Notings Issue, where the DoPT itself was the main offender ), recommending departmental action against the defiant Secretary, who was squarely responsible for proper usage of CFD funds ( a Training fund being diverted for a un-budgeted activity ), non-adjustment of so-called loan taken, misusing Ministerial or official powers ( a gross financial irregularity ), and as all across it was  through and through Forest department display of gross irregularity, instead of being alarmed at disclosure the then Forest Secretary should have taken such a posture shows him in an extremely poor light, deserving of perhaps highest punishment which could have been recommended. The Commission should have even gone to the extent of bringing such a flagrant display of defiance to the direct notice of the Chief Minister and even the Governor. Chief Information Commissioner, being appointed technically by the Governor of the State, is also duty bound to report to him the progress of advancement of the RTI Act in the State as also the abuse of it. As the Chief Information Commissioner, this writer recollects, having done so, once a year, through meetings with Governor Aggarwal, Governor Joshi and Governor Margret Alva, and submitted a Progress Report. This route should be followed by the Chief Information Commissioner, as efficient implementation of the RTI Act is the responsibility of all constitutional authorities.    

Q.6. In addition to some of the issues highlighted, there are a score of issues which deserve to be discussed threadbare with the help of this Case Study. If the story revealed by this shameful case is ro draw any lesson, it is that if this be the state of affairs of transparency, in a case which pre-dates the notification of the RTI Rules, 2012, one can quite imagine how ineffective the Information Commission is going to be rendered when its autonomy is emasculated by the recently notified restrictions being attempted by the much maligned Rules ?

Revelations made by this particular case deserve to be condemned thoroughly and all those who have conspired to stifle common man’s voice deserve to be condemned and punished by the due process of law and the RTI Act deserves to be so protected that efforts to emasculate its efficacy in revealing such public loot is strengthened further. Several RTI applications need to be filed to “reconstruct” the so called documents and administrative and criminal accountability fixed against all responsible individuals, following the FIR said to have been filed.  

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