CENTRAL INFORMATION COMMISSION (Room No.315, B Wing, August Kranti Bhawan, Bhikaji Cama Place, New Delhi 110 066) Prof. M. Sridhar Acharyulu (Madabhushi Sridhar) Information Commissioner CIC/SA/A/2015/001408 Adjunct Order to decision dated: 21.1.2016 Ravinder Kumar v. Tihar Jail, New Delhi Parties Present: 1. The appellant not present on scheduled day, 30 th Dec 2015. He is brought to commission on 22 01 2016 after getting permission from Visiting Judge Ms. Nivedita Anil Sharma. FACTS: 2. Appellant sought copies of his medical records. PIO on 09.03.2015 replied that records were searched but not found. First appellate authority on 28.4.2015 directed the PIO CJ 2 to provide information within 10 days. Claiming non compliance he approached Commission. PROCEEDINGS: 3. The appellant is a life convict in a dowry death case since 2 6 2004. He believes that he has some visual difficulty at the time of entry into the jail, this was mentioned in his admission health card, which would help him to prove his innocence in court. He wanted copies of his medical records dated 3.6.2005 including OPD orders and attested papers from the date of his admission into the jail till 13.9.2010. 4. The appellant submitted that he could not be present on 30 12 2015 as custodial parole was denied. He alleged denial was only because he filed RTI requests with the jail. The CIC/SA/A/2015/001408 Page 1
appellant complained to the Commission that because of this attitude many other prisoners are not in a position to file or defend their RTI cases. 5. On 30 th Dec 2015 the Commission could hear only the jail authorities and passed order on 21 1 2016, directing them to comply with orders of First Appellate Authority dated 28 2 2015 to give information within ten days. 6. The appellant contended: He along with his parents and brothers were jailed for dowry death. His wife was killed in a dacoity but his family was implicated by in laws. Since all his family members are lodged in jail, there is none to help him for information, hence he had to approach under RTI Act. As the information sought was related to life and liberty, it should have been given within 48 hours. In fact, he got all medial documents in 2010 under RTI but those papers were neither attested nor certified. He again applied on 2 1 2015 for certified copies. 7. Appellant has presented to the Commission a copy of the letter issued by the office of PIO/DCP, North District, Civil Lines on 4 3 2015, showing that the record for the period under reference has been destroyed vide order No.629 723/Acctt/North District dated 17 2 2015. He has also enclosed the order pointing out that it was given to him 14 days after the receipt of RTI application. The PIO admitted that RTI dated 3 2 2015 was received. 8. The DCP/First Appellate Authority stated in his order that the record was destroyed and there was no ground to admit the appeal. The appellant filed another RTI to PIO, Central Jail, Tihar, who responded to the appellant saying that his RTI application was transferred to PIO, Central Jail Hospital. The latter had stated that the medical record sought by the appellant could not be found as there was no medical record department and Medical Records Assistant/Technician in the jail hospital. Against this, the appellant filed an appeal before the FAA/DIG(Prisons) on 13 4 2015. The FAA held on 28 4 2015 that the reply of the PIO, Central Jail 3 was not appropriate and he was directed to supply the information to the appellant within 10 days. CIC/SA/A/2015/001408 Page 2
DECISION: 6. The Commission finds that there is a significant public interest behind the RTI application as accused should be allowed every opportunity to prove his innocence as per the cardinal principles of criminal justice. He believes that the medical records would help him to prove that with visual deficiency he could not have killed his wife as alleged, but that opportunity was denied by not certifying the medial records at first instance, destroying the records at second instance and finally denying him permission to attend the second appeal. 7. The appellant could show that because of denial by Superintendent, Central Jail 2 he could not attend second appeal on 30 12 2015. The PIO/Tihar Jail did not inform the Commission about the refusal of permission, which amounts to suppression of information. The Commission holds that it is the duty of public authority to permit the inmates of jail to defend second appeal, or make alternative arrangements like video conferencing. They should explain the Commission the reasons for such denial. If not, it will be violation of appellant s right to information attracting penalty under Section 20 of RTI Act. 8. Because of the reasons explained above the Commission considers the Supdt, Central Jail 2 as deemed PIO and direct him to show cause why penalty should not be imposed upon him for obstructing the appellant from securing his Right to information by denying permission to attend second appeal before CIC, within 21 days from the date of receipt of this order. 8. Another issue brought before the Commission was destruction of record after RTI application was filed. Appellant presented documents which showed that the DCP, North District, Civil Lines has destroyed medical record of the appellant vide order dated 17 2 2015, 14 days after the receipt of the RTI application on 3 2 2015. Destruction of records during pendency of RTI application would attract penalty under Section 20. Hon ble Delhi High Court in Union Of India Vs. Vishwas Bhamburkar [2013(297)ELT500(Del.)] observed: CIC/SA/A/2015/001408 Page 3
6. This can hardly be disputed that if certain information is available with a public authority, that information must necessarily be shared with the applicant under the Act unless such information is exempted from disclosure under one or more provisions of the Act. It is not uncommon in the government departments to evade disclosure of the information taking the standard plea that the information sought by the applicant is not available. Ordinarily, the information which at some point of time or the other was available in the records of the government, should continue to be available with the concerned department unless it has been destroyed in accordance with the rules framed by that department for destruction of old record. Therefore, whenever an information is sought and it is not readily available, a thorough attempt needs to be made to search and locate the information wherever it may be available. It is only in a case where despite a thorough search and inquiry made by the responsible officer, it is concluded that the information sought by the applicant cannot be traced or was never available with the government or has been destroyed in accordance with the rules of the concerned department that the CPIO/PIO would be justified in expressing his inability to provide the desired information. Even in the case where it is found that the desired information though available in the record of the government at some point of time, cannot be traced despite best efforts made in this regard, the department concerned must necessarily fix the responsibility for the loss of the record and take appropriate departmental action against the officers/officials responsible for loss of the record. Unless such a course of action is adopted, it would be possible for any department/office, to deny the information which otherwise is not exempted from disclosure, wherever the said department/office finds it inconvenient to bring such information into public domain, and that in turn, would necessarily defeat the very objective behind enactment of the Right to Information Act. 7. Since the Commission has the power to direct disclosure of information provided, it is not exempted from such disclosure, it would also have the jurisdiction to direct an inquiry into the matter wherever it is claimed by the PIO/CPIO that the information sought by the applicant is not traceable/readily traceable/currently traceable. Even in a case where the PIO/CPIO takes a plea that the information sought by the applicant was never available with the government but, the Commission on the basis of the material available to it forms a prima facie opinion that the said information was in fact available with the government, it would be justified in directing an inquiry by a responsible officer of the department/office concerned, to again look into the matter rather deeply and verify whether such an information was actually available in the records of the government at some point of time or not. After all, it is quite possible that the required information may be located if a thorough search is made in which event, it could be possible to supply it to the applicant. Fear of disciplinary action, against the person responsible for loss of the information, will also work as a deterrence against the willful suppression of the information, by vested interests. It would also be open to the Commission, to make an inquiry itself instead of directing an inquiry by the department/office concerned. Whether in a particular case, an inquiry ought to be made by the Commission or by the officer of the department/office concerned is a matter to be decided by the Commission in the facts and circumstances of each such case. 9. This Commission held in Shri Ashok Kr. Dixit vs. Delhi Technology University, GNCTD, Delhi [CIC/SA/C/2013/000013]: 5. Record cannot be destroyed after RTI application is filed, even if it outlived the time prescribed under weeding out policy, and if destroyed like that, it would invite the penalty under section 20 of RTI Act. CIC/SA/A/2015/001408 Page 4
10. Appellant could show that Mr Vijender Kumar Yadav, IPS, Addl. DCP I, North District, who is also the PIO, who stated to have received RTI application Dt. 3 2 2015 addressed to him, (which was received in his office on 5 2 2015), is the same officer, who in his capacity as Addl.DCP has issued an order for the destruction of medical record of the appellant, which proves he deliberately obstructed information. The Commission directs Mr. Vijender Kumar Yadav to show cause why maximum penalty should not be imposed upon him for destruction of medical records of the appellant when the RTI request is pending with them, within 21 days from the date of receipt of this order. 11. The Commission directs the Superintendent, Central Jail 2 to initiate the efforts to find the medical records of the appellant if at all left out of the destruction process in the medical record room. In the alternative, the Commission requires the DCP/Civil Lines to search for any parallel entries of medical records or the bills for medical reimbursement or vouchers for payment made to the appellant or any other related document pertaining to medical history of the appellant, within 21 days from the date of receipt of this order. 12. The Commission directs the DGP (Prisons) to show cause why suitable compensation should not be awarded to the appellant for delaying, denying and destroying the medical records by the Public Authority. Sd/- 12.02.2016 Authenticated true copy (M. Sridhar Acharyulu) Information Commissioner (U. C. Joshi) Deputy Secretary Addresses of the parties: 1. The PIO under RTI, Govt of Delhi O/o Resident Medical Officer, GNCTD, Central Jail Tihar, CIC/SA/A/2015/001408 Page 5
New Delhi 110064. 2. Shri Ravinder Kumar, S/o Sh. Babu Lal, Ward No. 01, Central Jail No. 2, Tihar, New Delhi. 3. The PIO under the RTI Act, Govt. of Delhi Central Jail No.2, Tihar Jail New Delhi 110064. 4. The PIO/FAA under the RTI Act, Govt of Delhi Additional DCP (Mr. Vijender Kumar Yadav, IPS) Delhi Police, North District, Civil Lines, DELHI. 5. The DIG (Prisons) C/o Director General of Prisons Central Jail Tihar, New Delhi 110064. CIC/SA/A/2015/001408 Page 6