Central Information Commissioner Prof M Sridhar Acharyalu, in the case of Vijendra Singh Jafa vs PIO, MOSJE, has slammed the PIO for refusing to provide information sought on grounds of non-availability of the files in question and also made recommendations to the Department of Personnel and Training, the nodal agency for the implementation of the Right to Information Act.
RTI applicant VS Jafa had sought information from the Joint Secretary, Ministry of Tribal Welfare (MTA), to Joint Director, CBI, seeking "details of case, if any, pending against Mr. V. S. Jafa" and the CBI’s response to the same, if any.
Mr. Jafa, who retired 20 years ago, claimed that he did not commit anything wrong and required a clean chit.
His plea was that the department should either complete the inquiry pending against him and inform him of the result or drop the process to relieve him of the blame.
In its reply, the CPIO stated that the information sought pertains to the Vigilance Unit of the undivided Ministry of Social Justice and Empowerment (MSJE).
The CPIO further stated that the MTA was carved out of MSJE in October, 1999, and the letters sought were not available in the files transferred to MTA from MSJE.
The First Appellate Authority (FAA) upheld the CPIO’s response. Being dissatisfied, the appellant approached the Central Information Commission (CIC).
Neither was any transfer of files shown, nor was any effort made by the CPIO to find the files.
“This amounts to denial on an illegal ground of ‘missing files’ not based on any of valid exception under Sections 8 and 9 of RTI Act.”
The same ruling was also given by the CIC in the case of Balendra Kumar vs Ministry of Labour and Employment. The Live Law report could be read here.
The commission further observed that the MTA and MSJE were not in compliance with Sections 52 and 53 of the Manual of Office Procedure, 14th Edition of May 2015, of Department of Administrative Reforms and Public Grievances.
Further, the Commission noted that malicious destruction of records is criminalised under Section 201 of the Indian Penal Code.
As per Section 6 of the RTI Act, the public authority is bound to maintain records. Section 7 states that the Records officer cannot remove records without authorisation. Section 8 criminalises the destroying of records.
The public authorities usually take the defence of rats or termites or flooding for the destruction of files. Mr. Bharatendra Singh Baswan, the appellant’s representative and a senior IAS, stated that “he remembered some allowance for maintaining cat to save the files from rats”.
When the menace of rats is threatening existence of files, the office has a provision to maintain a cat, which eats the eaters of records.
The government has a provision of allowance for rearing a cat in their office to kill rats. Further, the public authorities do not maintain record of most of these ‘accidents’.
“23. The frequent reference to ‘missing files’ as an excuse to deny the information is a major threat to transparency, accountability and also major reason for violation of Right to Information Act. Millions of RTI applications might have been rejected by PIOs on this ground during the last 11 years of RTI regime. With “missing files excuse” being around, it will be futile to talk about implementation of Right to Information Act.”
The commission observed that the claim of missing files leads to doubts regarding corruption, deliberate destruction and fraud on behalf of the public officials.
The commission directed the PIO to provide the copies of documents sought within 45 days and to produce before the commission the files relating to transfer of files along with the lists, besides explaining what efforts have been initiated by them to trace the documents sought by the appellant.
It also made the following recommendations to the Department of Personnel and Training, the nodal agency for the implementation of the Right to Information Act.