In a landmark order the Central Information Commission held that unless proved that record was destroyed as per the prescribed rules of destruction/ retention policy, it is deemed that record continues to be held by public authority. Claim of file missing or not traceable has no legality as it is not recognized as exception by RTI Act. By practice ‘missing file’ cannot be read into as exception in addition to exceptions prescribed by RTI Act. It amounts to breach of Public Records Act, 1993 and punishable with imprisonment up to a term of five years or with fine or both. Public Authority has a duty to initiate action for this kind of loss of public record,in the form of ‘not traceable’ or ‘missing’. The Public Authority also has a duty to designate an officer as Records Officer and protect the records. A thorough search for the file, inquiry to find out public servant responsible, disciplinary action and action under Public Records Act, reconstruction of alternative file, relief to the person affected by the loss of file are the basic actions the Public Authority is legitimately expected to perform.
The order written by Madabhushi Sridhar came in Sh. Om Prakash Vs. Land & Building Dept, GNCTD wherein Mr. Om Prakash, was seeking information regarding allotment of alternative plot with reference a certain file in lieu of the land acquired by the Government. On not getting a proper response from the Public Information Officer, he moved to the First Appellate authority and then subsequently filed second appeal before the Commission.
The officer from Land & Building Dept. submitted to the Commission that the relevant file is missing and there is no possibility of retrieving the missing record.
The Commission taking a tough stand lambasted the Public Authority and said “Public Authority cannot deny the right of the appellant to get an alternative plot, by putting forward an excuse of missing the file. The defense of missing file cannot be accepted even under the RTI Act. If the file is really not traceable, it reflects the inefficient and pathetic management of files by the Public Authority. If the file could not be traced in spite of best efforts, it is the duty of the respondent authority to reconstruct the file or develop a mechanism to address the issue raised by the appellant.”
The Commission also expressed the view that lodging of FIR could not be considered as a remedy in such cases as it is not the duty of police to trace the missing government files. The police can only come into the picture if the files have been stolen.
The order invoked the Public Records Act, 1993 and mentioned the duties of Public Record Officer. It also said “Loss of records that are required to be kept and maintained permanently, if considered as evidence in a case, its missing should invite criminal complaint against officials under sections 201 of IPC (punishable with imprisonment which is directly proportional to seriousness of offence charged from 7 years to 10 years and for life).”
The order also referred to the judgment delivered by the Delhi High Court in Union of India Vs. Vishwas Bhamburkar, wherein objectives behind the RTI Act with duties of the Public Information Officer were emphasized.
The Commission also directed the PIO in the present case to file an affidavit regarding the time and date of efforts made to trace the files, fact of fixing responsibility for the missing file, and what relief is proposed to be given to the appellant etc. The PIO was also directed to show cause as to why maximum penalty cannot be imposed against him for not responding properly to the RTI application within the time period.
The Commission’s stand, surely a tough one, may do great good by reducing negligence in the government offices. Dismissing the excuse of missing file, the Commission very clearly sates “The Public Authority should see that the main purpose of RTI Act to facilitate the appellant to get information, is not defeated by this kind of excuses.”