National RTI Awards

ICs should fix responsibilty for “loss” of public records

‘Missing’ files may not remain missing if information commissioners fix responsibility, show insights from nationwide study of ICs

ICs have strong grounds to order police enquiries against officials that hide behind ‘missing files’

Compensation and financial penalties are not enough to deal with ‘lost’ public records Public Records Acts also allow fixing responsibility

New Delhi, Nov. 11: A file ‘missing’ inexplicably from public records may not have been missing at all or may easily turn up where it belongs if an information commissioner insists on fixing responsibility. Taking the ‘missing file’ reason at face value by an information commissioner, on the other hand, could easily give public authorities the most convenient excuse for denying uncomfortable information to RTI applicants. Often, not fixing responsibility for an inexplicable loss of public record also means not enforcing Section 4 (1) (a) of the Right to Information Act, 2005, which requires the public authorities to bring their records in proper order so as to facilitate easy access, according to insights gained by National RTI Awards Secretariat in its nationwide study.

An information seeker from Sangli (South Maharashtra), for example, found to his delight that a file, considered ‘missing’ for the last 18 years, turned up magically after Pune information commissioner Vijay Kuvalekar pressed the right buttons. The applicant in question had been trying vainly for several years to get Sangli-Miraj-Kupwad Municipal Corporation to share with him records that showed that his housing society included some illegal constructions. He had even moved the court without any luck. The municipal corporation parried every query with the response: ‘The file is missing’. He received the same reply when he filed an RTI application.

At the hearing of his second appeal in early 2007, the PIO told Kuvalekar that the file was probably lost during Sangli’s transition from a municipal council to a municipal corporation many years ago. “I asked the PIO whether the Corporation had lodged a complaint with the police on the ‘missing’ file. The answer was negative. I told him a police complaint needs to be lodged against all officials who were supposed to have the custody of the file over the entire period,” says Kuvalekar. Some of the officials had died and others had retired, the PIO stated.

“A police complaint can surely be filed against retired officials for committing lapses during their tenure as public servants,” the information commissioner responded. It hit Kuvalekar then that since the matter had been litigated in a court, the government lawyer might have the possession of the records sought. When the PIO pleaded he had no idea who was the lawyer for the erstwhile Sangli municipal council, the applicant promptly fished out the case papers from the bag he was carrying and read out the name of the lawyer. “I gave the PIO seven days either to get the records from the lawyer and pass it on to the applicant or file police complaints against all surviving officials who were responsible for keeping the file in their custody but failed to report its presumed loss.

Let the police now enquire the matter,” recalls Kuvalekar. Two days after that direction, the PIO informed Kuvalekar that the long lost file had been “luckily” found and a copy of the document sought by the citizen was being passed on to him! Kuvalekar says he subsequently took the same stand in about 10 similar cases with the same outcome in at least a few of them. Kuvalekar, however, did accept the ground of missing records in 2-3 cases. “Records of many public authorities are in a hopeless mess. In one case, I was reliably informed that Pune Municipal Corporation (PMC) had dumped tonnes of files into a warehouse with no space to even step inside. There was no hope of retrieving anything useful from that mess,” he says. In his subsequent visit to PMC, Kuvalekar successfully persuaded the municipal commissioner to sort out the mess and start proper upkeep of the records.

Some other information commissioners have also sought to take a tough stand – unfortunately, often without fixing responsibility — against public authorities that cite ‘missing file’ as the ground for denying information.

In May 2008, Gujarat information commissioner R.N. Das ordered an inquiry by Sub-divisional Magistrate (SDM) into how Kutch district administration lost a register containing names of people who were issued stamp papers. Das also slapped a fine of Rs 15,000 on a Deputy Collector of Kutch district for denying information to an applicant on this ground. The missing register belonged to a category of records, which the law required the administration to keep and maintain for 30 years. “Under the Public Records Acts of the Centre and the states, each public authority is supposed to classify its documents as ‘A’, ‘B’, and so on, and fix the number of years for which they will stay in their records before being destroyed,” says Kuvalekar. An authorized official is also required to keep a register of the documents that have been destroyed, so that the status of even a very old document is ascertainable. Contrary to a widely held belief, disclosure under the RTI Act does not have a bar in terms of the ‘oldness’ of a document.

In March 2008, central chief information commissioner Wajahat Habibullah passed strictures against Municipal Corporation of Delhi (MCD) for denying information to an applicant about the issuance of a trade licence in 1982 on the ground that ‘it was a very old record; so it got misplaced’. Habibullah, however, stopped short of ordering an enquiry, observing, “the enquiry won’t serve the purpose of the applicant”. What that means is that MCD was let off lightly for the loss of a public record that should have invited a police enquiry against officials responsible.

In July 2009, M.M. Ansari, another central information commissioner, also chose not to compel Delhi government’s department of women and children to fix responsibility and initiate action against its officials for allowing a vital documentary evidence of a ‘purchase scam’, to go missing. Despite holding the department responsible for “suppression of facts and inefficient management of records” in a matter of corruption, Ansari let off the department lightly by only asking for a compensation of Rs 10,000 to be paid to applicant Raaj Mangal Prasad. Even that order has not been complied with until November 04, 2009, says Prasad. “The matter is still pending because I have been told that the department has ‘appealed’ Ansari’s order even though there is no provision for such an appeal in the RTI Act,” adds Prasad.

In July 2009, Shailesh Gandhi, another central information commissioner, asked the commissioner of Municipal Commissioner of Delhi (MCD) to get a police enquiry conducted into the “loss” of records of 4031 of the 5259 ‘tehbazaris’ (street vendors) in three municipal zones. Gandhi said the MCD must fix responsibility for “the files (that) have either been stolen or never existed in the first place.” It’s not known whether MCD complied with Gandhi’s order. In August 2009, an information commissioner of Punjab served a notice on District Revenue Officer (DRO) of Ludhiana district to show cause as to why a penalty should not be imposed on her for delay in supplying information to an applicant on the ground of a “missing” masavi (a revenue record) of Noor Bhaini village. The commissioner issued another show-cause notice on the DRO, demanding why suitable compensation should not be awarded to the applicant for the detriment and loss suffered by him on account of the delay. The current status of that case in not known.

‘Loss’ of public records or ‘missing’ public records are now frequently cited by the PIOs across the country for denying information to RTI applicants. Over 3500 original land records of as many plots of land went “missing” from government custody in Sanand, near Ahmedabad, which has been transformed into prime real estate because of Tatas’ setting up Nano manufacturing project there, according to the response to an RTI request as reported in a newspaper in September 2009. Sanand talati (officer in charge of land records) admitted in his response that no effort had been made by any officer to find the records. Legal experts say such a loss of land records, which are required to be kept and maintained permanently, should invite criminal complaint against officials under sections 201 and 217 of the Indian Penal Code (IPC).

In December 2008, the PIO of Uttar Pradesh Assembly informed – alarmingly — an RTI applicant, Urvashi Sharma, that all digital records of gate passes allotted to vehicles for the year 2007 had been “deleted” because of a virus attack. This kind of loss of public records –revealed through RTI or otherwise — has a direct bearing on the security of important public buildings.