[HumJanenge] Denial of Information and misleading information provided by Orissa Information Commission

Where the fence eats the crop. . . .
(Denial of Information and Misleading Information to the RTI
Applicants by the Office of Orissa Information Commission)

Dear friends,

Orissa Information Commission, which is a creature of RTI Act 2005 is
supposed to act as the custodian of the people's right to information
and penalize the PIOs and public authorities, who are guilty of
denial of information and/or providing false and misleading
information to the public. But here is a glaring instance of how the
Orissa Information Commission, notwithstanding the change of its
guard-in-chief since November 2010 last, is itself guilty of the above
charge, simply to save its corrupt ex-Chief from the public wrath.
In recent months two RTI applicants, one located in Bhubaneswar and
another in Bolangir, had submitted their RTI applications separately
to the Office of OIC seeking some information relating to an
unprecedented move in the whole of India i.e. damage/defamation suit
valued Rs.1 lakh filed by the retired Chief Orissa Information
Commissioner against two citizens in the Civil Judge Court (Sr. Dvn.)
Bhubaneswar. But the reply of the PIO followed by the decision of the
1st Appellate Authority of OIC upholding the same is a grim pointer to
how the Commission can brazenly violate the provisions of RTI Act so
as to confound and even hide the real facts about its own misdoings.

On 1.12.2011 Sri Tapan Mohapatra the RTI Applicant from Bhubaneswar
had sought the following information from the PIO of the OIC -

i. Whether Chief Orissa Information Commissioner represented by
Commissioner-cum-Secretary, OIC has filed a damage suit in Civil Court
(senior division), Bhubaneswar on the grounds of defamation. If yes,
please state the amount of money expended on different heads in
pursuit of the above case including the payments deposited in the
court and the lawyer's fees.

ii. Under which provision of RTI Act, 2005, the above suit has been filed?

iii. Whether due authorization has been obtained from concerned
authority for filing the above suit.

iv. What is the present status of the suit so lodged against the defendants?

v. Copy of the plaint and annexures submitted by the plaintiff against
the opposite parties.

vi. Copy of the letters and communications made if any between the
Commission and any authority in connection wit the above suit.

Then, on 10.1.2011, Sri Prahallad Padhi the RTI-Applicant from
Patnagarh of Bolangir district had sought the following information
from the PIO, OIC –

i. Copy of decisions taken to file the damage suit against the two
citizens in Civil Court, Bhubaneswar

ii. Name of the Information Commissioners/ officers consulted in the
matter of the above decision.

iii. The amount of money spent in connection with the above case

iv. Name of the lawyers engaged by the Commission and remuneration
already paid and committed to be paid to them.

In response to the first RTI Application the PIO in his letter No.
26620 dt. 30.12.10 intimated thus- "the defamation case has been
filed on behalf of the Orissa Information Commission by the
Commissioner-cum-Secretary, OIC. As the matter is pending and final
stage has not been reached, the information sought for by the
applicant does not fall under Section 2(f) of RTI Act."

However, in response to the second RTI Application, the PIO in his
letter No. 4046 dt. 11.2.2011 repeated the same reply besides
providing an additional information i.e. Rs. 11,435/- has been spent
towards payment of the professional fees including the fees of the
Advocate and court fees.

The first RTI applicant Sri Tapan Mohapatra who felt aggrieved by the
PIO's denial of information made a first appeal before the Office of
OIC appealing for complete information. On 14.2.2011, the 1st
Appellate Authority of OIC heard the case and disposed it passing the
order as follows-

a. Question No.I- The Answer is yes. PIO to inform the amount of expenditure.

b. Question No. II & III- The Commission has moved as a juristic
person. The matter is sub judice and there is restraint order. Hence,
the disclosure of the same is restricted under Section 8(1)(b) of RTI
Act.

c. Question No. IV- The case is sub judice before the learned Civil
Judge Senior Division, Bhubaneswar . Hence it invokes Section 8
(1)(b) of RTI Act.

d. Question No. V &VI- The matter is sub judice and there is restraint
order Hence disclosure of the same invokes Section 8(1) (b) of the RTI
Act.

Then, following the above order (Point-a) of the 1st Appellate
Authority of OIC, the PIO on 23.2.2011 supplied the information that
Rs.12,935/- has been spent towards professional fees of Advocate and
the court fees for the defamation case.

Now, the question arises, is the Commission's reply that the
disclosure of the above information has been restricted under Section
8(1)(b) of RTI Act correct in the face of law? First, let us read what
sort of information has been exempted from disclosure under the said
Section - "information which has been expressly forbidden to be
published by any court of law or tribunal or the disclosure of which
may constitute contempt of court". However, here in this case, the
Court has not ordered the Commission 'forbidding the disclosure of any
information', nor has the Court passed any restraint order, violation
of which shall tantamount to 'the contempt of court'. Rather it is
worth recollecting that the Court, on the basis of the defamation suit
lodged by the Commission, has issued the restraint order against 'the
publication of any defamatory/derogatory material' by the opposite
parties.

Moreover, should an Information Commission worth its salt take the
excuse of the restraint order of the Court for denying answer to
such a simple question- "Under which provision of RTI Act, 2005, the
above suit has been filed?". The Commission ought to remember that
there should be a limit to kidding with the RTI Act, which in
Section-22 assumes overriding powers vis-à-vis the rest of the
country's laws and instrumentalities. Moreover, can the Commission
produce any order of the concerned Court where the latter has issued a
restraint order against the Commission in respect of answering the
above question? Had there been such an order, the Commission would
have jolly well quoted it. Rather, the Commission with a dubious
motive to hide its blatantly illegal act of lodging a defamation suit
against the two citizens has resorted to the concocted lie of
'restraint order by the Court' and thereby itself committed 'the
contempt of court'.

Besides, there is no uniformity in the Commission's answers on the
amount of money spent after the above litigation. In one answer, it
mentions Rs.11, 435/- while in another Rs.12,935/-. Under the
circumstances, it is very much possible that the real amount might be
something else, much higher than the above two. The Commission ought
to remember that such money is not paternal property of any
individual, but belongs to the public exchequer, and one can't abuse
or play with it at one's sweet will.

The next instance of concocted falsehood resorted to by the Commission
is its erratic reply, "the defamation case has been filed on behalf of
the Orissa Information Commission by the Commissioner-cum-Secretary,
OIC". As a matter of fact, the Cause Title of the case lodged by the
Commission mentions 'Chief Orissa Information Commissioner' as the
plaintiff, though anomalously enough, one Sri Kasinath Sahu styled as
'Commissioner-cum-Secretary, OIC' has signed the Affidavit. The
opposite parties have drawn the attention of the concerned Court about
this procedural anomaly and prayed therefore for the rejection of the
plaint all together.

The question may again arise, why is OIC so much scared about the two
citizens, against whom they have lodged the defamation case? The
answer is pure and simple. These activists have right since inception
been exposing all sorts of corruption, misappropriation and misdoings
by the Commissioners committed in naked violation of RTI Act 2005. To
mention a few such instances, the Commissioners have misappropriated
more than Rs.3 crore 25 lakh in the name of IEC activities which don't
fall under the Commission's domain as per Section 26 of RTI Act. They
have appointed men and women of their choice in various posts
including one Sri Kasinath Sahu as 'Commissioner-cum-Secretary, OIC'
bypassing the mandatory notification in the official gazette as
required under Section 27 of the Act. They have illegally ruled for
collecting cost of information from BPL persons in violation of
Section 7(5) of RTI Act. They have further illegally ruled that the
complaints regarding violation of Section 4 (suo motu disclosures)
didn't come under the adjudicative purview of the Commission.
Moreover, they have spread misinformation about RTI Act through
mistranslations published by them. Again, they have violated the
privilege of Orissa Legislative Assembly by publishing the Annual
Reports (laid in the Assembly) which were filled with numerous bluffs
and misinformation of bizarre kind.

Instead of correcting himself, the former Chief Orissa Information
Commissioner Sri D.N.Padhi chose to lodge a defamation case against
the two RTI activists who were continuously exposing the illegal and
anti-people activities of the Commission through various media. His
sole intention was to silence these two critics for ever. The same
strategy still works even to day after retirement of Mr. D.N.Padhi, as
exposed through said RTI Applications.

Regards
Pradip Pradhan
M-99378-43482
Date-4.3.2011