Filing an FIR is no answer for a missing file; PIO should reconstruct the file, rules CIC
Neither lodging a first information report (FIR) with the police nor denying information to a citizen under Right to Information Act (RTI) under the pretext of a missing file is acceptable. Last week’s order by the Central Information Commission (CIC) puts the onus further on the Public Information Officer (PIO) to reconstruct the missing file. The order states, “It is the duty of the PIO to make necessary efforts to trace the file and inform the same to the appellant in the form of an affidavit.” The order also makes applicable the Public Records Act as well as the Indian Penal Code for the PIO.
In several earlier decisions, pioneered by Maharashtra’s former Information Commissioner Vijay Kuvalekar, lodging of FIR was made mandatory for the PIO in case he or she cannot trace the files which contain information required by the CIC. However, FIRs would be merely lodged with no further action. The latest order by Central Information Commissioner Prof Sridhar Acharyulu’ questions the validity of the FIR in such a case, stating, “The Commission feels that lodging of FIR is not the remedy in such cases, as one cannot expect the Police to come to the office and trace the file. According to law, Police does not have any responsibility to trace the missing files, as they will come into picture only when there is theft of the files. It cannot be said that police should come to office and search for the files or things misplaced by negligence or deliberate action or by mistake etc.”
Holding the PIO fully responsible for missing files and stating that every public authority should designate a Public Records officer and the Public Records Act 1993 should be made applicable to a PIO, Mr Acharyulu stated in his order of 4 May 2017, “The public authority has a duty to designate ‘Public Records Officer’ as per Public Records Act, 1993. This Act is made to regulate the management, administration and preservation of public records of the Central Government, Union Territory Administrations, public sector undertakings, statutory bodies and corporations, commissions and committees constituted by the Central Government or a Union Territory Administration and matters connected therewith or incidental thereto.”
Bringing out similarities between the two Acts, CIC Acharyulu stated that the definition of ‘Public Records’ U/S 2(e) of Public Records Act, 1993 (PRA 1993) is almost identical with the definition of Records under the RTI Act 2005. These records can be sought under the RTI Act, 2005 as ‘Information’ through RTI Application.
What does the Public Records Act (PRA) 1993 say?
S 5 (1) Every records creating agency shall nominate one of its officers as records officer to discharge the functions under this Act. Under PRA 1993, Sec 6(1) the records officer shall be responsible for:
Proper arrangement, maintenance and preservation of public records under his charge;
Periodic review of all public records and weeding out public records of ephemeral value;
Appraisal of public records which are more than 25 years old in consultation with the National Archives of India or, as the case may be, the Archives of the Union territory with a view to retaining public records of permanent value;
Destruction of public records in such a manner and subject to such conditions as may be prescribed under sub-section (1) of section 8;
Compilation of a schedule of retention for public records in consultation with the National Archives of India or, as the case may be, the Archives of the Union Territory;
Periodic review for downgrading of classified public records in such manner as may be prescribed;
Adoption of such standards, procedures and techniques as may be recommended from time to time by the National Archives of India for improvement of record management system and maintenance of security of public records;
Compilation of annual indices of public records;
Compilation of organisational history and annual supplement thereto;
Assisting the National Archives of India or, as the case may be, the Archives of the Union territory for public records management;
Submission of annual report to the Director General or, as the case may be, head of the Archives in such manner as may be prescribed;
Transferring of records of any defunct body to the National Archives of India or the Archives of the Union Territory, as the case may be, for preservation.
The CIC’s decision of 4th May was a result of a second appeal filed by a citizen, Balvendra Kumar, who sought details with regard to the file notings of all corresponding papers of a particular file in the Ministry of Labour and Employment. The CPIO replied by stating the concerned file was not traceable. An appeal was filed. The First Appellate Authority (FAA) provided two pages, but Balvendra Kumar was not satisfied. He made a second appeal to CIC. The PIO, during the CIC hearing, stated that “they made all possible efforts to find out the missing file in question and even went to different sections of the concerned departments but all their efforts bore no fruitful results”.
The CIC referred to an earlier order of 2014 on the issue of missing files which stated that, “... prima facie, public authority cannot deny the right of the appellant to get an alternative plot, by putting forward an excuse of missing 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 CIC also observed that if the Right to Information Act, 2005 is read along with Public Records Act, 1993 and Indian Penal Code, “it will lead to serious consequences for those who lose the records, besides the disciplinary action from the top administration. The Right to Information Act cannot be effectively implemented without properly implementing the Public Records Act, 1993. But most employees and their bosses do not know that a law called Public Records Act exists in this country”.
If all these laws are put together, the CIC said, “Appropriate action could be ordering an inquiry and holding the persons responsible for the disappearance of the files. There are three requirements, a) recovering the file, b) finding out which employee was responsible followed by disciplinary action and c) addressing problems arising out of ‘missing file’. No public authority has shown any such record that reflected their ‘appropriate action’.”
The CIC has directed CPIOs of the Ministry of Labour and Employment to give, by 12 May 2017, “report on action taken on the pathetic condition of their office losing a very important record like this, and inform the Commission what kind of measures they contemplate to address the grievance of the appellant…”
(Vinita Deshmukh is consulting editor of Moneylife, an RTI activist and convener of the Pune Metro Jagruti Abhiyaan. She is the recipient of prestigious awards like the Statesman Award for Rural Reporting, which she won twice in 1998 and 2005, and the Chameli Devi Jain award for outstanding media person for her investigation series on Dow Chemicals. She co-authored the book, “To The Last Bullet - The Inspiring Story of A Braveheart - Ashok Kamte”, with Vinita Kamte, and is the author of “The Mighty Fall”.)