Right to Information: Don’t take it lightly if you are told that a file is “missing”

my RTI column April 27 in MoneyLife
Right to Information: Don’t take it lightly if you are told that a file is “missing”
April 27, 2011 01:16 PM |  
Vinita Deshmukh

In many cases the public information officer might give the excuse that the file cannot be found, simply to dodge your RTI query. Remember, he cannot get away so lightly, for a “missing” document is government property and department officials are answerable for its disappearance

This is a story that began years before the national RTI Act came into being and ended on a happy note two years after the law was implemented.

A resident of a housing society in Sangli was made to run from pillar to post for 18 years at the the Sangli-Miraj-Kupwad Municipal Corporation, for records of some illegal constructions in his housing society. Each time he was told that the file was "missing". Curiously, he had asked for five files, of which he got four, but the fifth one-the most crucial to his investigations-was not to be found. Frustrated, he even sought legal intervention, but the court did not give a ruling in his favour.

When he became familiar with the RTI Act, he filed a query with the public information officer (PIO) of the Sangli-Miraj-Kupwad Municipal Corporation sometime in 2007. He received the same reply. He persisted and filed an appeal before the then chief information commissioner of Maharashta, Dr Suresh Joshi. Subsequently, when Vijay Kuvlekar took over as information commissioner of the Pune division, appeals under his jurisdiction were transferred to his office.

When Mr Kuvlekar called both the parties for the hearing, the PIO told him that perhaps the file went "missing" during the transition of Sangli from a municipal council to a municipal corporation. Mr Kuvlekar suspected foul play, as four of the five files were in place. So he asked the PIO what action he would have taken had a computer or a chair been lost. The PIO said that he would have lodged a police complaint. Mr Kuvlekar explained to the PIO that similarly a file or document belonging to any government department was also public property and that he should immediately lodge an FIR (first information report) with the police. He allowed the PIO 10 days to find the file or hand over to him a copy of the FIR. Lo and behold, within 24 hours, the PIO brought the file and the applicant got justice after 18 long years.

This order by Mr Kuvlekar has been among the pioneering decisions that have introduced accountability in the department with regard to missing records. But, have the "missing" files excuses stopped? No, says Kuvlekar. "I have had 50 such appeals since 2007. In several cases I have ordered that an FIR be lodged. In one of the cases, the file requested for was of the 1940s, hence the 'missing' reason was quite genuine. In several other cases, I allowed some time to dig out the files, and in most cases the files appeared miraculously.''

In another case, in Mumbai, Aftab Siddique, a civic activist from Bandra, was repeatedly denied information by the Building Proposals Department of the Bombay Municipal Corporation, with the excuse that the files were lost. Mr Siddique appealed to the chief information commission.

When Dr Suresh Joshi called both parties for the hearing, the BMC official said that 2,000 files in his department were missing. Shocked, Mr Joshi asked then municipal commissioner Jairaj Phatak to appear before the commission. Mr Pathak assured Mr Joshi that all existing files would be computerised within six months. Mr Joshi also asked Mr Pathak to implement the Maharashtra Public Records Act 2005, wherein section 8 contains strict terms to be followed before destruction of any government document and the it sets out a fine of Rs10,000 and five years imprisonment for the official responsible. (Read below)

A performance evaluation done by Arvind Kejriwal's NGO, Parivartan in 2009, found that most information commissioners were indifferent to the cases of "missing records". Following is a gist of the evaluation.
2. Missing records: Many PIOs report "missing records", "records lost", "not traceable", as reasons for denying information. This trend seems to be on the rise, depending upon the response of information commissioners to such pleas. The response of commissioners has been varied.
1. Assam: In the state, the PIO's plea that records are missing is normally accepted. Mostly observations are made stating that, PIO seems to have made stringent efforts to locate records. The department is ordered to conduct a time-bound inquiry and the case is closed.
2. Chhattisgarh: Mostly the plea is accepted with directions that PIO should be careful with records in future. However, in some cases, the commission has ordered the department to fix responsibility and closed the case.
3. Himachal Pradesh: Since the records are lost, they are not "held" by the PIO, according to the RTI Act, and therefore, information cannot be provided.
4. Madhya Pradesh: The department is directed to fix responsibility and take action as per rules.
5. Maharashtra: An information seeker from Sangli (south Maharashtra) found to his delight that a file, considered "missing" for the last 18 years, turned up magically after Pune information commissioner Vijay Kuvlekar pressed the right buttons. (As already described in the article.)

Mumbai-based activist Krishnaraj Rao, who has done a study on the Public Records Act states that: "If a file is lost, there is a clear-cut procedure that the officer designated as "Records Officer" has to follow. (He has also translated the government order for our benefit which is provided below). This may be summarised as "SRF", that is (a) SEARCH, (b) RECONSTRUCT the file, (c) Register FIR.

Here are some relevant sections of the Maharashtra Public Disclosure Act, 1993. 

SECTION 6: 
1. Every records creating agency shall nominate one of its officers as records officer to discharge the functions under this Act.
2. Every records creating agency may set up such number of record rooms in such places as it deems fit and shall place each record room under the charge of a records officer.

SECTION 8: 
1. The records officer shall, in the event of any unauthorised removal, destruction, defacement or alteration of any public records under his charge, forthwith take appropriate action for the recovery or restoration of such public records.
2. The records officer shall submit a report in writing to the Director General or as the case may be, the head of the Archives without any delay on any information about any unauthorised removal, destruction, defacement or alteration of any public record under his charge and about the action initiated by him and shall take action as he may deem necessary, subject to the directions, if any, given by Director General or, as the case may be, head of the Archives.
3. The records officer may seek assistance from any government officer or any other person for the purpose of recovery or restoration of public records and such officer or person shall render all assistance to the records officer.

SECTION 10: 
Whoever contravenes any of the provisions of section 4 or section 8 shall be punishable with imprisonment for a term which may extend to five years, or with fine which may extend to ten thousand rupees, or with both.

Here is another point of view. 
The link http://www.rtiindia.org/forum/blogs/jps50/172-missing-untraceable-records.html has suggested filing another RTI application with the same PIO, who says that a file is missing. It states that legal experts say public documents going missing should invite a criminal complaint against the erring officials. The application should be in the following format.

"Of late, PIOs are routinely replying that records sought by the applicants are missing or not traceable, etc. This is true more in cases where records are sensitive in nature or may adversely affect vested interests. Legal experts say such a loss of records that 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). To resist such a trend, the applicant can file another RTI application with the same public information officer seeking the following information:

As per letter no. ___________, dated ________, of PIO__________  [copy enclosed] , I have been informed that following records are missing or not traceable in the office:
a.

b.

c.

I request you to kindly let me know the following details in connection with these missing/not traceable records [hereafter referred to as "said records" for brevity]:

1. Please provide me certified photocopy of pages of registers where the said records were last recorded to have existed.

2. Name, designation and office address of the officers and other staff of the office who had last custody of the said records.

3. Date when your office first came to know that the said records are missing.

4. Details of efforts made to trace out the said records till date of your reply.

5. Certified copy of FIR filed for the missing/non-tracing of said records. In case if FIR is not filed till date of your reply to this application, reasons for it be also made known to me.

6. Certified photocopy of departmental guidelines for preservation and safe custody of records.

7. Certified photocopy of report made by your office to your higher officers and their reply on the matter of the said records.

8. Details of departmental action initiated against erring staff for the missing records.

9. Certified photocopy of last audit queries and replies thereto in connection to said records.

10. Certified copy of record evidencing last periodical verification/inventory of old records undertaken by the department/office as per prescribed procedure. If no inventory/verification is undertaken, reasons thereof be made known to me.

11. Name, designation and full address of public information officer of the office where additional/duplicate copies would be available of the said record.

12. Please let me know if it is possible to retrieve the said record from computers.

13. Please provide me a sworn affidavit to this effect. [refer: CIC decision dated 06-11-2009 in Appeal No.CIC/SM/A/2008/00135 & SM/A/2009/001075]

There is possibility that the said records may be traced, on receiving this RTI application!

(Vinita Deshmukh is a senior editor, author and convener of Pune Metro Jagruti Abhiyaan. She can be reached at vinitapune@gmail.com.)