"Improper": Kerala High Court Pulls Up State Public Service Commission For Destroying Records During Pendency Of RTI Application

Justice Easwaran S stated that the State Information Officer (SIO) can take action against the PSC if they destroy records during the pendency of the RTI application. The Court said:

“….it would be appropriate to remind KPSC that in future not to take any steps in tune with the Rules framed under Act 2 of 1962 for destructions of the records when an application is received under the Right to Information Act, 2005. Doing so, would definitely defeat the solemn purpose for which the Right to Information Act, 2005 was enacted. If in such event it is brought to the notice of the State Information Commission that during the pendency of an application for information, records were destroyed by the PSC, the State Information Commission will be free to take appropriate action for which no general direction is required.”

Background Facts

The applicant (2^nd respondent) submitted an application under the RTI on July 2013 to get information of question papers of all PSC exams conducted from January 2013 to June 2013, official answers to questions, name of exams for different posts and date of examinations. The PSC informed the applicant that question papers were not retained. It was also informed that answers and other details sought by the applicant were available in the official website of PSC. The appellate authority also rejected his first appeal. The State Information Commission allowed his second appeal, and the PSC was directed to disclose the information sought by the applicant.

The Writ Petition was filed by the Kerala Public Service Commission (KPSC) in 2015 challenging an order passed by the State Information Commission to disclose certain information sought by an applicant under the Right to Information Act (RTI).

The Counsel for PSC submitted that they were not obliged to disclose information since the question papers were destroyed following Office Manual prescribing procedure for the preservation of records and rules framed under the Kerala Destruction of Records Act, 1961. It was stated that question papers need not be retained in office for more than one month from the date of the examination as per the Rules.

The applicant contended that the PSC is a public authority and obliged to disclose information under the RTI Act. The State Information Officer submitted that conduct of constitutional authorities like PSC was unsatisfactory because at least the question papers of June 2013 could have been given to the applicant.

Findings

The Court stated that PSC could destroy question papers as per the Office Manual prescribing procedure for the preservation of records and Rules made under the Kerala Destruction of Records Act. It noted that as per the Rules, the question papers could be destroyed by the KPSC after one month of the examination. The Court thus stated that once KPSC has destroyed question papers as per law, then it could not be directed to provide information sought under the RTI Act.

“Therefore, once the PSC has destroyed the records on happening of the event specified in the Rule, it is not obliged to provide the information when sought for under the provisions of the Right to Information Act. Hence, it is declared that once the records are destroyed, the PSC cannot be compelled by the State Information Officer to disclose the information.”

The Court then went on to consider whether the PSC could have destroyed documents and denied information to the applicant even when an application filed under the RTI Act was pending before it.

The Court took note of the arguments raised by the State Information Officer that PSC was in the habit of destroying documents despite the pendency of RTI application. It noted that RTI application was filed in July 2013 seeking question papers from January to June 2013 and that PSC destroyed the question papers of June 2013 during the pendency of RTI application.

It said, “ However, although this Court has found that the petitioner has power to destroy the records, the destruction of at least few of the question papers if caused as asserted by the learned counsel for the petitioner was admittedly during the period when the application for information was either pending before the 1st respondent or before the petitioner. Hence, this Court must find that the destruction of the records when the application was pending is certainly improper and uncalled for.”

Therefore, the Court held that the destruction of records by the PSC on receipt of the RTI application was improper.

In the facts of the case, the Court noted that it would be futile to issue directions now since the writ petition was filed and pending since 2015. As such, the writ petition was allowed, and the Court set aside the order of SIO to disclose information to the applicant since the information sought by the applicant was already destroyed by the KPSC.

Before parting with the case, the Court stated that the SIO can take appropriate action against KPSC if they are found destroying information during the pendency of the RTI application.

Counsel for Petitioners: Standing Counsel P C Sasidharan

Counsel for Respondents: Standing Counsel M Ajay, K J Gisha, Jagan Abraham M George, P Jayabal Menon

Citation: 2024 LiveLaw (Ker) 370

Case Title: The Appellate Authority v The State Information Commission

Case Number: W.P.(C). No. 24260 of 2015

Click here to read/download the Order