Karnataka High Court Quashes Order Directing ACB To Probe Denial Of Information Under RTI Act, Says PIO Not Supposed To 'Create' Information

Justice Jyoti Mulimani made the observations while allowing a petition filed by A B Yomakeshappa for quashing the order dated 28-05-2018 wherein State Information Commission had directed investigation against him by Anti Corruption Bureau for denial of information to an applicant.

The applicant, K Prakasha Reddy on 22.11.2017 had sought details of the C.D copy of the recorded CCTV footage of inside and outside cameras fixed in the Check Posts - Nangli "from 01.04.2016 to up to date". In response the petitioner was told that the office of the PIO does not have a recorded CD of CCTV footage.

The applicant preferred first appeal under Section 19(1) of the Act on 27.12.2017. Aggrieved by the inaction, he then preferred a second appeal before the Karnataka State Information Commission on 05.03.2018.

On notice being issued to the petitioner, he appeared before it and requested the Commission to drop proceedings on the ground that endorsement has already been issued on 24.12.2017 stating that the recorded CD of CCTV footage was not available in the office of the PIO.

However, the Commission issued a show cause notice to him as to why disciplinary action should not be taken for not furnishing the information. Following which the PIO on 21.05.2018 once again communicated to the applicant that the office of the PIO had already stated that the office of RTO does not have a recorded CD of CCTV footage. It was also informed that the storage capacity of the CCTV installed in the Check Post is very minimal.

In response to the show-cause notice issued by the Commission, the petitioner gave a reply stating that the CCTV installed in the office is having the capacity to retain memory only for a week, and after the expiry of a week, the same gets erased automatically without any manual intervention and there is no Circular issued by the head office "regarding mode of maintenance of CCTV and duration of maintenance of previously recorded visuals" since it requires huge space and the hardware capacity is not sufficient to hold the coverage for more than a week. 

But the Commission proceeded to pass the impugned order. Following which, the petitioner challenged it before the High Court.

The court noted that the right to information provides a legal framework for citizens’ democratic right to access information under the control of public authorities. The basic object is to promote transparency and accountability in the functioning of every public authority, it added

“The applicant sought the recorded CCTV footage from 01.04.2016 in the month of November 2017. He is seeking one and a half years old recorded CCTV footage. The CCTV installed in the office had less capacity; it can retain memory only for a week and thereafter, it will automatically get erased without any manual intervention,” said the court.

The court said no doubt a citizen is entitled to access information under the control of public authorities, provided the officials concerned possess the information which is sought. The information sought should be easily accessible and in the electric format, it said.

“In the present case, because of the less storage capacity, the information could not be made available to the applicant and the same was informed to him well in time. It is common sense that the officer is not obliged to furnish information that is not available in his office,” said the court.

Referring to Section 19(8)(a) under which the order directing ACB investigation was ordered, the bench said a bare perusal of the provision makes it very clear that the Commission has the power to require the public authority to take any such steps as may be necessary to secure compliance with the provisions of the Act.

The court said referral of the matter to ACB is certainly beyond the scope of section 19(8)(a) of the Act.

"The Commission failed to have regard to relevant considerations and disregarded relevant matters. In my considered opinion, the order passed by the Commission is unsustainable in law,” said the court, while quashing the order. 

Case Title: A.B. Yomakeshappa And Karnataka State Information Commission & Others

Case No: WRIT PETITION No. 30170 OF 2018

Citation: 2023 LiveLaw (Kar) 66

Appearance: Sangamesh R B Advocate for petitioner.

Rajashekhar K, Advocate for R1.