Public authorities cannot take excuse of “missing files” for denying information under the RTI Act as such claims have no legality under the transparency law for withholding records, the Central Information Commission has held.
“Unless proved the record was destroyed as per the prescribed rules of destruction/retention policy, it is deemed that record continues to be held by the public authority,” Information Commissioner Sridhar Acharyulu said in his order.
The case came before the CIC after one Om Prakash sought to know information from Land and Building Department of Delhi Government regarding allotment of alternative plot in lieu of his land acquired by the Government.
The Department admitted before the Commission that the relevant file is missing and it could not be traced even though the officers personally inspected room of the Land and Building Department after receiving the RTI application.
The official representing the department said there is no possibility of retrieving the missing record.
In a terse order, the Commissioner said loss of records that are required to be kept and maintained permanently, if considered as evidence in a case, should invite criminal complaint against officials under section 201 of Indian Penal Code (punishable with imprisonment which is directly proportional to seriousness of offence charged from seven years to 10 years and for life.)
“Claim of file missing or not traceable has no legality as it is not recognised as exception by the RTI Act. By practice “missing file” cannot be read into as exception in addition to exceptions prescribed by RTI Act.
“It amounts to breach of Public Records Act, 1993 and punishable with imprisonment up to a term of five years or with fine or both,” Mr. Acharyulu said.
The Commissioner also issued a show cause notice to the Land and Building Department official asking why maximum penalty of Rs 25,000 be not levied upon him.
Mr. Acharyulu recommended to the public authority to consider the issue “seriously” as the Commission has been hearing excuse of missing files on many occasions and also to initiate action under Public Records Act, 1993 against responsible persons.
“The public authority also has a duty to designate an officer as records officer and protect the records. A thorough search for the file, inquiry to find out public servant responsible, disciplinary action and action against under Public Records Act, reconstruction of alternative file, relief to the person affected by the loss of file are the basic actions the public authority is legitimately expected to perform,” he said.
He said, prima facie, public authority cannot deny the right of the appellant by putting forward an excuse of the missing file.
“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,” he said.
