In a googly under the RTI Act, Dr. Kardam, Deputy Controller of Patents & Designs and also the Appellate Authority under the Right to Information Act, 2005, at the Intellectual Property Office, has effectively killed the application of the RTI, 2005 to information held by the Patent Office, Trade Mark Registry & Geographical Indications (G.I.) Registry. Image from here.
In a recent decision, available over here, Dr. Kardam has ruled that the RTI Act, 2005 will not apply in those cases where existing IP legislations provide for a mechanism to request the IPO for information. This particular decision contradicts Dr. Kardam’s earlier decision, available over here, where he had ruled that the RTI Act, 2005 over-rules all existing legislations and that the Patent Office could not compel a citizen to apply for information only under the procedure prescribed under the Patents Act. In short, it was the prerogative of the citizen to choose his mode of procuring information. Of course, certain information like certified copies can not be procured under the RTI Act in any case.
Before proceeding any further, it may help to recount the genesis of this particular decision.
In February, Sumathi had filed a RTI Application with the G.I. Registry requesting for all the information pertaining to the G.I. Application for ‘Darjeeling Tea’. The intention was to use the information for our research and also to make it available, in a scanned format, for all of our readers. The ‘Darjeeling Tea’ application is particularly important because it is considered by many to be India’s first successful venture in the field of G.Is.
The Central Public Information Officer (CPIO) at the G.I. Registry – Prashant Kumar S. Bhairappanavar – had consented to giving us all the information. He informed us that the information that we requested had run into a total of 659 pages and that we would have to pay him a total of Rs. 6,950 towards photocopying charges i.e. Rs. 10 per page. Anybody who has filed a RTI Application with the Central Govt. must be aware that the cost of photocopying a single page is actually Rs. 2 and not Rs. 10. This amount is specified by the Central Govt. in the rules drafted under the RTI Act, 2005 and which is available over here. In short the G.I. Registry was charging us 5 times the prescribed cost under the RTI Rules. This when the Patent Office and Trade Mark Registry were charging us only Rs. 2 per photocopy. Obviously aggrieved by the decision, we filed an appeal before Dr. Kardam, who is the Appellate Authority for all appeals against the orders of the CPIO at the G.I. Registry. Annexed to the appeal was a copy of the Right to Information (Regulation of Fee and Cost) Rules, 2005) notified by the Central Govt. under which the cost of photocopying was meant to be Rs. 2. We were under the impression that this was a routine appeal which would have been definitely allowed.
Imagine our surprise when we get a reply, available over here, informing us that a recent decision of the Central Information Commission (CIC) had ruled that the RTI Act would be inapplicable in cases where there was an existing procedure to obtain information from the concerned authority. We were therefore informed that we were required to pay the fee under the G.I. Act & Rules to receive our photocopies. We have also been, independently, informed that the CPIOs at the IPO have every intention of using this particular order of the CIC to deny all RTI requests pertaining to information which are covered by pre-existing mechanisms.
There are two problems with this order:
(i) Dr. Kardam was hearing this particular case as an appellate officer. He cannot introduce new grounds at the Appellate stage. In this particular case, the CPIO at the G.I. Registry had never denied the applicability of the RTI Act, 2005 to the information requested by us. He had agreed to give us the information but only at Rs. 10 per page. Our appeal was on the limited point of the cost. Instead of deciding whether the CPIO was correct in charging Rs. 10 per page, Dr. Kardam went ahead to manufacture a new ground, at the stage of appeal, to deny us information under the RTI Act, 2005. In effect he has overruled the CPIO’s own implied finding that the RTI was applicable to the information that we had sought. There was absolutely no need for Dr. Kardam to go out of his way to introduce this new ground of denial at the appellate stage.
(ii) Just 3 months ago, on the 3rd of January, 2012 Dr. Kardam issued an absolutely opposite order in an appeal filed by Sai Vinod. He has blogged about the entire application over here. In that decision, Dr. Kardam accepted Vinod’s argument that the CPIO’s order was untenable since the CIC had ruled in the case of R.S. Mishra v. CPIO, Supreme Court of India that the RTI Act would over-rule all existing procedures to request information from govt. offices. That order of the CIC, which is available over here, was authored by Shailesh Gandhi who has given an extraordinarily detailed 8 pages order on why the RTI Act would over-rule existing mechanisms. The latest order of the CIC, in the case of V.K. Malik v. CPIO, Tiz Hazari Court, which has been quoted by Dr. Kardam in his reply to our appeal, is available over here. This order which has been authored by Annapurana Dixit is a grand total of 3 paragraphs (not pages) and applies only to cases where an applicant requests for certified copies. This order does not apply to mere photocopies. Unlike a mere photocopy, a certified copy has to be checked by an officer for its accuracy since certified copies are accepted as evidence in courts of law. Mere photocopies of documents are not accepted as evidence by themselves. We asked for only photocopies and not certified copies and hence the decision cited by Dr. Kardam is inapplicable to our request for information.
Conclusion: We will be filing for a ‘review’ of the decision by Dr. Kardam himself and hope that he rectifies this oversight without forcing us to drag this case before the CIC. If required, we will drag it to even the High Court.