Orders of the Kerala State Information Commission have been aiding Election Commission of India in denying RTI requests for electronically processable data on elections in the State since 2021. This was in contrast to stand taken by the Information Commission in 2020.
Vinson M. Paul, then Chief Information Commissioner of Kerala, in an order dated 29/5/2020, had asked the State Public Information Officer in the Office (SPIO) of Chief Electoral Officer (CEO) of Kerala to furnish a sworn-in- affidavit that the data sought under RTI Act on the 2019 Lok Sabha Elections was not available in Excel or Calc format. The SIO did not file an affidavit.
The Commissioner had also directed the SPIO to provide an opportunity to the Appellant (Roy Mathew) to see for himself as to how the data is stored in the the computer system in the office of the CEO and convince himself (sic) of the veracity of the information furnished to him.
Mr. Paul also observed that the contention of the respondents that the reasons for malfunctioning of the EVMs are not available in the Office was not acceptable and ordered them to be furnished to the applicant.
The visit to the CEO by the appellant got delayed over COVID and finally when the computer system was examined, it became clear that the electronic data was accessible to authorised persons in the CEO and could be downloaded in standard electronic formats. Following this, some data was provided.
However, Chief Information Commissioner, Vishwas Mehta, who succeeded Mr. Paul did not insist on the SPIO filing the affidavit and accepted a report that certain data was available only in PDF format. In his final order, Mr. Mehta disposed of the petition citing also the contention of the ECI that database of IT applications such as ERO-Net, ENCORE etc. fall under the intellectual property rights of the Election Commission, therefore the same is exempted from disclosure under RTI Act, 2005.
In response to another request for data of Kerala Assembly elections in 2021 in standard electronic format, the SPIO had again maintained that it fell under the intellectual property of Election Commission of India.
During hearing of appeal petition in the matter before Kerala Information Commission, Commissioner Sreekumar M. suggested that the files could have been provided in the printed format. On January 6, 2025, he ordered that since the SPIO had provided “timely response”, copies of documents in public domain be given to the appellant within 15 days after levying the requisite cost for same.
On February 1, 2025, the SPIO send the appellant a list of documents available with the CEO (apparently only those in public domain) and asking him to remit Rs. 83103 towards costs for supplying the information in print form. The list was not in tune with the request made and did not cover all the items requested.
Under the RTI Act, merely providing a timely response without providing all the information sought does not exempt the Information Officer from the obligation to provide the information free of charge if the response was incomplete or unsatisfactory. Besides, all information with public authorities, other than those expressly excluded from disclosure under the Act, needs to be furnished against RTI requests.
Essentially, a timely response is only one aspect of compliance. The core obligation is to provide the requested information fully and accurately, subject to the exemptions outlined in the Act. The Sate Information Commission is not insisting on that and is arbitrarily restricting the scope of the Act without authority.
This has emboldened the CEO. In response to first appeal relating to requests for information on polling in electronic format, the Appellate Authority C. Sharmila said that Electoral Registration Officer should be approached for information on deletion of names from the voters list and reasons thereof.
(This was despite previous assertions by Chief Information Commissioners Vinson M. Paul and H. Rajveen that the CEO, vested with the responsibility of conducting elections in the State, was the rightful authority to compile and maintain data on the elections).
She also maintained that database of IT applications of Election Commission fell under intellectual property and ECI does not provide data to the public on reason for replacement of electronic voting machines (during polling).
The Election Commission and the State Information Commission ought to reconsider its stand in view of the Supreme Court interim order on intensive revision of voters list in Bihar.
