Under the RTI Act- Union Health Ministry and ICMR plead ignorance about National COVID Vaccine Expert Group's records

Dec 06, 2020

By: Venkatesh Nayak

Media reports of the proceedings of the all-party meeting held on 4th December, 2020 about the progress made regarding COVID-19 vaccine administration plans have kindled hope for millions of people across the country suffering from the adverse effects of the epidemic in myriad ways. The Hon. Prime Minister announced that healthcare workers, frontline workers and the elderly who are already suffering from co-morbidities will be vaccinated on a priority basis. He also pointed out that the National Expert Group on Vaccine Administration for COVID-19 (NEGVAC) comprised of technical experts, senior officials of concerned Central Ministries and Zonal representatives of States has been entrusted with the responsibility of leading the vaccine administration campaign. NEGVAC, he said will make collective decisions as per the requirements in consultation with the States. So NEGVAC is the primary decision making body on all matters relating to COVID-19 vaccine administration across the country, it appears. However, the Department of Health and Family Welfare which services NEGVAC, has admitted officially under the RTI Act, 2005 that it does not know who holds the records and papers relating to NEGVAC's working.

The RTI Intervention

In August this year, the Union Ministry of Health and Family Welfare (MoHFW) announced that NEGVAC was deliberating on the strategy to ensure COVID-19 vaccine's availability and its delivery mechanism. But hardly anything else was officially announced in the public domain about its composition and terms of reference. So using the Press Information Bureau's press release about NEGVAC in September, 2020, an RTI application was submitted to MoHFW through the RTI Online Facility seeking the following information under The Right to Information Act, 2005 (RTI Act):

"I. Apropos the press release issued by the Ministry of Health and Family Welfare on 12/08/2020 (attached) and displayed on the website of the Press Information Bureau of India, please provide access to the information described immediately below, in the form specified at para no. II below:

1) A legible copy of the office order, circular or memorandum or notification or any other instrument by which the National Expert Group on Vaccine Administration for COVID-19 has been constituted,

2) The name and designation, if any, of the Chairperson and every Member of the said Expert Group,

3) A legible copy of every official record containing the terms of reference of the said Expert Group,

4) A legible copy of all file notings, paper-based and email correspondence relating to the information described at sub-para nos. (1), (2) and (3) above,

5) The exact dates on which the said Expert Group has held meetings till date,

6) A legible copy of the detailed agenda circulated in advance of every meeting of the said Expert Group held till date,

7) A legible copy of all materials including presentations placed before the members of the said Expert Group in relation to every meeting held till date,

8) A legible copy of the minutes of every meeting of the said Expert Group held till date,

9) A legible copy of all official records including paper-based and electronic records comprising any assistance, advice or communication received from any authority in the Ministry of External Affairs for the consideration of the said Expert Group,

10) The name and designation of the officers who have been tasked to provide secretarial assistance to the said Expert Group,

11) The amount of sitting fees and every other remuneration or allowances payable to the Chairperson and every Member of the said Expert Group, and

12) The amount of sitting fees and every other remuneration or allowances actually paid to the Chairperson and every Member of the said Expert Group, till date.

II. Form of access to information sought: Kindly upload all the information described above on your official website and inform me of the respective URLs by email.

III. Kindly also note, all the information described above is in the form of information that is required to be disclosed suo motu in accordance with various clauses of Section 4(1) of the RTI Act. As I have not been able to find such information on the official website of the Ministry of Health and Family Welfare or in the public domain beyond the PIB release (attached), I am constrained to make this formal request for information."

Click here for a copy for the RTI application.

The Central Public Information Officer (CPIO) of MoHFW transferred the RTI application to the Indian Council of Medical Research (ICMR) and the Union Ministry of External Affairs (MEA). Click here for the details of action taken by MoHFW's CPIO.The reason why Query #9 was put in is because of the penultimate para of the PIB release which hinted at NEGVAC's engagement with international players. All interaction between the Committee and international players, technically must be routed through MEA. So the CPIO also thought it fit to transfer the RTI application to MEA.

MoHFW CPIO's Response

The CPIO of the Immunization Section of MoHFW sent a copy of the records containing the composition of NEGVAC and its terms of reference free of charge. Click here to see the CPIO's reply and copies of NEGVAC-related records. In his reply the CPIO also admitted that the Department of Health and Family Welfare serviced NEGVAC. Strangely, the CPIO also stated that the information sought at paras 4-9 of the RTI application, i.e., presentations made to NEGVAC, papers circulated in its meetings and minutes of its meetings are not "information" as defined in Section 2(f) of the RTI Act. As regards the sitting fees payable to and actually claimed by the members of NEGVAC, the CPIO stated that the information was not available with the Immunization Section of MoHFW.

The 1st appeal filed against the CPIO's reply

Perplexed by the CPIO's reply that copies of records sought under several queries in the RTI application did not even qualify to be labelled "information," a 1st appeal was submitted through the RTI Online Facility in November, 2020 with the following arguments in favour of disclosure:

"1) In response to the queries specified at para nos. I(4) to (9) of the instant RTI application, the CPIO has replied (attached) that they do not constitute- information -as per the definition of that term given under Section 2(f) of the RTI Act. This assertion is in complete contradiction to the reply he has provided to the query at para no. I(10) of the instant RTI application wherein he has stated that the National Committee Group on Administration for COVID-19 will be serviced by the Dept. of Health and Family Welfare. So there is no justifiable reason as to why such information cannot be treated as- information held in material form by this Department. If such information is not available with the Immunization Section, the CPIO ought to have transferred this portion of the RTI application to such other CPIO under the terms of Section 6(3) of the RTI Act within 5 days under written intimation to this Appellant.

2) Further, the press release issued by MoHFW on 12/08/2020, whose copy was attached to the instant RTI application, clearly referred to the ongoing deliberations of the said National Expert Group. This indicates, there will be information pertaining to its working as described at para nos. I(4) to (9) of the instant RTI application with some Section or the other of this Department. The CPIO ought to have transferred this portion of the RTI application to such other CPIO under the terms of Section 6(3) of the RTI Act within 5 days under written intimation to this Appellant.

3) Further, in response to queries specified at para nos. I(11) to (12) of the instant RTI application, the CPIO has merely stated that his Section does not hold such information. This reply is also not permissible under the RTI Act. The CPIO is required to transfer this part of the RTI application also to such other CPIO whose public authority is likely to hold it or whose work more closely relates to the subject matter of such RTI queries within 5 days under written intimation to this Appellant.

4) By not discharging his duties under Section 6(3) of the RTI Act with due diligence in relation to para nos. I(4) to (9) and I(11) to (12) of the instant RTI application, the said CPIO has acted in a lackadaisical manner. Therefore this part of his reply deserves to be set aside as being bad in law."

Click here for a copy of the 1st appeal.

The FAA's throws up his hands in his order on the 1st appeal

Within a month of submitting the 1st appeal the First Appellate Authority (FAA) of MoHFW decided the case stating as follows:

"4. After receipt of the RTI appeal the First Appellate Authority has made an effort to ascertain whether the information sought in the RTI application vide Para-1(iv to ix and xi to xii) above is available with the CPIO and whether the CPIO has any knowledge of any other CPIO who could have provided the information. The CPIO (Shr. N. Kutumba Rao, Under Secretary, Ministry of Health & Family Welfare) has informed the First Appellate Authority that he does not have the information sought in the RTI Application vide Para-1(iv to ix and xi to xii) above and he does not have any knowledge of any other CPIO who could provide the information." (emphasis supplied)

Click here for the FAA's order.

So the FAA has admitted that despite admitting that the Department services NEGVAC neither he nor the CPIO have any knowledge about the custody of official records relating to the working of NEGVAC.

What is wrong with the MoHFW's stance?

Both the CPIO and FAA throwing up their hands in the air about the physical location of NEGVAC's papers despite the Ministry servicing this body is truly perplexing. At the all-party meeting yesterday presentations were made by the MoHWF and other officials regarding the work done by NEGVAC. In the last part of his address to the all-party meeting the Hon. PM said, people's participation witnessed in the efforts to deal with the effects of the COVID-19 epidemic (during the last eight months) is required in the upcoming vaccine administration exercise also. How can people's meaningful participation be ensured if the MoHFW does not place in the public domain details of NEGVAC's working. There is a statutory requirement of proactive information disclosure under Section 4(1)(c) and 4(1)(d) of the RTI Act about NEGVAC's working. MoHFW and other public authorities involved in the vaccination roll out plan have a statutory duty to make all facts and figures public along with the underlying reasoning for their decisions and actions under these provisions.

ICMR's Response to the RTI

ICMR did not bother to send a signed reply to the RTI application which MoHFW transferred to it. Instead a one-line status uploaded on the RTI Online Facility simply reads: "The requested information is not available with ICMR." Click here to read ICMR's response. The Vaccine Portal set up by ICMR a couple of months ago is sparsely populated. There is no information about NEGVAC on this portal either.

MEA's Response to the RTI

Meanwhile, the CPIO of the Ministry of External Affairs rejected query #I(9) of the RTI application invoking Section 8(1)(a) and 8(1)(f) of the RTI Act. Section 8(1)(a) protects information whose disclosure would prejudicially affect the scientific, strategic, defence, economic interests and foreign relations. Section 8(1)(f) exempts information received in confidence from foreign governments. I have submitted a 1st appeal against this decision also. The FAA's order is awaited.

Click here for a copy of MEA-CPIO's decision.

NEGVAC has a duty to guide proactive information disclosure

During the last week of November, the Central Government's Principal Scientific Adviser is reported to have said that 30 crore (300 million) people might receive the COVID-19 vaccine during the 1st phase. Surely this number far exceeds the priority segments of the population enumerated by Hon. PM during the all-party meeting.

In the age of RTI such dissemination must not be done on a "right to know" basis not the age-old "need to know" basis. State Governments are also not officially placing in the public domain details of their action plans for vaccine administration. People are getting to know tidbits of such plans thanks to journalists who are chasing officials who often do not want to be named while speaking out. This is not in tune with the requirements of the regime of transparency established by the RTI Act.

The Government must comply with the duties of information disclosure, both proactive and reactive, as required under the RTI Act, in letter and spirit. This is key to the success of the vaccine administration campaign. Para no. (x) of the Terms of Reference of NEGVAC supplied under the RTI Act includes: "Providing guidance on creating awareness and disseminating information." NEGVAC also has this duty of proactive information disclosure.

In the ultimate analysis, the citizenry is the primary stakeholder in this campaign as they are not only the recipients of the COVID-19 vaccine but will also bankroll the entire exercise as taxpayers. Political parties and governments are merely agencies that are mandated to serve the people to tide over this unprecedented public health emergency. So the citizenry has the right to know every detail of every action taken by public authorities and agencies including NEGVAC to plan and roll out the COVID-19 vaccine campaign.

Meanwhile, the Central Information Commission will be approached against the actions and omissions of MoHFW and MEA.

Views expressed above are personal. All facts are in the public domain.

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Under the RTI Act- Union Health Ministry and ICMR plead ignorance about National COVID Vaccine Expert Group's records