It chapter is a simplified yet correct explanation of the Act. If the contents of this do not satisfy your needs, please refer to the full Act in this Handbook which has many progressive provisions.
NOTES
1. Central Information Commission posts all its decisions on http://cic.gov.in. Since the RTI Act is fairly new, such decisions act as clarifications of many clauses of the Act. Therefore, these decisions become important precedents and must be read regularly.
2. Certain parts of this chapter carry comments in grey colour which enhance your understanding.
3. TEXT IN THIS COLOUR AND STYLE HIGHLIGHTS SHORTCOMINGS IN THE ACT WHICH NEED TO BE REMOVED. WE ARE LOBBYING THE GOVERNMENT TO BRING AN ALL COMPREHENSIVE AMENDMENT TO THE ACT AND MAKE IT AN IDEAL RTI ACT WHICH THE ENTIRE WORLD CAN EMULATE.
The RTI Act came into force on 12th October 2005. It’s purpose is to ensure that the public has access to information which is under the control of various government authorities. It is designed to promote
transparency and accountability in the working of every government department or institution at both central and state levels. This Act overrides and has supremacy over the Official Secrets Act 1923, where applicable.
WHAT IS INFORMATION
Information means any material in any form, including records, documents, manuscripts, memos, emails, opinions, advices, file notings, press releases, circulars, orders, logbooks, contracts, reports, papers, samples
and models. Also data held in any electronic form such as fax, microfilm, microfiche, etc.
1. You can take certified copies of documents, notes, extracts, contracts, etc.
2. Inspect documents and records at government offices.
3. Inspect works such as quality of roads.
4. Obtain information in the form of printouts, disks, etc.
5. Take certified samples of materials, such as, polluted water, road material, cement.
COVERAGE AND APPLICABILITY
Any authority, body, institution, department, panchayat, etc. which is part of the government is covered. NGOs substantially financed directly or indirectly by the government are also covered. All such bodies are
referred to as a “Public Authority” in the Act.
THE ACT SHOULD ALSO APPLY TO ALL LISTED COMPANIES, NOT-FOR-PROFIT AND SOCIAL ORGANIZATIONS (NGOS), POLITICAL PARTIES, HOUSING SOCIETIES, ETC., THOUGH A LIMIT COULD BE SET ON THE SCOPE OF INFORMATION AVAILABLE IN SUCH CASES.
Certain intelligence and security organizations are exempt from providing information (see the Second Schedule on the last page of the Act in this book). However, information pertaining to corruption and violation of human rights in these organizations is not exempt. The Act applies to the whole of India with the exception of the state of Jammu and Kashmir.
OBLIGATIONS OF PUBLIC AUTHORITIES
Govt. departments are required to automatically publish a lot of information. Please see Section 4 of the Act.
PUBLIC INFORMATION OFFICERS (PIO)
Every Public Authority (government department) is supposed to appoint a PIO in all its administrative units to provide information to citizens.
Some departments have appointed just one central PIO, whereas others have appointed separate PIOs for separate functions/offices. One way or the other, you’ll be able to find a PIO who will accept your application and provide you information. You may also visit http://rti.gov.in
THE PRACTICE OF DESIGNATING ONE OR MORE PIOS FOR EACH SUB-DEPARTMENT OFTEN CAUSES CONFUSION AND HARASSMENT. TO KNOW WHO IS THE RIGHT PIO IS A DIFFICULT TASK. IDEALLY, THERE SHOULD BE JUST ONE PIO FOR A PUBLIC AUTHORITY, AND SEVERAL ASSISTANT PIOS. THE ACT NEEDS AN AMENDMENT IN THIS RESPECT.
There is supposed to be an Assistant PIO (“APIO”) at each sub-district level (tehsil). His job is to receive your application for information or appeal and forward it immediately to the concerned PIO. Also, an officer
in several post offices acts as an Assistant PIO for many Public Authorities.
Most public authorities have not appointed any APIO. This violates the law. Many NGOs, are pursuing this issue with the government.
A PIO may, from time to time, require the assistance of other officers in his department. If the other officers do not assist the PIO, they will be held liable and can be penalised in place of the PIO.
APPLYING FOR INFORMATION
1. First you must know the name and address of the concerned PIO. Details in many cases are available on the website of the concerned Public Authority. A visit to http://rti.gov.in may also be useful.
2. Apply in any of the following ways.
THE ACT SAYS THAT YOU CAN APPLY THROUGH ELECTRONIC MEANS. THIS POINTS TO EMAILS. HOWEVER, SINCE FEE CANNOT BE PAID ELECTRONICALLY, THE ONLY WAY TO MAKE AN APPLICATION IS BY A VISIT. THE ACT SHOULD PROVIDE FOR ONLINE
TRANSACTIONS AND ACCEPTANCE OF PERSONAL CHEQUES UPTO A VALUE OF RS.100.
Some states or some public authorities have specified a particular form for application. It is usually titled as “Form A”.
a. Apply on a plain paper in English, Hindi or local language.
b. Use the application form prepared by NyayaBhoomi called “Application Form A”. It contains essential clarifications and instructions for the concerned PIO.
c. If a request cannot be made in writing, the applicant can make an oral request and the PIO will record it in writing.
3. Your application should be accompanied by a fee (1) in cash or (2) by DD or (3) pay order. Fee for all central government public authorities is Rs.10.
Different states have prescribed different rates of fee. For example, for Haryana, it is Rs.50.
Some states also accept fee through other methods. For example, in Haryana, you can pay through treasury challan.
THE STATES HAVE BEEN GIVEN THE POWER TO MAKE RULES. SOME STATES HAVE ALREADY STARTED TO MISUSE THIS POWER IN ORDER TO RENDER THE ACT TOTALLY DUD. FOR EXAMPLE, THEY HAVE PRESCRIBED CHARGES SO HIGH THAT ONE DARE NOT SEEK INFORMATION. RULES OF SOME STATES ARE A CLEAR VIOLATION OF THE ACT ITSELF.
4. Deposit the application together with fee at the counter of the concerned Public Authority. Obtain acknowledgement on the photocopy of the application together with a receipt for the fee. Many public authorities can make you run from pillar to post on one pretext or the other and
hassle you so much that you may give up the idea of filing the application. Usually, they hassle you about application timings, fee deposit methods, and identification of the right PIO. As concerned and responsible citizens, it is our duty to make sure that the public authorities know that such obstacles will not deter us from seeking information. Gradually, the resistance from the government authorities will die down and they will accept RTI as our right.
5. You are not required to give any reason for asking for the information.
6. You are not required to give personal details. Only contact details are sufficient.
7. You must be a citizen of India, but you are not required to give any proof.
8. Only individuals can apply; Corporates, NGOs and institutions cannot apply. However, you can prepare your application on the letter head of an NGO or institution if you want.
HOW DOES A “PIO” DEAL WITH YOUR APPLICATION
1. There are several possible scenarios:
a. The PIO gives/communicates the information to you within 30 days.
b. The PIO is entitled to a short extension of time. (See “Time Limits”)
c. The PIO rejects your request for reasons specified under “Barred Information”. Or he rejects part of your application, and gives you only partial information. (Decide if you should file an appeal. For more guidance, read on)
d. The PIO does not give you the information within the time limit. In this case, he will be deemed to have refused your request for information. (File an appeal)
e. The PIO gives you vague, evasive or partial information. (File an appeal)
f. The PIO discovers that jurisdiction for the whole or some part of the information lies with another Public Authority. He will transfer this part to another Public Authority and intimate to you about the transfer within 5 days (if he takes more than 5 days, complaint to Commission).
The PIO is still responsible for the rest of the information. For the transferred part, the PIO of another Public Authority has to give you information within 30 days from the date of transfer.
THE PROVISION DEALING WITH THE TRANSFER OF YOUR REQUEST IS APPLICABLE ONLY WHEN THE TRANSFER IS MADE FROM ONE PUBLIC AUTHORITY TO ANOTHER PUBLIC AUTHORITY. HOWEVER, PIOS REGULARLY MISUSE THIS PROVISION FOR EVEN
FORWARDING THE APPLICATION TO ANOTHER PART OF THEIR OWN DEPARTMENT. FORTUNATELY, IN A DECISION, THE CENTRAL COMMISSION HAS CLARIFIED THAT SUCH A PRACTICE IS NOT ONLY UNACCEPTABLE, BUT ALSO A PIO CANNOT FORWARD AN
APPLICATION WITHIN HIS OWN DEPARTMENT. THE PIO WITH WHOM THE APPLICATION IS MARKED HAS TO PROVIDE THE INFORMATION & HE CANNOT FORWARD IT ANOTHER PIO IN HIS OWN DEPARTMENT.
g. Information is about a third party and the PIO needs time. See section “Third Party”.
2. PIO shall ordinarily provide information in the requested form/format.
3. Where a request has been rejected in whole or in part, the PIO shall communicate to you
a. the reasons for rejection/decision
b. the period within which you may make an appeal, and
c. the particulars of the appellate authority
FEES
1. A fee of Rs.10 is deposited along with the application if it is a central government public authority.
2. Different state government have prescribed different fees. Usually, it is not over Rs.50 per application.
3. There is no fee if the applicant belongs to “Below Poverty Line” category.
4. If the PIO exceeds time limit, information will be given free of charge no matter how high the cost is.
5. In many cases, payment of further fee may be required. The PIO shall intimate the calculations of further fees in writing, and request you to deposit this. He will also intimate
a. your right to review of fee
b. to whom to request for review
c. the process and time frame for review
6. The following standard charges will apply in the case of central government public authorities;
a. Rs.2 for each page created or copied or photocopied upto A3 size.
b. Actual charge for larger sizes
c. Actual cost or price for samples and models, and published material at the price fixed
d. Rs.50 for each CD, floppy disk or other similar media
e. For inspection of records, no fee for the first hour and Rs.5 for each subsequent hour
7. State governments have prescribed their own charges. Some are outrageously high. For example, for Haryana and Punjab, the charge for each page is Rs.10.
TIME LIMITS
1. PIO shall provide information or reject your request for information within 30 days.
2. Information concerning the life or liberty of a person to be provided within 48 hours – even on holidays.
3. When submitting an application with Assistant PIO, add 5 days.
4. When application is transferred from one Public Authority to another, add 5 days.
5. If the PIO fails to give a decision in time, he shall be deemed to have refused the request. Go to appeal. Refusal is different from rejection. PIO has the right to reject, but has no right ever to refuse.
6. First appeal may be made within 30 days. More time may be given on reasonable grounds. This appeal shall be disposed of within 30 days. The first appellate authority may take upto 45 days but has to record
the reason for delay in its decision.
THE ACT STIPULATES THAT WHEN IT CONCERNS THE LIFE OR LIBERTY OF A PERSON, INFORMATION SHALL BE PROVIDED WITHIN 48 HOURS. HOWEVER, IF THE REQUEST FOR INFORMATION IS REFUSED/REJECTED, THE PROCEDURE FOR THE FIRST APPEAL TAKES THE USUAL 30 DAYS. THE PERSON MAY WELL BE DEAD IN THAT TIME PERIOD.
7. Second appeal may be made within 90 days. More time may be given on reasonable grounds. The commission generally gives its decision within 90 days.
8. Where the fee is more, intervening period between intimation by the PIO and receipt of fee by him will be added to the applicable time limit.
9. In cases of human rights violation where the Commission’s approval is necessary, the information will be supplied within 45 days.
10. Where the interests of third party are involved and there is no objection by the third party after being heard, the information will be provided within 40 days.
11. If the third party objects, then the third party will go through standard appeals process.
THIRD PARTY
1. If the information sought concerns the interests of a third party, the PIO shall give a written notice to the third party within 5 days from the receipt of the request and take its representation into consideration.
2. Third party shall be given 10 days to make a representation before the PIO.
3. The PIO shall, within 40 days of application and after giving the third party an opportunity of being heard, make a decision whether or not to disclose information and give in writing the notice of his decision to third party. The third party may appeal against the decision, and standard appeals procedures shall be followed. Until all these procedures are completed, information cannot be given to you. Time taken by such procedures shall be added onto the time limit of 40 days.
BARRED INFORMATION WHICH CANNOT BE DISCLOSED TO YOU
1. Information which could affect the sovereignty, integrity, security, strategic, scientific or economic interests of the country, or relations with foreign State.
2. Information which could lead to incitement of an offence.
3. Information the disclosure of which may constitute contempt of court.
4. Information, the disclosure of which would endanger the life or physical safety of any person.
5. Information which would impede investigation or apprehension or prosecution of offenders.
6. Information which may harm commercial interests of a third party unless larger public interest is served.
7. Information available to a person in his fiduciary relationship unless larger public interest is served.
8. No copyrighted information can be provided.
9. Cabinet papers generated during the process of making a decision cannot be disclosed until the decision has been taken.
10. Personal information which serves no public interest, or which would cause unwarranted invasion of the privacy of the individual unless the PIO is satisfied of the larger public interest. However, any information which cannot be denied to parliament or state legislature shall not be denied to you.
EXEMPTIONS
1. Regardless of exemptions, PIO may allow access if public interest outweighs harm to protected interests.
2. Any 20 year old information shall be open for access. Decision about when 20 years end shall be taken by the Central Government but will be subject to the usual appeals provided for in this Act.
APPEALS
1. There are two levels of appeal: the First appeal, and the Second appeal.
2. In case of no or bad decision, first appeal may be preferred within 30 days. First appellate authority shall be a designated officer senior in rank to the concerned PIO in the concerned department. His/her name is
usually posted on the same website/notice-board/document where the details of PIOs are posted.
3. In appeal proceedings, the onus to prove that a denial was justified shall be on the PIO.
4. First appeal shall be disposed of within 30 days. May be 45 days for reasons recorded in writing
5. First appeal may be preferred in writing on a plain paper and should include:
“ First Appeal”. It includes columns/fields for all of the
essential details listed below.
a. name/designation and address of the first appellate authority
b. your name and contact details
c. concerned PIO’s name and designation
d. application ID no. and/or fee receipt no. issued by the authority at the time of applying, if any
e. photocopy of the application form – if the enclosures are too many, don’t enclose them
f. photocopy of the rejection letter or reply, if available
g. detailed “grounds of appeal”
h. “prayers” – this is basically a list of your demands/requests to the
first appellate authority
IT IS OUR EXPERIENCE THAT THE FIRST APPEAL IS NORMALLY, BUT NOT ALWAYS, A SHAM. BEFORE REJECTING YOUR APPLICATION, THE PIO USUALLY CONSULTS THE OFFICER WHO WILL BE THE FIRST APPELLATE AUTHORITY, AND IT IS WITH HIS COVERT SUPPORT THAT THE APPLICATION IS FULLY OR PARTIALLY REJECTED. WHEN THE APPEAL GOES TO THE FIRST APPELLATE AUTHORITY, HE WOULD HAVE ALREADY MADE HIS DECISION TO DISMISS YOUR APPEAL ON ONE GROUND OR THE OTHER. THEREFORE, WE ARE OF THE BELIEF THAT THE FIRST APPEAL REQUIREMENT IS MEANINGLESS AND SHOULD BE DELETED. WE ARE LOBBYING THE GOVERNMENT FOR AN AMENDMENT IN THE ACT.
6. If the first appeal is partially or fully dismissed, you may prefer a second appeal which lies with the Commission within 90. More time may be admitted on reasonable grounds.
7. No time limit has been set in the Act for the disposal of appeal with the Commission. It is a shortcoming of the Act which we are pursuing with the government. Usually, the Central Information Commission delivers its decision within 90 days.
THE ACT HAS NOT PUT A CAP ON THE TIME WITHIN WHICH AN APPEAL WITH THE COMMISSION HAS TO BE DISPOSED OF. IN THEORY, THE COMMISSION COULD TAKE 50 YEARS IF IT WANTED TO.
8. The decision of the Commission shall be binding. However, you are always at liberty to approach a High Court with a writ petition.
9. In its decision, the Commission may impose a penalty of Rs.250 for each day’s delay on the PIO, subject to an upper limit of Rs.25,000.
THERE IS NO PROVISION FOR MONETARY PENALTY IN THE FIRST APPEAL. IT EFFECTIVELY GIVES A PIO ANOTHER UPTO 30 DAYS DURING WHICH YOU WILL HAVE TO FILE THE FIRST APPEAL, AND THEN AGAIN 30 MORE DAYS FOR THE FIRST APPEAL TO BE DISPOSED OF. WHEN THE FIRST APPEAL IS SUCCESSFUL, THE PIO IS AGAIN USUALLY GIVEN 15 DAYS TO PROVIDE THE INFORMATION. THE ENTIRE PROCESS RESULTS IN A PERIOD OF 105 DAYS BEING AVAILABLE TO A PIO TO PROVIDE YOU THE
INFORMATION WITHOUT THE FEAR OF PENALTY ON ACCOUNT OF THE DELAY. THE PROVISION FOR MONETARY PENALTY SEEMS TO HAVE BEEN LEFT AT THE DISCRETION OF THE COMMISSION. PUTTING AN UPPER LIMIT ON THE PENALTY AMOUNT MAY ALSO GIVE LEEWAY TO GOVERNMENT OFFICERS WHO ARE INVOLVED IN LARGE SCALE
CORRUPTION AND WHERE EVIDENCE MAY BE TAMPERED WITH IF TIME IS ON THE OFFICERS’ SIDE.
10. In its decision, the Commission may require the Public Authority to compensate the complainant.
INFORMATION COMMISSIONS
1. Throughout this Handbook, we refer to both Central Information Commission and State Information Commission as just “Commission(s)”.
2. Central Information Commission is for central government matters, whereas State Information Commissions are for state government cases. These are all independent bodies. No appeal against a decision of a State Commission lies with the Central Commission.
IDEALLY, THE FIRST APPEAL SHOULD LIE WITH THE STATE INFORMATION COMMISSIONS, AND THE SECOND APPEAL SHOULD GO TO CENTRAL COMMISSION. IN THE CASE OF CENTRAL PUBLIC AUTHORITIES, A SEPARATE BODY SHOULD BE ESTABLISHED FOR FIRST APPEALS. THIS HAS NOT BEEN PROVIDED FOR. THIS MAY CRIPPLE THE ACT IN STATES WHERE LOCAL INFLUENCE AND POLITICS CASTS ITS SHADOW ON STATE INSTITUTIONS.
3. Each Commission has one Chief Information Commissioner and upto ten Information Commissioners. They are the people of eminence, and cannot pursue any other profession. HO of Central Commission is in Delhi. Head offices of the State Information Commissions are likely to be in their capital cities.
4. Commissions can receive and inquire into complaints where:
a. PIO has not been appointed, or the Assistant PIO has refused to accept an application
b. information is not given, or is incomplete, misleading, or false
c. time limits are not met
d. amount of fee is seen as unreasonable
e. in respect of any other matter relating to RTI
For b, c and d above, instead of a complaint, it is best to go for First Appeal and if necessary, then the Second Appeal.
5. Commissions shall have the same powers as a civil court. They can
a. summon persons, compel them to give evidence and produce documents or things
b. require the discovery of documents
c. examine any record of a Public Authority including records which are exempt from disclosure
6. Burden of proving that he acted reasonably and diligently shall be on the PIO.
7. Where a PIO fails persistently in his duties, the commission can recommend disciplinary action.
8. Commissions shall prepare a comprehensive and exhaustive report on the implementation of this Act every year. This report would include detailed statistics.
9. Commissions can recommend measures for reforms in general or in respect of particular Public Authorities in order that RTI can be properly operated.
OTHER IMPORTANT POINTS
PUBLIC AUTHORITIES RARELY TAKEN ACTION ON YOUR COMPLAINTS, AND RARER STILL IS THE FEEDBACK TO YOU ON WHAT HAPPENED. THE ONLY RECOURSE IS FOR YOU TO LODGE A COMPLAINT FIRST, AND THEN SEEK INFORMATION UNDER THE ACT AFTER
A WEEK. IT WOULD HAVE BEEN FAR MORE EFFECTIVE, TIME AND COST SAVING, AND TRUST BUILDING IF THE ACT ITSELF HAD PROVIDED FOR A COMPLAINT HANDLING MECHANISM. UNDER THIS, YOU COULD LODGE A COMPLAINT AND BE ENTITLED TO GETTING THE FINAL REPORT AUTOMATICALLY WITHIN 30 DAYS. OFTEN, YOU MAY WANT INFORMATION WHICH IS NOT STATIC BUT CONTINUES TO EVOLVE. FOR INSTANCE, YOU MAY WANT A PROGRESS REPORT IN A PARTICULAR INVESTIGATION, OR THE STATUS OF A PARTICULAR PROJECT. IT IS QUITE OBVIOUS THAT YOUR INTENTION IS TO BE KEPT UPDATED AS THINGS MOVE ALONG. THE ACT DOES NOT CLEARLY PROVIDE FOR SUCH A POSSIBILITY. ONCE YOU HAVE GOT ACCESS TO INFORMATION AVAILABLE AT A GIVEN POINT WITHIN 30 DAYS AS REQUESTED IN YOUR APPLICATION, THAT APPLICATION IS DEEMED TO HAVE BEEN DISPOSED OF. TO RECEIVE FURTHER RELATED INFORMATION THAT GETS CREATED IN FUTURE, YOU WILL HAVE TO APPLY AGAIN.
Subscribe to:
Post Comments (Atom)
No comments:
Post a Comment