Saturday, 18 April 2015

RTI Complaint or RTI Second Appeal? Which is more effective? Read this analysis and decide

RTI Appellants can use Section 18 to improve their chances of getting Public Information Officers (PIOs) penalized by sacrificing their demand for getting the requested information. A strictly legal interpretation of this section of Right to Information Act 2005 leaves the PIO and the public authority (and also the Information Commissioner) with relatively less room for escaping.
Read section 18(3) with care. It says: “The… Information Commission… shall, while inquiring into any matter under this section, have the same powers as are vested in a civil court while trying a suit under the Code of Civil Procedure, 1908, in respect of the following matters­”
Please note: Sec 18(3) confers the special civil-court-like powers only while enquiring into Complaints, and not while deciding on appeals under section 19.
Check out this detailed comparison of Complaint and Appeal u/s Section 18 and 19:
u Complaint u/s 18: One may file a complaint with SIC/CIC against a PIO, FAA and/or the Public Authority. Thus, if CIC/SIC fails to act or gives an Order that is unsatisfactory, the appellant can later move the High Court naming as respondents the Public Authority, as well as PIO, FAA and Information Commissioner. Complainant can seek broader directions against all of them.
u Appeal u/s 19: One may only file a first or second appeal against the decision of a PIO or First Appellate Authority. An appeal cannot draw the Information Commissioner’s attention to the failures of the Public Authority to comply with the requirements of the Act. One can at best move the High Court against the CIC’s/SIC’s Order to have it overturned. One cannot include prayers seeking system reform.
u Complaint: There is no time-limit for filing a complaint. One may file a complaint immediately after PIO or Public Authority’s failure to comply with a requirement of the RTI Act, without filing a First Appeal. One may also file a complaint very late (say 18 months later) and Information Commissioner cannot dismiss it on the grounds of being late.
u Appeal: There are time limits for filing a first and second appeals as per sec 19(1) and 19(3) — 30 days and 90 days respectively. Information Commissioner is free to dismiss a second appeal for being late.
u Complaint: The RTI Act confers Information Commission with powers of a civil court only while dealing with complaints under Section 18(3). The powers include:
a) Initiating an “enquiry”, which has much wider scope than a “hearing”
b) Summoning witnesses ie. persons other than PIO and FAA. For example, the colleagues of the PIO and FAA, or other RTI applicants and appellants who are not complainants in this case may be called to depose before CIC/SIC.
c) Compelling witnesses and others to makes statements on oath and to file affidavits
d) Calling for any public record to be placed before it (not only the information requested in the Appellant’s RTI application).
u Appeal: Information Commission has no civil-court-like powers while deciding appeals. It can only summon PIO and FAA for a hearing. At the most, it can also summon the head of the Public Authority, or another official deputed by him. It cannot go beyond their statements made during the hearings to independently verify the truth.
u Complaint: Section 18 is a very strongly worded section. The first paragraph says, “It shall be the dutyof the Information Commissioner to recieve and enquire into the complaint…” Section 18(4) states that the “Information Commissioner may examine any document to which this Act applies… and no such record may be withheld from it on any grounds.”
u Appeal: Section 19 is mildly worded. Its scope is clearly confined to upholding or overturning the FAA’s Order, and to holding hearings to allow the PIO to justify his decisions.
u Complaint: Section 18 has one seeming drawback, but that can actually be its greatest strength.Nowhere in Section 18 is it mentioned that Information Commissioner must direct the PIO or Public Authority to give the requested information to the Complainant. Therefore, the Complainant must clearly tell the Information Commissioner that he is not interested in getting the information (for which he can easily make a fresh RTI Application). Nor is he interested in compensation (which is available u/s 19(8)(b), not section 18). He should stress that he is only interested in seeing that Information Commissioner does his duty by enquiring into his complaint and then passing an order as per Section 20.
u Appeal: Section 19(8)(a)(i) empowers the Information Commissioner to require the Public Authority to “provide access to information, if so requested, in a particular form”. So, if you want the information and compensation, and are not extremely keen on getting the PIO penalized, then appeal u/s 19 is OK for you.
You may verify the above points by referring to the simplified text of Sections 18, 19 and 20given in the latter part of this document.
Can you file both, a Complaint and also 1st / 2nd Appeal?
Nowhere in the RTI Act is it stipulated that one cannot do both simultaneously. I have not seen any state rule against this. Some Information Commissioners may reject an Appeal if a Complaint has already been filed. Although it is illegal for them to reject a complaint on any grounds, some Commissioners insist on your filing a First Appeal first.
Some Information Commissioners put Complaints at the back of their queue, and hear Appeals first. As a result, Complaints may be heard many months or even years after they are filed. Still, it is a good thing to try.
Our suggestions to fellow Activists for filing Complaint u/s 18
Write at the top in bold capital letters: “COMPLAINT u/s 18 of RTI Act.”
Avoid all phrases such as “Grounds of Appeal”, “Name of Appellant” etc. Please don’t write a complaint in a standard appeal format (eg. Annexure C of Maharashtra Rules) which says, “Second Appeal u/s 19(3)”. Otherwise, Information Commissioners will treat your complaint as an appeal. Do not affix Second Appeal stamp fees unless they are also applicable to Complaints. For this, read your State’s RTI Rules carefully, and don’t do anything that enables Information Commissioner to blur the lines of distinction between “Complaint” and “Appeal”.
Choose words with care. Everything that you write must sound like a complaint, and not like an appeal. Read with care Sections 18, 19 and 20 (given on the next 3 pages).
Don’t ask for the Information requested in your original RTI application, and don’t ask for Compensation, as both are under Sec. 19. Ask only for action as per Section 18. Section 20 automatically applies to both Complaints and Appeals.
Section 18 COMPLAINT (Simplified)*
Simplified means that lengthy phrases such as “Central Information Commissioner or State Information Commissioner, as the case may be,” are replaced with short ones like “Information Commissioner”
18(1) It shall be the duty of the Information Commission to receive and inquire into a complaint from any person,
(1)(a) who has been unable to submit a request to a PIO either by reason that no such officer has been appointed under this Act, or because the Assistant PIO has refused to accept his or her application for information or appeal under this Act for forwarding the same to the PIO or senior officer or the Information Commission
(1)(b) who has been refused access to any information requested
(1)(c) who has not been given a response to a request for information or access to information within the time limit specified
(1)(d) who has been required to pay an amount of fee which he or she considers unreasonable;
(1)(e) who believes that he or she has been given incomplete, misleading or false information
(1)(f) in respect of any other matter relating to obtaining access to records
18(2) Where the Information Commission is satisfied that there are reasonable grounds to inquire into the matter, it may initiate an inquiry in respect thereof.
18(3) The Information Commission shall, while inquiring into any matterunder this section, have powers vested in a civil court, namely:
(3)(a) summoning and enforcing the attendance of persons and compel them to give oral or written evidence on oath and to produce the documents or things;
(3)(b) requiring the discovery and inspection of documents;
(3)(c) receiving evidence on affidavit;
(3)(d) requisitioning any public record or copies thereof from any court or office;
(3)(e) issuing summons for examination of witnesses or documents; and
(3)(f) any other matter which may be prescribed.
18(4) Information Commission may, during the inquiry of any complaint under this Act, examine any record to which this Act applies which is under the control of the public authority, and no such record may be withheld from it on any grounds.
Section 19 APPEAL (Simplified)
19 (1) Any person who, does not receive a decision within the time specified, or is aggrieved by a decision of the PIO may within thirty days from the expiry of such period or from the receipt of such a decision prefer an appeal to such officer who is senior in rank to the PIO in each public authority:
Such officer may admit the appeal after the expiry of the period of thirty days if he or she is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time.
(2) Where an appeal is preferred against an order made by a PIO under section 11 to disclose third party information, the appeal by the concerned third party shall be made within thirty days from the date of the order.
(3) A second appeal against the decision under sub-section (1) shall lie within ninety days from the date on which the decision should have been made or was actually received, with the Information Commission:
Information Commission may admit the appeal after the expiry of the period of ninety days if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time.
(4) If the decision of the PIO against which an appeal is preferred relates to information of a third party, the Information Commission shall give a reasonable opportunity of being heard to that third party.
(5) In any appeal proceedings, the onus to prove that a denial of a request was justified shall be on the PIO who denied the request.
(6) An appeal under sub-section (1) or sub-section (2) shall be disposed of within thirty days of the receipt of the appeal or within such extended period not exceeding a total of forty-five days from the date of filing thereof, as the case may be, for reasons to be recorded in writing.
(7) The decision of the Information Commission shall be binding.
(8) In its decision, the Information Commission has the power to:
(8)(a) require the public authority to take any such steps as may be necessary to secure compliance with the provisions of this Act, including:
(i) by providing access to information, if so requested, in a particular form;
(ii) by appointing a Public Information Officer
(iii) by publishing certain information or categories of information;
(iv) by making necessary changes to its practices in relation to the maintenance,
management and destruction of records;
(v) by enhancing the provision of training on the right to information for its officials;
(vi) by providing it with an annual report in compliance with clause (b) of
sub-section (1) of section 4;
19(8) (b) require the public authority to compensate the complainant for any loss or other detriment suffered;
(c) impose any of the penalties provided under this Act;
(d) reject the application.
19(9) Information Commission shall give notice of its decision, including any right of appeal, to the complainant and the public authority.
19(10) Information Commission shall decide the appeal in accordance with such procedure as may be prescribed.
Section 20 PENALTIES ETC. (Simplified)
20(1) Where the Information Commission at the time of deciding anycomplaint or appeal is of the opinion that the PIO has, without any reasonable cause, refused to receive an application for information orhas not furnished information within the time specified under sub-section (1) of section 7 or mala fidely denied the request for informationor knowingly given incorrect, incomplete or misleading information ordestroyed information which was the subject of the request orobstructed in any manner in furnishing the information, it shall impose a penalty of two hundred and fifty rupees each day till application is received or information is furnished, so however, the total amount of such penalty shall not exceed twenty-five thousand rupees:
The PIO shall be given a reasonable opportunity of being heard before any penalty is imposed on him:
The burden of proving that he acted reasonably and diligently shall be on the Public Information Officer
20(2) Where the Information Commission at the time of deciding any complaint or appeal is of the opinion that the PIO has, without any reasonable cause and persistently, failed to receive an application for information or has not furnished information within the time specified under sub-section (1) of section 7 or malafidely denied the request for information or knowingly given incorrect, incomplete or misleading information or destroyed information which was the subject of the request or obstructed in any manner in furnishing the information, it shall recommend for disciplinary action against the PIO under the service rules applicable to him.

[Acknowledgement: This analysis is the conclusion of a recent brainstorming session with Activists Milind Kotak, S S Nalawade and G R Vora at the office of FEAT (Forum for Effective Accountability and Transparency.]

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