Friday, 5 August 2016

rti-SUGGESTIONS TO THE CIC-kerala-230716

(In person at Palakkad)

Right from the word go everything at the KSIC needs to be overhauled. The following suggestions are listed.

1.     Acknowledgement of complaints/appeals. This is preposterously erratic as of now. Complaints about this default have not been acted upon. The acknowledgements should be dispatched within 24 hours of receipt and should have the format/details as specified in Govt of Kerala Circular No 168/AR 13 (2)/09/UBPV dated 12 Jan 2009 and DoPT OM No 10/1/2013-IR dated 06/10/2015. Where complainants/appellants have provided e mail id it may be used to acknowledge receipt. Important points to note are: (i) if the complaint/appeal has been given a file number by the complainant/ appellant it should be quoted and (ii) tentative date by which it will be disposed of should also be indicated. Currently it is seen that the file number allotted by the citizens are not quoted even while quoting them in the cases of communication from PIOs/FAAs.
2.     Taking up cases for disposal. This again is whimsical and arbitrary as of now. The only instances when priority needs to be accorded is indicated in the RTI Act itself and that is in cases involving the life or liberty of a person. And unlike other cases, the cases (the complaints and appeals) under the RTI Act are simple, straight forward and stand alone and should be taken up on first in first out basis only.
3.     Unwarranted correspondence and hearings. Given the fact that the copies of the application, reply by the PIO, 1st appeal and reply by the FAA are enclosed with the 2nd appeal the procedure to be followed by the Commission/commissioner is only to find answer to the following questions:
3.1.         Was the information sought, partly or wholly, disclosable or not?
3.2.         Has the disclosable info been provided or not?
3.3.         If provided, was it within the prescribed time frame or not?
3.4.         If not provided, was the info held by the public authority or not?
3.5.         If not held, was there any legally tenable reason for not holding it (like destruction as per existing orders with copy of destruction certificate to be provided as evidence)
3.6.         If it pertained to another public authority was Sec 6(3) complied with or not?
3.7.         Steps 3.1 to 3.6 to be repeated for every public authority to whom the application has been transferred.
If there has been any default at any stage, it is only required to give an opportunity to being heard to the defaulting PIO before imposing the mandatory penalty as prescribed in Sec 20 of the RTI Act. It would be prudent to communicate the reasons, if any, for not imposing the penalty, to the complainant/appellant and get his ‘counter’ before taking the final decision. The failure of the FAA has to be taken up with the concerned department for necessary action.
4.     Uploading decisions on the Web. All decisions should be uploaded on the  official site of the Commission within 24 hours and the URL of the same communicated to the complainant/appellant along with the copy of the decision.
5.     Other issues.
5.1.         Suo moto or proactive disclosure. Even the KSIC has not complied with this requirement of Sec 4(1(b) of the RTI Act.
5.2.         Compliance with Sec 5. No public authority is complying with Sec 5 of the RTI Act. Though they have designated APIOs they do not accept applications/appeals addressed to other public authorities. The CAPIOs in Head Post offices do accept applications/appeals pertaining to central public authorities other than the postal department too. Complaints about this have not been acted upon.
5.3.         Compliance with Sec 6(3). Even now public authorities are quoting illegal OMs of the DoPT (No 10/2/2008-IR dated 12 Jun 2008 and No F.10/2/2008-IR dated 24 Sep 2010) and refusing to comply with Sec 6(3) in spite of the fact that Central Information Commission in Decision No CIC/SM/A/2011/000278/SG/12906 has very elaborately clarified that Sec 6(3) has to be complied with even in the case of multiple public authorities.
5.4.         Compensating the complainant/appellant. Sec 19 (8)(b) provides for compensating the complainant. Considering the fact that the appellant has to invest his time and resources to pursue appeals only because of the default of the PIO, it is necessary to compensate the appellant as a complainant.
5.5.         Failure to impose mandatory penalty. As on date RTIgate (the loss to the exchequer due to the failure of the information commissioners to impose the mandatory penalty, either due to pure incompetence or due to pure corruption) would be a scam of greater proportions than the 2G, Coalgate and Vadragate put together. Para 10 of order in WP (C) No.3845/2007 of the High Court, Delhi is reproduced herewith for ready reference:

10. A close and textual reading of Section 20 itself reveals that there are three circumstances, whereby a penalty can be imposed i.e.
(a) Refusal to receive an application for information;
(b) Not furnishing information within the time specified; and
(c) Denying malafidely the request for information or knowingly given incorrect, incomplete or misleading information for destroying information that was the subject matter of the request.
Each of the conditions is prefaced by the infraction "without
reasonable cause".
5.6.            Failure to follow correct procedures. It is also seen that instead of following the straight forward procedure of getting the defaulting PIO for hearing the Commission often hears the PIO holding such designation at the time of hearing. This is totally unwarranted and waste of time and resources of public servants/exchequer.
5.7.         Failure to follow up on decisions. The response to an application seeking information on
How many cases are pending in the courts, as on 30 Apr 2015, against the decisions of the information commissioners? Provide details to include the address of the court, case number, the KSIC File and appeal numbers, the name of the appellant, the date of decision, penalty/administrative action imposed/recommended, the name of the PIO/FAA who has approached the court, his/her designation and the address of the public authority, present status.
the response was ‘A suit register is maintained in the State information Commission. Information as sought by you is not consolidated and maintained‘! (KSIC letter No 8681/SIC-PIO-G4/2015 dated 3/6/15.
In this context it is pertinent to mention that the Punjab and Haryana High Court had directed the state government to withdraw an appeal filed by it on behalf of a PIO who had been penalised by the SIC. It had permitted the PIO, K B S Sidhu, to file the appeal in his personal capacity.
5.8.         It is also seen that PIOs are not accepting IPOs even though pay orders are a mode prescribed for paying fees and additional fees (refer para 3(2)(d) and 4(3) of the Kerala Right to Information (Regulation of fee and Cost) Rules, 2006.
5.9.         Cash is also an option for payment of fee and additional fee or cost. And the postal department provides an oficial means for payment of cash to anybody from anybody everywhere through money order. While even the PIO of the High Court of Kerala accepts this mode the PIOs in the Secretariat have refused to accept it!
5.10.    It is customary that PIOs, FAAs and ICs respond in the language of the application/appeal so long as it is in Malayalam, English or even Hindi. This is so because the nation has decided on the threee language formula long back and all the three languages are taught in schools. However, it is often seen that the public authorities respond in Malayalam even when the application/ appeal is in English and response has been demanded in the same language. Even if Malayalam has been accepted as the official language , it cannot ipso facto be applied even in teh context of RTI Act as this Act empowers a citizen of this country anywhere in the world to seek information from any public authority and all citizens cannot be expectd to acquire knowledge of regional languages to seek information from state public authorities.
5.11.    It is not rarely that information is given free of cost to the applicants. But in such cases the cost is required to be made good by the defaulting PIOs. (Refer para 17 of Kerala Govt GAD (Coordination) Circular II No 77000/Cdn5/06/GAD dated 30/10/2006.
5.12.    The KSIC is also seen to direct complainants to file 1st appeal even though it is required to receive and inquire into a complaint received under Sec 18(1) of the RTI Act. The fact that the complainant has not quoted this provision cannot be used as an excuse to return the complaint.
5.13.    The information commissioners of the KSIC whenever they hold sittings outside the Commission are seen doing it randomly and not as per a deliberate planned schedule.  A case was reported of a Chairman of the Kerala State Human Rights Commission holding sittings at Guruvayur on the 1st of every month of the Malayalam calender!

Suffice to say that the omissions and commissions of the information commissioners have sounded the death knell of the sunshine Act.

Recently it was reported in the media that you had announced that the days of warnings are over and henceforth penalties will be imposed. Considering that pay commission awards are implemented in less than a few months, every five years, it is great treason to keep warning defaulting public servants for over 10 years. But as is truly said ‘better late than never’!

P M Ravindran
‘Aathira’, Kalpathy-678003

Get information or… expose at least 3 idiots or traitors* among public servants:
the Public Information Officer, the 1st Appellate Authority and the Information Commissioner!

*An idiot is one who does not know the job he is paid to do and a traitor is one who knows it but does not do it!