RTI Rules, 2017-feedback

To: usrti-dopt@nic.in

Feedback-Draft RTI Rules 2017

1. Refer your Circular No No. 1/5/2016-IR dated 31/3/17.

2. Right at the outset it has to be placed on record that the amendments suggested in the draft leave no room for doubt that it has been done by a treacherous babu with malicious intent. The most important rules required to ensure compliance of the law by PIOs, FAAs and ICs are glaring by their absence! The complete contents are obviously intended to make it more difficult for information seekers to access information and easy for public servants to avoid providing them. Having said that, para wise feed back on the draft rules, are as follows:

2.1. Para 3. Application fee should be done away with. As per Section 4(2) of the RTI Act 'It shall be a constant endeavour of every public authority to take steps in accordance with the requirements of clause (b) of sub-section (1) to provide as much information suo motu to the public at regular intervals through various means of communications, including internet, so that the public have minimum resort to the use of this Act to obtain information.' 12 years after the Act has come into force there should be no need for filing an application at all as all information, other than of the exempted categories, should be in public domain. Public authorities who have defaulted in complying with this mandate of the law should be prosecuted for wilful dereliction of duty or any other provision of service rules that may apply. Catering for the exceptional case when an application may have to be filed, it is reasonable to expect such applicants being exempted from paying any fee.

2.2. Para 4. Fee for providing information. For reasons given in para 2.1 above, this fee should also be done away with.

2.3. Para 5. Exemption from payment of fee. Suggestions at para 2.1 and 2.2 render this clause redundant. Under the present circumstances this exemption is creating more hurdles and drain on finances for the beneficiaries as getting the certificate from appropriate government is a torture that should be done away with!

2.4. Para 6. In view of the suggestions given at para 2.1 to 2.3 above this requirement is redundant.

2.5. Para 7. Appointment of Secretary to the Commission. This is totally unwarranted. The commission is tasked with resolving complaints and appeals under the RTI Act. Hence the need is to ensure optimum performance of the information commissioners. To that end each information commissioner may be provided 3 clerks each, provided each commissioner disposes of atleast 30 appeals per day. For quantifying the task each appeal may be considered to be equal to 3 complaints. For the management of the establishment there needs to be an administrative officer (who may be a retired Junior Commissioned Officer from the army or equivalent from the Air Force or Navy) assisted by 3 clerks and house keeping staff like sweepers and drivers.

2.6. Para 8. Appeal to the commission. There should be no need for any format or any other documents other than copies of the application, reply, if any by the PIO, 1st appeal and reply, if any by the FAA. These 2 to 4 documents cover the entire requirements needed to decide on the appeal. Further, there is no need for the appellant to send any copy of the appeal to the respondent(s) as the information commissioner is required to establish the default  in providing the information sought before providing an opportunity to being heeard to the PIO and imposing the mandatory penalty. (See para 2.8 below.) The introduction of format, index etc are only bureaucratic ways of creating loopholes for arbitrary, whimsical and idiotic/treacherous disposal/closure of the appeals.

2.7. Para 9. If all the available documents pertaining to the appeal, as specified in para 2.6 above, have been submitted, the question of returning appeals should not arise.

2.8. Para 10. Process of appeal. This provision is ill conceived and illegal too. The Act provides for filing complaints under Sec 18 of the RTI Act. The lay man need not be as proficient as an advocate in quoting various clauses of the laws. (Interestingly the public servants dealing with this law are seen to be worse than clueless about its provisions. Even a cursory look at the decision of the information commissioners themselves will prove this point given that they do not use the correct terms like application/appeal and can be seen using terms like petition etc!) Since the information commissioners are bound to be knowledgeable about the law that they have been tasked, equipped, empowered and paid to enforce, it is expected that even when  only the copy of the application is submitted, the information commissioner should treat it like a complaint, provided it had been submitted after 30 days of initial submission to the public authority, the postal delay notwithstanding.

2.9. Para 11. Procedure for deciding appeals. Based on the documents submitted by the appellant alone the information commissioner is required to assess the default, if any, in providing the information sought. That is, the IC is required to answer the following questions after mere perusal of these documents and decide if the PIO had defaulted on his assigned duties.

2.9.1. Had all disclosable information sought and held with the respective public authorities been disclosed within the specified period?

2.9.2. In case of information sought but not held with the public authority had Sec 6(3) of the Act been complied with, including communication of the matter of transfer to the applicant?

2.9.3. Who are the CPIOs who have defaulted and what are the their defaults?

2.9.4. Who are the FAAs who have decided the 1st appeal and was there any deficiency on their part?

If it is established that the PIO is a defaulter then, and then only,  it is required of the IC to provide an opportunity to being heard to the PIO before imposing the mandated penalty.  The plain reading of Sec 20 of the RTI Act is absolutely clear on this. Doubts, if any, of the IC, should be clarified from the PIO while providing this opportunity to being heard to the PIO. The wording of the notice for the opportunity to being heard and the response from the PIO in the form of an affidavit should be sufficent to simplify the procedure while meeting the demands of the law. The decision taken, after hearing the PIO, should be communicated to the appellant. This decision should include the penalty imposed and if no penalty had been imposed the reasons for it should also be explained in detail in the decision.

The current procedure is not only unwarranted but is is gross misuse of exchequers's resources including the time of the IC. In fact the failure to impose the mandated penalty even while directing the PIO to provide information has been causing loss to the exchequer which may match the loss due to the 2G Spectrum, Coalblock allocation and Vadragate scams put together! This, as well as the treachery of the ICs who conclude that all available information has been provided even when nothing had been provided are also liable to be prosecuted under Sec 219 of the IPC.  The concerned authorities who fail to take such lawful action against the traitors amoung public servants should be considered to be abetting the crimes themselves.

Most importantly, the complaints/appeals should be disposed of on a first come, first serve basis. Unlike in cases in the courts, the procedure and time frames in the information commissions can be standardised and there should be no reason to jump the queue except in the cases of life and liberty as provided for in the RTI Act.

2.10. Para 12. Withdrawal/abatement of appeal. To be deleted as this has no relevance in a law meant to infuse transparency in the functioning of public servants. If the complete information sought had not been provided or action as contemplated in the law taken then the offence under this law would have been established and it is for the authority concerned, to be precise, the information commissioner , to take it forward to its logical end. Even the death of the defaulter PIO/FAA should not be a reason for abatement of the complaint/appeal.

2.11. Para 13, 14 and 15. Complaint to the Commission etc. Since complaints are the simplest cases that come up before the information commission the suggestions in para 2.6 to 2.10 are applicable as modified appropriately.

2.12. Para 16 and 17. Compliance of the orders of the Commission etc. The procedure suggested here is also ludicrous, to say the least. The date by which the decision to be complied with and confirmed to the Commission by the defaulting PIO should be part of the decision itself. If the PIO has confirmed compliance the IC should get it verified by getting the confirmation from the appellant also. For failing to comply with the decision by the PIO or the PIO providing a false confirmation of compliance, the IC should direct the public authority to take appropriate departmental action.

2.13. Para 18, 19 and 20. Presence of parties before the Commission etc. The suggestions in these paras are also unwarranted as would be evident from the simple procedure suggested at para 2.9 above. However, if the complete information sought had not been provided and the PIO had also not complied with Sec 6(3) for information not held by that public authority and the IC has not penalised him as mandated by the law, then the arguments of the appellant against such a decision not to penalise should be included as part of the decision. The procedure should be suitably modified.

2.14. Para 18(3) &(5). Presence of parties before the Commission. Allowing a representative of the defaulting PIO to appear in hearing is illegal. The law mandates providing an opportunity to being heard only to the defaulting PIO who is to be penalised, before he is penalised.

2.15. Also, the IC will decide if any of the PIOs involved in providing the info has defaulted and if more than one PIO has defaulted then all of them will be given the opportunity to being heard and penalised as per law. (Note: Now, the ICs consider only one PIO in each complaint/appeal which is grossly irregular and tantamounts to subversion of the law.)

2.16. The ICs are also seen directing the complainants and even appellants, in cases of appeals where the FAA had not responded, to prefer the 1st appeal and get the response of the FAA before filing the 2nd appeal. This is also grossly irregular and tantamounts to subversion of the law.

2.17. Para 21 and 22. No comments.

2.18. Appendices. To be deleted.

Additional points that need to be added for the effective implementation of the RTI Act.

3. As had been stated in the 2nd para important rules needed to ensure compliance of the law by the PIO, FAA and IC are missing. These are enumerated in the following paras.

3.1. The PIOs, FAAs and ICs should include the details contained in DoPT OM 10/1/13-IR dated 06 Oct 2015, in their responses to the application/appeals. Besides, the date of receipt of the application/ appeal in the public authority, the date of its receipt by the concerned PIO/FAA/IC should also be mentioned as the 1st para of the replies/decisions.

3.2. The detailed reasons for denial of info sought by the PIO should not only be detailed and include the relevant provisions of the RTI Act but it should also be self explanatory. For example in the case of info sought on cases under investigations the details should include how the applicant can adversely influence the investigation if the information is provided.

3.3. The PIO/FAA/IC should list the information sought serially (if it has not been so drafted by the applicant/appellant) and specify whether each of them have been provided or not and where not provided the legally acceptable reasons for the inability to provide. For example, it should not be merely that the info is not available. The reply should include whether the subject is within the jurisdiction of the public authority and if it is, whether it had been destroyed as per standing instructions (for which extract of the SI and the proof of destruction should be provided) or it has been lost (in which case copy of the FIR filed with the police should also be provided).

3.4. In case the PIO does not provide the information sought within the balance of time available, of the 30 days specified in the Act, he should automatically refund the fees received. If it is not done by the PIO then it can be done on the orders of the FAA/IC and in each case interest @ 12 pc pa should be paid from the date on which the refund became due to the date on which it is paid. It should be paid through a DD payable to the appellant at a PSU bank nearest to his address. This should be applicable for all pending cases as on the date of notification of the new rules.

3.5. Receipt of applications/appeals should be acknowledged through SMS/ email where such info has been provided by the applicant/appellant. Other wise through snail mail. Besides such communication, the application should also be uploaded on their website after affixing the Date of Receipt Seal, in a manner as would be visible to the person accessing the document. The details that would disclose the contact details should be defaced before uploading the document. The status of action taken on the application/appeal should be updated on the website on the last working day of every week. The status of action taken on the application/appeal should be communicated to the applicant/appellant with every transfer of the document from one public servant to another. To clarify the issue, if the application is transfered to the deemed PIO by the PIO both the PIO and deemed PIO should send the SMSes/e mails of the transfer.

3.6. The applications should be given numbers in a standard format that would disclose the identity of the public authority along with a sequential number. The appeals should also follow this logic and use the format used by the judiciary. That is appeal number CICND12345678/2017 in application number DoPT87654321/2016. The practice of using multiple numbers like file or appeal numbers and decision numbers should be done away with.

3.7. Every effort by the information seeker to file appeals involves time, effort and cost. So the complainant/appellant has to be compensated by the public authorities under Sec 19(8)(b) of the RTI Act. A standard compensation of Rs 5000/- for 1st appeal and Rs 10000/- for 2nd appeal should be included in the RTI Rules, 2017. This has to be recovered from the pay of the PIO and the FAA. That is, if the 1st appeal is filed the PIO should be required to pay the compensation of Rs 5000/- and if the 2nd appeal is filed the PIO and FAA should pay Rs 5000/- each as compensation.

3.8. The PIOs who are penalised by the ICs and who opt to challenge it in courts of law should do so at their own cost and time.

3.9. Some courts of record have decided that the ICs while disposing complaints under Sec 18 have no power to direct the PIOs to provide the information sought. This is totally absurd. The very purpose of the law is to give citizens access to information. The complaint under sec 18 is only simplification of procedure when the denial of info is due to the specific reasons mentioned there in. Hence this absurdity needs to be removed, if possible, through the amended rules. It can be done using Sec 18(3)(d) of the RTI Act. The copies of documents obtained thereunder can be provided to the complainant free of cost.

3.10. Whenever copies of documents had been provided free of cost on orders of the FAA or IC, this cost too should be recovered from the PIO, in addition to the penalty that has to be imposed on the PIO, to avoid loss to the exchequer. In the case of provision of documents free of cost on the orders of the IC, the FAA too shall share the cost of the documents. 75 pc of the cost is suggested to be borne by the FAA. Further administrative action should be taken against him as per service rules and confirmed both to the IC and the complainant/appellant.

General.

4. It appears that the law makers and their men fridays, the babus, still seem to be under the delusion of ruling subjects rather than governing citizens. Terms like prayer etc used, for example in para 15(iv) are unwarranted. The ICs are no gods and information seekers/appellants, no supplicants! Requirement/request would more than adequately serve the purpose.

5. While the status and compensation paid to the ICs need to be drastically reduced (to that of munsifs in courts) and babus barred from holding the office due to vested/conflict of interests, since these are subjects of amending the law itself it is not pressed here. However what needs to be enforced through the rules is that ICs should dispose of atleast 30 appeals per day or equivalent (considering 1 appeal equal to 3 complaints). And where there is default in providing even part of the info sought the imposition of penalty should be mandatory. At present the situation is that the ICs can take bribes for failing to penalise the defaulters. The bribe can be anything from the maximum penalty of Rs 25000/- upwards, depending on the vulnerability of the PIO as far as his career is concerned. While the failing IC can be prosecuted under Sec 219 of the IPC it is not possible for citizens seeking info to approach the judiciary which is a failure by its own admission and one acknowledged reason is the colossal backlog which is growing by the day!

6. The failure to impose mandated penalties by the ICs, since the date of the RTI Act coming into force, should be investigated by an SIT.

7. The govt has been in the process of instituting a National Judicial Accountability Commission. While it remains to be seen how the objections from the judiciary will be overcome, it needs no further logic to have a similar commission for all the quasi judicial and administrative bodies/tribunals in the nation.

P M Ravindran

raviforjustice@gmail.com

rti-rules-2017redrafted-by-rti-activist

P M Ravindran

2/18, 'Aathira', Sivapuri, Kalpathy-678003

Tele: 0491-2576042; E-mail: raviforjustice@gmail.com

 

File:RTI-rules2017-redraft-060417                                                                                    06 Apr 2017

Note: The DoPT, vide their circular No 1/5/2016-IR dated 31 Mar 2017, has invited suggestions from the public on the proposed RTI Rules, 2017 attached to it. These rules have nothing in them to ensure compliance of the law by PIOs, FAAs and ICs and are obviously intended to make it more difficult for information seekers to access information and easy for public servants to avoid providing them. If anything these proposals only expose the public servants who have drafted them and approved them for circulation as idiots and traitors!

In this context it is pertinent to recollect the Natchiappan Commitee of Parliament which had invited suggestions from the public on the amendments required for the RTI Act. In fact even that move was seen by activists working in this area as a move by the then government to neutralise the good aspects of the transparency law. In the event many citizens wasted a lot of their time and energy to give suggestions which did not see the light of the day.

Subsequently, the tainted PriceWater Cooper House was engaged (at considerable cost, of course) to study the implemention of this law. And they did produce a glossy report which, in my opinion, can be easily trashed. A copy of the report is in my posession and can be provided, through email, to anyone seeking it.

Under the circumstances it has become necessary to draft an entirely independant set of rules for the effective implementation of the RTI Act in keeping with its objectives- for setting out the practical regime of right to information for citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority and also to contain corruption and to hold Governments and their instrumentalities accountable to the governed- as stated in its preamble.

THE RIGHT TO INFORMATION RULES, 2017

In exercise of the powers conferred by section 27 of the Right to Information Act, 2005 (22 of 2005) and in supersession of the Right to Information Rules 2012, except as respects things done or omitted to be done before such supersession, but the procedures being applicable to all applications and appeals which are at different stages of processing as on the date of these rules becoming effective, the Central Government hereby makes the following rules, namely:-

1.Short title and commencement:-

(1) These rules may be called the Right to Information Rules,2017.

(2) They shall come into force on the date of their publication in the Official Gazette.

2. Definitions:- In these rules, unless the context otherwise requires,—

(a)"Act" means the Right to Information Act, 2005 (22 of 2005);

(b) "public authority" means any authority or body or institution of self- government as defined in the Act and would include Members of Parliament also.

(c)” First Appellate Authority (FAA) ” means the public servant superior to the CPIO and designated as such as per Sec 19(1) of the Act.

(c) All other words and expressions used herein but not defined in these rules shall have the same meanings as assigned to them in the Act.

3. Designation of Public Information Officers (PIO), Nodal PIO, Assistant PIO and FAA(s) under Sec 5 and 19 of the Act.

(a) The head of a public authority having a strength of 5 or more public servants, including himself, will designate a central PIO and also designate himself as the appellate authority.

(b) Any public authority having a strength of 15 or more public servants shall designate an additional central public information officer for every 15 public servants or part thereof. Where there is more than one central public information officer one of them shall be designated as the nodal central public information officer who will co-ordinate activities with the others. The nodal central public information officer shall be assisted by a central assistant public information officer.

(c) There shall be an appellate authority for every 3 CPIOs in a public authority and in cases where there is more than one appellate authority in a public authority the head of the public authority shall be the nodal appellate authority coordinating the activities of all the appellate authorities in the public authority.

(d) In the case of public authorities having less than 5 public servants, the head of the public authority shall be the CPIO and his superior (in another public authority) shall be the appellate authority.

(e) In the case of single member public authorities like Members of Parliament, who are provided with staff/allowance to maintain an office in their constituencies, applications from citizens for information under the Act shall be accepted and transferred, under sec 6(3) of the Act,  to the concerned public authorities dealing with the specific information sought.

4. Application.

(a)   An application for information shall be in English or any other languages used by the Union or in the State in the area where the public authority is located*1.

(b)   It shall preferably be listed, using paragraph numbers, for ease of providing the information and for facilitating processing of appeals.

(c)    It shall be made on plain paper or digitally and shall contain the contact details of the applicant which may even be Post Box number in the name of the applicant. The applicant may disclose his telephone/mobile numbers and e mail id if he desires so. There shall be no fee required to be paid by the applicant.*2

(d)   There is no need for the applicant to disclose the purpose of seeking the information.

(e)   The applications shall be submitted in person or through a representative which may even be a courier, including the post offices, or through electronic means. Receipts/acknowledgements will have to be obtained in all cases.

5. Processing of applications.

(a)   The application may be accepted directly or through the normal procedure followed for receipt of mail.

(b)   The recipient shall allot a unique number to the application that will identify the public authority and the application and record its receipt in the register meant for the purpose.

(c)    The copy of the application, after masking the contact details, will be uploaded on the website of the public authority or a common website created for the purpose, along with the application number assigned to it. (Search facility should provide for tracking the document and its docket using the applicant’s name, name of the public authority, date of the application as mentioned by the applicant, the subject and/or application number using any of them independently or in combination.)

(d)   The recipient of the application will then transfer it to the CPIO or ACPIO, as the case may be. This transfer need not be through any hierarchical channels as may exist in the public authority.

(e)   In the case of applications, addressed to different public authorities, handed over to the ACPIO, the ACPIO (or in his absence the Nodal PIO or PIO) shall transfer the application to the addressee expeditiously but within 5 days of its receipt in the public authority and endorse a copy of the letter transferring it to the applicant also.

(f)     The date of receipt of the application in the public authority, which is required to provide the information, will be considered for the purpose of calculating the period of 30 days specified in sec 7(1) of the Act.

(g)   At every stage of transfer, the recipient of the application will send an acknowledgement to the applicant through SMS/ email, if available, indicating the application number. The information shall be updated in the relevant docket at the web site too.

(h)   The date and time of all transfers will be recorded in the docket, a copy of which will be provided to the applicant even if such information has not been sought by him.

(i)     The CPIO will first re draft the application, if necessary, by reproducing the request for information in English and in the form of a list and mark specific requirements for the actual custodians of the information in the public authority and transfer it to them within 24 hours of receipt of the application with instructions to produce the information and copies of documents along with a list of such documents as early as possible but not later than 15 days from the date of transfer. If any custodian of information/documents, fail to comply with the requirement he may be given an additional 2 days with the approval of the appellate authority.

(j)     In case of transfer of the application, in part or full, to another public authority, sec 6(3) will be complied with by endorsing a copy of the letter under which the transfer is effected, to the applicant also. Sec 6(3) will be complied with for as many public authorities as are required to provide the complete information sought.

(k)   On receipt of information/copies of documents the CPIO will compile it, using the format of the redrafted application indicating which all information are being provided and action taken on those that are not being provided. It will then be send to the applicant, along with a copy of the docket, with information to the appellate authority.

(Note: No cost is demanded and the complete information and copies of documents along with its complete list, is provided free of cost, for reasons given at ser 2 of Comments)

(l)     The reply by the CPIO will include the following information, even if not sought specifically by the applicant: the name and his designation as the CPIO as well as his regular designation in the public authority, full address of the public authority including the Postal Index Number, telephone and mobile numbers and e mail id. If he has not been provided with official telephone/mobile numbers and e mail id, such details of his superior who has been provided those, and similar details of the FAA will be provided.

(m)The reply by the CPIO will be in the language of the application and English (repeat and English), if the language used by the applicant is not English. If required by the applicant, copies of documents which are not in the language used in the application, will be provided after being translated into English and duly authenticated by the CPIO.

(n)   For the purpose of calculating 30 days the date of handing over to postal authorities/courier agencies will only be considered.

(o)   If the CPIO fails, for whatever reasons, to communicate the contents of the docket and the date of posting the reply cannot also be confirmed, it shall be presumed that the application had been delivered to the CPIO 3 days after it was posted/couriered and the reply had been posted/couriered 3 days before the receipt by the applicant

(p)   The onus of proving that the information/copies of documents sought have been delivered to the applicant will be that of the CPIO.

6. Processing of 1^st appeal (by the designated FAA).

(a)   T he applicant, on receipt of the information and copies of the documents, if not satisfied with the response, may file a first appeal with the FAA within 30 days of receipt.

(b)   The appeal may be submitted in person or through a representative which may even be a courier, including the post offices, or through electronic means. Receipts/acknowledgements will have to be obtained in all cases.

(c)    The appeal may be processed like the application is processed as detailed in para 5(a) to (c) with the following changes:

The appeal number shall be created by adding a suffix to the application number already provided.

(d)   The appeal shall then be transferred to the FAA.

(e)   The FAA shall call for the relevant records and verify the contents of the response of the CPIO as well as the contentions of the appellant. If any deficiency has been noted in the response of the CPIO, even when such deficiencies have not been explicitly mentioned in the appeal, he will take necessary action to rectify them which may include the following:

(i)                 Direction to the CPIO to provide the missing information

(ii)               Direction to the CPIO to comply with Sec 6(3) of the Act

(iii)             Confirm compliance with the above direction

(iv)             Disseminate the lessons learnt amoung all the public servants in the public authority

(f)     Communicate the action taken, findings and decision to the appellant.

(g)   The details at para 5(l) to (p), as modified appropriately, applies for the FAA also.

7. Duties of the Chief Information Commissioner.

(a) Apart from the duties listed at Sec 12(4) of the Act , it is necessary for the Chief Information Commissioner to do the following in order to fulfill the obligations of information commissioners to enforce the law in letter and spirit.

(b) By exercising his powers under Sec 19(8) he should cause to be published by the commission on its website all the subjects dealt with by various public authorities and records held with each public servant of every public authority. This should be done by providing links at this site to the information published by the public authorities in pursuance of the requirement at sec 4(1)(b)(i) and 4(1)(b)(v) of the Act.

(c) The Chief Information Commissioner shall divide the complaints/appeals amoung the information commissioners in such a manner that the load on each commissioner is comparable with that of others.

(d) The Chief information Commissioner should ensure that all complaints/appeals received by the commission are decided on a first come first served basis, except in the case of complaints/appeals involving life and liberty of citizens.

(e) In no case should a complaint/appeal filed one month earlier than the latest complaint/appeal decided by any information commissioner be kept pending.

(f)  In no case should any complaint/appeal be pending for decision beyond 90 days.

(g)  The Chief information Commissioner should ensure that each information commissioners decides atleast 30 appeals per day and for calculating the work load one appeal shall be considered to be equal to 3 complaints.

(h) The Chief Information Commissioner should ensure that the proceedings are conducted in English or the language used by the applicant if it is any of the languages used by the Union or States. To facilitate this the public servants employed in the Commission should be from all parts of the country who can double as translators when the need the arises.

8. Processing of Complaint/2^nd appeal at the Central Information Commission.

(a)   An applicant may file a complaint, for any of the reasons given in sec 18 (1) of the Act or an appeal under Sec 19(3), if he is not satisfied with the decision of the FAA, for whatever reasons, including delay in deciding the appeal, to the Chief Information Commissioner, Central Information Commission.

(b)  The complaint may be filed within 90 days of the events, listed at sec 18(1) of the Act, happening.

(c)  The 2^nd appeal may be filed within 90 days of receipt of the decision of the FAA or on non receipt of the decision even after the expiry of 30 days of submission of the 1st appeal.

(d)  The complaint/2nd appeal will be accompanied by copies of the application, reply/replies from the CPIO(s), 1st appeal(s) and the reply/replies from the FAA(s), as applicable.

(e)  On receipt of the complaint/cappeal along with the documents mentioned in para 8(d) the recipient will process it as mentioned in para 5 till it is transferred to the concerned IC who is required to decide on it.

(f)    The IC will after going through the complaint/ 2nd appeal and the documents submitted with it, will decide on the answers for the following questions, as applicable, for each public authority involved:

(i)       Had all disclosable information sought and held with the respective public authorities been disclosed within the specified period?

(ii)      In case of information sought but not held with the public authority had Sec 6(3) of the Act been complied with, including communication of the matter of transfer to the applicant?

(iii)     Who are the CPIOs who have defaulted and what are the their defaults?

(iv)     Who are the FAAs who have decided the 1st appeal and was there any deficiency on their part?

(g)   After having decided that specific CPIOs have defaulted and penalty needs to be imposed on them, the IC will give them an opportunity to being heard by seeking an affidavit from the defaulting CPIO(s) , duly countersigned by the FAA,  clarifying the deficiencies listed and reasons why the penalty should not be imposed. The copy of this notice providing the opportunity to being heard to the CPIO should also be provided to the appellant for his information and records.

(h)  On receipt of these affidavits, if the IC finds any merit in any of the reasons given for not penalising, he shall provide a copy of the affidavit to the appellant for his arguments to be submitted within 30 days of receipt of the copy of the affidavit(s). Only after receipt of these arguments should he take a final decision in the appeal. The decision should clearly bring out the reasons, especially if no penalty is imposed. Direction to the superior authorities to take administrative action against defaulting FAAs should also be part of the decision.

(i)    The decision should necessarily include a direction to the CPIO to provideto the commission the information/copies of documents, duly attested, denied to the applicant till then. This information/copies of documents shall be provided to the appellant/complainant.

(j)   Apart from the penalty imposed under sec 20 of the Act, the IC should also recover the cost of documents provided free of cost to the appellant and the compensation to be paid to the appellant, as per sec 19(8)(b), for the time, effort and cost in pursuing the appeals.

(k)  If the complete information had been provided before submission of the 2nd appeal the CPIO should compensate the appellant to the tune of Rs 5000/- and if it is provided only after the 2nd appeal the FAA should also pay a compensation of Rs 5000/- to the appellant.

(l)    No complaint or appeal should be returned unless the material documents that are required for deciding them have not been provided by the complainant/appellant.

(m) The final decision in all complaints and 2nd appeals should published on the web site of the commission within 24 hours. This information along with the URL of the decision should be communicated to the complainant/appellant through SMS/ email in cases where the complainant/appellant has provided hismobile number and or e mail id. If such information has not been provided by the complainant/appellant copy of the decision will be despatched to him within 24 hours.

(n)  Onus of proving that it has been communicated to the complainant/appellant will be that of the information commissioner.

Comments.

*1. Refer Art 350 of the Constitution of India

*2. In view of the provisions of sec 4(1)(b) and 4(2) and DoPT circulars directing public authorities to upload applications, appeals and resposes to them on the website of the public authority and nearly 12 years have passed since the Act has come into force it is necessary to do away with the application fee.

DRAFT RTI RULES, 2017 A CRITICAL ANALYSIS BY P M RAVINDRAN

DRAFT RTI RULES, 2017

A CRITICAL ANALYSIS BY P M RAVINDRAN, CO-ORDINATOR SAVE RTI CAMPAIGN

SAVE RTI CAMPAIGN-MISSION STATEMENT

SAVE RIGHT TO INFORMATION. USE RIGHT TO INFORMATION ACT.

GET INFORMATION OR......

EXPOSE ATLEAST THREE IDIOTS/TRAITORS* AMOUNG PUBLIC SERVANTS!

1. THE PUBLIC INFORMATION OFFICER (PIO)

2. THE FIRST APPELLATE AUTHORITY (FAA, AND THE HEAD OF PUBLIC AUTHORITY WHERE THE HEAD OF THE PUBLIC AUTHORITY IS NOT THE FAA!) AND

3. THE INFORMATION COMMISSIONER (IC)

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

1. Please see the Department of Personnel and Training (DoPT) Circular No 1/5/16-IR dated 31 Mar 2017, available at http://document.ccis.nic.in/WriteReadData/CircularPortal/D2/D02rti/1_5_2016-IR-31032017.pdf and copy posted at https://www.slideshare.net/raviforjustice/rti-rules-2017draftdopt-circular1-52016ir31032017. This circular is about inviting feedback from the public on the proposed Right to Information Rules, 2017 which is supposed to replace RTI Rules, 2012. Even a cursory look at the proposals would reveal it has everything to do with making it more difficult for citizens to access information and nothing to do with making the PIOs, FAAs and ICs comply with the letter and spirit of the law which states in its preamble that it is to provide 'secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority'. The Preamble also states unambiguously that 'democracy requires an informed citizenry and transparency of information which are vital to its functioning and also to contain corruption and to hold Governments and their instrumentalities accountable to the governed'.

2. While the formal feedback is being fine tuned, the aim here is to highlight the treachery in the draft Rules.

3. At para 2(j) a new definition has been introduced for a Secretary as: "Secretary" means an officer so appointed as Secretary to the Commission by the Central Government. And para 7 states 'Appointment of Secretary to the Commission:- The Central Government shall appoint an officer not below the rank of Additional Secretary to the Government of India as Secretary to the Commission.'

The hidden agenda: (a) Finding sine cures for retired additional secretaries to the GoI. (b) After appointing an additional secretary as secretary to the Commission the information commissioners

will of necessity be not less than secretaries to the GoI! (c) So that provides sine cures for 10 secretaries too!

Comment. There is no need for any secretary to the commission. As it is there is an army of registrars, joint registrars etc who are under employed in the commission. No need to burden the exchequer more.

4. Paras 3 to 6 deal with application fee, fee for providing information, exemptions and modes.

Comments.

(a) This is a copy/paste operation. But there is a relevant question: should these fees continue at all? The answer is a big NO. Why? Firstly, the issue of proactive disclosure specified in sec 4 of the RTI Act. Quite a lot of information that citizens should know have been mandated for proactive disclosure within 120 days of the enactment of the RTI Act. (Interestingly the Rules still fail to specify any penalty on public authorities who have failed to comply with this provision of the law!)

(b) Next, the same section also states in Sub Sec 4(2) that 'It shall be a constant endeavor of every public authority to take steps in accordance with the requirements of clause (b) of sub-section (1) to

provide as much information suo moto to the public at regular intervals through various means of communications, including internet, so that the public have minimum resort to the use of this Act to obtain information.' When even 4(1)(b) has not been complied with by any of the public authorities, with some exceptions of course, it is time (12 years is sufficient time in an era when information technology makes mobile phones bought yesterday obsolete today, isn't it?) that the application fees and fee for information is done away with.

(c) And lastly the DoPT had also issued circulars directing public authorities to upload applications under the RTI Act  and their replies on the authority's website.

(d) For reasons given above there is absolutely NO justification for continuing to levy fees along with the application or for providing info sought.

(e)These comments would be incomplete if I did not highlight one fraud in these paras- Para 5 is about exemption given to BPL category citizens from paying application fees and fee for information. But it stipulates that for getting this benefit they have to produce a copy of the certificate issued by the appropriate government! Now you can well imagine the ordeal in getting this certificate! I had come across a citizen who had visited the office 5 times spread over 3 months to get a certificate that could be used only once!

5. Para 8 is about a format for submitting 2nd appeals, documents to be provided and also about a proof of service of appeal to the respondent!

Hidden agenda: (a) Shirk responsibilities of the IC and (b) create avenues for harassing the appellant.

Comments:

(a) Firstly, when Sec 6 of the RTI Act does not specify a format for the application and explicitly states that the applicant need not even specify reasons or provide any information other than the

information needed to contact him (and this could even be a Post Box number as has been clarified by certain decisions of competent authorities!) there is no justification for introducing formats for 2nd appeals. It is true that the proposed rules clarify that the appeal should not be rejected merely because of not being in the specified format, but that is no consolation for citizens being driven from pillar to post by a bureaucracy that is seen as almost inimical to the public needs!

(b) This rule, at para 8(1) also demands the appellant should authenticate and verify the documents that are being submitted! Why this is objectionable is that DoPT had issued a OM (10/1/13-IR dated 06 Oct 2015) where the PIO is required to endorse the copies that he provides only when the applicant has requested for certified copies! Here the following questions merit answers:

b.1. Why have the contents of this OM not been incorporated into these Rules? And why should it be restricted to only the PIO and not the FAA and IC?

b.2. Of the 4 documents-copies of the application, reply by the PIO, 1st appeal, reply by the FAA- submitted with the 2nd appeal two are originated by the appellant himself and one each by the PIO and FAA. These can be verified by the IC during hearing but how can the applicant verify the authenticity of the documents provided to him by the PIO if it is not even certified by the PIO?

(c) Para 8(1)(v) demands that 'copies of other documents, if any, relied upon by the appellant and referred to in his appeal' have also got to be submitted. Will it include the documents, other than the reply under which they have been received from the PIO, too? If yes, then there are two questions:

c.1. If the PIO had not certified the documents, how can the appellant authenticate them?

c.2. If the PIO has not provided an index of these documents, how will the IC verify if the appellant has provided all copies that had been received from the PIO/FAA?

c.3. If the PIO has provided an index will it not suffice to provide a copy of the index and not copies of all the documents mentioned in the index which would be criminal waste of natural resources.

(Remember the Greens' quip: Save paper, save trees!)

(d) Para 8(1)(vi) demands that an index of documents be submitted. When there are only 4 documents- copies of the application, reply by the PIO, 1st appeal, reply by the FAA- that are required to decide the appeal why should these be indexed separately? (The rules provide for not rejecting an appeal merely because it is not in the suggested format. Now if you add the missing index, the commission/commissioner can reject it officially, isn't it?)

(e) Para 8(1)(viii) demands that a certificate stating that the matter under appeal has not been previously filed and disposed or are pending, with the Commission or any court. This is obnoxious as Sec 23 of the RTI Act is unambiguous while stating that 'No court shall entertain any suit, application or other proceeding in respect of any order made under this Act and no such order shall be called in question otherwise than by way of an appeal under this Act.'. And which is the clause in the RTI Act that forbids the applicant from seeking a particular information from two different sources, may be at the same time or different times, and both landing up as 2nd appeals?

(f) Para 8(1)(ix) and 8(3) demands that the proof of service of appeal to the respondent should also be attached. Now here are the issues involved:

f.1. Firstly, it is the duty of the IC to consider the appeal, whet the documents -the application, response by the PIO, 1st appeal and the reply by the FAA- submitted with it  and decide if there has been deficiency in providing the information sought and only if such deficiency has been established and it is required to penalise the PIO an opportunity to being heard is to be given to the PIO (only). Even then it is the duty of the IC to list out the deficiencies and seek explanation on each of those points specifically. Thus directing the appellant to send copies of the appeal to the respondent is both illegal and will amount to palming of the duties of the IC to the appellant which should not be accepted.

f.2. Next, given the efficacy of our postal department, one may find oneself in a situation where one cannot file the 2nd appeal without an application for condoning delay!

f.3. Our post offices even while charging the consumer Rs 3/- for the Acknowledgement Due Card do not bother to return the duly completed card promptly, if at all it is returned. Firstly there is lapse on the part of the post man who is required to get the details completed by the addressee. On complaints the postal authorities maintain the the AD card is handled as ordinary mail and hence cannot be tracked.  This is unacceptable since it is not just the Rs 3/- that is charged for the card that goes towards the cost. The AD cards are only accepted with postal articles which are registered for which there is a registration charge of Rs 17/-! When proof of delivery is demanded they play another fraud on the consumer by getting a letter from the concerned post master that it has been delivered! Please have a look at the blog at https://www.slideshare.net/raviforjustice/proof-of-delivery-of-registeredad-documents  to see the even more worse fraud in such a case. Here they have just provided a list of registration numbers of postal articles with the post master's signature! Now recollect that we sign at two places when a registered/AD letter is delivered to us- one is the AD card and the second is a list produced by the post man for his/their records! They do not even bother to provide a copy of this list, where the recipient has actually signed, to the consumer/complainant!

f.4. While the postman will not deliver the postal article addressed to you unless you acknowledge receipt by signing both the AD card and his list, he is not seen to do this in the case of postal articles

addressed to public servants/authorities! And one need not debate on how important this proof of delivery is required by the citizen more than the public servants/authorities.

(g) Para 8(2) regarding typing etc. Irrelevant so long as readable.

6. Para 9 permits the IC to return the appeal and the reasons are totally unsustainable. But the provision 'However, the appellant may be required to authenticate/verify the document(s) before disposal of appeal.' lets the cat out of the bag and that is provide room for the IC to whimsically decide on the appeal or/and harass the appellant. (Please read para 5(b) and (c) above.)

7. Para 10 deals with the process of appeal where the IC has been given the authority not to consider the 2^nd appeal if the 1st appeal had not been filed or filed but the reply from the FAA had not been received even after 45 days had elapsed. This is also intended to facilitate the IC to subvert the law. When a 1st  appeal had not been filed it automatically falls within the category of the complaint dealt with at para 13 of the suggested Rules. And if the additional 15 days are given to cater for postal transit time look at the information commissions themselves sending notices for hearing without keeping such transit times in view! And even if the reply of the FAA is received after the 2nd appeal had been filed after 30 days of submission of the 1st appeal and no response has been received from the FAA, why should it be returned to the appellant? After all, the 2nd appeal would be maintainable even if only on the ground of delay in providing info and the need to impose the mandatory penalty. The issue of the decision of the FAA will have to be resolved by the IC by seeking his explanation for the delay because the 30 days is the maximum time given to the PIO and FAA to respond to the application/1st appeal. So there is no need to harass the appellant for no fault of his, though the appellant, being a sensible person would cater for postal transit times while filing his appeal and his judgement should not be questioned.

8. Para 11 deals with the procedure for deciding appeals. The whole procedure listed is wrong and would only make a mockery of the sanctity of deciding the appeal. This procedure confounds the important question when it is to be followed. There has to be two stages for deciding the appeals. The 1st one is on receipt of the appeal when the IC is required to study the appeal and the documents submitted with it and decide if there has been deficiency in providing the info sought and there is a need to penalise the PIO. If there is a need to penalise the PIO then a notice has to be given to him seeking specific responses to the listed deficiencies. This caters for the legal requirement of sec 20 whereby the PIO who is to be penalised has to be given an opportunity to being heard before such a penalty is imposed. After getting the responses in the form of an affidavit if there are further clarifications needed they may be sought from both the PIO and the appellant. Thereafter the 2nd stage of deciding the appeal should take place whereby the IC directs the PIO to provide the missing info and also imposes the penalty while directing the FAA/ public servant superior to the PIO to ensure compliance and confirmation.

9. Para 12 deals with withdrawal or abatement of appeal. This is irrelevant/unwarranted as in the context of the RTI Act, if an information sought had not been provided and a complaint/appeal has been filed then they have to be disposed of as per the law.

10. Para 13 to 15 deal with complaints. In the RTI Act, the difference between a complaint and appeal is notional and the former is a simple case of the latter. Thus all points covered about appeals in earlier paragraphs here apply to complaints also. The only difference is the apex court ruling that in case of complaints the IC cannot order provision of info sought! This is absolutely ridiculous because the very Act is meant to enable citizens to access info. And this rule has done nothing about resolving the predicament! It should have provided for the IC to get the info sought /copies of documents under the provision of Sec 18(3) of the RTI Act and give it to the complainant.

11. Para 16 and 17 deals with compliance and non-compliance of the decision of the Commission. Again it is evident that the effort is to procrastinate/harass the applicant/appellant. There is no reason why the IC cannot seek confirmation, by a specified date, of compliance from the FAA and communicate it to the complainant/appellant with the rider that if no response is received from the

complainant/appellant to that communication within 30 days of its receipt the case will be closed.

12. Para 18 deal with presence of parties before the commission. The provisions here are treacherous, to say the least. It should be understood that there is absolutely no need for the complainant/appellant to be present for any hearing. His case is complete in the complaint/appeal and the documents submitted with them. The onus of proving that he acted with due diligence is with the PIO and the IC is required to provide an opportunity to being heard to the PIO only if he has convinced himself that there is a need to penalise the PIO. Thus empowering the IC to seek the presence of the parties is a sure shot way to harass the hell out of the complainants/appellants. As it is the PIOs/FAAs participate in hearing at the expense of the tax payer while the information seeker incurs the expense from his own hard earned income. At least one court of record (at Chandigarh) has directed that PIOs who are penalised by ICs, if they are to challenge that decision in a court, they should do so at their own expense. But it remains applicable only for that state! This should have been incorporated in these rules to make it applicable to the whole nation.

Worse, para 18(5) states that 'The public authority may authorize any representative or any of its officers to present its case.'. This is unwarranted, illegal and causes unwanted burden on the exchequer for the simple reason that such representations have no meaning and do not serve any purpose because the only opportunity to being heard is to be given to the defaulter PIO who is to be penalised and that cannot be wished away.

13. Paras 19 and 20 deal with counter statements and serving of notice by the commission. These are irrelevant/only subject to the provision of the RTI Act which mandates an opportunity of being heard to be given to the defaulting PIO before the penalty is imposed on him.

14. All appendices to be trashed for reasons  given in the preceding paragraphs.