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.