information commission(s) right to information act, 2005

INFORMATION COMMISSION(S)

Right to Information Act, 2005

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Learning Objectives of the Module

• The Role and Responsibilities of the Information Commissions

• The “Second Appeal” process and the Commissions’ mandate for the same

• The relevant provisions in the RTI Act dealing with Complaints to the Information Commission and the specifications thereof

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Broad Outline of the Presentation

• Information Commissions (ICs)–as Envisaged

• Functions & Powers of ICs

- Inquiry (by ICs) into ‘Complaints’

- Admitting and Disposing ‘Second Appeal’

• Constitution, Structure & Organisation of the C/SIC

• Miscellaneous Provisions concerning ICs

----------------------------------------------------------• Group Discussion: Talking Points

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C/SICs Envisaged As…

• An important cog in the wheel of the “Practical Regime” – as contemplated under the RTI Act …

…the Guiding Principle for them (as stated in the ‘Long Title’

of the Act) being:“…to help citizens secure access to information under the control of public authorities…”

&… to perform their functions in accordance with the

RTI Act and the Rules made thereof (by the Governments

concerned) as they apply

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An IC is thus,

An• arbitrator / adjudicator (as the “Second Appellate

Authority”)

• interpreter of “Public Interest” as it bears on either disclosing / providing information and withholding / denying it

• authority to receive and inquire into complaints about non-compliance and a counsel for remedial action

• autonomous entity in exercising its mandate

What the Act Says?

Functions and Powers of ICs

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C/SICs: Functions & Powers: Inquiry into Complaints

Citizens can complain on reasonable grounds

about

- inability to submit request to PIO due to: non-appointment of such officer

APIO’s refusal to accept an application / appeal to be

forwarded to PIO / AO / IC

- being refused access to any information requested under the Act

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- not having received any response for a request

for information

- for having being given incomplete, misleading or

false information

- any other matter relating request to or obtaining

access to records under the Act

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In exercising this authority:

ICs have same powers as civil courts while inquiring any matter u/s 18

& can- summon and enforce attendance of persons and compel them to provide evidence (oral / written) & produce documents / things- require discovery & inspection of documents- receive evidence on affidavit- requisition any public record / copies thereof from any court / office- Issue summons fro examination of witnesses / documents- Any other matter which may be prescribed

They can also examine any record to which the Act applies – which isunder the control of a Public Authority and no such record can bewithheld from it on any grounds

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C/SICs: Functions & Powers: Second Appeals

• A Second Appeal against the decision of the AO can be preferred to the Information Commission:

- The appellant has to prefer the appeal within 90 days of the decision being made or actually received by the applicant (the IC may, however, admit the appeal after 90 days if it is satisfied of a sufficient cause from filing the appeal in time)

- If a ‘Third Party’ is involved (because the information relates to it) the IC shall give it a reasonable opportunity of being heard

- They are also to give the PIO a reasonable opportunity to be heard, yet the onus of proof to prove that the denial of request was justified shall be on the PIO who denied the request

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- ICs shall decide appeals in accordance with such procedure as may be prescribed (However, no time limit has been stipulated for disposal of second appeal by ICs)

- ICs also have to accord due consideration to the

principles of public interest and natural justice

- ICs are also legally bound to give notice of their

decisions, including any right of appeal to the

complainant and the public authority

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• Information Commissions can require the Public Authority to:

a) take such steps to secure compliance as: - providing information in the form requested - appointing PIOs - publishing certain information or categories of information - making necessary changes in its practices relating to maintenance, management and destruction of records - enhancing the provision for training on the RTI for its officials - providing annual report with respect to compliance under section

4 (1)(b)

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b) compensate the complainant for any loss or other detriment suffered

c) impose any of the penalties provided under the Act

d) reject the application

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C/SICs: Functions & Powers: Penalties

• The C/SIC shall, while deciding any complaint / appeal, impose a penalty on PIO, if she has without any reasonable cause:

- refused to receive an application for information

- not furnished information within the specified time

- malafidely denied request for information

- knowingly given incorrect, incomplete or misleading information

- destroyed requested information

- obstructed in any manner furnishing the information• The penalty to be so imposed shall be Rs. 250/- for each day till the

application is received or information is furnished, yet not exceed Rs. 25,000/-

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Note: Instances of penalty imposition (as on 31. 07. 2006)

1) CIC – Rs. 25,000

2) MP SIC Decisions – Rs. 18,000 (Module ) and Rs. 25,000 (Module VII)

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C/SICs: Functions & Powers: Penalties

Furthermore…The C/SICs shall recommend disciplinary action againstthe C/SAPIO under the service rules applicable to him / her, who without any reasonable cause, persistently fails

by way of committing the same acts (as mentioned earlier) that make him / her liable for imposition of penalty

What the Act Says?

Constitution, Structure & Organisation of C/SIC

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Central Information Commission

Constitution of CIC – • Chief Information Commissioner

(entrusted with general supervision direction and management of the affairs of the Commission) and assisted by…

• Central Information Commissioner(s) (as may be considered necessary, not exceeding ten)

www.cic.gov.in

http://www.cic.gov.in/

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Mode & Procedure of Appointment – • Appointed by the President on• Recommendation of a Committee consisting

of:

– the Prime Minister (as Chairperson) – the Leader of the Opposition in the

LokSabha– a Union Cabinet Minister nominated by the

Prime Minister

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Term of Office – • All CIC Commissioners are to:

- hold office for a period of five years (from the date of entering upon office)

- or till attainment of 65 years of age whichever is earlier

*The incumbent information commissioners of the newly constituted CIC are: Shri Wajahat Habibullah (Chief Information Commissioner), Shri A. N. Tiwari, Dr. O.P. Kejariwal, Dr. M. M. Ansari & Smt. Padma Balasubramanian

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Provisions for Removal (of Commissioners) –

• Any Commissioner can be removed from Office:- for proved misbehaviour (some grounds stated in the

Act itself - s. 14 (4)) or incapacity- only by an order of the President- if the Supreme Court of India, on a reference made to it by the President, after an inquiry, recommends removal on the said grounds

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• The Central Information Commissioners may also be removed from office by the President on grounds of: - insolvency- conviction in an offence involving moral turpitude

- engagement in paid employment other that his / her office duty;

- Developing infirmity of body or mind- acquiring financial / other interests prejudicial to the

functions of a Central Information Commissioner

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State Information Commission

Constitution of SIC – • State Chief Information Commissioner

(entrusted with general supervision, direction and management of the affairs of the Commission) and assisted by…

• State Information Commissioner(s) (as may be considered necessary, not exceeding ten)

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Mode & Procedure of Appointment – • Appointed by the Governor of the State on• Recommendation of a Committee consisting of:

- the Chief Minister (as Chairperson) - the Leader of the Opposition in the Legislative Assembly &

- a Cabinet Minister to be nominated by the Chief Minister

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Term of Office –• All SIC Commissioners are to:

- hold office for a period of five years (from the date

of entering upon office)

- or till attainment of 65 years of age (whichever is earlier)

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Provisions for Removal (of Commissioners) –

• Any Commissioner can be removed from Office:- for proved misbehaviour (some grounds stated in the

Act itself s. 17 (4)) or incapacity;- only by an order of the Governor (of the State

concerned);- if the Supreme Court of India, on a reference made to it by the Governer, after an inquiry, recommends removal on the said grounds

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• The State Information Commissioners may also be removed from office by the Governor on grounds of:

- insolvency

- conviction in an offence involving moral turpitude - engagement in paid employment other than his / her office duty

- Developing infirmity of body or mind- acquiring financial / other interests prejudicial to the

functions of a State Information Commissioner.

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Other Important Stipulations

• Information Commissioners (Central / State) Shall:- be persons of eminence in public life

- have wide knowledge an experience in law, science and technology, social service, management, journalism, mass media or administration and governance

• Information Commissioners (Central / State) Shall Not : - be a Members of Parliament or Members of Legislature of any

State or Union Territory… hold any other office of profit…(be) connected with any political party… (be) carrying on any business or pursuing any profession

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Governments’ Responsibility

• The Central / State Governments (as the case may be) are bound to: - provide the Commissioners with officers and employees necessary

for efficient performance - provide for the payment of their salaries, allowances etc.

- provide for the terms and conditions of service of the officers and employees, as prescribed - the “appropriate government”, if necessary, update and publish the guidelines pertaining to (including among other things): * the assistance available from the CIC / SIC as the case may be & * all remedies in law available regarding an act or failure to act in respect of a right or duty conferred or imposed by this Act including the manner of filing an appeal to the Commission

What the Act Says?

Miscellaneous Provisions

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Miscellaneous Provisions…

Several provisions in Chapter VI have a direct or

an indirect bearing on the functioning of the ICsThese are:

• An action of any person in good faith or intended to be done under the RTI Act or any rule made thereunder will not lead to any suit / prosecution / legal proceeding against that person

• No court shall entertain any suit, application or any proceeding in respect of any order made under the RTI Act and no order shall be called in question otherwise than by way of appeal under the said Act

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• The RTI Act does not, as such, apply to:

- Intelligence & security organisations established by the Central Government (as specified in the 2nd Schedule of the Act)

- Any other Organisation(s) that the Central Government

may, by publication of a notification in the Official

Gazette, include in the 2nd Schedule

- Such intelligence & security organisations established

by State Government, as may be specified by such

Government, by notification in the Official Gazette

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• Yet,

- the information pertaining to allegations of corruption

and human rights violations is not so exempted,

- and further, if the information sought for pertains to

allegations of violation of human rights, then, such

information shall be provided within 45 days from the

date of the receipt of request

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Reporting by C/SICs

• The C/SIC, as the case may be, shall as soon as practicable, after the end of each year, prepare a report on the implementation of the provisions of the Act during that year and forward a copy thereof to the appropriate Government

• The Central / State Government, as the case may be, may… cause a copy of the said report to be laid before each House of the Parliament and each house of the State Legislature - where the State Legislature has only one house, before that House

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• Each report shall state with respect to the year to which it relates,

(a) the number of requests made to each public authority

(b) the number of decisions where applicants were not entitled to

access to the documents pursuant to the requests, the provisions of

this Act under which these decisions were made and the number of

times such decisions were invoked

(c) the number of appeals referred to the C/SIC, as the case may be,

for review, the nature of the appeals and the outcome of the

appeals

(d) particulars of any disciplinary action taken against any officer in

respect of the administration of this Act

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(e) the amount of charges collected by each public authority under

this Act;

(f) any facts which indicate an effort by the public authorities to

administer and implement the spirit and intention of this Act

(g) recommendations for reform, including recommendations in

respect of the particular public authorities, for the development,

improvement, modernisation, reform or amendment to this Act or

other legislation or common law or any other matter relevant for

operationalising the right to access information

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[Section 25 (2)]

• Each Ministry / Department shall, in relation to the public authorities within their jurisdiction, collect and provide such information to the C/SIC, as the case may be, as is required to prepare the report… and comply with the requirements concerning the furnishing of that information and keeping of records for the purposes of (such monitoring & reporting)

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[Section 25 (5)]

• If it appears to the C/SIC, as the case may be, that the practice of a public authority in relation to the exercise of its functions under this Act does not confirm with the provisions or the spirit of this Act, it may give to the authority a recommendation specifying the steps which ought in its opinion to be taken for promoting such conformity.

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To conclude…

• The RTI Act, 2005, though a simple Act, is quite elaborate in its provisions…this applies to provisions related to ICs and their constitution, powers & functions as well

• The conception of the role of ICs under is thus rather eclectic. They are expected to play the role of remedy provider, enforcer, and educator

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To conclude…

• On the whole, the Information Commissioners may have to be like roving ambassadors to see for themselves the manner in which the provisions of the Act are being implemented at various levels

• Last, but not the least, the ICs must lead by example in meeting their obligations as public authorities under the Act

Questions?? / Doubts!!

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Group Discussion Talking Points…

• The significance of the ICs’ role as an oversight authority

• Some key decisions of the CIC

(till date) and calling upon the participants to discuss their gist.

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Group Discussion Talking Points…

• Reiterating the importance of maintenance of proper registers with respect to disposal of request. The participants need to be explained the significance of this, both, for the public authority to report to the Department and for the

Department to report to the Information Commission. Importantly, such register-keeping will also be useful to the PIO to present his/her side to the IC concerned in case of a second appeal.

• Any other issue(s) / aspect(s) that any participant(s) may want

to discuss.

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Note: Important Information Sources

• It would be appropriate and useful to refer to the ‘Right to Information Act, 2005’ and to the Rules made thereunder, for further clarifications

• You can also refer to www.cic.gov.in to stay updated on the various decisions (including interpretations) of Central Information and State Information Commissions (contact details for which are available on the CIC website)

http://www.cic.gov.in/

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Thank You

information commission(s) right to information act, 2005

Documents

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powers of ics slide

false information

rti act

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complaints citizens

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