---------- Forwarded message ---------- From: Ravindran Major <[EMAIL PROTECTED]> Date: Sep 16, 2008 6:43 PM Subject: WORKSHOP ON RTI To:
It is proposed to hold a wksp on RTI at Thrissur on 12 Oct 2008. It will be the 3rd anniversary of the Act coming into force and an appropriate time to take stock of how far we have moved towards democracy using this Act. Of course there has been small gains but the problems confronted by information seekers needs serious attention before efforts by vested interests to water down the provisions of the Act bears fruit and it just becomes 'all sound and fury signifying nothing'. We have the fate of the Consumer Protection Act in front of us to derive lessons from. Listed below are some food for thought. The issues needs to be discussed at length and some consensus arrived at to pursue a viable course of action to get this Act implemented in letter and spirit. Looking forward to your participation and useful contribution to make the venture a success. Regards and best wishes P M Ravindran Co-ordinator, Save RTI Campaign DEFICIENCIES IN THE ACT ITSELF. There are some inherent deficiencies in the RTI Act, 2005. These are listed below along with suggested corrections. Obviously they are all to be acted on by the Central Government. We need to find out ways and means to get these amendments introduced. 1. Sub-sec 2(e). The definition of Competent Authority should be amended to read as: 'the President of India only'. Reasons: 1.1. There is NO need for so many competent authorities for interpreting and modifying the rules under this simple, straightforward Act. 1.2. This sub section, read in conjunction with sub sec 2(g) and Sec 28, adversely affects the uniform implementation of the Act. In particular, it gives a long rope to incompetent 'competent authorities' to subvert the Act itself. 1.3. The instance of the Delhi High Court is relevant here.The application fees has been increased from Rs 10/- to Rs 500/-, the cost of a page of information has been increased from Rs 2/- to Rs 5/- and appeal fee has been increased from Rs 0/- to Rs 50/-! On the penalty side, the rates had been brought down from Rs 250/- to Rs 50/- per day of delay and the maximum penalty has been reduced from Rs 25,000/- to just Rs 500/-! (Subsequently, the fees has been reduced from Rs 500/- to Rs 50/- and the penalty amount of Rs 50/- per day has been justifed as additional powers granted to the FAA!) 2. Sub-sec 2(g). The definition of prescribed should be amended to read as: 'prescribed' means prescribed by the rules made under this Act by the Central Government. Reasons: Same as given in sub-paras 1.1 and 1.2 above. 3. Sub sec 12(5) may be amended as: The Chief Information Commissioner and Information Commissioners shall be persons of eminence in public life with wide knowledge and experience in law, science and technology, social service, management, journalism, mass media or administration other than government administration. (Please note that 'and governance' has been deleted!) Reason: It is seen that narrow loyalties are preventing the Information Commissioners, especially the Chief Information Commissioners who invariably are former bureaucrats, from imposing penalties mandated under the Act leading to the subversion of the Act by those tasked and empowered to enforce it. 4. Sub sec 14(3)(f) may be introduced as: has been evaluated average or below in performance by an Information Commissioners' Performance Evaluation Committee. Reason: There has to be quantifiable parameters for evaluating the performance of the Information Commissioners and evaluation based on these parameters has to be done by a duly constituted independent committee/council. There is need for only one such committee/council at the national level that will evaluate the performance of the state information commissioners also. 5. Sub sec 15(5) may be amended as: The State Chief Information Commissioner and the State Information Commissioners shall be persons of eminence in public life with wide knowledge and experience in law, science and technology, social service, management, journalism, mass media or administration other than government administration. (Please note that 'and governance' has been deleted!) Reason: Same as given at para 3 above. 6. Sub sec 17(3)(f) may be introduced as: has been evaluated average or below in performance by an Information Commissioners' Performance Evaluation Committee. Reason: Same as given at para 4 above. 7. Sec 19(1) provides for a 1st appeal to an officer superior to the PIO. But there is NO responsibility fixed on this FAA even if he/she routinely supports the PIO whose stand later proves false at the Commission. So the penalty amount has to be shared between the PIO and the FAA. 8. Sub sec 19(6) may be amended as: An appeal under sub secs (1), (2) or (3) shall be disposed of within thirty days of the receipt of the appeal or within such extended period not exceeding a total of forty five days from the date of filing thereof, as the case may be, for reasons to be recorded in writing. Reason: At present, the disposal of appeals by the Information Commissioners is totally lackadaisical. It almost seems that retired bureaucrats with political clouts are having a picnic at the cost of the exchequer. In one instance, the complete Kerala State Information Commission had come to a district headquarters and conducted a camp sitting to consider just 5 cases, in about one hour, when a good 29 cases from the same district were pending with the Commission! 9. Sec 27(1) may be amended as: The Central Govt may, by notification in the official gazette, make rules to carry out the provisions of this Act. Reason: same as given in sub-paras 1.1 and 1.2 above. 10. Sec 28 may be deleted. Reason: same as given in sub-paras 1.1 and 1.2 above. 11. Sec 29(2) may be deleted. Reason: same as given in sub-paras 1.1 and 1.2 above. NON-IMPLEMENTATION OF THE PROVISIONS OF THE ACT 12. Sec 4(B) has not been implemented by any PA. Even the information commissions are defaulters. A cursory look a their websites will prove this fact. 13. Sec 5(2) of the Act mandates that 'every public authority shall designate an officer, within one hundred days of the enactment of this Act, at each sub-divisional level or other sub-district level as a Central Assistant Public Information Officer or a State Assistant Public Information Officer, as the case may be, to receive the applications for information or appeals under this Act for forwarding the same forthwith to the Central Public Information Officer or the State Public Information Officer or senior officer specified under sub-section (1) of section 19 or the Central Information Commission or the State Information Commission, as the case may be'. Now there are two interpretations possible. One, that a Village Office in Palakkad also appoint an APIO at a subdivision in Delhi and two, the APIO of every sub-divisional office in Delhi also acts as the APIO of the Village Office at Palakkad. While the former is definitely not practicable the latter is very much practicable. Unfortunately even the KSIC seems to follow the non-practicable logic. In any case, this provision has NOT been implemented by any public authority except the Depts of the Govt of Kerala at Thiruvananthapuram designating the Supdt of RDO offices as their APIO. But even here, while the law states that this APIO should 'receive the applications for information or appeals under this Act for forwarding the same forthwith to the Central Public Information Officer or the State Public Information Officer or senior officer specified under sub-section (1) of section 19 or the Central Information Commission or the State Information Commission, as the case may be' the KSIC has officially written to the APIO, O/o the RDO, Palakkad not to accept any documents addressed to it or any other PA! The APIOs at post offices are supposed to have been designated as APIO for all central PAs. But this has NOT been implemented in Kerala! 14. Again, as per Sec 19(5) the onus to prove that a denial of a request was justified shall be on the Central Public Information Officer or State Public Information Officer, as the case may be, who denied the request and as per Sec 20, burden of proving that he acted reasonably and diligently shall be on the Central Public Information Officer or the State Public Information Officer. Inspite of this the KSIC has been directing the applicants/appelllants/complainants to appear for hearing at its office at Thiruvananthapuram. While the PIOs/AAs travel at the cost of the exchequer, the applicants/appelllants/complainants have to travel at their own expenses and even then when Sec 19(8)(b) provides for compensating the applicants/appelllants/complainants it has NOT been used even once! 15. Sec 20 of the Act mandates that penalties be imposed even for delays. The ICs have been defaulting on this wilfully and unlawfuly. Here one must even begin to suspect corruption because the only scope for corruption is for the information commissioners to accept part of the amount leviable as penalty as bribe and refrain from imposing the penalty. MISINTERPRETATION OF THE PROVISIONS OF THE ACT 16. There have been cases where the term 'A person, ' at the begining of Sec 6(1) has been interpreted to mean just one person on a day and PIOs have been collecting only one application per day! 17. The term 'held by' in the definition of right to information in Sec 2(j) has also been misinterpreted to mean held at the point of receipt of application and NOT as which should have been legally held by them. I other words, failure to hold documents that should have been legally held with teh PA could be a valid excuse for NOT providing the informetion sought. 18. Some PAs in the State have been asking the applicants to pay Search fees. Also, some PAs have been asking the applicants to bear the cost of postage for sending the information by registered post. This is absolutely unwarranted since the provision of APIOs at sub-divisional level itself is an indication that the law-makers had applied their mind and decided to spare the information seekers from such overhead expenses. In fact the Act promises to have all disclosable information proactiely disclosed so that the need to apply and collect information is gradually reduced to the barest minumum if not done away with altogether. SUGGESTIONS TO THE CIC, KERALA 19. Whenever an appeal is received at the Commission it should be acknowledged with an appeal number and a tentative date by which the decision would be given. 20. It would be logically and morally binding on the Commission also to have some time limits specified to dispose off appeals. 21. Imposition of penalty should be routine, as provided in the Act, and exemption, when given under rarest of rare circumstances, the reasons for the same should be given in detail in the orders of the Commission. 22. There should be provision to compensate the appellant to the tune of 50% of the penalties imposed. 23. Information about the KSIC available at the official website of the Govt of Kerala is scanty and not up to date. In this context, the following points are highlighted: Information as per Sec 4(b) should be available online Details of complaints/appeals received should available on line. It should be searchable by appeal number/dateof appeal/subject/complainant or appellant name/identity of the public authority The details of PIO/AA of the IC and all state PAs should be provided at this site. The orders of the Commission should also be provided at the site. It should be searchable by appeal number/subject/appellant name/identity of the public authority 24. The Kerala Govt has provided for accepting applications etc pertaining to the Secretariat at the office of the RDO. Some officials are interpreting this in the narrowest sense to mean only the offices in the Secretariat building at Thiruvananthapuram. This should be clarified and the definition should include all offices of the Kerala Govt and corporations/commissions etc under it that are located outside the home sub-division of the applicant. 25. Following are the summary of recommendation which emerged during a public hearing held on 24 Sep 2006 on the functioning of Central Information Commission (they hold good even now): 25.1. Opportunity of being heard should be given to both parties in every case. It is upto the party to decide whether they wish to be physically present or send their written comments or decide not to avail of the opportunity. 25.2. No case should be closed, just by ordering that information be provided in the next 15 days etc. In most of the cases, it has been seen that the PIO does not comply with such an order. As a result, the appellant has to again approach the Commission and again wait for 7 months for his/her turn to come. Therefore, after passing an order, the case should be adjourned, and not closed. On the next hearing, if the appellant confirms having received information to his/her satisfaction, only then should a case be closed. This is the practice which is being successfully followed by Public Grievance Commission in Delhi for the last five years and also by SIC of UP. 25.3. The Information Commissioners should undergo training in judicial processes from some retired Supreme Court judges. (This may not be necessary and most likley it will only worsen the show. It needs to be remembered that the ICs have very limited functions. Precisely they are required to find answers to three questions. One: is the information sought exempted under sec 8 and 9 of the rti act? Two: is the information sought available, if not are there any legally valid reasons? Three: if it is available and not exempted, then what has been the delay beyond 30 days? Of the three two are straight away to be decided based on the rti act itself and it is only the reasons for non-availability that has to be checked with the PIO/AA. So in all 10 minutes is a large amount of time to dispose off one case. As per a report in the ToI, Mumbai, a comparison with the disposal of cases by the Bombay high court and the information commissioners shows up things in true light. Each high court judge disposed of, on an average, 2,530 cases annually. On the other hand, every information commissioner disposed of only 899 appeals last year. In Kerala it has been still worse. There are months when the 4 information commissioners between them had disposed off only single digit cases!) 25.4. Penalty should be imposed in every case of violation by government officials. Else RTI would soon be dead. 25.5. Some guidelines should be made on the terms like "fiduciary", "private information" and "public interest", which should be uniformly adhered to by all the Commissioners. 25.6. Appeal number should be given to every appellant/complaina nt and it should be communicated to him within 24 hours of receipt of his appeal/complaint. Within the next 24 hours, it should be put up on the website. Status of every appeal should be provided on the website, even if it is treated as inadmissible ab-initio. 25.7. No case should be taken up on out of turn basis, unless there is some grave public interest involved, which should be mentioned in the order. 25.7. There should be a public hearing every three months, which should be attended by all Commissioners. SOME BEST PRACTICES 26. In Bihar they have established call centres to deal with RTI information and application. One could dial a particular number to get any information on the RTI Act. One could dial a different number to file applications. The mattter would be recorded and sent to the concerned PA by the call centre. The fees would be charged through the tele bill. 27. In Maharashtra the ICs have been distributed between various districts and are located centrally for each of those cluster of districts. This reduces the strain and cost of travel both for the PIOs/AAs and applicants/complainant/appellants, if they desire to attend the hearings. For Kerala, the CIC can be located at Thiruvananthapuram and the other ICs at Kottayam, Thrissur, Malappuram and Kannur. More district headquarters can be introduced as and when the number of ICs go up. ADDITIONAL INFORMATION 28. In all cases where the ICs do not abide by the law and fail to impose the penalty even when there has been delay, petition may be submitted to the the President of India or the Governor of the State to remove the commissioner for proven incompetence under Sec 14(3)(d) or 17(3)(d). 29. The Dept of Personnel and Training has engaged Pricewater Cooper, an american financial company to assess the implementation of the RTI Act during he last three years. When this nodal department is sleeping over a plethora of complaints and suggestions made by information seekers and even neglecting the Parliamentary Committee reports on the issue, this act of engaging a foreign firm at exhorbitant cost to the exchequer is questionable. 30. When the definition of Public Authority in the RTI Act is simple, straight forward and easily understood by even a primary school child, the Chief Justice of India is on record having said that his office is out of purview of the Act. This while puting a big question mark on his competence as a law-qualified professional, also has the evil potential of sending wrong signals to the public authorities regarding the attitude of the apex court to the implementaiton of the Act. Venue : SRADHA op. BHIMA JEWELLERRY near North Stand, Thrissur at 10 am -- Any responsible politician should be encouraging a home grown Free Software industry because it creates the basis for future jobs. Learning Windows is like learning to eat every meal at McDonalds. --~--~---------~--~----~------------~-------~--~----~ You received this message because you are subscribed to the Google Groups "Green Youth Movement" group. To post to this group, send email to [email protected] To unsubscribe from this group, send email to [EMAIL PROTECTED] For more options, visit this group at http://groups.google.com/group/greenyouth?hl=en-GB -~----------~----~----~----~------~----~------~--~---
