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Wednesday, January 23, 2013

RTI applicant doesn't get the information, who cares ?


Vijay Palande from Karanje village of Satara district has a few acres of vatan land in Satara. He claims that it has been possessed illegally by some people and believes that if he obtains authentic documents he can claim the land back.
So he filed several RTI applications with Satara’s tehsildar, giving full details of the documents relevant to the issue. The information he asked for, falls in “A" category of preservation of documents manual i.e. the record is supposed to be preserved permanently .As usual, he received vague responses from the PIO, like documents were not found hence his application was being disposed off; for some applications, information supplied was said to be incomplete and; for some first appeals, the appellate authority didn't even bother  to respond at all or after hearing  didn't pass any order. Hence, Palande  filed second appeals with the Pune bench of Maharashtra information commission.
SIC M.H Shaha without even placing the appeals for hearing passed the following orders:
1) First Appellate Authority to pass the quasi judicial order within 21 days from date of this order after giving prior notice to PIO and the applicant. FAA should hear the written / oral submissions of both of them and try to satisfy the applicant to the maximum. Also, FAA should record its findings in case of any delay in response to the RTI application.
2) FAA should follow this order expeditiously  and pass the self explanatory order as per State government circular no ke.ma.a - 2007 /1182 /pra.kra  65 / 07 /6 DT 12/12//2007 Otherwise he will be liable to be penalised  for disobeying section 19 (1) of RTI Act  and government circular.
3) This second appeal is being disposed off.

 Not only in this case, but in so many other cases also, SIC Pune has passed the same type of orders without hearing the appeals. Actually, while deciding the second appeal SIC is supposed to pass the order regarding supply of information after giving opportunity of hearing to both the parties; start the penalty proceedings if required after show cause notice to the PIO; order to file the police complaint if the information was not found. Instead, the SIC was satisfied by shifting the responsibility.
There is even remotely nothing about any penalty provision for PIO or FAA in the circular mentioned by SIC. It merely says:
1)As per above mentioned  Section of RTI act ( i.e. section 19) it has been brought to the notice of the government by state information commission that in 45 % of first appeals, FAA's do not pass the orders after hearing the appeals or do not  give opportunity of hearing to applicants. This amounts to FAA's not following the duties imposed upon them under RTI Act. Subsequently, applicants are being harassed and are not getting justice. This also amounts to increase in second appeals and work load on SIC.
2) As per RTI Act, the first appeals filed before FAA's of ministry and ministerial departments are of quasi judicial nature and hence while hearing those, principle of natural justice must be followed. FAA should give opportunity of hearing to applicant before deciding the appeals
3) Taking into consideration above facts, before deciding the first appeal, he should ensure that to get opportunity of hearing, the applicant must receive the notice at least seven days prior to hearing. Orders passed by FAA should be self-explanatory. Notice must be sent by `under certificate of posting’. Applicant on his own or through his representative can attend the hearing or may choose not to attend it is .This will enhance the principle of natural justice and will help strict implementation of RTI act in the state.

In this circular there is nothing mentioned about any penalty - it is a very meaningless and harmless circular. And even if penalty is to be imposed for not following this circular, the right of doing so certainly does not rest with SIC.

SIC has also threatened to penalise FAA for not following provisions of Section 19 (1) of RTI Act. It is difficult to understand under what provisions SIC can penalise FAA and how FAA has disobeyed Section 19 (1). Section 19 (1) merely says Any person who, does not receive a decision within the time specified in sub-section (1) or clause (a) of sub-section (3) of section 7, or is aggrieved by a decision of the Central Public Information Officer or State Public Information Officer, as the case may be, may within thirty days from the expiry of such period or from the receipt of such a decision prefer an appeal to such officer who is senior in rank to the Central Public Information Officer or State Public Information Officer as the case may be, in each public authority: Provided that such officer may admit the appeal after the expiry of the period of thirty days if he or she is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time.

Now what has FAA not followed? He has received the appeal as per the provision, then on what grounds can he be penalised? In addition, who has the authority? The next point is, suppose as per SIC orders, FAA mentions findings regarding delay in supplying the information by PIO, to whom will he report those findings?  SIC hasn't called for any compliance report and the second appeal has been disposed off. Then how , why and who  will unnecessary  report the findings which are not asked for ?

 Now as the appeal is disposed off without calling any compliance report why will PIO or FAA follow SIC orders? Why will anybody comply? SIC does not have any powers to review disposed off appeals. The appellant does not have any authority to  appeal once again on the same appeal which already has been decided.

Three things happen because of such type of  decisions 1) No need remains to provide any information to applicant 2) even after disobeying RTI Act , PIO and appellate authorities go scot free 3)Even after giving such unproductive decisions, SICs are ready to pat their own back.

Now, the only question remains of the applicant. But who cares? What is the big deal if he does not get the information? Why should he be given so much importance? What difference does it make if he doesn't get the required information? What utmost can he do if justice has been denied to him? If he really requires the information, let him go the High Court, or file the complaint under 18 of RTI for non-compliance of SIC orders. However, even if he lodges a complaint under Section 18, chances of getting information are minimal because under this section SIC has no power to order for supply of information.
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ends

Monday, January 7, 2013

Foul start by Maharashtra SIC




Namaskar! Best wishes to you all for the New Year. By the end of last year, I had decided to wish that all of you should get information easily and effortlessly under RTI in the New Year. However, unfortunately, the New Year 2013 had a foul start. There were shocking incidents in the very first week of the New Year. These incidents will compel us, all who believe in RTI to introspect and to wonder about the future.

One shocking incident was that of an arrest of a government servant who asked for a bribe to provide information under RTI. This incident, which will make the state of Maharashtra to feel ashamed of, took place in the district collectorate of Pune. Until now, there was a feeling that Babus are afraid of the citizens who demand information under RTI. But the shocking incident in the district collectorate would lead to realize the reality. For some time since last year, one could feel that the government servants were becoming immune to RTI and they no more respected the law. The incident in the Pune district collectorate was a concrete proof of how the government servants are showing disrespect to RTI.

A businessperson named Mayuresh Argade wanted information about land record. He used RTI and demanded copies of a register with record of land acquired for Temghar project. One Awghade, who is a clerk in the district rehabilitation office, asked to pay Rs. 416 for the copies of the document. Accordingly, the businessperson paid the amount and presented the receipt of Rs. 416 to Awghade. But perhaps Awghade was not used to doing duty only after the due legal fee is paid. According to reports, Awghade demanded bribe of Rs. 3000 to provide the information under RTI. Argade, the businessperson realized that he was not likely to get information unless he pays the 'unofficial fee' to the clerk. He engaged the clerk in negotiation, succeeded in reducing the amount of bribe to Rs. 2000 and simultaneously filed a complaint with the Anti Corruption Bureau (ACB). A trap was laid and the clerk Awghade, who demanded bribe for giving information under RTI, was arrested by ACB.

Thanks to the businessperson who bothered to file a complaint with ACB, the malpractice of asking bribe even to implement RTI came to fore. Unfortunately, it is not the only one and exceptional case in the state of Maharashtra of harassing applicants who demand information under RTI. There have been hundreds of such public servants who never hesitate to put common man in trouble. They do not hesitate to ask for a bribe even from those who demand information under RTI. As the common man, is already troubled with the system, he prefers to get the work done by paying a bribe instead of challenging the authority and suffering from delay.

Earlier babus used to be afraid of the citizens who demanded information under RTI. But now they dare to even ask for a bribe from citizens to provide information. Why such a change has taken place?

Earlier the government servants were afraid of the RTI Act as they thought they would be penalised if they do not provide information. Under the provisions of RTI, the information commissioner is empowered to penalise officers of public authorities if they do not follow the law. In my opinion, the reason behind the recent trend of government employees not being afraid of the RTI is that they have now realised that the Information Commissioners would not penalise them even if they dishonour RTI act as well as information commissions. The loss of deterrence of RTI is the worrying trend and I think the State Information Commissioners are responsible for the same.

I will cite two decisions of State Information Commissioners in Maharashtra as follows regarding my opinion. The orders, originally written in Marathi are produced here as they are for consideration.

Decision 1 –

Appellant – Present
Public Information Officer – Not present
Appellate authority – Not present

Date on which original application was filed – 19/7/2011
Date on which PIO gave a reply –
Date of first appeal – 12/9/2011
Date on which the appellate authority gave an order –

In this case the applicant had asked for information under section 6 (1) of Right to Information Act, 2005 from the public information officer by way of an application dated 19/7/2011. He had filed the first appeal with the appellate authority on 12/9/2011.

The applicant informed that he did not get information he had asked by his application dated 19/7/2011.

It is being ordered that the public information officer should allow the applicant to inspect all documents regarding information he had sought and provide information by 15/1/2013 under section 5 (4) by coordinating with other officers, if needed.

In this case the public information officer has made a delay in providing information and hence till 15/1/2013, the applicant should be provided information which the applicant had asked for under section 7 (6) of Right to Information Act, 2005 and which is available, by way of inspection of documents and without payment.

Order – the appeal is disposed off.

Here in this case, the public information officer or the appellate authority did not bother about the RTI application or appeal filed before them. They even did not have the courtesy to attend the hearing of an appeal before the information commission. But the commission in its order has not dealt with some basic questions like, what was the information, the applicant had sought for? What were the reasons behind not furnishing the information by the PIO? Why did not the appellate authority conduct hearing on the first appeal? Why the PIO and the appellate authority were not present for the hearing before the information commission?

The PIO in this case did not provide information under RTI. He did not even give a reply to the application under RTI. Yet in this case the commission did not issue show cause notice to him. I wonder whether a PIO who did not bother about the RTI application and who threw the notice of the commission to attend to hearing to the dustbin, will ever provide information just because the commission has given an order to do so. Will he respond to such a vague order?

Now let us consider the decision number 2

Date of original application – 5/8/2011
Date of reply by PIO –
Date of the first appeal – 18/9/2011
Date of the decision by the appellate authority – 17/7/2012

Applicant had demanded information from the PIO on 5/8/2011 under section 6(1) of Right to Information Act, 2005. As the PIO did not provide information within stipulated time limit, the applicant filed the first appeal on 18/9/2011. The first information office by his order on 17/7/2012 disposed off the application as the PIO had given proper information.

The applicant informed that he has not received information he had sought by his application dated 5/8/2011. On his statement, the Public Information Officer said that the Santa Cruz and Bhoiwada Police Stations have given the applicant available documents. In addition, the applicant was given the opportunity to inspect documents.
It seems that there is no such a situation that the applicant was not provided information.

Order – the application is disposed off

Even in this order, there is no discussion about important questions like, what information was asked for by the applicant? What was the reality when the applicant said that he did not get information while the PIO said that the information was provided? When did the PIO provide information? What was the information asked for? What was the information, which was given, and what was the information, which was not given? Should the information which was not given was supposed to be given?

The order says that the information was given but there is no mention of the date on which the information was given, so it is not discussed whether there was any delay in provision of information. It seems that the claim of the public information officer that he provided information has been accepted by trusting his words. In such a case, there is a distant possibility that fine would be imposed in such a situation. The commission has not even made a comment on the fact that the appellate authority conducted hearing on the first appeal after ten months.

If the information commissioners are so considerate then why should PIOs bother about applications under RTI? No wonders elements like Awghade take advantage of the situation?

Incidentally, these two decisions were given at the very beginning of the year on January 1st, 2013. Are these best wishes for New Year by the information commission to the public at large in the state or to the elements like the clerk who demanded bribe to give information under RTI?