Reproduced below is the section on “Missing Provisions and Recommendations” from “Draft Right to Information Rules, 2017: Critical Analysis and Recommendations for Improvement” (click HERE) submitted to the Department of Personnel and Training (DoPT), Government of India, by the Commonwealth Human Rights Initiative (CHRI), New Delhi:
Specify time limits for deciding appeals in matters relating to life and liberty:
The proviso underlying Section 7(1) of the RTI Act recognises the right of a citizen to seek and obtain information concerning any person’s life and liberty within 48 hours. This is an exception to the general rule of providing information or rejecting a request for information within a period of thirty days. The intention of the Act is that where matters involve an urgency involving the life or liberty of a person, the provision of information should not be delayed.
However, the Act is silent about the timelines for deciding first appeal under Section 19(1) and the second appeal under Section 19(3) of the Act. In practice, the CIC is said to take up such matters out of turn. However, this depends on ‘discretion’ at several levels in the Registry and when the matter finally reaches the desk of the concerned Information Commissioner.
There is no guidance in the Act or in the Rules for FAAs about the promptitude with which such matters must be decided. When the Act has recognised specific right but is silent about what must be done when that right is in dispute, the Rules must step in to remove the lacuna or else the right will be rendered nugatory at the appeals stage. It is recommended that a provision be included in the proposed Rules to decide first and second level of appeals in life and liberty matters within specified deadlines.
Recommendation: A new Draft Rule 11A may be inserted after Draft Rule 11 as follows:
“11A. Time limits for appeals about information concerning life and liberty:
1) Notwithstanding anything contained in Section 19(1) of the Act, the First Appellate Authority shall communicate his or her decision on an appeal relating to information concerning the life or liberty of a person within forty eight hours of receipt of the appeal to the appellant.
2) Where an appeal received under Section 19(3) of the Act concerns the life and liberty of a person, the Commission shall communicate its decision within a period not exceeding seven working days of receipt of the appeal to the appellant.”
Rules must stipulate the procedure for deciding first appeals:
There are multiple reasons why the RTI Act contains a provision for reviewing the decision of the CPIO within the public authority.
First, the public authority must have the opportunity to correct any erroneous decision of its CPIO so that matters may be resolved quickly within.
Second, it will enable quicker resolution of information access disputes. It is well recognised that there is a long waiting period at the CIC owing to the large number of pending second appeal and complaint cases.
Third, needless, to say if the FAA is able to resolve the dispute internally, the burden on the CIC will reduce considerably.
However, multiple studies have shown that the first appeals system has failed to act as a time saving and resource-saving dispute resolution mechanism. It is also not uncommon for FAAs to mechanically agree with the decision of the CPIO allowing the case to escalate to the CIC thereby increasing its burden. There are instances where FAAs have requested the CPIOS to draft the order on the first appeal.
This is a negation of an important principle of natural justice, namely, nemo judex in causa sua (no one shall be a judge in his own cause). One of the reasons why the first appeals system has failed is because neither the Act nor the RTI Rules 2012 provide any guidance to the FAA about how appeals must be decided. The DoPT’s OMs issued in July 2007 and April 2008 and the Uttarakhand RTI Rules provide ample guidance for putting together a set of detailed provisions for the FAAs to decide first appeals. It is essential to clearly lay down the procedure for deciding first appeals through subordinate legislation instead of letting them remain as executive instructions.
Recommendation: A new Draft Rule 6A may be inserted after Draft Rule 6 as follows:
“6A. Procedure for deciding first appeals:
1) Any person aggrieved by a decision or action of the Central Public Information Officer or by the non-disposal of his information request within the time limit specified in Section 7(1) of the Act, may prefer an appeal to the First Appellate Authority of that public authority either online or offline of through the Central Assistant Public Information Officer, clearly mentioning the grounds of appeal and such appeal shall be accompanied by the following documents duly authenticated and verified by the appellant, namely: (i) a copy of the application submitted to the Central Public Information Officer; (ii) a copy of the reply received, if any, from the Central Public Information Officer, including any intimation regarding payment of charges for providing the requested information, if any; (iii) copies of other documents, if any, relied upon by the appellant and referred to in his or her appeal; 23 (iv) a request for condonation of delay in submission of appeal, wherever required, giving reasons.
2) Upon receipt of an appeal, if the First Appellate Authority finds that it is deficient in any respect, he or she shall provide the appellant reasonable assistance to remove the deficiency: Provided that the First appellate authority shall not return or reject an appeal on the ground that it is deficient in any respect.
3) While deciding an appeal, the First Appellate Authority may, if necessary, seek the views of the concerned Central Public Information Officer or any officer whose assistance was sought under Section 5(4) of the Act: Provided that the First Appellate Authority shall not be bound by the views of any officer of the public authority for the purpose of making a decision on the appeal; provided further, that the First Appellate Authority shall not delegate the responsibility of drafting or making a decision on the appeal to any other officer of the public authority.
4) The First Appellate Authority may conduct a hearing before deciding an appeal and require the appellant to be present at such hearing by serving him or her written notice of the date, time and place of hearing, at least fifteen clear days in advance.
5) The appellant may be present at the hearing in person or through a duly authorised representative or opt not to be present.
6) If the appeal is for the disclosure of information that relates to or has been supplied by a third party and which has been treated as confidential by that third party, the First Appellate Authority shall take the views of such third party into consideration while deciding the appeal.
7) In his decision, the First Appellate Authority may a) set aside the decision of the Central Public Information Officer, rejecting the request for information and direct that the information be disclosed wholly or partially; or b) notwithstanding the correctness of the decision of the Central Public Information Officer, direct that the information be disclosed in the larger public interest under Section 8(2) of the Act; or c) reject the appeal for reasons to be recorded in writing with a detailed explanation as to why the information ought not to be disclosed along with the contact details of the Commission where the appellant may prefer a second appeal and the time limits for so doing.
8) If the First Appellate Authority decides that the information ought to be disclosed to the appellant, wholly or partially, he or she may either: 24 i) pass an order directing the Central Public Information Officer to furnish the information to the appellant within a specific period of time; or ii) supply the information to the appellant forthwith, while disposing of the appeal.
9) The First Appellate Authority may cause the information to be supplied free of charge to the requestor, if: i) he or she is below the poverty line as may be determined by the appropriate Government; or ii) if the Central Public Information Officer had not disposed of the information request within the time limits specified in the Act.
10) If the First Appellate Authority decides that the information relating to a third party is fit for disclosure and if such third party has objected to the disclosure, he or she may issue a decision notice only and advise the third party of his or her right to prefer an appeal against such decision before the Commission and the time limits for so doing.
11) The First Appellate Authority shall provide a copy of his or her decision free of charge to all parties and cause the same to be uploaded on the website of the public authority along with the RTI application, the CPIO’s reply, if any and the first appeal letter along with annexures, if any.
Consequently, the subheading of Draft Rule 11 may be substituted with the following: “11. Procedure for deciding second appeals.”
Guidance for applying Section 7(9) of the RTI Act:
It is common practice for CPIOs to invoke Section 7(9) of the RTI Act to reject a request on the ground that it involves collection of voluminous information or if the requested information is not available in aggregate form in one record. This is contrary to the letter and the spirit of the RTI Act because Section 7(1) permits a CPIO to reject a request only on the grounds specified in Sections 8 or 9 of the Act.
However, there is no guidance in Section 7(9) of the Act as to what the CPIO should do if providing information in the form requested by the applicant will lead to disproportionate diversion of the resources of the public authority or cause detriment to the safety and preservation of the records. The 2012 RTI Rules are also silent in this regard. The Draft Rules must include some guidance about what the CPIO should do in such cases.
Recommendation: A new Draft Rule 6B may be inserted after the proposed Draft Rule 6A under Draft Rule 6 as follows:
“6B. Providing information through alternative modes: If a request for information attracts any or all of the conditions specified in Section 7(9), it shall be the duty of the Central Public Information Officer to provide access to the information in some other form that is acceptable to the requestor including by allowing inspection of the desired records.”
Maintaining daily order sheets by the Commission:
In the matter of Fruit and Merchant Union vs Chief Information Commissioner & Ors., [CWP No. 4787/2011, decision dated 2/11/2012], the Hon’ble High Court of Punjab and Haryana had directed the CIC to maintain daily order sheets in all cases. This direction was noticed and reiterated by the Hon’ble Delhi High Court in the matter of R K Jain vs Central Information Etc., [W.P.(C) 3550/2013, order dated 23/03/2016] in the following words: “Since the CIC is a quasi-judicial body, this Court was also of the view that its records must reflect a true and correct state of affairs.”
The CIC gave an undertaking that it will evolve a procedure for maintaining daily order sheets within a period of six months. Such a requirement may be included in the Draft Rules, given the fact that two High Courts have taken judicial notice of this lapse.
Recommendation: 3.4) A new Draft Rule 20A may be inserted after Draft Rule 20 as follows:
“20A. Maintenance of daily order sheets:
The Registrar, or such other officer specially authorised for this purpose, shall maintain daily order sheets in relation to every appeal or complaint admitted by it, in such form as the Commission may specify for the purpose of recording the true and correct state of affairs.”
Pronouncement and authentication of the orders of the Commission:
There are no provisions in the Draft RTI Rules about how the orders of the Commission should be pronounced and how such orders shall be authenticated. Rule 15 of the 2012 RTI Rules provided for the manner in which the Commission’s order were to be issued and authenticated. Rule 8 of the 2005 Central Information Commission (Appeal Procedure) Rules, 2005 provided for the pronouncement of the Commission’s orders in open proceedings. Both these provisions are missing but are necessary for the smooth functioning of the Commission.
Further, with the efforts to digitise all work at the CIC, all papers pertaining to appeals and complaints are available with it in electronic form. It should not be difficult to upload along with the CIC’s orders the relevant RTI applications and appeal letters and the orders of the CPIO and the FAA after redacting the personal details of the appellant or complainant. This will ensure greater transparency in the manner in which the Commission decides cases.
Recommendation: A new Draft Rule 23 may be inserted after Draft Rule 22 as follows:
“23. Pronouncement and authentication of the orders of the Commission:
1) The order of the Commission shall be in writing and be pronounced in open proceedings.
2) Every order of the Commission shall be duly authenticated by the Registrar or such other officer authorised by the Commission for this purpose.
3) The order of the Commission shall be supplied free of charge to all parties to a case and subsequent copies of the order may be supplied on request on payment of such charges as 26 may be specified by the Commission from time to time.
4) All orders of the Commission shall be displayed along with the relevant papers relating to the appeal or complaint, as the case may be, after redacting personal information of the appellant or the complainant from such records.”
Clarifying the locus of appeals under Section 19(9):
Section 19(9) of the RTI Act empowers the CIC as follows: “(9) The Central Information Commission… shall give notice of its decision, including any right of appeal, to the complainant and the public authority.” Further, Section 23 of the Act states as follows: “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.”
In other words, the jurisdiction of regular courts is barred in relation to all matters under the RTI Act and no order made by any authority may be called into question except by way of an appeal under this Act. So the first appeal against an order of the CPIO lies with the First Appellate Authority and a second appeal lies with the CIC in the case of public authorities under the Central Government. However, Section 19(9) seems to indicate the possibility of an appeal against the decision of the CIC which the CIC is empowered to specify in its decision.
As the jurisdiction of the regular courts is explicitly barred, it must follow that such appeal will lie within the CIC itself. Any other interpretation will be absurd as the CIC is not a constitutional court of plenary jurisdiction that it may give a certificate to file an appeal against its decision before a higher court.2 Further, as the statute itself grants a right of appeal it cannot be rendered nugatory by virtue of the non-existence of Rules clarifying where such appeal will lie. It is advisable to make Rules requiring the Commission to allow an appeal against its own order (delivered by an Information Commissioner) before a group of Information Commissioners if new facts emerge after a decision has been given or if there is an error of law or an error of fact in the decision of the CIC which must be corrected.
Recommendation: A new Draft Rule 24 may be inserted after Draft Rule 22 and the proposed Draft Rule 23 as follows:
“24. Appeal against the decision of the Commission:
1) Under Section 19(9) of the Act, a further appeal against the decision of the Commission shall lie before a group of three or more Commissioners as the Commission may collectively determine, any or all of the following conditions are satisfied: (i) if by way of an application from any of the parties to a matter already decided by the Commission, under Section 18 or 19 of the Act, any new facts are brought to its notice, that were not presented earlier; or (ii) if by way of an application from any of the parties, any error of fact or of law apparent on the face of the record of the Commission’s decision given under Sections 18 or 19 of the Act are brought to the notice of the Commission, subsequently.
2) The Commission shall decide an appeal received under Section 19(9) in accordance with the procedures laid down under Rules 11, 17, 18, 19, 20, 20A and 23.”
Click HERE to download full text of CHRI’s critical analysis of Draft Right to Information Rules, 2017