RTI Second Appeal: How Central & State Information Commissioners (CIC / SIC) screw it up
Appellants have come to accept some of the below-mentioned ways of dealing with 2nd Appeals as legitimate, as the entire system is not working. But these are really instances of dereliction of duty by CICs and SICs, whose duties are defined in not only Sections 18, 19 and 20, but also in the entire RTI Act! They are paid fat salaries and given huge privileges to uphold RTI Act in its entirety, and not to shield corrupt bureaucrats and shield non-performing PIOs!
Please do not accept shoddy service. We must persistently lodge written complaints against Information Commissioners if we want changes to happen. If these letters are posted to the proper authorities in sufficient numbers, and with proper follow-up, systemic corrections will gradually start happening.
The below items are mostly in past-tense to enable complainants to copy-paste them into their own complaint letters.
PROBLEMS ABOUT ACCEPTING COMPLAINTS
1) Commission refused to accept Complaint u/s 18, and insisted on Appellant filing 1st Appeal first. Information Commission staff argued that its rules and procedures stipulated that it would not accept or entertain complaint directly. This violates Sec 18(1) which mandates that Commission shall receive and enquire into complaints.
2) Commissioner “remanded” Complaint u/s 18 to First Appellate Authority after Hearing. This is a thoughtless and insensitive act by the Commissioner, who is duty-bound to help citizens get information as quickly as possible, and not to get them entangled in procedural matters.
PROBLEMS ABOUT HEARINGS
3) Delayed Hearing. Hearing not held even 3 months after Second Appeal/Complaint was filed. (2nd Appeal / Complaint was filed on __________________________ date.)
4) Delay indicates out-of-turn Hearings. This Appellant / Complainant has not received Hearing notice, although many others who filed much later have been heard. (2nd Appeal / Complaint was filed on __________________________ date.)
5) Hearing was postponed for ____ no. of hours / days /weeks to facilitate PIO / FAA. Commissioner is in the practice of postponing Hearing if PIO, FAA or other representatives of the Public Authority are delayed or cannot attend, despite inconvenience to the Appellant who is present. (However, the same consideration is not shown if Appellant is late or cannot attend.)
6) Hearing was repeatedly adjourned. The Appellant was inconvenienced by having to travel from ____________________ (city / village / area) to ____________________ (city / village / area) to attend hearings on all these dates: (a) ___________________ (b) ___________________ © ____________________ (d) ___________________
7) “Notice of Hearing” reached Appellant after Hearing date, ex parte Order was passed in favour of PIO. Intimation of Hearing was delivered to Appellant on ___________________ date at __________ time, whereas Hearing was fixed at ___________________ date at __________ time. This denied the Appellant an opportunity to attend. Hence Order passed in PIO�s favour is unfair and illegal.
8) “Notice of Hearing” was sent late, giving Appellant insufficient time to prepare and attend, and ex parte Order was given in PIO�s favour. Intimation of Hearing was served to Appellant on ___________________ date at __________ time, whereas Hearing was fixed at ___________________ date at __________ time. This prevented the Appellant, residing in ____________ (city / village / area) from attending the Hearing held in ______________ (city / town / area), due to travel constraints or needed to make advance bookings on railway /airline / bus. This denied the Appellant an opportunity to prepare and attend. Hence Order passed in PIO�s favour is unfair and illegal.
9) During Hearing, Commissioner argued on behalf of PIO. Instead of acting in a judge-like capacity and calling on PIO to justify delay / denial etc, Commissioner acted like the Public Authority�s defence lawyer and spoke on their behalf.
10) Commissioner used his authority to cow down the Appellant and prevent him from exposing the flaws in PIO�s argument. Commissioner displayed partiality and deliberately allowed PIO�s false claims to go unchallenged.
11) Commissioner did not allow Appellant to be REPRESENTED by others at the Hearing. Appellant was marked absent although he deputed someone to appear on his behalf.
12) Commissioner did not allow Appellant to be ACCOMPANIED by others at the Hearing. Appellant was asked to attend alone, although PIO and FAA was allowed to bring lawyers, advisors, head of the Public Authority etc.
13) Commissioner entered into arbitration and grievance-redressal. He did not exhibit judge-like behavior, and conducted the Hearing like a Panchayat or arbitration proceedings. He did not focus on whether or not the PIO had acted diligently as per the RTI Act.
14) Commissioner indulged in chitchat and small-talk. He did not conduct Hearing in a serious manner. In the end, there was no conclusion, and everything was left to his discretion.
15) Advance copy of PIO�s justification was not given to Appellant, thereby denying Appellant time to prepare his rebuttal. Commissioner handicapped the Appellant and allowed the PIO/FAA to come up with surprises at the Hearing � a serious breach of the principles of natural justice and fair-play.
16) Appellant was made to justify why he needed information, or why he filed RTI Application to this particular Public Authority. This is a violation of Sec 6(2), which specifies that RTI applicant shall not be required to give reasons for requesting information.
PROBLEMS CONCERNING ORDERS
17) Order is not passed, long after the Hearing. Order is not passed so far, __________ no. of months after Hearing. (Date of 2nd Appeal / Complaint Hearing was __________________. Current date is ____________________)
18) Late Order: Order was passed ____ no. of months after Hearing. (Date of Hearing was _______________. Date of Order was __________________)
19) Order is faulty because it CREATES NEW EXEMPTIONS from disclosure. The reasons given in the Order for justifying non-disclosure are not listed under Section 8 or 9, or anywhere else in the RTI Act.
20) Order ignores the crucial fact that RTI application was CONCERNING LIFE & LIBERTY. Failure to award penalties for not responding in 48 hours encourages negligence by the Public Authority in urgent matters of life and liberty.
21) Order ignores the fact that NO REPLY WAS GIVEN to the RTI application dated ____________ until ______________ date, after filing of 1st Appeal / 2nd Appeal. It ignores Section 7(1) and 7(2), which are extremely important under the RTI Act, and fails to take action u/s 20.
22) By upholding non-disclosure of the requested information, Order ignored and violated Section 8(1)(j) second paragraph, which states that any information that cannot be denied to the Parliament or Legislature cannot be denied to any person.
23) Order is based on improper Hearing procedures. Commissioner did not take note of crucial statements of Appellant / PIO / FAA. Order ignored key facts and evidences that emerged during the Hearing.
24) Order is passed without reference to what was discussed at Hearing. What is written in the Order does not match what was spoken at the Hearing.
Brief points or highlights of the Hearing:
Corresponding points or highlights of the Order that are not in accordance with Hearing:
COMPLIANCE & FOLLOW-UP PROBLEMS
25) Although Order said “Give Information within ________ no. of days”, there is no compliance from Public Authority although _________ no of days has passed. Information Commissioner is not taking any further action to ensure compliance with this Order, and is still not issuing show-cause notice. Also, he is not ordering compensation to be paid to the Appellant who is handicapped / senior citizen.
26) Although show-cause notice was issued on _______________ date, there is no further action on the matter although _______________ no. of months have passed. Information Commissioner is not taking any further action to ensure compliance.
27) Although Penalty Proceedings were held on _______________ date, and orders were issued to recover penalty amount on _______________ date, no further action has been taken although _____________ no. of months have passed. Information Commissioner is not taking any further action to ensure compliance.
CHRONIC OR ONGOING PROBLEMS
28) This Commissioner�s Orders frequently say, “Give Information within ________ no. of days” but did not award penalty or recommend disciplinary action. Nor is compensation awarded to Appellant. Thus the PIO / FAA / Public Authorities are allowed to go unpunished after harassing the Appellant for many months and years.
29) This Commissioner�s Reasoning of Order is not as per RTI Act. The reasoning ignores mandatory provisions of RTI Act such as Sections 7(1), 7(2), 19(5) and 20.
30) This Commissioner�s Orders tend to be based on laws, rules, regulations and arguments outside the RTI Act. He ignores Section 22, which states that RTI Act supersedes all other laws and rules.
31) Orders are passed without noting PIO�s violation of Section 7(1). This Commissioner does not apply his mind to number of days of delay or denial. In this way, he quietly condones PIOs� violation without even questioning them. Commissioner consistently ignores mandatory provisions of Sec 7(2), Sec 19(5) and Sec 20, and therefore his Order lacks proper reasoning.
32) Despite repeated violations by the same PIO / Public Authority, Information Commissioner is not invoking Section 20. He is not recommending penalties and disciplinary action even after persistent delay / denial / misleading replies.
33) Commissioner accepts PIO�s/public authority�s LAME EXCUSES such as “files lost” on face value and passes Orders in their favour. He did not ask PIOs to support their claims with evidence, affidavits, FIR copy etc.
34) Commissioner habitually accepts FAULTY OR WEAK EVIDENCE from PIOs in support of their claims, and passes Orders in their favour. He does not critically examine the evidence.
35) Orders often falsely state that PIO / FAA / Public Authority was present, while they were actually absent at Hearings. The Orders then go in favour of the Public Authority. This suggests that this Commissioner often holds private discussions with them and colludes with them.
36) PIOs are not asked to justify before Hearing, but Order are nonetheless in PIO�s favour. Violating Section 19(5) and Section 20(1) last paragraph which clearly state that responsibility for justifying denial etc. falls on PIO), Commissioner conducts Hearing without requiring PIO�s written or oral justification. Then Orders are passed in PIO�s favour. Such Orders are faulty because they lacks due application of mind to mandatory provisions of the RTI Act.
37) Unfriendly atmosphere. The general conduct of the Information Commissioner and his staff towards Appellants is hostile and unhelpful.
38) Commissioner is hard of hearing. He cannot follow much of the discussion that happens during the Hearings, and therefore passes Orders in an arbitrary way.
39) Commissioner confers privately with PIO / FAA / Public Authority while the Appellants are strictly asked to wait outside the office. This shows partiality.
40) Commission staff members are giving consultation and advice to PIO / FAA / Public Authority on how to secure a favourable Order. Corruption and undue influences are seen to be at work.
41) There is no facility for recording spoken submissions during Hearings. There is no stenographer or typist present during hearings to assist the Commissioner by noting statements. Proceedings are conducted in an arbitrary and haphazard manner. Orders are passed by the Commissioner based on scribbled notes and his own faulty memory.
42) Order format is not transparent and well-reasoned. Reasons for admitting or dismissing 2nd Appeals / Complaints are not clear. Also, directions given in the Order are often vague and without the force of law.
43) Order is not conclusive. Commissioner passed vague “interim order” that do not lead to any meaningful action by the Public Authority.
44) Commissioner does not apply his mind to the Grounds of Appeal or to the arguments put forth by the appellant at the time of hearing. Appellant is admonished and silenced by saying “Don�t raise your voice”, or “Be careful, you are speaking before a judge”, or “Don�t speak out of turn” or “I shall listen to you later” (though that never happens).
45) Commissioner makes rambling speeches about his own achievements and other irrelevant matters. He frequently goes off on a tangent from the main topic.
46) Although the Order is clear that PIO should give information, it fails to mention any reasons as to why he is not being penalized for delay / denial / misleading replies etc.
47) Commissioner does not serve show-cause notice to the PIO at giving intimation of Hearing.
48) Commissioner does not question the “proof” of dispatch of the reply or information offered by PIO. A simple entry in the office register that reply has been posted is accepted as proof of delivery.