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nk agarwal

Post Filing of 2nd Appeal PIO sends info of which correctness is still to be verified

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nk agarwal

Sequence of events :

(1) On RTI Application denies info stating that info is not available

(2) FAA without Application of mind dittos PIO

(3) State CIC fixes hearing date

(4) Appellant send request well in time to defer the date of hearing by 7 days as he would be out of station, the office of S-CIC does not put up the request to State CIC for deferment. Copies of request for deferment were also sent by the appellant to PIO & FAA - so they knew about the absence of the appellant.

(5) During absence of appellant, 4 days prior to date of hearing, a new PIO send a letter to appellant appending some info (that still need to be verified for correctness) stating that on his personal search he could find the info (mind you this is after the appellant exhausted the 1st Appeal and filed the 2nd Appeal and which was due for hearing in the next 3 days).

(6) On date of hearing, in absence of appellant, the new PIO submitted the copy of his letter to the State CIC and State CIC without going through the case passed an order that as info has been provided, the appeal is disposed.

 

I have 2 points :

(a) Once the FAA has not provided info by certifying non-availability of info and

(b) post filing of 2nd Appeal and just 4 days before a new PIO sends some info that he could locate it. (All these days the info was available with the Public Authority and proof exist).

 

How such actions of PIO and FAA covered under the provisions of RTI Act-2005 - which sections - (1) it defies the very spirit of RTI Act-2005 (2) it is harassment to the info seeker and adds to the loads of appeal at State-CIC.

 

Section 5(3) of RTI ACt-2005 enjoins on PIO to render all assistance to info seeker?

Thanks

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Prasad GLN

You can go on for arguing merits in the case, but there is no alternative than suffering it for the present.

File fresh application.

Try to file complaint against PIO for providing incorrect information to IC that information was provided though it is not relevant, correct and complete and that the decision was against principles of natural justice as decision was conveyed without hearing the appellant.

If the information is urgent, important approach to HC, if you can afford.

Many appellants are suffering in the same way, both PIOs and IC are aware and take every thing granted.

Time and again our experts continue to advise that if information is urgent / important, appeal for personal hearing, as no postponement is generally possible.

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Sunil Ahya

It is important for an Appellant to be present at the Second Appeal hearing, most Information Commission do not grant any adjournments, if one is not able to be present on that day then one needs to speak to one's colleague so that he can present the case under a power of attorney granted specifically for that particular day and purpose.

 

Nevertheless, if you have not received the correct information, you can always file a Complaint under section 18 of the RTI Act, before the same Information Commission.

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nk agarwal

Yes, I do agree. But. is the Commission above law; our courts readily grant frequent adjournments on drop of a hat - on requests by parties.

 

- - - Updated - - -

 

But, unless we raise an objection, things in Commission would not change?

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Sunil Ahya

Every institution evolves and acquires a culture of its own.

 

I agree that, in accordance with the principles of natural justice, genuine cases must be granted adjournments, however, once an Appellant starts seeking adjournments, the PIO and thereafter the First Appellate Authority may also start seeking adjournments, leading to frequent delays, just like Courts and so there are pluses and minuses to every culture.

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Prasad GLN

Whether courts or forums like CIC, every one has their own whims and fancies to interpret things in their own style and they are protected by law, and except as Appeal, no one can proceed against individual IC or Hon.Judge, even when the blunders are apparent disclosing malafides. This is a system.

Let us appreciate the other's view also, that every appellant seeks adjournment on one ground or other, (may be genuine), the appeal hearings will further be delayed.

When appellant can not appear, it should have been proper to depute authorized representative as permitted in the process.

It is not certain that where appellants appeared all the way from Kanyakumari to New Delhi gets favourable decision through attending personal hearing.

When the ICs are not having time to read the appeal, they do not have their time to compare what was solicited and what was provided.

Though IC can not review decision, just file a review petition.

Structure first RTI exposing incorrect information provided by PIO in a smart way, so that it can be raised while hearing fresh appeal to be filed. It may be either in your name or in the name of friend or relative.

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Sunil Ahya

RTI Act does not empower Information Commission to review its own decision, so it would not help to file a review petition.

 

The best way forward is to file a Complaint under section 18 to the Information Commission, and the IC can pass an appropriate order such that you will (indirectly) help you get the correct information.

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Prasad GLN

The following was given as guidance

Though IC can not review decision, just file a review petition

 

The lingering hope is that there is a mistake apparent on the face of decision as it is against principles of natural justice.

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Sunil Ahya

Hon'ble Prasadji,

 

IC cannot review its own decision (if there is any clerical or arithmetical mistake it is a mere correction and not review) the appellant would spend some more time in hopes that are going to remain unfulfilled. In legal parlance, the use of word "appeal / complaint / review" is important.

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nk agarwal

My issue is missed, there is provision in the State Information Commission's - State Information Commission (Appeal procedure) Rules, 2005 to defer hearing after considering the circumstances. In the instance case, the deferment was requested for just 7 days with a request to grant me an opportunity of being heard before passing any decision.

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Sunil Ahya
My issue is missed, there is provision in the State Information Commission's - State Information Commission (Appeal procedure) Rules, 2005 to defer hearing after considering the circumstances. In the instance case, the deferment was requested for just 7 days with a request to grant me an opportunity of being heard before passing any decision.

 

Can you upload the said State Govt's Circular or provide an internet link to such Circular, here in this thread?

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nk agarwal

Pl. go through the website of Uttarakhand Information Commission - UIC (Management) Regulation 2007 - so may be the case in other States as well. It is rational and logical.

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Sunil Ahya

Point No 14 of UIC (Management) Regulation, 2007:

 

स्थगन: अपीलकर्ता / शिकायतकर्ता या कोई भी प्रतिपक्षी उपयुक्त आधार पर सुनवाई स्थगन की प्रार्थना कर सकता है, परिस्थिति को देखते हुए आयोग अपना निर्णय दे सकेगा ​

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nk agarwal

Let us go a bit deeper into the RTI Act-2005 particularly into the intent of the Act and the Preamble of the RTI Act-2005.

 

Even without the advent of this Act, anyone can ask for info from any Public Authority - so why was a need for the Act felt and How this Act helps an info seeker?

 

What I understand is simple - Usually the public authorities indulge in manipulations during the decision process so everyone down the line becomes a party to conceal the misdeeds, lest they get exposed. As a result they do not want to part with any kind of info - they invoke official secret act etc.

 

Now, this RTI Act-2005 is trying to bring transparency in the decision making process and trying to eradicate arbitrariness, whims & fancies of public authorities as well as trying to make the so called discretion a logic based process.

 

This holds good for our Courts of Law including the Tribunals, Commissions as well.

 

If the Courts of Law slips for what ever reasons, then the citizens have very right to bring it to the notice (by lawful means) of the Courts for rectification, if the citizens do not do it, how it is expected the Courts would come to know about it?

 

This Act asks Public Authorities to be transparent in decision making process, provides a time frame to provide info, has provisions to compel Public Authorities for disclosing correct info etc. and so on.

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Prasad GLN

There may be such stipulations earlier, but one must appreciate the fact, that RTI Act brought masses including common man of his rights. There are courts to decide on issues finally and unfortunately common man can not purchase justice.

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nk agarwal

(1)Can today a public authority deny info to an information seeker, if info seeker does not file the request under RTI Act-2005?

(2) Can today a public authority sleep over the request for info, if info seeker does not file the request under RTI ACt-2005?

 

If answers are yes, then what purpose the preamble to RTI Act-2005 stands for and the section 4?

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Prasad GLN

Members of this forum can not speak on actions of PIOs.

PIO has to respond within 30 days after receiving application with such fees. Without filing application RTI can not step in for further steps.

The Act stipulates such time. Even for denial, there must be such exemptions and justifications, as burden of proof rests on PIO.

The next remedy and two more steps if PIO fails to perform his statutory obligations.

It depends on perseverance and power of appellant to get such PIOs punished through IC.

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Prasad GLN

Sorry. I missed Sec.4 voluntary disclosures reference.

As per Information Commissioner's opinion, it is not the applicant's right to demand for such disclosures, and obligation on public authority's part.

Even our Hon.CJK made a complaint direct to CIC, but CIC denied to admit the complaint stating that the process begins with filing of RTI Application alone.

He has also filed such several applications but still they evade voluntary disclosures.

Delhi HC judgment empowered them stating that levying penalty is between PIO and IC and requires no interference from Appellants. As you know it is always discretion of IC and to convince him deliberate and malafide denial is a herculean task within minutes given for time of hearing.

Do'nt ask me why some ICs give 30 pages + decision, on an issue not entirely relevant to their powers, that is also their chance to show up their scholarly command on that subject, though it is not relevant. Unless it is a land mark judgment that helps in RTI, such recommendations are just tissue papers and no one even cares to read the two page decision unless it is related and he is not affected party.

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