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    Penalty only if applicant proves mala fide intent of PIO


    rtiindia

    applicant proves mala fide intent of PIOAlthough the information was not provided within the stipulated time, it cannot be said that the CPIO acted consciously and deliberately with intent to deny the information sought by the appellant and thus CIC refused to initiate penalty procedure under Section 20(1) of the RTI Act.

     

    CIC instead has quoted High Court judgement for not initiating penalty procedure.

    Penalty only if applicant proves mala fide intent of PIO

    In WP© 3114/2007 Bhagat Singh Vs. CIC & Anrs. Hon’ble Delhi High Court vide order dated 03.12.2007 held that “……This Court takes a serious note of the two year delay in releasing information, the lack of adequate reasoning in the orders of the public information

    officer and the Appellate Authority and the lack of application of mind in relation to the nature of the information sought. The materials on record clearly show the lackadaisical approach of the second and third respondent in releasing the information sought. However, the petitioner has not been able to demonstrate that they malafidely denied the information sought. Therefore, a direction to the Central Information Commission to initiate action under Section 20 of the Act cannot be issued…..”

     

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    […] via Penalty only if applicant proves mala fide intent of PIO – RTI INDIA. […]

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    Section 20(1) dealing with Penalty provides for imposing of penalty in the following cases: (a) C(or S)PIO has without any reasonable cause, REFUSED TO RECEIVE any application for information or (b) HAS NOT FURNISHED information within the time specified under sub-section 7(1) or (c) MALAFIDELY DENIED the request for information or (d) KNOWINGLY given incorrect, incomplete, or misleading information or (e) DESTROYED information or (f) OBSTRUCTED in any manner in furnishing the information. Thus there are six manifestations which can raise a cause of action for the penalty to be levied as per the provisions contained in this section. MALAFIDELY DENYING is one of the six manifestations when the PIO has denied the information. Who has to give the proof of Malafide intention? As per the section 20(1) itself, second provision, the burden to proof that the information has been diligently provided is on PIO. Thus it is not that the appellant should be asked to prove the malafide intention, on the contrary, the PIO should be asked to prove the absence of any malafide intention. However, if the information has been given after the period specified in Section 7(1) or if the PIO has knowingly given wrong information, then the penalty is leviable, even if malafide intention is missing. If the information is given after the specified period then the PIO should be able to prove the reasons for it otherwise the penalty is leviable, however the question of malafide intention should not arise. Further as per section 20(1) itself, the burden of proof that the PIO has acted reasonably and diligently is also on the PIO. IF Section 20(1) is read with Section 19(5), then the onus to prove that the penalty is not leviable is entirely on him. The appellant only has to find holes in his prove.

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    The H.C. judgment can't be criticized. However, it has far reaching effects as malafide is difficult to establish. Further, it changes the basic structure of the act, which is to help citizens to be enlightened about rules, procedures, system by default & specific decision with commentary/noting in a fixed time structure.

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    If this is so, every PIO will try to avoid to furnish information as they will certainly know that their malafide in denying the information can be proved by the applicant, and they will be encourage by this Judgement. .

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    "AVOID giving information" is different from "malafidely denying information". If the PIO does not reply within the specified time, that is not giving information within the specified time. That should draw penalty, even if the mala fide intention is not there. If however the PIO denies information than only the mala fide is required to be proved, which is difficult to prove. According to me, the onus of proof that the information has not malafidely denied should be on the PIO. Whether that actually happens or not if a matter of fact and can be decided upon the experience. In my little experience with the CIC, the CIC straight away ask the Appellant to present his case whereas the PIO should be the first one to be asked as to why the Appellant had the occasion to approach the CIC. In my opinion, even the First Appellate Authority should also be made accountable within the act itself.

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    Division bench (2 Judges) of Punjab and Haryana HC held that even a simple delay in supplying information attracts penalty. NO MALAFIDES REQUIRED TO BE PROVED BY APPLICANT. C.W.P. NO. 1924 OF 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. NO. 1924 OF 2008 Date of Decision: 8.2.2008 Ramesh Sharma and another ...Petitioners versus The State Information Commission, Haryana and others. ...Respondents CORAM: HON'BLE MR. JUSTICE M.M.KUMAR HON'BLE MR. JUSTICE T.P.S.MANN

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