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RTI for Inspection Report from Women & Child Dept


lonelyIndian

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lonelyIndian

I have asked for a copy of an inspection report under RTI written by the director of women and child. The inspection was at the request of the chief sec as we are currently appealing the decision of the non-renewal of our licence to operate as a children's home. The reply stated

 

"The Competent Authority is satisfied that the information should not be disclosed in larger public interest"

 

On asking more details they said

 

"the information was declined under Section 8 (e) of the RTI Act"

 

As Section 8 (e) states

 

(e) information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrents the disclosure of such information;

 

Questions

 

1. Does Secton 8 (e) 'fiduciary' relate to the Director and Chief Sectretary's relationship in this context?

 

2. Any suggestions?

 

Thanks :confused:

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lonelyIndian

Karira,

 

Thank you so much for the answer, I have already sent in my first appeal and we have the hearing tomorrow. It was the director's decision not to give the information and he is the Appellate Authority in the matter so I don't expect to get very far.

 

I have made a note and thank you to everyone on this very useful forum, transparency is the key!

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karira
Karira,

 

Thank you so much for the answer, I have already sent in my first appeal and we have the hearing tomorrow. It was the director's decision not to give the information and he is the Appellate Authority in the matter so I don't expect to get very far.

 

Bring the following point up in your First Appeal:

 

Under the RTI Act, it is the PIO and only the PIO, who has to decide whether to disclose information or not. He cannot consult anyone nor can he take consent of any superior. If he did so, the whole structure of the RTI Act would collapse !

 

This is because under Sec 19(5) of the RTI Act, it is the PIO who has to justify his denial of information. Moreover, under Sec 20(1) and 20(2), it is only the PIO who is liable for Penalty or Disciplinary Action. If the PIo started taking permission of someone else or consulting someone else - the whole basic premise of the Act would collapse.

 

Also, the initial reason for denial:

 

"The Competent Authority is satisfied that the information should not be disclosed in larger public interest"

 

does not hold any water:

 

a) Because in the RTI act, there is no reference to anyone called "competent authority" being satisfied or not, before information is disclosed/denied

 

b) "Competent authority" is defined in Sec 2(e) of the RTI act and is:

 

e)"competent authority" means—

i)the Speaker in the case of the House of the People or the Legislative Assembly of a State or a Union territory having such Assembly and the Chairman in the case of the Council of States or Legislative Council of a State

ii)the Chief Justice of India in the case of the Supreme Court;

iii)the Chief Justice of the High Court in the case of a High Court;

iv)the President or the Governor, as the case may be, in the case of other authorities established or constituted by or under the Constitution;

v)the administrator appointed under article 239 of the Constitution;

 

Ask the PIO boldly during the First Appeal: "Did you happen to consult any one of the above i) to v) ? As an RTI applicant, that is the only "competent authority" I recogonise"

"Even if you did consult any of them, under no section of the RTI Act do they have any powers to decide whether to disclose or not to disclose any information. Where is such a clause ? Please show it to me (say this while handing over the RTI Act to the PIO)"

 

There is also no section or sub-section in the RTI Act which states that only that information which serves larger public interest will be disclosed. In fact, to the contrary, several sections of the RTI Act empower the PIO to disclose even exempted information if it serves larger public interest !

Quote the decision of the CIC available in the following thread:

 

http://www.rtiindia.org/forum/16601-no-larger-public-interest-reason-denial-information.html

 

Also read Item 3 of this post:

 

http://www.rtiindia.org/forum/15718-refusal-info-central-excise-cpio.html#post48372

 

Please also read this thread:

 

http://www.rtiindia.org/forum/11834-seeking-info-no-need-cite-reason.html

 

You have a very strong case. The only mistake you made was to ask for a clarification after you received the reply from the PIO and thus enabled him to add Sec 8(1)(e) to the denial. Although that also is invalid - a PIO cannot give further reasons for denial once he has passed an order.

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lonelyIndian

Karira,

 

Thank you for your reply, it's of great help. Our appeal hearing was cancelled, as they had addressed the appeal letter to the wrong person, although it got to us OK. They rang us up 1 minute before the meeting to say it had been rescheduled to after the 30 day limit but within the extension (15 extra days).

 

I don't mind as I now I have your reply to add to the questions. This will be the first appeal I will have conducted, what happens if the PIO is not present - I have a feeling it will be the director himself.

 

I think the 'competent authority' the letter was referring to was the director (who she probably asked if she could give the information - so I will make a point of asking the PIO... :)

 

Thanks for ALL your help.

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karira

I don't mind as I now I have your reply to add to the questions. This will be the first appeal I will have conducted, what happens if the PIO is not present - I have a feeling it will be the director himself.

 

He He He ...you are lucky for the postponement.

 

If the PIO is not present then how can he defend his denial under Sec 19(5) of the RTI Act ?

Make sure he is present - if he is not, ask the FAA to call him for the hearing. tell the FAA that you will wait till the PIO comes.

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Ketan Modi

Dear LonelyIndian,

First of all in this country you cannot be Lonely. Secondly, and on more serous note, you have a chance for pressing for invoking Section 20 which casts a mandatory obligation on FAA to impose it under Show Cause. So, no need to worry. It is PIO's problem that he was not present during a juidicial proceedings to defend his action. Happy informatiom seeking.

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lonelyIndian

Hi again... I spoke with the PIO and they told me what they do to get the information...

 

They ask for the information from the social welfare officer who in turn asks the director for the information. The director then tells the social welfare officer 'no' and inturn they tell the PIO 'no', at no point has the decision come from the PIO on wether to give the information or not. Is there something I can mention during my appeal to say that the incorrect procedure is being done and am I likely to get anywhere as the director and the FAA are one and the same?

 

Any thoughts?

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karira

Just mention to him (and make him read) Sec 20(1), 20(2) and 19(5).

It is the PIO who is liable in all those sections.

If the PIO wants to save his "skin", the best way is for him to issue a formal request in writing and seek assistance from the Social Welfare Officer under Sec 5(4). Then, under Sec 5(5), the Social Welfare Officer becomes the "deemed" PIO and thus he becomes liable under Sec 20(1), 20(2) and 19(5).

By the way, even the FAA cannot "consult" anyone before deciding the first appeal. He has to take the decision himself and by himself alone. Please see this full bench order from the CIC, where I pointed this out to the IC's and they agreed:

http://cic.gov.in/CIC-Orders/FB-16092009-01.pdf

 

19. It is also to be noted that material on record indicates that before denying information, the AA had taken written opinion from Shri M. Koteshwar Rao, Legal Officer of the Legal and Treaties Division of the Ministry of External Affairs wherein he had opined that clauses (a) & (f) of section 8(1) of the RTI Act could be liberally interpreted “so as to include GOI’s relations with the United Nations International Organisations etc., notwithstanding omission of references to these bodies/entities.” Earlier to that, AA had also received an opinion from Miss Parmita Tripathi, Under Secretary(UNES-II) of the UNES Division of MEA, wherein she had advised that “the Appeal may be defended for the time being.”

20. From the above, it is evident that the AA has not denied the information on her own free will and free judgment but she appears to have been guided by the advices referred to above. This raises an important legal issue, i.e., whether the AA, while functioning in her quasi-judicial capacity, should have formally made consultations with the officials of MEA?

.

.

.

.

.

We also do not take kindly to the consultations made by the AA with the officials of MEA before arriving at her decision. In our opinion, both CPIO and AA fell into error in misapplying the law. Their orders, therefore, are not sustainable in law and deserve to be set aside.

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lonelyIndian

We had our hearing today and it didn't go well. As the director was the FAA he didn't want us to have the report anyway so continued to do what ever he felt like. He has asked the PIO (who he wouldn't even let us question) to write a report on why he decided not to give. He has asked the report to be given in 15 days which will be beyond the 45 day limit for the appeal proceedure.

 

Can anyone answer

 

1. As it's beyond the 45 days does that mean that the 1st appeal has been denied/failed. If so do we have any thing we can mention in our 2nd appeal?

 

2. In the appeal he said the reason was the Section 8 (e), although the it was not mentioned during the current appeal and not mentioned on the letter sent by the PIO. He lied by say the PIO mentioned this in the appeal (she didn't) and it was not written down anywhere.

 

3. He decided to write the appeal memo and stated the above which was unture so we wanted it changing to fact, which he wasn't willing to do and in the end refused us to sign the said appeal memo.

 

4. It seems to have been a pointless exercise as he (the FAA) also

 

a. Wrote the report we are asking for

b. Doesn't want us to have the report as it's justifying his actions in denying our licence

c. Prevented the PIO from giving us the report.

d. Delayed the appeal past the 30 days, now the appeal process will not be completed within the stipulated 45 days.

 

We will now (once the 45 days in complete (in the next few days)) write a 2nd appeal, please can anyone provide a good example of what to include and what prayers etc to use.

 

Frustrated

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karira

The FAA can add more reasons and exemptions beyond what was given by the PIO.

The FAA is a quasi-judicial authority under the RTI Act.

Therefore his order has to be a speaking order and a "reasoned" order.

Before drafting your second appeal (you have 90 days more to file it), please wait for the FAA's order and see what he says in writing.

 

In the Second Appeal mention all the Grounds that you mentioned in the first appeal.

In addition mention that the FAA took more than the 45 mandated days to pass an order and he did not ive the reasons for the delay in writing (if indeed he does not).

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lonelyIndian
Before drafting your second appeal (you have 90 days more to file it), please wait for the FAA's order and see what he says in writing.

 

Should the FAA supply a copy of the order by default or should we ask for a copy? The FAA has stated that I should ask for a copy... I just see that the whole process is going round in circles and is just another way for the FAA to hold up the system...:mad:

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karira

The FAA is a quasi-judicial authority under the RTI Act.

He has not only to do justice but has also to show that justice is being done.

He has to pass a speaking order and give a written copy to the appellant.

 

Just write a polite letter to him outlining the above and tell him that he has not sent you his order. The appellant is not supposed to ask for a order copy - the FAA has to send it to him. If you do not get the order copy in the next 15 days, you will file a Complaint under Sec 18 to the APSIC.

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