[HumJanenge] Letter of appeal to the Chief Information Commissioner, Orissa for hearing of the cases under section 19(9) of the RTI Act

Dear friends

Below is the  letter of appeal   under section 19(9)  of the RTI Act given to state Chief Information Commissioner for  hearing of the cases  which has been disposed by the commission without giving the opportunity to the complainant  for  personal hearing. I request all the complainant-citizens  to write accordingly  to the commission   for hearing of the  cases.

Regards

Pradip Pradhan 

To

The State Chief Information Commissioner, Orissa

Toshali Bhawan, Satya  Nagar

Bhubaneswar

 Sub- Appeal under Section 19 (9) of RTI Act 2005 against your Decision on 14 Complaint Cases (No.2647/10 to 2991/10) dated 25.08.2011, including my Complaint Case No. 2991/10

Sir,

 On 2.9.2011 I got the decision of the Commission on my  complaint Case No 2991/10 along with other  13 cases ( CC No- 2647 to 58/10, 2668/10)  where  the Commission, without giving us an opportunity of hearing, and solely relying upon a subjective reading of the whole Act including its Section 25 directed the Chief Secretary Orissa to develop a suitable mechanism in each Department for a pro-active and timely disclosure of information under Section 4 of the Act and to send the compliance report indicating action taken in this regard. 

 2)         In fact, in my complaint petition, I have prayed to the Commission to direct the concerned public authorities i.e Block Development Officer, Betanati Block and Badasahi Block of Mayurbhanj district and  take necessary action against them for their naked violation of Section 4 of RTI Act. But I felt utterly surprised to find from the above decision that the Commission has refrained from giving  any direction to the concerned public authorities to comply with Section 4 of the Act or from imposing any penalty or disciplinary action against any of them.

 3)         As I understand from a plain reading of the provisions made under Section 4 of the Act, each public authority is mandated to make a proactive disclosure of information, suo motu, under Section 4 (1b) of RTI Act and provide it through various means including inspection of records by the members of public during their visit to the offices of the concerned public authorities (vide Explanation to Section4-4). Besides, the PIO of each public authority is also accountable as he is also required to remain equipped with the entire gamut of information proactively disclosed, especially in electronic format so as to instantly share the same with the members of public as and when required { vide Section-4(4)}.

 4)         You might know that in pursuance of the above mandate of RTI Act, the Government of Orissa has notified Orissa RTI (Amendment) Rules 2006, which inter alia prescribes a register to be maintained by each public authority for recording the particulars of the persons visiting its office in connection with inspection of disclosures made under suo motu Section 4(1-b) of the Act. This provision has neither been complied with by the said public authorities, nor your decision has taken a cognition of this gross non-compliance by the public authorities.

 5)         As per RTI Act, if the public authority or PIO fail to carry out such duties, the Commission as per Section 19(8) of the Act, while deciding a complaint under Section 18 or an appeal under Section 19 in respect of such matter has the power to take recourse to any of the following options inter alia-

 -          to require the public authority to take any such steps as may be necessary to secure compliance, such as by providing access to information in the requested form, by publishing certain categories of information, and by providing the Commission with an annual report in compliance with Section 4-1 (b) of the Act, and

-          to impose on the concerned public authorities any of the penalties provided under the Act. 

 6)         In the light of the above provisions of RTI Act, especially its Section 19(8) and Orissa Rules made there under, the facile assertion made in your above mentioned decision that "the prayers of the complainants come within the "regulatory" functions (monitoring power) of the State Commission as prescribed under Section 25 of the RTI Act and obviously not under the "adjudicatory" functions of the State Commission prescribed under Sections 18, 19, 20 of the Act" is simply unfounded and un-called-for. Can you quote a single relevant provision from RTI Act or Orissa RTI Rules in support of your contention that the complaints centring round violation of Section 4 don't come under the "adjudicatory" functions of the State Commission? It is not warranted at all on the part of a Chief State Information Commissioner, who is a creature of RTI Act and maintained out of the public funds earmarked for it, to rush into such arbitrary interpretation of the Act and complete neglect of the State Rules going thereby against the letter and spirit of the Act.

 

7)         Again, your aforesaid assertion also speaks of your skewed understanding of the provisions made under Section 25 in respect of Commission's role and functions relating to enforcement of the mandate of RTI Act. While the sub-sections (1), (2), (3) and (4) of Section 25 directly relate to mode and contents of the annual report on the status of RTI in the State to be prepared by the Commission, its sub-section (5) dealing with a general power of the Commission says, "If it appears to the Central Information Commission or State Information Commission, as the case may be, that the practice of a public authority in relation to the exercise of its functions under this Act does not conform with the provisions or spirit of this Act, it may give to the authority a recommendation specifying the steps which ought in its opinion to be taken for promoting such conformity". Now, please tell us, where in this provision the RTI Act has debarred the Commission from recommending compliance directly to the concerned public authority found to have violated the letter or spirit of RTI Act? And further, where did the Act or Rules require you to confine your action only to writing a letter to the Chief Secretary for securing compliance while bypassing the obligatory mandate of making a direct recommendation for compliance to the concerned public authorities? In the fitness of things, the intimation by you to the Chief Secretary should have been made as an additional measure for enabling him to pursue the matter at his level, but not as a substitute of the statutory duty of the Commission for direct recommendation to the concerned public authority for compliance to a mandate of the Act.

 

8)         In my complaint I had inter alia prayed to the Commission to instruct the concerned public authority for providing the undersigned with the information relating to suo motu disclosures under Section 4, which was denied to me during my visit to the office of the concerned public authority and to impose penalty against the guilty officer. The aforesaid decision of the Commission has nowhere taken this legitimate concern of the undersigned into account. Till date, I have not received the very information which I had sought during my visit to the concerned office of the public authority under Section 4 of the Act. Thus your decision violates the provision made under Section 19(8)(a)(i) of RTI Act, which requires the Commission to order in its decision the concerned public authority to provide "the access to information, if so requested in a particular form".

 9)         You may recall that even though the Chief Secretary Orissa issued a warning in 2009 to all the Public Authorities to comply with the mandate of Section 4(1b) of the Act, the latter have cared a fig for it. The persistent negligence shown by them warrants severe punishment to be meted out against them as per Section 19(8) (c ) of the Act. Unless and until they are suitably punished under this provision, no amount of reminders to the Chief Secretary shall compel these recalcitrant public authorities to comply with the Section 4(1b) of RTI Act. But it is regrettable that the Commission still clings on to a dangerously wrong notion that the Commission can't penalize the public authorities or PIOs on the ground of violation by them of Section 4(1b) of RTI Act. If the Commission still continues to refrain from duly adjudicating the complaints/ appeals centring round violation of Section-4 of RTI Act and from penalizing the guilty officials, then the Section-4 which is in fact the heart and soul of RTI Act as per its Section 4(2) shall never be operationalised in our State in the statutory sense of the term.    

 10)       In your aforesaid decision, you have made an artificial division between the so-called "regulatory" functions (monitoring power) of the State Commission as prescribed under Section 25 of the RTI Act and the "adjudicatory" functions of the State Commission prescribed under Sections 18, 19, 20 of the Act, as if two are exclusive of each other. As a matter of fact, all the regulatory or monitoring powers as required for enforcement of RTI Act belong not to the Commission but to the  appropriate Government (in the instant case, Govt of Orissa) as per Section 26 of the Act, whereas the Commission is provided with adjudicatory powers (Sections 18, 19, 20) along with its obligation to prepare annual Report for the State Government on the status of RTI in the manner prescribed under Section 25 (1 to 4) and its power to recommend compliance arising from its powers as adjudicatory and reporting authority (Section 25-5). It is wrong on the part of the Commission to appropriate 'regulatory' or 'monitoring' powers over the public authorities to itself (these spacious expressions are the arbitrary constructions invented by the Commission itself) whereas these powers have been explicitly bestowed to the appropriate Government under Section 26 of the Act. However, the Commission by way of exercising its adjudicatory powers combined with recommending powers can pretty well penalize any public authority on the ground of violation by the latter of any provision of RTI Act including its Section 4 (Section 19-8c).

 

11)       It is further regrettable that the Orissa Information Commission starting with the erstwhile Chief State Information Commissioner Mr.D.N.Padhi has been making a gross misinterpretation of the provisions of RTI Act saying that the complaint petitions relating to Section-4 don't come within the legal purview of Section 18 of RTI Act 2005, and therefore deserved to be rejected (vide for instance Complaint Case No. 3/2006 decided on 20.06.2006 at http://orissasoochanacommission.nic.in/(S(5hw0vkatffb3bt45tt10ekjd))/OrderDetails.aspx?qname=II%20Quarterly%20(April%20~%20June)%20&year=2006&type=Complaint%20Cases). Such an escapist and opportunist position taken by the Commission since inception till date has allowed a free rein to the Public Authorities for neglecting their mandatory compliance to Section 4 of the Act. As a result of all this, the statutory requirement for proactive disclosures to be made in a proper manner by the public authorities under Section 4 still remains a non-starter in our state. Cocksure of no penal action of any sort from the Commission, the Public Authorities in our State have developed a careless and even a scornful attitude towards the Section 4 of the Act.

 12)       To draw your attention to the penal powers of the Commission as against the act of non-compliance of Section-4 of the Act, let me refer here to a Complaint Case decided by Mr. Shailesh Gandhi, Central Information Commissioner. After hearing a complaint case (Complaint case No CIC/SG/C/2009/001566 decided on 24.11.09 available at http://www.ejurix.in/Cases/CIC/CIC-2009/24Nov2009%20(GJX)%200023%20CIC.htm) filed by Mr. Rajeev Lala against the Principal of Sri Aurobindo College, Malviya Nagar, New Delhi, the Central Information Commissioner imposed a penalty  of Rs. 5000/- on  Dr. Hari Om, Principal of the College for his failure to comply with Section -4 of RTI Act. Besides, the said CIC also directed the Principal to comply with Section-4 of the Act by 31^st December 2009. In view of this decision by CIC, you are requested to review your aforesaid decision, which says like your predecessor Mr.D.N.Padhi that the complaints made under Section 18 relating to non-compliance of Section-4 don't fall under the purview of adjudicatory functions of Commission. 

 13)       It is also patently unfair and illegal that you have arbitrarily and unilaterally closed the complaint case without having given the undersigned an opportunity of hearing. Moreover, you have also violated Section 19(9) of RTI Act, whereby you should have indicated in your decision the right of appeal if any of the undersigned complainant against your decision. For this reason, I feel constrained to invoke the said provision to request you to review the aforesaid decision of yours at the earliest by way of affording due opportunity of hearing to the undersigned in the matter. Specifically speaking, I seek your indulgence for passing the following orders in the decision to be taken following the requested hearing-

 a)      Information requested under Section 4 by the undersigned but denied by the public authority as mentioned in my aforesaid complaint should be made available at the earliest, free of cost.

 b)      Proper and adequate disclosure of suo motu information under Section 4 (1b) of RTI Act by the concerned public authorities at the earliest.

 c)      Penalty to be imposed against the concerned Public Authority/PIO for non-compliance to Section 4 under Section 19(8c) of the Act.

 d)   Review of all decisions taken by Orissa Information Commission since the time of erstwhile Chief State Information Commissioner Mr. D.N.Padhi arbitrarily saying that the complaints relating to non-compliance to Section 4 don't come under adjudicatory functions of Orissa Information commission.

 Thanking you,

Yours sincerely

  Pradip Pradhan

Complainant

12.9.2011