To

Shri Rameswar Thakur, Governor, Orissa,

Raj Bhavan,

Bhubaneswar

SUB:  A Memorandum for replacing the existing anti-people and ultra vires Orissa RTI Rules with the appropriate, citizen-friendly Rules in conformity with the Right to Information Act 2005.

Sir,

We are a civil society group working among the poor and marginalized sections of people, especially in western Orissa around various issues concerning their life and livelihood including Right to Information.  As you know, more than 6 months have elapsed since the Orissa Rules under the Right to Information Act 2005 was announced on 7th of October 05 last. Based upon our experience of interacting with the officials in connection with the use of RTI, we can tell you that neither the construction of the Orissa RTI Rules is in any manner congenial to the common people, nor the officials have been trained properly to disseminate and disclose information held by them as expected of them under the new law.  

First of all, the fee structure as it exists today ( such as Rs.20/- as application fee, Rs.5/- per page of zerox, Rs.10/- per page of computer print-out, Rs.100/- per CD or Floppy and Rs.15/- per hour of inspection etc.) is too prohibitive for a common man to access information from any office of the State Government under the Act. We were struck with a flicker of hope when we learnt from the newspaper reports that the Government of Orissa announced on the floor of the State Assembly on 3rd of April last a downward revision of such fees to bring them at par with that of the Centre. However, about a month has elapsed since that announcement was made, but in absence of any notification of the said announcement, the officials of the State continue to insist on the existing rate of charges, which is as already mentioned, unbearable on the part of an average citizen. So we are at a loss to understand why the announcement for revision of RTI fees made on the floor of the Assembly has not been given effect to.

Next, more than the fee factor, a number of omissions and commissions with which the Orissa RTI Rules-2005 is flawed, prove an insuperable stumbling block on the path of realization by the people of their legitimate rights and entitlements guaranteed under the principal Act. As you might know further, as per the Section 27 of the RTI Act 2005, every State Government, like the Centre, has the power to make and remake the rules under the Act to carry out its provisions. And we are sure, you as the Constitutional head of the Government of Orissa, have the necessary authority and obligation to prevail upon the concerned segment of the State Government who are entrusted with the job of making the rules under the RTI Act, to set aright those omissions and commissions which have rendered the Orissa RTI Rules unusable by the common people and ultra vires the principal Act.

Now we draw your kind attention to a selected list of provisions that need to be deleted from the Orissa RTI Rules-2005, to a separate list of provisions which need to be incorporated thereto, and also to a set of observations on the role and activities of State Information Commission along with some miscellaneous matters, the sole objective of ours being to see that the Orissa RTI Rules does conform in every manner to the mandates of the RTI Act 2005.  

PROVISIONS TO BE DELETED FROM ORISSA RTI RULES

1).  The Sections 27 and 28 of RTI Act have categorically specified the four kinds of fees only [such as towards the cost of information under suo motu disclosures under Section 4(4), application fee under Section 6(1), cost of providing information under Section 7(1) and cost of electronic medium under Section 7(5)], beyond which no appropriate Government or competent authority can impose any other fee. But the Orissa Rules have prescribed certain extraneous fees ultra vires the parent Act, such as fees for 1st and 2nd appeals under Rule-7. These extraneous fees need to be struck off to bring the Orissa Rules in compatibility with the Sections 27 and 28 of the RTI Act 2005.

2).  The Rule-10(Calculation of cost of Damage) of Orissa Rules, which throws the burden of paying the cost of damage to the public property, if any, on to the shoulders of the citizen who applied for the said sample, is not only ultra vires the RTI Act, but also contravenes natural justice. How is it that the citizen shall pay for the damage to the structure, if any caused by the PIO while collecting a sample on the request of the applicant ? Rather, in an opposite vein, the Section 19(8b) of the RTI Act obliges the concerned public authority to compensate for any loss or detriment suffered by the complainant in course of his act of seeking the information from a public authority. Rule 10 under the Orissa RTI Rules should therefore be abolished.

3).  The Rule-12 (Deposit of Expenditure) is another detestable provision under the Orissa Rules  ultra vires the parent Act. It says that an appellant before the Information Commission has to bear the expenditure to be incurred for production of evidence/witness that may be necessary in course of the adjudication of his appeal. This provision flagrantly violates the categorical injunction given under the Section 19(5) and Section 20(1) of the RTI Act which says that in any appeal proceedings the onus or burden of proving that he acted reasonably and diligently shall lie on the PIO himself, against whom a complaint or an appeal has been made. The Rule 12 under Orissa RTI Rules should therefore be struck off.

4).  The Rule-13 (Realisation of penalties and damage) under the Orissa RTI Rules, is a draconian provision that reminds us of the colonial rule of East India Company in our country. It provides for the recovery of any pending dues from an applicant-citizen by way of realization of the arrears of land revenue. Going by the Orissa Public Demands Recovery Act 1962, this provision implies that the Government can auction off the landed property of a defaulter citizen or alternatively put him under civil imprisonment extending from 6 weeks to 6 months, to recover the arrears, if the concerned citizen fails to pay the dues within 30 days of the notice of the same made to him. As a matter of fact, the RTI Act nowhere provides any room for charging any penalty or compensation from the citizen. Rather the law upholds just the opposite principle i.e. penalty or compensation if any shall have to be paid by the PIO or public authority, as the case may be [Vide Sections 19 and 20]. The provision under the Rule-13 of Orissa RTI Rules which is thus outrageously ultra vires the mother law should therefore be struck off.

5). The provision made under Sub-Rule 2 of Rule-4 under Orissa RTI Rules that the Applicant has to satisfy the PIO about his/her identity before his/her application is considered, is ultra vires the parent Act, since the Section 6(2) of the RTI Act categorically says that an applicant ‘shall not be required to give any reason for requesting the information or any other personal details except those that may be necessary for contacting him.’

6). The provision made under Sub-Rule 2(e) on the “identity” of an applicant defined as “an evidence to show the citizenship like an electoral photo identity card/passport or any other document which can satisfy the authority about the citizenship of the person” is ultra vires the Section 6(2) of the RTI Act for the aforesaid reason and should therefore be struck off.

7). The Form-A (Application for Information) under Orissa Rules is too long, complex and over-demanding one, which would not only frighten away the ordinary members of the public from applying for information under the Act, but is also ultra vires the mother law. The Column-2 asking for Father/Spouse name, Column-3 asking for permanent address and Column-4 asking for particulars in respect of identity of an Applicant are very much the personal details, the disclosure of which by an applicant before the PIO has been forbidden under the Section 6(2) of the RTI Act. Again, the Column-8 (Is this information not made available by the Public Authority) is absolutely redundant. It is just a common sense that if a citizen happens to know where a piece of information is available, why should he go at all for applying under the Act by paying fees? Similarly, the Column-7 asking ‘Has this information been provided earlier?’ is simply redundant, since a person might ask for the same information again by paying the required fees, if he has somehow lost it. Again, the Column-9 asking, ‘Do you agree to pay the required fee?’ is redundant, since a person may not afford the high price that a PIO shall demand in the Form-B (Intimation for payment). Anticipating the possibility of a PIO charging the higher price than the due, the Section 7 (3b) obliges a PIO to mention in his first reply to the applicant the latter’s right to appeal inter alia against the amount of fees so charged by him. Thus the Form A (Application Form) has to be drastically revised into a much shorter one containing only the name and contact details of the applicant along with the kind of the information wanted. 

8).  Any attempt to prescribe a compulsory, written application form, as is sought to be imposed by the Orissa RTI Rules is ultra vires the RTI Act, which in its Section 6(1b) allows the citizens to make even oral requests for information and in its Section 7(9) obliges a PIO to provide the information to the applicant in the very form in which it has been asked for. The Central Information Commission also in their Decision dated 30th Jan 6 [Vide Review Application No.CIC/C/1/2006 of the Applicant MsMadhu Bhaduri vs. Public Authority- Director (LM), DDA, Delhi] has affirmed the view, “In the RTI Act, no Department is proscribed from designing an application form that facilitates identification and therefore ease of access to information sought. It cannot be treated as a substitute for a simple application as laid down in Sec 6(1). . . Its absence cannot be grounds for rejection of an application”.  Thus the Application Form, if at all to be prescribed, should be made optional, simple to fill up, and user-friendly one. Therefore no application for information should be rejected on the ground as provided currently under Form-C of Orissa Rules that the Application Form has not been filled up “complete in all respects”.

9). The Form-C (Intimation of Rejection) as it stands now is not only prohibitive of people’s right to information squarely, but also ultra vires the mother law. The Section 7(1) of the RTI Act says that a request for information can be rejected ‘for any of the reasons specified in Sections 8 and 9’ only. But the Form-C in its column (i) without specifying the particular reasons under the said Sections, mentions just in a blanket, roughshod manner that ‘it comes under exempted category covered under Sections 8 and 9 of the Act’. Similarly, the Col. (iv) spaciously saying that ‘The information is contained in published material available to public’ as a ground for rejection carries no meaning for the citizen at all. Again, the Column (vi) saying, ‘The information sought for is prohibited as per section 24(4) of the Act’ is negatively slanted against the citizen’s quest for information, since the said Section permits the information relating to cases of corruption and human rights violation to be disclosed albeit after getting the approval of the Information Commission. So in stead of saying just ‘no’, the said column might say, ‘Your application has been forwarded to the Information Commission for their opinion’. The Column (vii) saying that ‘The information would cause unwarranted invasion of privacy of any person’ is absolutely redundant, since this factor is covered under Section 8(1j), already taken care of by the Column (i) mentioned above. Then the said Form contains the following Columns, which are ultra vires the mother Act for the reasons already shown above:

Col. (ii)- Your application was not complete in all respects ( vide 

Col. (iii)- Your identity is not satisfactory.

Col. (ix)- For any other reason see overleaf. 

Thus the Form-C (Intimation of Rejection), which in the present form, is not only afflicted with multiple redundancies, but also ultravires the mother law in many respects and therefore deserves to be recast thoroughly in line with Section 7(1) of the RTI Act 2005.

10). The Rule 3(4) that says, “If, for any reason beyond the control of the Public Information Officer furnishing of information is delayed, he shall record reasons with justification thereof and shall communicate the Head of the office about such delay” dilutes the provision made under Section 7(1) of the Act that the requested information shall have to be furnished, “as expeditiously as possible and in any case within thirty days of the receipt of the request” and “where the information sought for concerns the life or liberty of a person, the same shall be provided within forty-eight hours of the receipt of the request.” Thus when the Act is absolutely clear on the maximum time-limit allowed to a PIO to furnish the information sought i.e. 30 days in case of information of normal nature, and 48 hours in case of information of emergency nature relating to life and liberty of a person, there is no justification for the Orissa Rules to provide the PIO with a handle to escape the said statutory obligation on excuses whatsoever. The Rule 4(4) should therefore be struck off from the Orissa RTI Rules.

PROVISIONS TO BE INCORPORATED INTO ORISSA RTI RULES

1).   The RTI Act in its Section-7(5) has categorically stipulated that no fee shall be charged from the BPL persons for application, cost of providing the information and cost of the print or electronic medium. But the Orissa Rules have allowed the exemption of application fee only {vide Rule-4(1)}, while depriving the BPL families of their lawful right to avail the exemption of the other two fees. This very provision made under Orissa RTI Rules, being ultra vires the mother law should be struck down, and the Orissa Rules should allow the exemption of all the three categories of fees for the BPL persons as prescribed by the RTI Act.

2).  The worst of absurdities that the Orissa Rules is afflicted with is that while it enables a citizen both to submit his application and as well to receive the requested information from the concerned PIO through the medium of postal service (vide Rule 4 and Form-A), the applicant can’t however deposit the required fee towards ‘the cost of providing information’ through postal or other medium. As both Form-B and Schedule of Fees indicate, an applicant has to deposit all such fees by cash only, and as such he has to travel physically all the way from wherever he may be stationed to the office of he concerned public authority just to hand over the required amount by cash to the PIO. This single thoughtless provision, which has possibly no parallel anywhere in the world renders the whole set of Orissa RTI Rules absurd par excellence and a laughing stock for everybody. Moreover, it is the wonder of the wonders, how such a ludicrous provision could escape the wit of the Chief Minister and Governor before they put their seal of approval on the Orissa RTI Rules and how it still eludes the supposedly scanning vigil of the learned Information Commissioners of our State? Thus the single mode of payment and that too through cash only to meet the cost of providing the information deserves to be immediately replaced by the provision of multiple modes of payment such as through money order, postal order, bank cheque/draft, court fee stamp and treasury challan etc besides cash of course, to suit the convenience of the applicant-payer. And there should be no doubt left in anybody’s mind that the money deposited through any of these modes shall ultimately reach the same destination i.e. the treasury of the Government. And technically speaking, the money paid through non-cash modes has a better chance to reach to the Govt treasury than through cash by hand.  

3).  The Form-B (Intimation for Payment) under the Orissa Rules is ultra vires on such grounds as (a) it provides for the mention only of the block amount to be paid by an applicant, not the detail break-up of the same as required under the Section 7(3a) of the RTI Act, (b) it doesn’t provide for the applicant’s right of appeal against the fees charged or form of access allowed by the PIO in response to the application for information, as required under Section 7(3b) of the Act, and (c) it doesn’t provide for the mention of the particulars of appellate authority as required under the Section 7 (3b) of the Act. The Form-B for its several omissions of critical nature is thus ultra vires the parent Act and therefore needs to be appropriately redesigned in conformity to the standing provisions of the Act.

4).  Neither the RTI Act nor the Central Rules provides for any format to be imposed for submitting of an appeal or complaint by an aggrieved citizen, though the Central Appeal Rules provides for the kinds of papers to accompany an appeal. Viewed thus, the compulsory prescription of the Form-D and Form-E by the Orissa Rules for the purpose of 1st and 2nd appeal respectively is ultra vires the mother law. Such Forms, if at all necessary for ease of reference at the level of the appellate authorities, may be declared as optional ones, and an appellant/complainant may be asked to submit his/her appeal on a plain paper, appending therewith of course the necessary papers, a list of which may be prescribed under the State Appeal Rules. Moreover, the provision of an acknowledgement receipt to be issued by the concerned appellate authority to the citizen-applicant on submission of his/her appeal/complaint, which is presently lacking in the existing Form D and Form E should be incorporated there as a must.

5). A serious technical incongruity has been noticed between Form-G (Cash register), where at its Column-4 Bank Draft has been mentioned as a mode of payment on one hand, and the Schedule-1 on fees, where there is no mention at all of Bank Cheque/Draft at all on the other. It is suggested that the said incongruity should be removed by way of providing for various other modes payment such as Postal order, Money order, Bank Cheque and Court fee besides Cash and Treasury Challan to be mentioned consistently in both the places. The suggested variety in modes of payment shall not only serve the convenience of payment by the citizens belonging to various stations of life, but also enhance the level of collection of various fees under the RTI Act for the State exchequer.

6). Another serious case of incongruity is that while the Rule 4(1) allows a citizen to submit his/her application through electronic mail system, the Form-A containing the Application Form omits to mention the email system and limits thereby all the correspondence under the Act to be conducted through post or person only. The omission of Form-A to mention the electronic mode for transaction between the applicant and PIO is in clear violation of the letter and spirit of the provisions made under the RTI Act [vide Sections 4(1a), 4(1b-xiv), 4(2), 4(Explanation), 6(1), 7(5) and 7(9)]. So the Orissa Rules should provide for the citizen’s right to send and receive all the correspondence under the Act including those on appeal related matters through the medium of email too.

7). It is true that the RTI Act doesn’t provide for a time-limit within which the complaints and appeals made before the Information Commission under Sections 18 and 19 of the Act respectively shall be disposed of. But since the Section 27(1) generally empowers an appropriate Government ‘to make rules to carry out the provisions of this Act’, it is very much in fitness of law and competence of the Government of Orissa to fix a time-limit for disposal of appeals and complaints by the State Information Commission just as the Government of Madhya Pradesh has done by prescribing a time-limit of 30 days for the same.

8).   The Section 27(1) of RTI Act says that every ‘appropriate Government may make rules to carry out the provisions of this Act’. But the Orissa RTI Rules has conspicuously failed to make the appropriate Rules on the following matters, which need to be made at the earliest and that too following the due procedure, as mandated under the RTI Act.

a.         Transfer of an Application for information within 5 days of its receipt with intimation to the applicant, by the PIO to another PIO when the information asked for is available with the latter as required under Section 6(3) of the Act.

b.         Provision for the PIO to help the persons unable to write in the matter of making his oral request into a written application as required under Section 6(1b) and help the sensorily disabled persons to access and inspect the documents as required under Section 7(4) of the Act.

c.         The provision for procedure and forms necessary for issuing notices to the third party in connection with disposal of an application for third party information as required under Section 11 of the Act.

d.         The provision for serving the severe-able information by the PIO to the Applicants as required under Section10 of the Act.

e.          Provision for inspection of offices of public authorities by the citizens as required under the “Explanation” appended to the Section 4(4) of the Act.

f.          Provision for application for information to Security and Intelligence agencies of the State pertaining to “corruption and human rights violation” as required under Section 24(4) of the Act.

g.         Provision for supply of information by the public authorities to the applicants within 48 hours of the application so made concerning the ‘life or liberty of a person’ as required under Section 7(1) of the RTI Act.  

h.         Provision for adoption by each public authority in Orissa of the ‘Template for Information Handbook under the RTI Act’ (prepared by the Ministry of Personnel, GOI), to be incorporated under the Orissa RTI Rules for disseminating the suo moto information of 17 categories as required under Section 4(1b) of the RTI Act.

i.          Provision for awarding of compensation on the part of public authorities to the complainant for any loss or detriment suffered in course of seeking an information, as required under Section 19(8b) of the RTI Act

j.          Provision for modalities of disciplinary action to be ordered by the Information Commission against the recalcitrant PIOs as required under Section 20(2) of the RTI Act.

k.         Provision for a time-limit for disposal of a complaint/appeal received from an aggrieved citizen by the Information Commission under Sections 18 and 19 of the RTI Act.

l.          Provision for procedure of supplying the ordinarily exempted, copyright-related information to an applicant-citizen ( Section-9 of the RTI Act), if the ‘public interest in disclosure outweighs the harm to the protected interests’ as required under the qualifying provision of Section 8(2) of the Act.

ON STATE INFORMATION COMMISSION AND MISCELLANEOUS MATTERS

1). The 11-member Core Committee of the State Government for Implementation of RTI Act in Orissa in their meeting held on 22nd August 05 last had decided inter alia to hold a special training programme for NGOs and Civil Society Organisations at Bhubaneswar, out of the allotted funds. The Govt. of Orissa should publicize the details thereof, if any such programme were at all held and the detail expenditure incurred thereon, as required under Section 4(1b-xi) of the RTI Act.

2). As you know, as per the Section 25(1) of the Act, the State Information Commission is supposed to prepare a report at the end of each year on the implementation of the Act in the State and forward the same to the State Government for its onward presentation in the State Assembly. As per Section 25(3) the said Report should contain inter alia information on the number of appeals made and disposed of by the Commission, disciplinary action taken against any defaulter officer and recommendation for reform of practices of public authorities for implementing the provisions of the Act. Though the financial year of 2005-06 has already come to an end, the legislators and people of the State are yet to see such a Report coming from the Commission.

3). The RTI Act 05 in its Section 25(5) enjoins upon a State Information Commission, just as on the Central Information Commission, to step in where ‘the practice of a public authority . . . does not conform with the provisions or spirit of this Act’ and to ‘give to the authority a recommendation specifying the steps which ought in its opinion to be taken for promoting such conformity’. But it is a disconcerting fact that State Information Commission has shown a conspicuous indifference in the matter of advising the State Government to put in place an appropriate set of rules, by way of correcting the omissions and commissions in the existing Rules. Not only that. The State Information Commission is also still tight-lipped on the obligation of the State Government as ordained under Section 27(2e) of the Act to frame the appeal rules, in absence of which the Commission can’t dispose of the complaints/appeals lodged by the public under the Act. The people of the State are also in complete dark about the number of complaints/appeals disposed of by the Commission so far and their orders and decisions thereon, unlike in the case of Central Information Commission which regularly publicises their orders/decisions on the website for perusal by all.   

4) From the frequent tours of the State Information Commission to different parts of the State, we of course notice some visible efforts by the State Information Commission for spreading awareness about the RTI Act among the officials and people in different parts of the State. But as you know, the Act under Section 26 places this responsibility squarely on the appropriate Governments, and in the instant case on the State Government of Orissa, with the Information Commission supposed to monitor the process (vide Section 25). Further as per the Act, the main job of the Information Commission is not to spread awareness about the Act, but to decide on the complaints and appeals made by the aggrieved citizens arising out of their failure to secure information under the Act, to penalize the defaulter PIOs responsible for wrongful denial of the information sought and to compensate the aggrieved citizen for the loss or detriment suffered by him/her due to such denial (vide Sections 18,19 and 20), besides their overall job of monitoring the public authorities and taking them to task for their acts of non-compliance to the letter and spirit of the Act. But the act of appropriation by the members of the Commission to themselves the role, which is assigned by the parent Act to the public authorities such as for awareness-generation among the people, however commendable it might seem at first instance, is an instance of double error in the eyes of the Act; firstly the Commission escapes its primary role as a civil court to adjudicate the complaints and appeals made under the Act, and secondly the Commission helps the public authorities escape the primary obligation entrusted to them under the Act i.e. to create an enabling environment for the public to avail their rights and entitlements guaranteed under the Act.

5) Furthermore, the State RTI Rules have been framed and finalized by a coterie of 5 bureaucrats only, who have never cared to subject the same to a public scrutiny as legally required under the law. As you might know, the Orissa General Clauses Act 1937 in its Section 24 makes it obligatory on the part of the State Government to publish first of all in the mass media a draft Rule proposed under a State or Central Act to invite opinions and objections if any within a deadline, from the members of public likely to be affected. Moreover, the Section 4(1c) of the RTI Act 2005 does also require a public authority to publish all relevant facts for the knowledge of the public while formulating a policy or announcing a decision. Both these legal requirements have been given a clean goodbye by the State Government in respect of framing and finalizing the Rules under the RTI Act 2005, though its subject-matter affects directly and in very many ways the fate of the entire population of Orissa.

6) Needless to say, the Orissa Information Commission being the apex authority for the State as a whole under the RTI law should itself serve as an ideal for the public authorities in respect of transparent functioning. As you shall agree, the Commission is itself a public authority within the meaning of Section 2(h) of the RTI Act and has therefore the bounden obligation to make proactive disclosure of 17 categories of information as mentioned under Section 4(1b) such as the structure, manpower, activities, salaries and allowances, budget, modus operandi of disposal of cases and of interaction with public and the like concerning their organization itself. While the Central Information Commission has complied with this legal requirement as found on their website (http://cic.gov.in), the State Commission has not made even a humble beginning towards this end. In absence of such proactive disclosures coupled with absence of any appeal rules at the level of the State Information Commission, the people are largely in dark about what the Commission is doing in compliance with the mandates of the Act, how and how much public money is spent for and by the Commission, and how does the Commission dispose of the grievances received from the people? In absence of the information on such crucial matters being made available by the Commission to the public at large through their website and otherwise, the people shall, for your kind information, continue to harbour a lurking suspicion that the Orissa Information Commission is another white elephant eating into the depleting coffers of the country’s poorest State. 

7). Above all, as is well-known, the State Government apart, the Chief Justice of Orissa High Court,  Speaker of the Orissa Legislative Assembly and Governor Orissa are also competent authorities within the meaning of Section 2(e) of the RTI Act and are supposed to make rules as per Section 28 of the Act for implementing the provisions of the Act among the public authorities functioning under their control. But as you might know, these top functionaries of the State are yet to make the necessary rules as mandated under the Act.

We look forward to a judicious and prompt action at your end,   

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