first appeals & appellate officers

7/30/2019 First Appeals & Appellate Officers

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First Appeals & Appellate Officers

Right to Information Act, 2005


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Learning Objectives of the Module

The Role and Responsibilities of Appellate Officers

(AOs) within Public Authorities

The process involved in making first appeals to the AOsso designated

Timelines for making a first appeal and the disposal of

the appeal


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Broad Outline of the Presentation

Channels of Appeal & Designation of Appellate Officers

Grounds of Appeal and Timelines in the First AppealProcess

About the remedy (of Second Appeal) against the FirstAppeal

Important considerations in disposing Appeal (includingthose related to involvement of third party)

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Group Discussion: Talking Points


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Channels of Appeal

Two Channels of Appeal against the decision of a PIOon request for information:

1-an internal or first appeal to a senior officer

designated within the Public Authority

Note: It is required for a PIO to communicate to theapplicant details about the Appellate Officer and the

time limit for a first appeal,

2- a second appeal to the Central / StateInformation Commission (as applicable)


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Designation of AO

Section 19(1)It is required on the part of all public authorities todesignate Appellate Officers (AOs) (alongwith thedesignation of Assistant / Public Information Officers)

The officers to be designated as AOs are required to besenior in rank to the PIOas the case may be

The AO, so designated is to hear appeals made by a

person aggrieved by the decisions of a PIONote: It has been observed by eminent commentators that the AOs to be designated

should be reasonably senior in rank to the PIOs for them to be able to discharge

their responsibility as an AO efficiently and effectively. Some suggest that there are

distinct advantages in designating the head of the public authority as the AO


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Important Considerations in designating AOs

The AO- Is fully conversant with the functioning of the organisation

- Would be the best judge of the public authoritys activitiesand be able to command various sources of information

of the authority and decide upon the access needs of the

public

- Can present to the parent department a complete and

correct picture regarding the state of implementation of

the Act by the authority;


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Important Considerations in designating AOs

And

- Would usually have first hand knowledge

of the operationalisation of the Act withinhis / her organisation

- may be able to inculcate a sense ofresponsibility in the PIOs within the

authority to be responsive to citizens

requests for information


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Important Grounds for First Appeal

The obvious grounds stated in the RTI Act on which an

appeal may lie against the decision of a PIO can be

said to be:

- Not receiving a decision within the time limit specified

by the Act

or

- With respect to the communication (received from theC/SPIO) about payment of fees / form of access/partial

disclosure


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Time Limit for Preferring Appeal

A person aggrieved by the decision of a PIO

can prefer an appeal within thirty days

- of the expiry of the period within which she should

have received a decision

- (or) of receipt of such a decision (from the PIO)


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However,

The Act (also) provides that

- The Appellate Officer may admit the appeal after the

expiry of thirty days if s/he is satisfied that the appellantwas prevented by sufficient cause from filing the appeal

in time


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Involvement of Third party

The Act Stipulates that

- where an appeal is preferred against an order made by a

PIO, as the case may be, to disclose third partyinformation, the appeal by the third party concerned shall

be made within thirty days from the date of the order


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Time Limit for disposal of First Appeal

The Act requires that a first appeal preferred to the

Appellate Officershall:

- be disposed of within thirty days of the receipt of suchappeal

- or within such extended period not exceeding a total of

forty-five days from the date of the filing of the appeal

In the latter case, however, the reasons have to be recorded in

writing


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From First Appeal to Second Appeal

A second appeal against the decision (of the AO):

- can be made to the Central Information Commission or

the State Information Commission as the case may be- is to be made within ninety days from the date on which

the decision (by the AO) should have been made or (thedecision by the AO) was actually received

Note: * The Information Commission concerned may admit the appealafter the expiry of ninety days if it is satisfied that the appellant

was prevented by sufficient cause from filing the appeal in time

* No time limit has been stipulated for disposal of second appeal


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From First Appeal to Second Appeal

If

the decision of the PIO, as the case may be, against

which an appeal is preferred relates to information

of a third party, the Information Commission, as the

case may be shall give

a reasonable opportunity of being heard to thatthird party


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Onus of Proof

In any appeal proceedings, the onus to prove

that a denial of a request was justified shall be

on the PIO who denied the request


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Important Considerationsfor the AO in disposingfirst appeals

Natural Justice, in essence,in this context would meanthat:

- No person should be condemned unheard- Both the sides will have to be given opportunity

to be heard and also to submit any document

etc. for perusal and inspection by the

concerned, during appeal

- Fair play will be an essential ingredient of any

decision taken


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Important Considerationsfor the AO in disposingfirst appeals

Public Interest

A decision on disclosing / providing information or

withholding / denying it has to be made on the basis ofwhich of the two courses of action would serve the larger

public interest. It must also be noted that public interest is

a relative and dynamic concept and can be best decided on

a case-by-case basis.


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Important Considerationsfor the AO in disposing firstappeals

Action in Good FaithSection 21 of the Act, protects such actionThus,

No suit, prosecution or other legal proceeding lies against theperson who has done or intended to do anything which is in goodfaith. That an action was done in good faith must, however, beproved based on documentary evidence.

Note:It is important for the AO to employ these considerations, for theInformation Commission (in deciding on a second appeal, if a

Second Appeal is preferred), will, in all likelihood apply these

parameters to both the PIOs action and AOs decision.


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Instance of strictures being passedagainst AO

Note:

Under the RTI Act, the AO is not liable for being penalised(like the PIO is). However, there has been an instance of a

State Chief Information Commissioner (of the Madhya

Pradesh State Information Commission) taking serious

note of the lapse on part of the AO and issuing stricturesagainst the officer in question. (Refer to Module 7)


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To conclude

Designation of AOs is as much an imperative for all

public authorities as is the designation of Public

Information officers

There is a need to ensure adequate seniority of the

officer to be designated as AO, with due regard to the his

/ her capability to discharge this important responsibility


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To conclude

AOs need to not only to be fully aware of the provisions

of the Act and be updated on the recent developments in

its implementation

They should also be sensitised about such important

aspects of their responsibility as understanding of the

concepts of natural justice, public interest more so

because these concepts have not been clearly defined in

the Act. Hence, they are more a matter of interpretation

in keeping with both the letter and the spirit of the Act.


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Questions?? / Doubts!!


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Group DiscussionTalking Points

Call upon the participants to discuss the rationale and

the significance of the First Appeal process

The AOs (from among the group of participants, if

applicable) may be called upon to share their

experiences with respect to their performance of their

role as an AO


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Note: Important Information Sources

It would be appropriate and useful to refer to the Right to

Information Act, 2005 and to the Rules made

thereunder, for further clarifications

You can also refer to www.cic.gov.in to stay updated on

the various decisions (including interpretations) of

Central Information and State Information Commissions

(contact details for which are available on the CIC

website)
http://www.cic.gov.in/http://www.cic.gov.in/


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Thank You

first appeals & appellate officers

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