indian right to information manual

8/18/2019 Indian Right to Information Manual

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Option 1 - Making an Appeal The appeal process falls under section 19 of the Act and envisages a two-step process: firstly, an appeal tothe Appellate Authority and secondly, an appeal to one of the newly established Information Commissions.The appeals process is supposed to be a quicker, cheaper way of enabling requesters to get a decisionreviewed, than going to the courts.

First Appeal to the Appellate AuthorityIn every public authority, an officer who is senior in rank to the PIO has been designated to hear appeals.He/she is referred to as the Appellate Authority. The original decision or rejection notice you receive fromthe PIO should include contact details for the relevant Appellate Authority so that you know who you can goto get the decision reviewed. If the notice is deficient, you may want to check the website of the publicauthority or contact the PIO directly and ask for the Appellate Authority's details.

You can make an appeal to the Appellate Authority if:

(a) You are aggrieved by the decision made;(b) If no decision was made within the proper time limits;(c) You are a third party consulted during the application process, and you are unhappy with the decisionmade by the PIO.

You need to send your appeal to the Appellate Authority within 30 days from the date on which you receivedthe decision (or you should have received a decision) from the PIO. However, if you miss that deadline butthe Appellate Authority feels that you have been prevented from making an appeal within this time limit for

justifiable reasons, he/she may allow you to submit an appeal even after the 30 days have expired. TheCentral Act requires that the internal Appellate Authority dispose off your appeal within 30 days or 45 days if an extension is necessary.

You need to send your appeal to the concerned Appellate Authority in writing. Some State Governmentshave prescribed forms for filing appeals. You should check the Rules in your particular State to see what youwill need to do or you can check directly with the Appellate Authority. You can file appeals directly byhanding them over in person or send them by post/courier. Additionally you can also send the appeal to theAPIO in the relevant public authority who then has a duty to forward it to the relevant Appellate Authority.

The Central Act does not permit any fee being levied on an applicant for filing an appeal to an AppellateAuthority (or the Information Commissions). Unfortunately, some State Governments, like Maharashtra andMadhya Pradesh , have prescribed Rules which impose an appeal fee. It is not legal to impose an appeal feeor reject an appeal because of non-payment. If your State Government has prescribed an appeal fee, youcan either move the relevant Information Commission or your High Court to consider the matter or attemptto bring up the issue before your State Legislative Assembly for debate.

The Appellate Authority must offer you an opportunity to be heard before a decision on your appeal isreached. The Central Act specifies that in any appeal, it is the responsibility of the body denying the requestto prove that the denial was justified. This means that it is the PIO who needs to prove to the AppellateAuthority that they made the right decision.

Second Appeal to the Infomation CommissionIf you are unhappy or dissatisfied with the decision of the Appellate Authority, the Central Act provides youwith the option of filing a second appeal with the newly constituted Information Commissions at the Centreor the States. A second appeal against a decision of an Appellate Authority to the Information Commissionmust be made within 90 days from the date on which the decision should have been made or from the datea decision was actually received. However, the Information Commission has the discretion to allow appealsafter this period has expired.

You need to send your appeal to the relevant Information Commission in writing. In matters relating toCentral Government public authorities, you need to send your appeal to the Central InformationCommission. For matters relating to State Government public authorities you will need to send your appealto the concerned State Information Commission. Appeals against Panchayats will be sent to the relevantState Information Commission.

The Central Government and some State Governments have issued Rules about what information needs tobe included in an appeal to the Information Commissions. In addition to basic information about yourapplicaion and how it was processed, your appeal should attach supporting documents, including: self-attested copies of the orders/decision notice against which the appeal is being made; and copies of anyadditional documents you are relying upon which are referred to in your appeal.

The Central and State Information Commissions manage appeals in accordance with procedures prescribedunder the relevant Appeal Rules. Commissions have the power to take oral or written evidence on

oath/affidavit; inspect documents or copies; hear and receive affidavits from the PIO against whom theappeal has been made and/or the Appellate Authority who has decided the first appeal; and to hear fromyou. If the decision of a PIO or Appellate Authority relates to a third party, then that third party also has theright to be heard by the Information Commission before it makes a decision.

Appeals proceeding at the Information Commissions are not meant to be formal, like a court proceeding. Itshould not be necessary to hire a lawyer to plead your case before the Information Commission.Proceedings are meant to be informal and non-confrontational. Although the Commission does have thepowers of a civil court under the Central Act, nonetheless, the Commission is not supposed to operate like acourt. If you feel uncomfortable during an appeals or complaints proceeding you should inform theInformation Commission and you should be able to seek assistance from someone during your hearing. Inany case, the Information Commission is an openness champion, and the Commissioners and their staff should be alert to ensure that arguments in favour of disclosure are not overlooked simply because you didnot use a lawyer.

Burden of Proof

In any appeals proceeding, the burden of proof that the denial of a request was justified lies onthe person who wants to keep the information secret - the PIO or a third party. In practice, thismeans that you should only need to interact with the Commission after the person who wants towithhold the information has first been questioned, because they are the ones who have to showthe Information Commission that they are right. If a hearing is then organised, the PIO or thirdparty arguing for secrecy needs to be called on to make their case first. You will only need tomake a case if the Commission thinks the PIO or third party has a point worth considering. Atthat stage, you then need to argue in favour of disclosure

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The Central Act does not prescribe a time limit for the Information Commission to decide on an appeal andno time limit has yet been included in any of the Appeal Rules which have been prescribed. However, bestpractice would support a deadline of 30-45 days to dispose of any appeal just like the Appellate Authorities.

If an Information Commission decides that your appeal was justified, the Commission will need to give you awritten decision. The Information Commission has broad and binding powers to:

(a) Order the public authority to take concrete steps towards meeting its duties under the Act, for example,by providing access to the information you requested, by ordering information be provided in a differentform or by reducing the amount of fees you need to pay;(b) Order the public authority to compensate you for any loss you may have suffered in the process;(c) Impose penalties on the PIO or any other official who failed in their duties under the Act.

If the Information Commission decides that your case is groundless, it will reject your appeal. In eithercase, the Commission must give notice of its decision to you and the public authority, which should includeany right of appeal

Option 2 - Making a Complaint Instead of making an appeal to the Appellate Authority and then the Information Commission, you also havethe option of approaching the Information Commission directly and submitting a complaint under section18(1) of the Act if you are not satisfied with the decision of a PIO or if you think a public authority is failingto comply with its information duties under the Act. This is a particularly useful route if you wish toimmediately seek a penalty for the PIO or compensation for yourself. The Appellate Authority does not havethe power to order either of these, but Information Commissions do. By approaching the InformationCommission directly you will be able to bypass the Appellate Authority, although the lack of time limit forthe Information Commission to give its decision is one drawback to this procedure. The Appellate Authorityhas to give its decision within a maximum of 45 days. It is for you to carefully decide which procedure isbest in your case.

You can file a complaint to the new Information Commissions if you have any trouble in accessinginformation under the RTI Act, for example, if you have been:

has been refused access to any information requested under the Act (presumably in cases where theperson believes there has been a misapplication of an exemption under s.8(1) or the failure to properlyconsider the public interest override under s.8(2));has been unable to submit a request or appeal to a Central or State Public Information Officer (PIO) orAssistant PIO;has not been given a response to a request for information within the time limit specified under the Act;has been required to pay an amount of fee which he/she considers unreasonable or is unhappy with theform of access granted;believes that he/she has been given incomplete, misleading or false information under this Act.

Importantly, the Central Act actually includes a catch-all clause which broadly gives the Commissions powerto handle a complaint " in respect of any other matter relating to requesting or obtaining access to recordsunder this Act ". This clause basically means that the Commissions have the power to inquire into any matterat all, even if not specifically mentioned in the Act.

The time limit for preferring a second appeal to the Information Commission is 90 days from the date of the

decision should have been made by the Appellate Authority or the date you actually received a rejectionnotice. However, the Information Commission can extend this deadline.

The Central Government has promulgated Right to Information Appeals Rules 2005 ('Appeals Rules') whichrequire that every appeal to the Central Information Commission must be accompanied by:

(i) attested true copy of the Order against which the appeal is being preferred;(ii) copies of documents relied upon by the appellant and referred to in the appeal; and(iii) an index of the documents referred to in the appeal.

Only a few States have developed the procedural rules which apply to their State Information Commission.You should consider checking the your State Government's website to check what procedures have beendeveloped or CHRI's relevant India State RTI page .

The Information Commissions have broad powers of investigation and can look at any information which hasbeen requested - even if the Public Authority claims the information is exempt. As noted earlier, the CentralAct specifies that in any appeal, it is the responsibility of the body denying the request to prove that thedenial was justified which means that the PIO must prove to the Information Commission Authority that they

made the right decision.

The Information Commissions' decisions about whether or not information should be disclosed are binding.The Information Commissions can also impose penalties for non-compliance with the provisions of theCentral Act.

Unfortunately, neither the Central Act nor the Appeals Rules have yet imposed a time limit on how longInformation Commissions should take to make their decisions. Perhaps, with the passage of time the CentralGovernment or the Information Commissions shall through an internal ruling determine the time limit. If not, it is to be hoped that the Information Commissions will follow best practice and deal with appeals within30-45 days because experience at the State level was that appellate authorities were often slow in disposingof appeals.

Appeal to the CourtsThe last point of appeal is, of course, the courts. Although the Central Act, attempts to bar appeals to thecourts, this is not constitutional. The Supreme Court of India has long recognised that the right toinformation is a fundamental constitutional right, which means that you can always take a case to the Court

in support of that right.Already, there have been examples of cases where applicants have taken their complaints to the HighCourts of their state. There has also been Public Interest Litigation to the Supreme Court calling for betterenforcement of the right to information.

Please click on the link to the Central RTI Act to read the detailed provisions contained in the law. Pleaseclick on the link to CHRI's State RTI pages to find out more about relevant rules and implementation in your specific State.

http://www.humanrightsinitiative.org/programs/ai/rti/india/user_guide/central_act/appl_rejected.pdfhttp://www.humanrightsinitiative.org/programs/ai/rti/india/user_guide/HC_appeal.pdfhttp://www.humanrightsinitiative.org/programs/ai/rti/india/states/default.htmhttp://www.humanrightsinitiative.org/programs/ai/rti/india/user_guide/fees.htmhttp://www.humanrightsinitiative.org/programs/ai/rti/india/user_guide/info_not_access.htmhttp://www.humanrightsinitiative.org/programs/ai/rti/india/national/appealrules_2005.pdfhttp://www.humanrightsinitiative.org/programs/ai/rti/india/states/default.htmhttp://www.humanrightsinitiative.org/programs/ai/rti/india/user_guide/official_punished.htm


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