To

Shri Rameswar Thakur, Governor, Orissa,

Raj Bhavan,

Bhubaneswar

SUB:  A Memorandum for citizen-friendly operationalising of the RTI Act 2005 in the State of Orissa as mandated under the mother Act. 

Sir,

We the undersigned are representatives of partner-groups affiliated to Regional Resource Centre, Bhubaneswar, which is a Statelevel platform of civil society organisations engaged primarily in advocacy activities for bringing about appropriate legislative and administrative reforms conducive to the interest of the poor and marginalized sections of people of the State.

We hailing from different districts of the State had assembled in a Workshop on RTI Act, which was held at Sikhyak Para, Anugul on 16-17 May 2006 under the aegis of DRC (District Resource Centre) Angul in collaboration with RRC, Bhubaneswar. In course of the Wokshop, we not only analysed in depth the various provisions made under the Orissa RTI Rules vis-à-vis the RTI Act 05, but also undertook visit to different State Government offices located at Angul (such as Executive Engineer Angul Irrigation Division, RTO Angul and Tahsildar Anugul) for seeking information under Section 4 of the RTI Act, just to know practically how the Act was being implemented by these public authorities. Among these three offices, only the Tahsildar Angul was found to be informed and prompt enough to provide the information as sought by us, while the officers in the other two offices appeared to be not only ignorant about the RTI Act and Rules, but also hesitant to disclose the very information, which they should have kept ready for disclosure to the public suo motu pretty long back i.e. with effect from 12^th October 2005 last. Though we ultimately got the information we sought from these two recalcitrant officers following a prolonged argumentation with them, we feel that a lot remains to be done at the cutting edge of the administration in Orissa for enabling an average citizen who is poor, illiterate and uninformed to avail the smooth access to official information as warranted under the mother Act.  

Based upon our theoretical analyses and empirical observations, we would like to bring to your kind notice certain critical issues by way of this Memorandum and hope that you shall do the needful for setting aright not only the loopholes in the Orissa RTI Rules, but also the faulty and deficient manner of implementation of the RTI Act at different levels in our State.

Looking forward to an early and appropriate action at your end,

Sincerely yours,

Amar Kumar Gouda and 14 others, 

dated 5.6.06

On behalf of

RRC, Bhubaneswar 

A/4 Nilakantha Nagar (Near Pollution Control Board), Nayapalli, Bhubaneswar-12, Orissa

Emails: rrc_nipditorissa@yahoo.co.in, rrcorissa@rediffmail.com, PH: 0674-3093411

Encl: Memorandum 

Memorandum for citizen-friendly operationalising of the RTI Act 2005 

in the State of Orissa as mandated under the mother Act

As you know, more than 6 months have elapsed since the Orissa Rules under the Right to Information Act 2005 was announced on 7^th 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 3^rd 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 and also to a separate list of provisions which need to be incorporated thereto, along with our observations on the state of operational misfeasance that exists at the level of various offices under the State Government, so as to bring the text and practice of the Orissa RTI Rules in conformity to the mandates of the RTI Act 2005.   

PROVISIONS TO BE DELETED FROM ORISSA RTI RULES

1).  The Section 27 of RTI Act has 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 1^st and 2^nd appeals under Rule-7. These extraneous fees need to be struck off to bring the Orissa Rules in compatibility with the Sections 27 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 any, 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 against 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. The Form A (Application Form), if at all one such form is necessary, should therefore 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. Moreover, as is well-known, the Central Government has not prescribed any Application Form at all, and there seems to be no problem due to its absence. 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”. 

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 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.       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.

d.      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.

e.       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.

f.        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

SUGGESTIONS FOR PROPER IMPLEMENTATION OF RTI ACT IN THE STATE

1). In view of the fact that the officers and staff of various public authorities are not yet properly trained to provide the information held by them to the public as per the provisions of the Act, adequate training programmes should be organized for them for the purpose, especially in the matter of how to instantly dispose of requests for information made under Section 4 of the Act.

2). There are quite many offices under the State Government which have not appointed PIOs/APIOs as per the Section 5 of the Act. Again, though some offices have made such appointments, quite many among them have not put any hoarding or signboard, as they should have, in front of the office building. As a result, the people remain in dark about how and whom to approach in an office to seek information under the Act. This deficiency should be immediately made up.

3) The Section 4(1c) of the RTI Act 2005 does require a public authority to publish all relevant facts for the knowledge of the public while formulating a policy or announcing a decision that affects the public interest. But none of the offices under the State Government has set up so far any manner of consultation with the members of the public in compliance to this provision.

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

On behalf of

RRC, Bhubaneswar

A/4 Nilakantha Nagar (Near Pollution Control Board), Nayapalli, Bhubaneswar-12, Orissa

Emails: rrc_nipditorissa@yahoo.co.in, rrcorissa@rediffmail.com, PH: 0674-3093411

Copy to:

-     Dr.Man Mohan Singh, Prime Minister of India, New Delhi,

-     Mr.T.Jacob, Joint Secretary, Department of Personnel and Training, Govt of India, New Delhi

-     Joint Secretary, Administrative Reforms Commission, 2^nd Floor, Vigyan Bhawan Annexe, New Delhi, Email: arcommission@nic.in

-     Shri Wajahat Habibullah, Chief Information Commissioner, Central Information Commission, Block No.4(5^th Floor), Old JNU Campus, New Delhi-110 067 

-     Mr. Navin Patnaik, Chief Minister, Orissa, Bhubaneswar

-         Sri Maheswar Mohanty, Speaker, Orissa Legislative Assembly

-         Sri D.N.Padhi, Chief Orissa Information Commissioner, At- State Guest House, Bhubaneswar

-         Prof. Radha Mohan, State Information Commissioner, Orissa, At- State Guest House, Bhubaneswar 

-         Mrs.Aruna Roy, vill- Devidungri, PO- Barar, Dist- Rajasmand, Rajasthan-313341, Email: mkssrajasthan@yahoo.com