SEMINAR ON IMPLEMENTATION OF RIGHT TO INFORMATION ACT 2005

At Tarining Centre Gaisilat Block, Bargarh on 16^th of February 06, organized jointly by Block Administration and Samuhik Marudi Pratikar Udyam, Padampur

The Seminar was presided over by Sri Chandramani Seth, BDO Gaisilat Block, and the resource person was Sri Chitta Behera representing Orissa Right to Information Campaign. Sri Shashikant Malik, Programme Officer Actionaid India, Bhubaneswar was a guest speaker on the occasion. A total of 43 participants attended the occasion, among whom were the PIO of Gaisilat Block Sri Ranjit Kumar Sahany (Progress Assistant) and APIO Sri Bijay Kumar Sahu (SI of Schools). A team of 4 members of Bolangir SMPU (Samuhik Marudi Pratikar Udyam), namely Sri Nanda Kishore Sandh, Sri Trinath Samal, Sri Dhubleswar Sahu and Sri Sanjib Pradhan attended the programme. Sri Fakir Rout , Coordinator of Bargarh Network of SMPU and Sri Chintamani Panigrahi of Bolangir Field Office of Action Aid were also present among the participants. 

At the outset Sri Kanhu Charan Majhi, former Convener of SMPU, Padampur and presently Secretary Debadutta Club, Grandulumal welcomed the guests and participants of the Seminar. Then the BDO in his opening remarks observed that the chief objective of organizing such an event was to help the officials of the Block administration get clarified about various provisions made under RTI Act and Orissa Rules, so that they wouldn’t face much difficulty in providing information to the members of public in the manner prescribed under the Act. He complimented Samuhik Marudi Pratikar Udyam, Padampur for their contribution to the Seminar in terms of providing the subject expert and reading material.

After the self-introduction of the participants, they were requested by the resource person each to present his opinion, experience or question if any on RTI and its implementation during the last 4 months since 12^th of October, 05 the date on which the Act came into full force all over the country including Orissa. Members of Bolangir network Sri Trinath Samal and Sri Nanda Kishore Shandh described their past experience regarding the Social Audit Programme in Jharanipali and Juba Gram Panchayats under Bolangir district held in 2000 and 2003 respectively, and recounted inter alia the sad story of how the then Secretary of Juba GP committed suicide following the eventual disclosure in course of the social audit of a number of cases involving financial bungling made in his GP. The speakers expressed the hope that if the officials keep on maintaining transparency in all of their transactions as per the provisions of the RTI Act, then such tragic cases as that of the suicide by an official won’t occur again. Sri Dhubleswar Sahu of Bolangir SMPU observed that he submitted an application under Section 6 of the RTI Act before the office of the Engineer Rural Development, Bolangir to know the progress of the long pending construction of a bridge over the Rahul river, and has been assured by the said office that he would be given the reply within 5 days.

Sri Fakir Charan Rout of Padampur SMPU described the experience of their network in visiting various offices including the office of Sub-Collector for inspection under Section 4 of the Act. While the Sub-Collector at first expressed his rage over the very, apparently awkward suggestion by a member of the public to inspect his office, he on being shown the ‘Explanation’ to Section 4 of the Act agreed to hold an awareness programme for the officials of the Sub-division on the various critical provisions of the RTI Act and Orissa Rules, where the resource persons would be invited to clarify the questions and issues that often arise in course of operationalising the Act and Rules. Narrating the experience of the visit by their group to the office of BDO Gaisilat, Sri Rout informed that though the BDO was at first reluctant to provide information directly to the citizens under Section 4 of the Act, he however agreed for the same after being shown the detail provisions under the Act and Rules. Moreover, he took a decision on the same day to hold a sensitization seminar for all the key officials of his Block, where the concerned Resource Persons would be invited to explain in detail the provisions of the new law and clarify the questions and doubts, if any that the officials might be facing in operational aspects of the Act and Rules. Happily enough, the current Seminar is an outcome of the decision taken by the BDO and PIO of Gaisilat Block on that day, said Sri Rout.

Then the resource person Sri Behera made it clear that the mode of discussion in the Seminar should be interactive and conversational, in the sense that while he would be speaking, anybody can intervene at any point if he felt that such intervention was warranted on account of doubtful authenticity of the facts or law quoted.

Preferring Section 4 to Section 6

Initiating the discussion, Sri Behera said, if people follow the method of making written application under Section 6 of the Act, then one has to spend money, wait for several days and if not satisfied with the response from PIO, put complaint or appeal before the Information Commission. Moreover, there is no deadline within which the Central or Orissa Information Commission shall dispose of a complaint or appeal, though the States like Tamilnadu and Madhya Pradesh have provided for a time-limit of 30 days for an appeal to be disposed of by their respective Information Commissions. Needless to say, absence of a time-limit for the adjudication of an appeal by the Commission is troublesome for both the complainant/appellant and the concerned public authority or its PIO. Such being the reality, both the officials and citizens should therefore prefer the route of Section 4 to that of Section 6 under the Act. And the Section 4(2) of the Act itself clearly says that ‘It shall be a constant endeavour of every public authority to take steps in accordance with the requirements of clause (b) of sub-section (1) to provide as much information suo moto to the public at regular intervals through various means of communications, including internet, so that the public have minimum resort to the use of this Act to obtain information.” It means that if the officials can provide all the information as categorized under Section 4(1b) on their own, proactively from their side to the public, then the question of making an application or payment of money or of waiting for several days along with the litigations incidental to them shall not arise at all. The Section 4 has assumed added significance, especially in the context of Orissa, where the State RTI Rules and an exorbitant fee regime have been framed in a manner contrary to the letter and spirit of the mother Act. Of course, one positive thing about the Orissa Rules is that it has not adversely affected the provisions under Section 4 (suo moto disclosures) and Section 18 (direct complaint before the Information Commission) of the Act. Rather the Rule 2(2) of Orissa Rules says, “Words and expressions used but not defined in these rules shall have the meaning as assigned to them in the Act”. Thus to grasp the full import of Sections 4 and 18 which the Orissa Rules have not touched upon, is of crucial and critical significance for both officials and civil society in the interest of proper operationalisation of the Act in the State of Orissa.

A question was raised by an official, “Whether the Act applies only to the Government offices, or to other wings of the State?”. In reply Sri Behera referred to Section 2(e) which defines ‘Competent Authority’ and Section 2(h) which defines ‘Public Authority’ and said, practically all wings of the State, legislative, executive and judiciary and all kinds of agencies Government or private fall under the purview of the Act. While all the agencies of the Government are bound straight away by Section 4 of the Act to make a proactive disclosure of 17 categories of information about them, the separate Rules need to be formulated for the public authorities under judicial and legislative wings and under private bodies by their respective appropriate governments and competent authorities as to how each of them shall comply with the application and fee requirements under Sections 6 and 7 of the Act. What we have in the shape of ‘The Central RTI Rules’ or ‘Orissa RTI Rules’ do pertain only to executive wings or the Government-controlled offices under the Centre or the State of Orissa, as the case may be. Once the impasse centring round the Orissa RTI Rules is over and an appropriate set of Rules is in place, the civil society groups working for RTI have to shift their focus from the current debate around these Rules to the need for proper operationalising of the RTI at the level of other wings of the State and non-Government agencies.   

Then Sri Behera informed that the RTI Act provides for stringent penal and disciplinary action against the errant officials (Section 20). And in case of every complaint or appeal the onus to prove one’s innocence lies on the PIO who denied the information [Sections 19(5) and 20(1)]. A simple complaint by an aggrieved citizen under the Section 18(1) of the Act, which requires no application format nor any appeal fee, can land the PIO in great trouble before the Information Commission, and no higher officer of his/her Department can come to his/her rescue. Similarly a simple complaint under the same Section against the head of a Public Authority on the ground of negligence to make proactive disclosure of suo moto information under Section 4(1b) can compel him/her to compensate for the loss or detriment suffered by the aggrieved citizen [Section 19(8b)].

A participant asked for clarification about the ‘good faith’ provision made under Section 21 of the Act. Sri Behera clarified that the provision of ‘good faith’ is available in most of the laws all over the world. It means that an action which is prima facie wrong or illegal, if taken unintentionally, shall be immune from the legal proceeding. But such a provision does not bar the citizen from lodging a complaint or an appeal before the Commission at first instance. As already said, the onus lies on the PIO, against whom a complaint or an appeal has been lodged to prove his/her innocence before the Commission.

A question was raised, ‘What sorts of information can be kept secret under the Act?’ Sri Behera said the Act has categorically listed out 10 subjects under Section 8(1: a to j), which the PIO may provisionally and conditionally withhold from disclosure. But the proviso to the said Section clearly says that the information which cannot be denied to Parliament or State legislature cannot be denied to the citizen. Again, the Section 24 of the Act says that 18 security and intelligence agencies of the country as mentioned under the Second Schedule and such agencies as to be notified by each State Government shall remain ordinarily outside the purview of the Act, but the provisos to the said Section clearly say that the information concerning corruption or human rights violation can be applied for from these agencies. As a matter of fact, the Government of Orissa have notified on 29^th of October 05 a list of 5 such organizations for the purpose of Section 24, though the procedural Rules for accessing information concerning corruption or human rights violation from these organizations are yet to announced.

A question was raised, “Is this law not meant to overburden and harass the Government officials?” Sri Behera replied that apparently it may seem so, since the Government officials in our country have been functioning under a colonial culture since British times. It was a culture of secrecy and alienation from the common people reinforced by an umpteen number of colonial laws like Official Secrets Act 1923 that dictated the officials not to part with any information to the public and also created a typical, subservient mindset among the common people not to ask for official information as a matter of right. Since the RTI Act is just the beginning of the reversal of this centuries-old regime of official secrecy (Section 22), there is bound to be some transitional crisis. To start with, the compulsive obligation to make transparent all the official records of a public office in a time-bound manner might seem burdensome and stupendous. But once an office is able to cope with this bounden obligation and an altogether different culture, a culture of openness and transparency comes to stay around each of its activities, the officials themselves shall feel relieved of great many unnecessary hassles and problems (centring round people’s doubt about corruption and discrimination in every monetary transaction or administrative decision taken in an office) that they have been living through in the milieus of official secrecy. More specifically speaking, once an office is able to arrange all its records as per the new system of classification mentioned under Section 4(1b) of the Act and to disseminate the same to the fullest satisfaction of the members of the public, there shall be no great problem thereafter in maintaining them. Only updating of the said records from time to time shall be required to be done by the concerned officials.

Then Sri Behera said, now the moot question arises, how to disseminate the information under Section 4(1b) of the Act? The Explanation to Section 4 defines the word ‘dissemination’ by saying that the information need to be served through various media including inspection of the concerned public offices by the members of the public. Some officials think that they have done their job by putting the 17 categories of information on the Internet. Mind you gentlemen, internet is only one of the media suggested by the Act. Other media are printed materials in the local language, notice board, display boards, exhibitions and the like. And the easiest of all media, you should agree, is to enable the members of the public to inspect the 17 categories of records during the working hours of an office by themselves. Every office should also make adequate arrangements such as for sitting, reading and taking notes etc. for the visiting public in connection with inspection by them of the said records.

The next question arises, should a member of the public have to apply in Form A under Orissa RTI Rules to inspect a record under Section 4? As per the Orissa Rules, the Form A is meant only for the information sought under Section 6(1) of the Act. So a person seeking information under Section 4 needn’t have to apply in Form A or to pay the application fee prescribed under Orissa Rules. Again, the question may arise, should he have to pay any ‘inspection fee’ as prescribed under Orissa Rules for inspecting the records under Section 4(1b)? As a matter of fact, the Schedule of Fees, which forms an appendix to the Orissa Rules prescribes the inspection fee as Rs.15/- per hour. But if you closely examine the sub-title of the Schedule ( See Rules 4 and 7), it would be clear that all the fees prescribed therein relate to the Application for Information (Rule 4) and Memorandum of Appeal (Rule 7) which again relate to Section 6 and Section 19 of the Act respectively. So when one seeks the information under Section 4 or wants to lodge a complaint before the State Information Commission under Section 18 of the Act, he needn’t have to pay the fees as prescribed under the Schedule of the Orissa Rules. Then the question arises, if a citizen wants to collect copies or samples etc. of the information under Section 4(1b), how much fees he or she has to pay? To answer it, let us first of all, see the definition of ‘fee’ as given under Rule 2 (c ) of Orissa Rules, which recognizes only 3 kinds of fees, that is, Application Fee under Section 6(1), Cost of Providing Information under Section 7(1) and Cost of Electronic Medium under Section 7(5) of the Act. The fee for information under Section 4 is omitted from under the Orissa Rules, though the RTI Act in Section 27(2) allows a State Government to prescribe the rate of fee against the supply of information under Section 4 too [see Section 27(2a) of the Act]. And as already said, the matters not defined under Orissa Rules shall have the same meaning as assigned in the Act. So as per the Orissa Rules itself, the cost of providing the information under Section 4 shall be as mentioned under the Section 4(4) of the Act. And the said Section says categorically that such information shall be provided free or at the actual cost of the medium or print. Thus if a public authority want to charge a price against the supply of information under Section 4, they may for instance charge the fee for photocopy of a page 50 to 75 paise or one rupee at maximum depending on the prevailing rate in the locality concerned. To charge Rs.5/- per page against information under Section 4 would be illegal as per the Orissa Rules itself. Similarly, they can’t charge Rs.100/- per CD or Floppy (in place of the market rate of Rs.10/- to 15/-), since this rate applies only to information under Sections 6 and 7 of the Act.

In sum both RTI Act and Orissa Rules say:

a)      A citizen has the right to instant inspection of the official records of a public authority under Section 4(1b) without having to make an application or pay any application fee [Explanation to Section 4],

b)      All the materials under the Section 4(1b) can be provided to the desirous citizen free of cost or at the actual market price of the medium or print [Section 4(4)],

c)      Every public authority shall provide the materials under Section 4(1b) in the local language and in an easily accessible medium [ Section 4(4)]; and

d)      Every public authority shall provide for adequate infrastructural facilities for the members of the public to visit, inspect and collect information under Section 4(1b) of the Act [Section 4(1b-xv)].

The question arises, if a member of the public is denied information on any ground under Section 4 of the Act, what he or she should do? The Section 18 of the Act provides for a comprehensive scope for the citizens to directly complain before the Information Commission, if he or she is denied information under any ground including that under Section 4. The Format for Memorandum of 1^st and 2^nd Appeal along with the fees of Rs.40/- and Rs.50/- respectively as prescribed under the Orissa Rules relates to the Section 19 of the Act. So as per the Orissa Rules itself, there is neither any format nor fee necessary to lodge a complaint directly before the State Information Commission under Section 18 of the Act. So any citizen can directly address his/her complaint on a plain paper to the Information Commission by the following addresses:

-           Chief Orissa Information Commissioner

State Guest House, Bhubaneswar

-           Chief Central Information Commissioner

Old JNU Campus

New Delhi-67

The complaint under Section 18 on the ground of infringement of Section 4 of the Act to be addressed to the Information Commission may and should contain the following information, depending upon the specific nature of the case:

-         The circumstances and grounds of Complaint,

-         Loss or detriment suffered by the complainant or public at large due to non-disclosure of the concerned information, and nature of compensation sought,

-         Corrective, penal or disciplinary action sought against the concerned public authority

-         A prayer for disclosure of the information sought.

It is worth remembering that while the Appeals under Section 19 are aimed against the concerned PIO or APIO appointed under a public authority, the Complaint under Section 18 on the ground of the infringement of Section 4 shall be primarily directed against the Public Authority as a whole or for all practical purposes against the head of the concerned public authority. Since the job of compliance to the requirements of Section 4 is not the job of PIO, but that of the Public Authority itself. 

At the fag end of the Seminar the PIO and some other officials of the Block showed their respective papers prepared under Section 4(1b) of the Act to the resource person for his comments. Sri Behera opined that though some columns remained blank, their maiden efforts are good as such to start with and once these are published there would be scope for their further improvement by way of feedback from the members public. 

At the end, vote of thanks was offered by Sri Siba Prasad Sahu a member of SMPU Padampur and Secretary Ahmisa Club on behalf of the civil society groups and by Sri Ranjit Kumar Sahany, PIO on behalf of the Block Administration.