Staff Training on Right to Information Act 2005

Staff Training on Right to Information Act 2005,

Organized by Lutheran World Service (India) at Nimapada in the district of Puri, Orissa

( Head Office: 84, Dr.Suresh Sarkar Road, Calcutta-700 014, PH: 033-2284-9200/9730/9731)

[Local Office: At- Nimapara (Kakatpur Road, PO: Nimapara, Dist: Puri, Orissa, PIN: 752 106

Ph:06758-252024 (O), 252920 (R), Email: lwsipuri@sancharnet.in, bnbiswal_lwsi@rediffmail.com]

Held on 27^th of March 2006, from 10.30 AM to 7 PM

PRE-LUNCH: UNDERSTANDING THE RTI ACT AND ORISSA RULES

At the outset, a note of welcome was given by Sri Bibekanand Biswal, Project Coordinator, Rural Development Project of LWS, India Nimapada. Speaking on the objective of the programme, Sri Biswal observed that since the RTI Act was a key instrument in the hands of the people to achieve their rights and entitlements from the State in every sector, the staff of LWS who were working among the rural poor, ought to know thoroughly about the provisions of this Act and how to avail information with its help concerning their day-to-day problems and issues. Further Sri Biswal said that the one-day training programme also aimed at equipping the staff with the practical skill of getting information from various public offices, at the least cost and in the quickest manner. Sri Chitta Behera, Advisor to Orissa Right to Information Campaign has been invited as the Resource Person to impart the said training and every participant should make the best of his time and resource to learn and master the technique of getting the information under the Act, concluded Sri Biswal.

Then followed a small session of brief self-introduction by the trainees, who apart from mentioning the area of work they were each assigned with, gave a short description of what they knew or felt about the RTI Act and its implementation in Orissa.

Sri Nakul Swain, the Chief of JJS, a local NGO who extended collaboration to LWS for organizing the training programme and who had participated in Workshops and Consultations on the topic of RTI held earlier in different places, also spoke a few words about the situation prevailing in various offices in respect of RTI at local level. According to Sri Swain, some offices have not appointed their PIOs till date, and those offices where PIOs have been appointed have not been trained at all in the matter of giving suo motu information covered under Section 4(1b) of the Act.

Then started the training proper. Sri Chitta Behera, the resource person at the outset informed that in view of the constraint of time, the one-day programme should be focused on apprising the participants on two most important provisions as available under the RTI Act read with the Orissa RTI Rules, namely:

1) Right to inspect and access the records of any public authority falling under the category of suo motu disclosures under Section 4(1b) of the Act, and that too immediately, without having to fill up an application form for the same, and free of cost; and

2) If denied the said information, how an aggrieved citizen can lodge a Complaint on a plain paper, without having to pay any fee whatsoever, directly before the State Information Commission as permissible under the Section 18(1) of the Act, and more so, the said Complaint is required to be forwarded to the Commission by the PIO of the concerned office as directed under Sections 5(2) and 18(1) of the Act.

As for the method of deliberation that was to be followed, it was made clear to the trainees that a conversational mode for the same would be adopted, and any trainee wishing to intervene at any stage could do so for raising any point of doubt or question for clarification from the resource person.

The following resource materials were provided to trainees:

a) Oriya translation of the RTI Act 2005

b) Oriya version of the Orissa RTI Rules, 2005

To start with, the difference between an Act and Rules was discussed. It was understood that an Act was made by the legislature while the Rules by the executive wing of the Government. Again, though the legislature had always the right to modify, and even annul the Rules so made, the executive had however no right to make or modify any Act as such. The Rules are supposed to be the detail provisions, prescribed by the concerned governmental and competent authorities in respect of those matters, which the Act has enjoined upon them to prescribe, in the overall interest of implementing the provisions of an Act. Thus the Rules, which constitutes ‘subordinate legislature’ in the language of the legislature, by nature can’t militate against the letter or spirit of its parent Act.

Selective Reading of the provisions of RTI Act 2005

Then on the suggestion of the resource person, the participants read out the selected provisions of the RTI Act, following which some explanatory discussion on each took place.

Section 4 : The suo moto disclosures by the public authorities. Every citizen has a right to inspect the office of a public authority (Explanation to Section 4), to ask for any information under 17 categories as detailed under Section 4(1b), to demand the said information free of cost, if the State Government as in case of Orissa doesn’t prescribe any separate fee to be charged against the supply of information falling under the Section 4(4), to expect each public authority to consult the members of public while taking any administrative or quasi-judicial decision that affects public interest [Section 4 (1 c and d)], to press the public authorities to disseminate the information through local language, local media and minimum cost. Further, each public authority should also publicise their decision as to which of their meetings are open to public participation, and which are not. Moreover, the Section 4(2) clearly said that if the public authorities could provide information to the public suo motu as required under Section 4(1b), then there shall remain little scope left for the public to resort to applying under this law to obtain a piece of information.

Section 27(2): The subjects on which rules may be made: The Act provides for the Central or a State Government inter alia to prescribe 4 kinds of fees, such as the fee under Section 4(4) which means the fee for suo moto information, under Section 6(1) which means Application fee, under Section 7(1) which means the cost of providing information, and under Section 7(5) which means the fee for the cost of electronic medium like CD/floppy, video cassette and email-internet etc. As against the scope for 4 kinds of fees to be prescribed, the Orissa RTI Rules have prescribed only 3 kinds of fees, and omitted the fee under Section 4(4) from the definition of the fee itself [Orissa RTI Rule 2(1c)]. Thus under the Orissa RTI Rules, an office under the State Government can’t charge any fee against the supply of suo moto information under Section 4(4) of the Act.

Section 6 : Application Procedure: A person may apply for any information before the PIO ( Public Information Officer) of a public authority in writing giving his name and contact details only. But if the applicant is unable to write, the PIO shall write for him or her [Section 6(2)].

Section 7(4): It enjoins upon a PIO to extend all sorts of help to a ‘sensorily disabled person’ to access the information sought by him/her, even by way of inspection.

Section 6 read with Section 4: If somebody wants information by way of applying under the Act, he or she has to approach the PIO of an office for the purpose, but if he or she wants suo motu information under Section 4, then he or she has to approach the head of the office concerned, since public authority as a whole including of course the PIO and departmental appellate officer, is responsible for maintenance and disposal of all information under the said Section. Similarly, a complaint under Section 18 or an appeal under Section 19 in respect of one’s failure to receive the information wanted, should be directed against the head of the public authority if the concerned information fell under the categories of Section 4(1b), but against the PIO if it fell under the application-based information dealt with in Section 6(1).

Sections 18 and 19: The essential purpose of making a complaint under Section 18 is to rectify the deficiencies in the information disclosure and delivery mechanism as practiced by a public authority, while that of an appeal under Section 19 is to get a specific grievance of the information seeker redressed.

Section 5 : Even if a PIO or an APIO be absent from an office, any other officer of the same office as authorized by them, can perform the functions of the PIO or APIO in their absence. The purpose of the Act is to ensure that no citizen returns disappointed from an office without getting the desired information.

Section 5 read with Section 18(1): The job of the PIO/APIO is not only to receive the request for information from the members of the public but also to write and forward the Complaint of an aggrieved citizen to the 1^st Appellate authority or directly to the Information Commission, failing which such an act of refusal by the concerned officer can constitute an additional ground of complaint before the Information Commission against him.

Section 18: If any citizen gets deprived of accessing the desired information in a proper form and manner on account of the omissions and commissions of the concerned public authority, then he or she can lodge a direct complaint before the Information Commission on a plain sheet of paper without having to pay any appeal fee. The complaint under Section 18 is primarily aimed at rectifying the deficiencies of a public authority and making available thereby to the citizen the required information, while that of the second appeal before the Commission at penalizing the PIO who was responsible for depriving the concerned citizen of access to the requested information. Broadly speaking, one should resort to the Complaint under Section 18 if he or she fails to access information permissible under Section 4, while one should use Section 19 to lodge the second appeal before the Commission if he or she gets deprived of access to the information applied for under Section 6 (1) of the Act.

Section 19 (8b): An aggrieved citizen while framing a Complaint under Section 18 or a second appeal under Section 19 may mention the kinds of losses financial or otherwise suffered by him/her on account of being wrongfully deprived by the public authority or PIO concerned of access to the requested information, and the Information Commission may order the concerned public authority to compensate for the losses so suffered.

Section 20: The sub-section (1) provides for a fine of Rs.250/- against every day’s delay in supplying the requested information, to be paid by the concerned PIO, and the total amount of penalty may extend upto Rs.25,000/- . The sub-section (2) provides for disciplinary action such as transfer, demotion, suspension and dismissal etc. against the PIO who persistently refuses to provide the requested information as per the law.

Section 19 (5): Read with Section 20(1), the Act categorically says that in any appeal proceedings, the burden of proof shall always lie on the PIO who denied the requested information to the concerned citizen.

Section 2(h): Definition of Public Authority: The Act provides that any office falling under legislative, executive or judicial wing of the State is bound by this law besides all local self-government bodies and public sector undertakings. The Act also covers within its ambit all non-government organizations, formed or functioning under any Central or State law or funded directly or indirectly by the Government. Thus all political parties, Societies, Companies, Trusts, Cooperatives and SHGs are deemed to be public authorities for the purpose of the RTI law. Of course, there lies a marked procedural difference in respect of how to access information, between the Government organizations and non-Government Organisations. The Definition of ‘information’ given under Section 2(h) contains inter alia such words, ‘information relating to any private body which can be accessed by a public authority under any other law for the time being in force’, and it means that a person desiring to access information about a private body in stead of approaching that private body straightaway, ought to approach the public authority that controls and monitors the concerned private body, for getting the required information.

Section 2(j): The definition of Right to Information: This right includes the right to inspection of a worksite, a document or a record, and take a certified sample or copy of the materials so inspected. Read with Section 2(f) which defines ‘information’, this right extends to one’s right to inspect a ‘file’ too.

Section 1(3): Out of a total of 31 Sections of the Act, the provisions falling fully or partially under the 9 Sections came into force at once i.e. on the date of commencement of the Act itself which is 15^th of June 05, the day when the RTI Bill became the Act proper after receiving the assent of the President. The remaining provisions were to come into force on the 120^th day of the enactment i.e on 12^th of October’ 05.

Selective Reading of the Orissa RTI Rules 2005

The select provisions under the Orissa RTI Rules 2005 were read and discussed in the house with twin objectives:

- To find out how far the Orissa Rules were in tune with the mandates of the RTI Act’ 05; and

- To explore the possibility of getting the desired information on the part of the common people from all public authorities including even those under the control of the State Government of Orissa, irrespective of the adverse nature of the Orissa RTI Rules.

Rule 2(1c)- Definition of Fee: Though the Section 27(2) of RTI Act provided for an appropriate Government to prescribe 4 kinds of ‘fee’, the definition of ‘fee’ under the Orissa Rules recognized only 3 kinds of ‘fee’, namely fees under Sections 6(1), 7(1) and 7(5), and left out the ‘fee’ under Section 4(4). Thus no officer of the Government of Orissa can charge a fee against the supply of information under Section 4(4) of the Act. So as per the Orissa Rules, a person is entitled to receive any information falling under Section 4 of the Act free of cost.

Rule 2(2): Here the Orissa Rules makes it clear that whatever is left out from the definition under Orissa Rules shall have the same meaning as assigned to it in the Act.

Rule 4: Here is provided the procedure to obtain information. A person has to apply in Form A alongwith the application fee through Treasury Challan or Cash as specified in the Schedule.

Form A (Application Form): Against the injunction of the Act forbidding the prescription of any compulsory form for application for information [Section 7(9)], the Orissa Rules has provided for a compulsory, complex and written 11-column form in which everybody irrespective of his/her literacy level, has to apply for seeking information under the Act. However, the Application Form so prescribed is applicable only in cases where a person seeks to apply for information under Section 6(1) of the Act ( vide the second sub-title of the Form A). So it is absolutely clear that any body seeking information under Section 4 of the Act needn’t have to apply in Form A.

Schedule of Fees/Amount: Against the categorical injunction of the Act that all the 3 kinds of fees i.e. under Sections 6(1), 7(1) and 7(5) shall be ‘reasonable’, the Orissa Rules has mandated exorbitant rates of fees against each item, be it for application, typed/xeroxed copy, print-out from computer or inspection. However, the sub-title of the Schedule that reads ‘See Rules 4 and 7’, if interpreted correctly, would mean that this schedule of fees shall be applicable only to the persons who seek to apply in Form A for information under Section 6(1) of the Act (Rule 4) and to submit a Memorandum of Appeal under Section 19(3) of the Act (Rule 7). Thus this Schedule of Fees is not binding on the persons who seek information in various forms (such as through paper-based document, electronic media or inspection etc.) under Section 4 of the Act. Since the Rule 2(2) says that the matters not dealt with under Orissa Rules shall be dealt with in the manner as prescribed under the Act, the persons seeking information in any form under Section 4 of the Act are entitled to get the same either free of cost or at actual cost of the medium or print, that may be prescribed [Section 4(4) of the Act]. Again, since the Orissa Rules has not prescribed any fee against the supply of information under Section 4(4), the other option i.e. free-o-cost shall necessarily prevail.

After the above mentioned provisions under RTI Act and Orissa Rules were explained in detail, Sri Behera asked the trainees whether they felt confident enough to seek information under Section 4 of the Act and get it instantly from an office under the State Government of Orissa, without making an application, and without depositing any fee for application or for cost of information, just on the strength of a reasoned argument before the concerned officer of a public authority, and alternatively, if denied the information so sought, to send a Complaint under Section 18 of the Act through the concerned office itself directly to the State Information Commission, which unlike the appeals under Section 19 requires no format nor any fee to be paid. The trainees expressed their confidence and willingness to visit the public offices for the said purpose during the post lunch session.

POST-LUNCH: EXPERIMENTAL GROUP VISIT TO OFFICES FOR USING THE ACT

As already decided at the inception of the programme, the participants were supposed to put the lessons learnt into practice by way of visiting various public offices functioning in Nimapara to seek information under the Section 4 and to lodge complaint as and where needed before the Information Commission under Section 18 of the Act. For this purpose, 16 participants were equally divided into 4 visiting groups, and only Sri B.N.Biswal who was required to maintain the coordination between the groups, stayed back at the training venue. The Group-wise list of names, the offices visited and status of information collected/sought by each are as follows:

Group-1: Ms.Sanghamitra Kanungo, Mr.Chitta Ranjan Nayak, Mr.Akshaya Roy and Mr.Pramod Rout. They visited the office of DI (District Inspector) of Schools where the DI himself along with the concerned officials was present at the moment. The group wanted information about the ‘provision of classes and current strength of students and teachers in the primary and upper primary schools in two GPs under Nimapada Sub-division’. After some discussion made by the group members about the right of a citizen to get information under Section 4 without making any application or deposit of fee, the DI felt convinced and allowed the group to take a properly certified note containing the data so asked for.

Group-2: Ms.Abhamayee Tarenia, Mr.Pradip Saha, Mr.Alia Narzary and Mr.Nakul Swain. They visited the Office of Tahsildar, Nmapara and asked for information on the ‘beneficiaries of fire accident scheme and amount disbursed to each beneficiary up to date during the year 2005-2006 in two Blocks under Nimapara Sub-division’. The Tahsildar was not present then, but some other officials entertained the said request for information. However, they insisted on the group to submit an application in the given format along with the application fee as per the Orissa RTI Rules to enable them to process the said request for information. But the group members showed the relevant extracts from the Act and Orissa Rules to prove their point that the information they sought fell under the suo motu category of Section 4(1b), for getting which no application or any fee whatever was required to be submitted. Then the officials being convinced about the same gave the requested information on 3 hand-written pages.

Group-3: Mr.Santosh Dash, Mr.Akshaya Dash, Ms.Puspanjali Parida and Mr.Gopal Dash. They visited the Office of Additional District Agriculture Officer who was present then and wanted information from him on the ‘List of Farmers involved in the Sunflower demonstrations in 3 selected GPs’. The said officer at first told the group that they should apply for this information in a given format paying the application fee, and then only he could be able to furnish the information asked for. In reply the group members argued that since the information asked for fell under the suo motu category of Section 4(1b) and since the Orissa RTI rules didn’t prescribe any application form or fee for it, they were entitled to get it free and instantly. Half convinced about the logic of such reasoning, the officer agreed to give the said information to the group, but not then and there. He wanted the group to visit his office just the next day, when the information could be delivered as desired. But the group further argued that if they were not provided with the said information instantly, they would lodge a Complaint under Section 18 of the Act before the State Information Commission and more so the Complaint was to be written and forwarded to the Commission by his office itself. The Officer agreed to the proposal of the Complaint to be written by him, and in fact wrote a Complaint under his signature and gave a copy of the same to the group.

As a matter of fact, the Complaint so written suffered from the following defects, as pointed out by Mr.Behera, the resource person:

a) The addressee was wrongly mentioned as ‘The Public Information Officer, Govt of Orissa, Bhubaneswar’. It should have been, ‘The Chief Orissa Information Comissioner, State Guest House, Bhubanswar’.

b) The Complaint though required to be written by the officer concerned on the request of the citizen, should be signed by the Complainant, not by the officer.

c) The Complaint should clearly mention the specific provisions of the Act/ Rules, which the concerned public authority has violated, while denying the information to the citizen.

Group-4: Mr.Amiya Barik, Mr.Niranjan Tripathy, Mr.Akshaya Swain and Ms.Prativa Nayak. The group visited the Government Medical Centre, Nimapara to seek information on ‘Budget for Medicine for the year 2005, nos. of male and female beneficiaries during 2005-2006 separately under IPD and OPD, and Staff strength’. The concerned doctor readily agreed to give the said information after hearing the group’s plea about the citizen’s right to suo motu information under Section 4, ordered the staff to provide the information asked for. The concerned information was provided to the group on a hand-written note. The said note was however found not to have been duly attested with the office stamp. Asked about this gap, the group members explained that the concerned doctor was agreeable to certify the said note duly, but they themselves didn’t insist for it since the doctor was awfully busy at the moment with several patients around.

After the presentation was made of the experience of each group by their respective spokespersons, an open-house discussion followed and members of each group clarified the queries raised by members of other groups.

Observations by the Resource Person: After hearing the group-wise presentations followed by open-house discussion, Mr.Chitta Behera made the following observations for the members to take note of while undertaking similar exercises in future:

1) The name of the PIO, APIO and appellate authority of each office, along with their root designation should be authentically noted down by the information seeker, since all this information shall be required in connection with making a complaint or appeal under the Act as and when the impugned act of the concerned officer would be found to be violative of some or other provisions of the RTI Act/Rules.

2) To ensure that the information received from an office is duly certified by the authorized officer along with the office stamp marked on it. An uncertified note has no authenticity of its own before any public office or court.

3) Not to argue with any subordinate staff of an office, be they clerks or class iv employees, unless they were officially declared to act for the purpose of RTI Act. The Act in fact entrusts both obligations and powers on the officers of a public authority, not on clerks or other subordinate staff.

4) One wishing to access any information under Section 4(1b) should insist on inspecting the concerned files and records first, and then ask for a copy of the extract chosen. If you leave the responsibility of locating the extract and giving a copy thereof to the concerned officer, he/she might not be able to give you exactly the information you wanted. Thus to avoid the possible hassles of both yourself and that of the concerned officer, you should first of all insist on inspecting all the concerned records, in which the specific information sought might be included.

5) If you want to be successful in getting the desired information under Section 4(1b) instantly and free of cost in the first visit itself, then you should argue politely, but assertively with the concerned officer on the basis of the very Rules, which he relies on while insisting for submission of a written application and necessary fees by you as a precondition to deliver any sort of information under the Act.

Then Mr.Behera expressed his heartfelt congratulation to the trainees for their overall success in acquiring and demonstrating by way of concrete examples the technique of getting suo motu information under Section 4 of the Act, all in course of a few hours of the day. He however warned that there shouldn’t be any confusion in anybody’s mind that the very officers who promptly and courteously gave the information sought, would mete out a similar treatment to the poor and illiterate people, who can’t articulate the niceties of the Act/Rules on their own. It is therefore incumbent upon the trainees to train and orient the common people with whom they are working by way of the example of similar group visits, as to how to get information which they needed most in their day-to-day life using the Section 4 of the Act.

Further Mr.Behera told that the day’s experience proved beyond any shade of doubt that it was possible to get the information which the poor people most of the time require from a public office, instantly and free of cost and without having to submit any application or fees whatsoever. This very fact disproved the Govt of Orissa’s skewed propaganda that one had to apply, spend money and wait for days together to get a piece of information under the Act. In fact there is nothing strange about the fact that the insolvent State Govt of Orissa which was out to use every occasion or instrument, just to garner revenues for its depleted exchequer from whichever source possible didn’t bother about how much it cost or hurt the common people. It is only the independent minded civil society groups, committed to the cause and interest of the common people, who can by way of practical and demonstrative examples like the today’s, free them from the skewed and one-sided understanding of the law as advertised by the Government machinery from top to bottom.

ACTION PLAN:

Mr. Bibekanand Biswal, Project Coordinator LWS, then took the opinion of the trainees as regards the follow-up programme to be adopted in days to come for spreading the message of RTI in areas of their operation. Based upon the consensus of the trainees, Mr.Biswal announced that group exercises for getting information under Section 4 of the Act shall be conducted at Block and GP levels directly involving the members of the community. The staff who have been trained today shall serve as trainers and vanguards in respect of the group exercises to be conducted at grass root level. Secondly, the RTI shall henceforward be used as a common tool for all the rights-based projects now operating at various levels by the LWS and its partner and collaborative agencies.

VOTE OF THANKS:

At first, Ms.Abhamayee Tarenia offered a vote of thanks on behalf the trainees to the resource person Mr.Behera and Project Coordinator LWS Mr.Bibekanand Biswal for their valuable role in making the training programme a success. Then Mr.Biswal expressed his gratitude to the resource person for the lively manner in which he facilitated the conduction of the entire programme. Mr.Biswal also thanked Mr.Nakul Kumar Swain of JJS for his sincere cooperation and collaboration in making the training programme a success. Then the programme came to a close, at around 7 PM.