Information commissions are increasingly being lenient in penalising Public Information Officers (PIOs) for not providing information that they should, or being absent at hearings at the information commission. If so, are the information commissioners making PIOs and Appellate Authorities unaccountable?

Pune-based RTI (Right to Information) activist Vijay Kumbhar has triggered off a controversy through his column in the Marathi daily Pudhari that despite information commissioners being empowered to penalise Public Information Officers (PIOs), they do not do so even if they do not provide information to the applicant or remain absent for hearing at the information commission. Kumbhar states, “information commissioners are responsible for the worrying trend of government employees not being serious about the RTI anymore as they are often not held accountable.”

He cites two recent decisions of State Information Commissioners in Maharashtra on New Year’s Day, as examples. In the first decision, the applicant who had filed a RTI in July 2011 did not get the required reply and the First Appellate Authority (FAA) did not bother to conduct any hearing. This compelled the applicant to file second appeal with the information commission.

However, when the matter was heard at the state information commission, the commissioner merely ordered that information be given within a specific period by the PIO but he did not levy any penalty on the PIO or question the absence of both the PIO and FAA. Says Kumbhar, “in this case, the PIO or FAA did not bother about the RTI application or appeal filed before them. They even did not have the courtesy to attend the hearing of an appeal before the information commission. But the Commission in its order has not dealt with some basic questions like, what was the information the applicant had sought for? What were the reasons behind not furnishing the information by the PIO? Why didn’t the appellate authority conduct hearing on the first appeal? Why was the PIO and the appellate authority not present for the hearing before the information commission?” The least the information commissioner could have done, says Kumbhar is to issue a show-cause notice as to why they remained absent.

In the second case, says Kumbhar, the applicant did not receive the information that he had asked for from the PIO but the FAA dismissed his appeal by stating that the required information was provided to him by the PIO and that too,10 months after the applicant had filed his first appeal. During the second appeal hearing, the information commissioner did not go into details as to what information was asked for by the applicant? In such a case, the information commissioner has the power to impose fine on the PIO and reprimand the FAA for conducting the hearing after 10 long months but they were not pulled up. If the information commissioners are so lenient, then why should PIOs bother about applications they receive under RTI?

So, are information commissioners advertently or inadvertently killing the power of the RTI Act? Moneylife asked a cross-section of RTI activists:

RTI activist Maj Gen SCN Jatar (retd)

Information Commissioners cannot afford to be lax:  Kumbhar’s observations set out in reality how RTI commissioners are set to kill RTI. They do not realise that such decisions are taken as examples of superficiality and laxity in penalising errant PIOs. PIOs are apt to then follow the same methods again and again. The basic criteria that should govern good judgments are a) They should be well-reasoned so that these can be cited in future judgments and ii) they should give a clear message to the errant PIOs that avoiding or evading giving information, which should be in public domain, will not be tolerated. The two cases quoted by Kumbhar do not meet both the above criteria.

Former Central Information Commissioner and RTI activist Shailesh Gandhi

Faster disposal of cases and reasonable threat of penalty required:  Most Information Commissioners use the penalty provision as if it was a death penalty to be imposed in the rarest of cases. I do not see any problem with who attends the hearing. The Commissioners should give orders for information irrespective of whether the PIO attends or not. The hearing is an opportunity to present one’s views or argue on required matters. If the appellant or PIO does not attend, they may not want the opportunity of hearing. To believe that when either side is not present, a Commissioner must rule in favour of one who is present does not appear correct or desirable.

I had levied 521 penalties totalling Rs.92 lakh in the 20,400 cases which I decided in three years and nine months.  The rest of the Central Information Commissioners collectively imposed penalties in about 330 cases in the Commission and had decided about 80,000 cases. There is no doubt that there is a link of penalty imposition with compliance of the law. If cases are decided fast, and there is a fear of penalties, the PIOs and First appellate authorities become more alert and try to meet the requirements of the law. The total cases received by the Central Commission rose by about 50% in a two year period from 2009 to 2011. The cases for Municipal Corporation of Delhi—which I handled throughout my tenure rose by only 15%. This indicates that faster disposal and a reasonable threat of penalties would get better compliance of the law.

RTI activist Subhash Chandra Agrawal

Each order of Information commission should be comprehensive: It is usually observed that generally penalties are not imposed by Information Commissioners thereby making Public Information Officers (PIOs) lethargic towards complying with provisions of the RTI Act. There should be a practice whereby each order of Information Commissions may carry all the relevant dates like filing a RTI petition, reply of PIO, filing first appeal and of appeal-order. There should be auto-calculation of penalty in each verdict of Information Commissions making penal-provisions under Section 20 of the RTI Act mandatory rather than discretionary as at present. Reasons for waiving or reducing applicable penalty should be specifically mentioned in verdicts of Information Commissions. Information Commissions should maintain record of penalties imposed. Non-payment of penalties in specified time should be reported once in a month to Cabinet Secretary/Chief Secretary who should be duty-bound to initiate disciplinary action against defaulting officers apart from taking steps to recover penalty-amounts from salary/pension payable.

RTI activist Commodore Lokesh Batra (retd)

Applicants should be innovative, interactive with PIOs:  Every applicant must realise that it is only after the RTI Act that citizens have become participative in governance. RTI has given us a chance to be an integral part of public accountability so we should not take an adverse stance against PIOs as far as possible. Every RTI applicant should make untiring efforts not to take the case up to the Information commission level as he or she would face inordinate delays, even up to two years. I use innovative methods to interact with the PIOs to extract information in case they hesitate to provide it. Today, I have developed good relations with many public authorities and they sometimes call me for suggestions or advice. Also, after the 2G scam it has been observed that every single reply under RTI at least in the Prime Minister’s Office (PMO) goes to the top bureaucrat so what is the use of blaming or penalising PIOs who are at the mercy of their bosses? Also, in the information commissions, it is the bureaucrats who create more hurdles than the information commissioners themselves.

Researcher and RTI activist Venkatesh Nayak

Public Authorities should take implementation of RTI Act seriously: I agree that to make government employees take RTI seriously PIOs should be penalised but that is just one of the solutions. Penalty cannot be the only deterrent as much as vigilance by higher authorities can be. It is the responsibility of public authorities to clearly push for policy of transparency and that should be visible in action and not by merely issuing paper orders. Serious implementation of RTI cannot be only a PIO’s headache. The top brass of every public authority should regularly monitor and be vigilant about transparency. Mechanisms to check it should work efficiently and should be given top priority. Targets should be set for accountability. Every office has a Monthly Monitoring Report (MMR). It is also called the Monthly Progressive Implementation Calendar in Karnataka. It requires reporting physical and financial progress to superiors who in turn give guidance on the basis of the report. There should also be scrutiny at the highest level, which is legislature. Such professional monitoring has not been seen for RTI. It is only when the government employees know that someone is seriously watching over them, that everyone down the line will take RTI seriously. Perhaps some incentives like increased funding or an award to the Public Authority which implements RTI diligently could help.

To read more from Vinita Deshmukh, please click here.

(Vinita Deshmukh is the consulting editor of Moneylife, an RTI activist and convener of the Pune Metro Jagruti Abhiyaan. She is the recipient of prestigious awards like the Statesman Award for Rural Reporting which she won twice in 1998 and 2005 and the Chameli Devi Jain award for outstanding media person for her investigation series on Dow Chemicals. She co-authored the book “To The Last Bullet - The Inspiring Story of A Braveheart - Ashok Kamte” with Vinita Kamte and is the author of “The Mighty Fall”.)