RIGHT TO INFORMATION ACT, 2005 AND PROCEDURE FOR HANDLING REQUESTS FOR INFORMATION (Click on Headings for further information) Introduction The Right to Information Act, 2005 has come into force wef 12 Oct 2005 all over India (except the state of Jammu & Kashmir who has her own law in this regard). The RTI Act is a comprehensive legislation that would confer statutory rights on citizens for seeking information from public authorities. The Act is expected to usher in a new era of governance and promote more transparency and accountability. A case has been taken up by the MoD with DoPT for exemption of Armed Forces from the operation of the Act. However till such time exemption is granted, the Act has to be fully implemented by the Armed Forces. Even if the exemption is granted at a later stage, information on the cases of corruption and human rights violation would still have to be provided. Objective The Act primarily envisages setting out a practical regime of right to information for citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority. What is Right to Information [Sec 2(j)]. Right to Information means the right to information accessible under this Act which is held by or under the control of any public authority and includes the right to: - (i) Inspection of work, documents, records. (ii) Taking notes, extracts, or certified copies of documents or records. (iii) Taking certified samples of material. (iv) Obtaining information in the form of diskettes, floppies, tapes, video cassettes or in any other electronic mode or through printouts where such information is shared in a computer or in any other device. Subject to the provisions of the Act, all citizens have right to information. Who is Entitled to Information Under the Act (Sec 3) Every information held by or under the control of a public authority is accessible to a citizen, unless an information is exempt from disclosure. What is Accessible Under the Law Information means any material in any form, including records, documents, memos, e-mail, opinions, advices, press releases, circulars, orders, log books, contacts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any law for the time being in force. What is Information and [Sec 2(f) & 2(i)] In common parlance, information refers to a thing told, knowledge or items of knowledge. The word information is synonymous with knowledge or awareness. In relation to electronic forms, information as per Information technology Act, 2000, includes data, text, images, sound, voice, codes, computer programs, software and databases or microfilm or computer generated microfiche. Information may be of facts or of law. It may come from external sources or even from material already on records or may be derived from the discovery of new and important matter of fresh facts. Record includes: - (i) Any document, manuscript and file. (ii) Any microfilm, microfiche and facsimile copy of a document. (iii) Any reproduction of image or images embodied in such microfilm (whether enlarged or not), and (iv) Any other material produced by a computer or any other device. Clause (i) refers to manual records prepared in writing in the shape of a document, manuscript or file. Clause (ii) refers to a record being a document kept in shape of microfilm (a photographic reproduction on a very small film) or microfiche (a sheet of microfilm suitable for filing) or a fax copy thereof. Clause (iii) refers to a record created by means of reproduction of an image stored in a microfilm. Clause (iv) refers to all forms of electronic records produced by a computer or other such device (except microfilm or microfiche which are already included in clause (ii) above). The information Technology Act, 2000 defines electronic record to mean data, record or data generated, image or sound stored, received or sent in an electronic form or microfilm or computer generated microfiche. Further, it defines electronic form with reference to information, to mean any information generated sent, received or stored in media, magnetic, optical, computer memory, microfilm, computer generated microfiche or similar device. A record is a formal writing of any fact or proceeding. It is a written account of some act, court proceeding, transaction, or instrument, drawn up, under authority of law, by a proper officer and designed to remain as a memorial or permanent evidence of the matters to which it relates. Procedure for Receiving/Processing of Requests Procedure for receiving requests for information from the public, their processing and disposal is given in succeeding paragraphs. Request for Information (Sec 6) Any person, who desires to obtain any information, shall make a request in writing or through electronic means in English or Hindi or in the official language of the area in which the application is being made to the Central Public Information Officer (or the Assistant PIO) of the public authority concerned. The request should specify the particulars of the information sought by the applicant and should be accompanied by the requisite fee. The format for application for seeking information is placed at Appendix A. Oral Request When an applicant cannot make a request in writing, the Public Information Officer shall render all reasonable assistance to the applicant making the request orally to reduce same in writing. Reasons for Making Request Not to be Asked The applicant need not to give any reason for requisitioning the information or any other personal details except those that may be necessary for contacting him. 13. The request for information received at courts are to be transmitted to Command Headquarters/NHQ, as the case may be, at the earliest for action by PIOs. Section 8 of the Act is to be considered before making any recommendation for rejection or otherwise. Request for Information pertaining to another Public Authority to be Transferred Where a request is made to a public authority for an information: - (i) Which is held by another public authority; or (ii) Which is subject matter of or is more closely connected with the functions of another public authority, then the public authority which received the request, shall transfer the request (or an appropriate part there of) to such other public authority, as fast as practicable but not later than 5 days from the receipt of the application. The applicant shall be informed about such transfer. Processing of Request The PIO will refer the request to Principal Director of the respective directorate at Naval Headquarters and concerned CSO at Command Headquarters to obtain the information, duly cleared by the respective PSO. The concerned officer or any other officer to whom the request is referred by PIO for supply of information, is to supply the complete information to the PIO at the earliest, but not later than 10 days and if same is getting delayed due to any reason, the reasons are to be communicated to the PIO as an interim reply. Also in terms of Sec 5(5) of the Act, any other officer whose assistance has been sought by the PIO for proper discharge of his duties shall be treated as PIO for the purposes of any contravention of the Act. If the concerned officer fails to provide the information, he/she will be liable for neglect of duty and can be proceeded, under the provisions of Navy Act. Once the information is received, the PIO will supply the same to the applicant within thirty days of the receipt of request or reject the request for any of reasons specified in Sec 8 and 9 of the Act. However where the information sought for concerns the life or liberty of a person, the same shall be provided within 48 hours of the receipt of request. Disposal of Request On receipt of a request for information, the PIO shall, either provide the information on payment of prescribed fee or reject the request. If the request pertains to information concerning a third party, then the representation made by the third party shall be taken into consideration by the PIO before taking decision on the request. The prescribed form whether information is provided or denied are placed at Appendix B and C respectively. Who is Third Party Section 11(1) defines third party to mean a person other than the citizen making a request for information and includes a public authority. Thus when a person makes a request for an information which is not related to himself, he is requesting for an information related to third party. Right of Third Party If a PIO receives a request for an information which is related to or has been supplied by a third party, then he shall within 5 days of receipt of such request, give a written notice to such third party informing him of the request and the fact that the officer intends to disclose the information on record, or any part thereof. The third party is entitled to make a submission in writing or orally as to whether such information be disclosed or not, within 10 days from the date of receipt of notice. And the officer shall keep in view such submission while taking a decision in this matter,. The following consideration while disclosing Third Party Information shall be taken: - (a) Trade or commercial secrets protected by law should not be disclosed. (b) In case public interest in disclosure outweighs in importance than any possible harm or injury to the interests of third party, then the information may be disclosed. Order on Third Partys Representation Where a third party has been given an opportunity to make representation under section 11(2), the PIO shall within 40 days from the date of receipt of request, make a decision as to whether or not to disclose the information or record or part thereof. A written notice of the decision shall be sent to third party, also informing him that he may prefer an appeal under section 19 against such decision. When the Information is to be provided Where a PIO decides to provide the information, he shall send an intimation to the applicant, stating: - (a) The details of fees, towards cost of providing the information, together with the calculation details, and requesting him to deposit fees. (b) The applicant can seek review of the decision on fees charged by him or the form of access provided including the particulars of the Appellate Authority, time limit, process and any other forms. Disposal of Request for Information Partly Exempt Where a part of the information sought is exempt from disclosure, then the applicant shall be provided access to that part which is not so exempt and can be reasonable severed from the exempt part. In such cases, for allowing access to a part of the record, the PIO shall give a notice to the applicant informing: - (a) That only part of the record requested, after severance of the record containing information exempt from disclosure is being provided. (b) The reasons for the decision including any findings on any material questions of the fact, referring to the material on which those findings are based. (c) The name and designation of the person giving the decision. (d) The amount of fees required to be deposited by the applicant and calculation details thereof and (e) The applicant has a right to seek review of the decision regarding non-disclosure of part of the information, the amount of fee charged or form of the access provided, including particulars of the Appellate Authority, time limit, process and any other form of access. Assistance to Disabled Applicants Where the applicant, to whom the access to the record (or part thereof) is to be provided, is reasonably disabled, the PIO shall provide all assistance to enable access to information or inspection. Providing of Information An information shall ordinarily be provided in the form in which it is sought unless it would disproportionately divert the resources of the public authority or would be detrimental to the safety or preservation of the record in question. When Information is Rejected/Refused If PIO fails to give a decision on a request within the specified time limit, the request shall be deemed to have been refused. The following shall be communicated to the applicant: - (a) The reasons for such rejection. (b) The period within which an appeal against such rejection may be preferred. (c) The particulars of the Appellate Authority. Fee for Providing the Information The information shall be provided to the applicant on payment of requisite fee. In relation to public authorities falling under the jurisdiction of Central Government, the applicant shall be required to pay the following fee: - (a) Request for obtaining information - Rs 10 per request under Sec 6 of the Act (b) For large size paper - Actual charge or cost price (c) For samples or models - Actual cost or price (d) For inspection or records (i) For the first hour - Nil (ii) For each subsequent hour - Rs 5/-(or part thereof) (e) For information provided in diskette - Rs 50/- per diskette/or floppy floppy (f) For information provided in printed - Price fixed for the form publication (g) For extracts from a publication - Rs 2/- per page of photocopy Mode of Recovery As per Sec 6 of the Act a person who desires to obtain any information under this Act shall make a request accompanying such fee as may be prescribed. The money so charged from applicants ultimately belongs to the public imprest/account, all inputs to service an applicants query, such as public servants time, stationery, equipment etc are Govt expenses. Accordingly a case is being taken up with Govt. for crediting the money so received in imprest account. However as an interim-------- money so received will be credited in a Non Public Fund opened for the purpose. The mode of recovery may be by way of cash against proper receipt or by demand draft or cheque payable to RTI Fund Account-(Name of CPIO/Place). Therefore all concerned authorities are to open a Non Public Fund by the name of RTI Act and account for the money so received. The fund will be governed by existing regulations for the time being in force. Fee for Persons Below Poverty Line (BPL) As per sec 7(5) of the Act no fee is required to be paid by the applicants who are Below Poverty Line. If such a person claims exemption from fee, he may be asked to produce documents to prove that he/she is below poverty line (BPL). Fee when Information not provided within specified time frame No fee is required to be paid if the public authority fails to provide information within specified time limits in which case the information is supplied free of cost. Time limit for Disposal of Request A request shall be disposed off as expeditiously as possible, subject to the maximum time limit as follows: - (a) In ordinary course - 30 days (b) If the information concerns the life or - 48 hours liberty of a person (c) If the request is made to an Assistant - Normal time +Public Information Officer five days (d) If the request relates to third party - 40 days (e) If the request involves information pertaining - 45 days to the allegation of human rights violation in relation to specified Intelligence and Security Organization Exemption Certain Information as mentioned in Sec 8 & 9 of the Act may not be provided due to the sensitive nature of the information. It may be considered whether the information, disclosure of which prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the state, relation with foreign state or lead to incitement of an offence In addition such information may also not be disclosed which relates to personal information, the disclosure of which has no relationship to any public activity or interest, or which could cause unwarranted invasion of the privacy of the individual unless the PIO/Appellate Authority is satisfied that the larger public interest justifies the disclosure of such information. Information which may appear innocuous when seen in isolation but may give away sensitive information when collated by different sources is also to be exempted. The PIO is to view all requests keeping the above in view. The decision as regards to whether file notings protected by exemption clauses under Sec 8(1) is under consideration of MoD/DoPT. However pending decisions file notings would remain out of RTI purview. Information Not Exempt from Disclosure The exemption from disclosure shall not apply in the following cases: - (a) Information which cannot be denied to the Parliament or a State Legislature. (b) When the public interest in disclosure outweighs the harm to the protected interest. (c) Any information relating to any occurrence, event or matter which has taken place, occurred or happened twenty years before the date of request for such information, except when information is covered under Sec 8(1)(a)(e) or (i). (d) Information pertaining to the allegations of corruption and human rights violation relating to the Intelligence and security, Organisations specified in the second schedule or notified by a State Government. Public Information Officer As per Sec 5 of the Act, every public authority shall designate as many PIOs in all administrative units or offices under it, as may be necessary to provide information to persons requesting for it. Besides, the public authority shall also designate an Assistant Public Information Officer (APIO) at unit level to receive the requests for information or appeals for forwarding the same forthwith to the PIO or the Information Commission, as the case may be. In Navy the PIOs are designated as follows:- (a) Integrated Headquarters of Ministry of Defence (Navy) - by DPS (b) Command Headquarters - any suitable officer The Commands are at discretion to nominate APIOs as the case may be for administration concurrence. Formats of the registers to be prepared by the PIOs and First Appellate Authority are given at Appendices D, E & F respectively. Role of Public Information Officers A PIO has been assigned following functions: - (a) To deal with requests from persons seeking information and reasonable assistance to the persons seeking such information. (b) To render all reasonable assistance to the person making the request orally to reduce the same in writing. (c) To dispose a request for information expeditiously. Designating First Appellate Authority A public authority shall also designate an officer senior in rank to the PIOs designated by it, for entertaining and deciding upon appeals against the orders of the PIOs. The following are the Appellate Authorities within Navy: - (a) Integrated Headquarters of Ministry of Defence (Navy) - CPS (b) Command Headquarters - COS Jurisdiction of Courts Law Courts are barred from entertaining suits or applications against any order made under this Act. However, the writ jurisdiction of the Supreme Court and High Court under Article 32 and 226 of the constitution remains unaffected. Appeals As per the provisions of Sec 19(1) and 7 (8)(iii) of the Act, CPS at NHQ and COS at Command HQs have been designated as the First Appellate Authority to hear appeals against the decisions of the PIO/APIO. The procedure to be adopted for submission and disposal of appeals under the Act: - (a) Any person who does not receive within the time specified u/s 7 on an application for obtaining information made by him or is aggrieved by the decision of PIO, besides a third party aggrieved by an order of the PIO u/s 11 to disclose third party information may also prefer an appeal against such order. An appeal should be made in the prescribed form (Appendix G). The appeal should be made within 30 days from the expiry of time specified u/s 7 for giving a decision on an application, or the receipt of the decision/order appealed against. An appeal should be disposed of within thirty days of its receipt. This period may be extended for reasons to be recorded in writing subject to a maximum of total 45 days from the date of filing of appeal. The appellate Authority may condone the delay and admit an appeal after expiry of the said period of 30 days, if he/she is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time. The specimen format is placed at Appendix G. Second Appeal before Central Information Commission A second appeal shall lie against the first appellate order before the Central Information Commission. The appeal shall be made within 90 days from the date or which the decision should have been made or was actually received. The commission may, however, admit an appeal even after the expiry of the period of 90 days, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time. If the order appealed against relates to information of the third party the commission shall give a reasonable opportunity of being heard to that party. The Appeal shall be made in a prescribed form (Appendix H). The commission is empowered to: - (a) Require the public authority to take necessary steps to secure compliance with the provisions of Act. (b) Require the Public Authority to compensate the complainant for any loss or other determent suffered. (c) Impose penalties as per the Act. (d) Reject the application. In addition the commission shall give notice of its decision, including any right of appeal, to the complainant and the public authority. The decision of the commission shall be binding. Complaints In certain cases when the remedy of appeal cannot be availed, the person aggrieved can make a complaint to the Central Information Commission (Appendix J). A complaint may be made by a person in the following circumstances: - (a) When a person has been unable to submit a request for obtaining information to CIC for the reason: - (i) That no such officer has been appointed. (ii) The APIO has refused to accept his/her application for information on appeal, for forwarding the same to authority concerned. (b) When a person has been refused access to any information requested by him (c) When a person has not been given a response to a request for information or access to information within the specified time limits. (d) When a person has been required to pay unreasonable fee. (e) When a person believes that the information given to him is incomplete, misleading or false. (f) In respect of any other matter relating to requesting or obtaining access to record under the Act. (g) The CIC is duty bound to receive a complaint from any person. If the Commission is satisfied that there are reasonable grounds to inquire into the matter, it may instate an inquiry in respect thereof. (h) Though no form has been prescribed for making complaint so far, it may be made in writing on plain paper. A specimen of complaint is given at Appendix J. (j) The CIC shall have all powers as are vested in a Civil Court, namely- (i) Summoning and enforcing the attendance of persons and compel them to give oral or written evidence on oath and to produce the documents or things. (ii) Requiring the discovery and inspection of documents. (iii) Receiving evidence or affidavit. (iv) Requisitioning any public record or copies thereof from any court or office. (v) Issuing summons for examination of witnesses or documents. (vi) Any other prescribed matters. (vii) The commission may examine any record to which the Act applies, which is under the control of the public authority. Such records cannot be withheld from the Commission on any grounds. The Central Information commission has the power to- (a) require the public authority to take any such steps as may be necessary to secure compliance with the provisions of this Act, including- (i) by providing access to information, if so requested, in a particular form; (ii) by appointing a Central Public Information Officer; (iii) by publishing certain information or categories of information; (iv) by making necessary changes to its practices in relation to the maintenance, management and destruction of records; (v) by enhancing the provision of training on the right to information for it officials; (vi) by providing it with an annual report in compliance with clause (b) of sub-section (1) of section 4; (b) require the public authority to compensate the complainant for any loss or other detriment suffered; (c) impose any of the penalties provided under this Act; (d) reject the application. Penalties When the Central Information Commission at the time of deciding any complaint or appeal that PIO has without any reasonable cause, refuses to receive an application for information, does not furnish information within the time specified u/s 7, malafidely denies the request for information, knowingly gives incorrect, incomplete or misleading information, destroys information which is the subject of the request, obstructs in any manner in furnishing the information, and PIO is found persistently committing any of the aforesaid defaults, CIC may- (a) Impose a penalty of Rs 250/- for each day till application is received or information is furnished, subject to maximum of Rs 25,000/-. (b) Recommendation for disciplinary action under the service rules applicable. In such case, action as deemed fit is to be initiated against the PIO in accordance with Navy Act, 1957.
Posted on: Fri, 25 Oct 2013 09:28:15 +0000
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