Dear Sir,
Please find the Views and Suggestions of Representatives of NGOs on the Draft Rules of FOI Act 2002, as arrived at in the Consultation specially held for the purpose on 21st August 2004 at Cuttack by Project Swarajya in collaboration with District Level NGO Coordination Committee, Cuttack. The list of persons who attended the said Consultation along with the views/suggestions subscribed to by them are attached herewith.
Mrs.Dolli Dash dt. 21.8.04
On behalf of District Consumer Information Centre
run by Project Swarajya Bakharabad, Cuttack-2, Orissa
Telephone: 0671-2623518 (Res) and 2621097
Email: projectswarajya@sify.com & dollidash@rediffmail.com
Views and Suggestions of Representatives of NGOs on the Draft Rules of FOI Act 2002, as arrived at in the Consultation specially held for the purpose on 21st August 2004 at Cuttack by Project Swarajya in collaboration with District Level NGO Coordination Committee, Cuttack. The following list of persons who attended the said Consultation subscribe to the views/suggestions given below.
Mrs.Dolli Dash dt. 21.8.04
On behalf of District Consumeumer Information Centre run by Project Swarajya
Bakharabad, Cuttack-2, Orissa
Telephone: 0671-2623518
Email: projectswarajya@sify.com & dollidash@rediffmail.com
Copy to :
Encl- The resolution on the views and suggestions of the above Consultation in response to the notification of the Draft Rules of FOI Act -2002.
Name and Address of NGO Representatives
Views/Suggestions on the Notification of the Draft Rules of FOI Act 2002 made on the website of the Ministry of Personnel, Public Grievances and Pension, Government of India inviting views/suggestions on the same by 31st August 2004 from the members of the public.
1)Publicity should have been made through Newspapers, Radio and Television:
We welcome the very decision of the Government of India to invite though belatedly the views/suggestions of the members of public on the Draft Rules for Freedom of Informaton Act 2002, through the Notification made on the website of the Ministry of Personnel, Public Grievances and Pension. However, except a few enthusiasts of the Right to Information movement, no member of the public is yet aware of the said notification, because except through the medium of internet, it has not been advertised through in any newspaper, radio or television. Thus due to the extremely limited publicity given to the notification, its very purpose, that is, enabling the wider public to know and react to, has been defeated.
So we demand, the Ministry should publicise the Notification of the raft Rules again in all national and regional dailies, radio and television channels along with Internet to enable the common people across the country to be apprised about it and submit their views/suggestions thereon to the Government.
2)Time-gap given before the deadline for submission of public response, too short:
The concerned Ministry, which took more than 18 months to bring out the one-page notification of the said draft rules, presumably on 14th August, without letting the wider public know about it, has allowed less than 18 days preceding the deadline i.e. 31st August 2004 for the members of public to submit their views/suggestions. It is not possible in view of this extremely limited time space for various interested individuals and civil society groups to hold consultations among them on such an important matter and formulate their views/suggestions arising there from for forwarding the same to the Ministry.
So we demand, at least a time-gap of 3 months from the date of notification should be allowed for the feedback by the members of the public to the notification.
3)Notification of Draft Rules running opposite to the alternative Draft-law vis-a-vis the FOI Act 2004 accepted in principle by the 14 Aug. meeting of NAC. Government
The National Advisory Council of the UPA Government in its 2nd meeting held on 14th August 2004 chaired by Mrs.Sonial Gandhi had accepted in principle the alternative draft law entitled Rght to Information Act 2004 vis-à-vis the flaws-ridden FOI Act 2002 as proposed by its two members Mrs.Aruna Roy and Mr.Jean Dreze. But strangely enough, the Ministry of Personnel on the same day published the notification of draft rules, which don't reflect in any manner, and rather run counter to the commitment of the UPA Government as given under the Common Minimum Programme, "The Right to Information Act will be made more progressive, participatory and meaningful." This episode not only speaks of the lack of policy-level coordination between the Ministry of Personnel and the official think-tank of the present Government i.e. NAC, but also casts serious doubt on the very intention of the Government to carry out the CMP's mandate to bring about appropriate changes in the flawed FOI Act to make it more people-friendly.
So we demand, the Draft Rules be reframed in keeping with the alternative draft law entitled Right to Information Act 2004, as submitted by Mrs.Aruna Roy and Mr.Jean Dreze and accepted in principle by the 14 August meeting of NAC.
4)Consideration to be given to the suggestions for amendment to FOI Act proposed by organisations like NCPRI and CHRI
Civil society organisations like the National Campaign for People's Right to Information and Commonwealth Human Rights Initiative have been working on the subject over years and have submitted earlier their elaborate analyses and amendment of the Freedom of Information Act 2002 to the Government at various stages. The concerns of these expert bodies should be given due consideration by the Government for effecting changes in the Draft Rules in particular and for amendment of FOI Act 2002 in general.
5)The provision of initial Deposit of Rs.50/- unwarranted under the Act 2002
The Section 6 of the FOI Act 2002 (Request for Obtaining Information), does not provide for any monetary deposit t to be made along with the application seeking information; it simply says, "A person desirous of obtaining information shall make a request in writing or through electronic means, to the concerned Public Information Officer specifying the particulars of the information sought by him:" The Section 4(1) of Draft Rules in our view have overstepped this clear provision mandating no application fees, by adding the need for a deposit of Rs.50/- to be made along with the application for information.
Now a practical problem would arise if the initial deposit of Rs.50/- as prescribed by the Draft Rules is made along with the Application. Suppose the PIO 'rejects the rquests for any of the reasons specified in Sections 8 and 9' of the FOI Act 2002, what would happen to the amount deposited? Shall the requestor forefeit it? Shall it be refunded to him? If so how and in how many days? The Draft Rules are absolutely silent about all these questions.
So we demand, for the Drfat Rules to be brought into consonance with the letter and spirit of Section 6 of the FOI Act, for avoiding unnecessary administrative problems as aforementioned, and also for making the application process easy and free in people's interest, the Section 4(1) of the Draft Rules providing for an initial deposit of Rs.50/- to accompany the application should be scrapped altogether.
6)Principle of one-time payment by cash against the delivery of information along with the provision for issue of receipt by the PIO for both application submitted and payment made, to be followed.
Section 4 of the Draft Rules provides for 3-stage payment, first the deposit of Rs.50/- by a DD or Cheque to accompany the application, second the reproduction cost of the document at the rate of Rs.5/- per page by cash, and third towards the charge of floppy or disk, used if any, at the rate of Rs.50/- per piece by cash. Such a provision for multi-payment regime against a singgle request for information, is not only inconvenient for the common people, but also cumbresome for the administration to handle. Again, the applicants seeking information, most of whom being not conversant with bank transactions should not be required to pay through DD or Cheque mandatorily. The Draft Rules should provide for all payments to be made by cash in addition to DD or Cheque, if an applicant likes to pay through the latter. Moreover, the Draft Rules don't provide for a receipt of either the application seeking information or of the payment made by the applicant, as a result of which both the applicants and PIOs shall be placed in unnecessary difficulties.
So we demand, the Section 4 of the Draft Rules should provide for one-time payment in place of multi-stage payment, and that too by cash in addition to DD or Cheque towards the cost of production or reproduction of the information requested. The applicant shall make the one-time payment only when the information sought is made available to him. The said Draft Rules should provide for a compulsory issue of acknowledgement receipt by the PIO against both the citizen's application for information submitted to him and all monetary payment made to him.
7)Payment against the information supplied should not exceed the market rate of production or reproduction cost of the material bearing information.
The rates of fees that the Section 4(1) of Draft Rules have suggested on all three counts are too exorbitant to ensure the fulfillment of the preambular promise of the FOI Act 2002 .. . 'to provide for freedom to every citizen to secure access to information under the control of public authorities'. The overwhelming majority of country's people poor and marginalised as they are, can't afford say, Rs.50/- just as a deposit fee to accompany the application seeking information, even when there be no guarantee that the information sought for would be at all avaiilable to him. Similarly, he can't afford Rs.5/- towards the reproduction cost per page, whereas it is only 50 to 75 paise almost everywhere. Again, he can't afford Rs.50/- towards extra fee for a floppy or a disk, when its market rate is only Rs.12 to 15/- . Again, as a matter of fact, the market rate of say, photocopying or of a floppy/disk varies from place to place in the country. Moreover, some public authorities like a Corporation or a Society or a Trust may decide to supply the requested information at a subsidised cost in the public interest. Thus a statutory fixation of a uniform reproduction fee like Rs.5/- per page as proposed under the Draft Rules shall stand on the way of the public getting information at a cheaper rate.
So we demand, the Draft Rules in stead of specifying the amount to be charged on a head should declare only the principle of minimum market rate of production and production charges to be collected by the public authorities all over the country, and leave the matter to decide the specific amount thereof to the public authorities themselves.
8)Of the two appellate authorities, one should be outsede the public authority
The FOI Act in its Section 12 (Appeals) provides for the aggrieved citizen, if he so desire, to go for the first appeal against the decision of the PIO before an authority to be prescribed by the Rules. If still displeased with the result of this appeal, he can choose to lodge a second appeal against the decision of the first before the Central Government, State Government or Competent Authority as the case may be. It is just a common knowledge that the Secretary of a Ministry or of a Department, standing as he does at the apex of the bureaucratic echelon represents the Government for all legal and other purposes. The Act had declared him as the second and ultimate Appellate authority. Now strangely enough, the Draft Rules declare the same heads as the First Appellatte Authority too. In plain terms, both the Act and Rules together compel one to appeal before the same authority whose decision he seeks to challenge. It is a classic case of legal absurdity par excellence? Such a provision of lumping two authorities under one head is simply unworkable. How could such an absurd provision make its way into the Draft Rules - out of gross oversight or otherwise- is a matter to be seriously enquired into by all concerned. Whatsoever be the reason, all appeals to be made by the aggrieved petitioner citizens under such a provision shall be rendered into fruitless and even farcical exercises, and the defaulting PIO shall never get penalised. As is well known, in course of the country-wide debate over the FOI Act 2002 a consensus had emerged among the RTI activists that the ultimate authority of appeal should be an outside body having adequate standing and power like the Vigilance Commission or Lokpal/Lokaykta as suggested by CHRI or a retired Judge acting as a Chief Information Commissioner as suggested by Mrs. Aruna Roy and her group.
So we demand, the provision of the Sction 5 of the Draft Rules designating the first appellate authority to be the same as the second appellate authority provided for by the FOI Act under Section 12 (2) into one head should be abandoned. And keeping the general provision of the two-stage appeal of the Act in tact, the second and ultimate authority should be constituted outside the concerned public authority, preferably such as the existing Vigilance Commission or Lokpal/Lokayukta or a retired High court judge acting as the Chief Information Commissioner.
9)Penalty provision for the defaulting PIOs to be added
Neither the FOI Act nor the Draft Rules has made any provision for penalising the PIOs whose allegedly undue decision or failure to provvide the requested information within the deadline as per the provisions of the Act has aggrieved the citizen petitioner. As a result the Act and the Rules proposed thereunder render the whole legislation a toothless one. Under such a legislation, the PIOs shall not feel impelled to deliver the requested information timely and appropriately, except where their vested interests induce them to do so. A consensus had emerged in course of the country-wide debate around right to information that the FOI Act should specify the penalty against a PIO found guilty of violation of the provisions of Act, in the shape of monetary fine for every day's delay beyiond the stipulated deadline along with disciplinary action against him at departmental level.
So we demand, an additional provision of penalty against the defaulting PIOs should be added to the Draft Rules specifying say, Rs.250/ - per a day's delay beyond the stipulated deadline as suggested by Mrs.Aruna Roy's alternative draft-law and disciplinary action like suspension and dismissal at the departmental level.
10)Reform of Civil Service Rules and Manual of Office Procedure:
The Objects and Reasons of FOI Act 2002 mention inter alia that a Working Group on Right to Information and Promotion of Open Governance constituted by the Government under the chairmanship of Shri H.D.Shourie had in their Report of 1997 recommended suitable amendments to the Civil Service ( Conduct) Rules and the Manual of Office Procedure to bring them in harmony with the Freedom of Information legislation. Though the FOI Act 2002 has already been enacted and going to be enforced shortly, the promised amendmments have not been effected yet. As is welknown, these existing instruments are heavily biased in favour of maintaining official secrecy and provide a slow, prolonged and uncertain manner of proceedings against the defaulting public servants. Though the Section 14 of FOI Act 2002 speaks of its overriding power over any other law or instrument created under any law, it is not clear what if not these very instruments sought to be overridden by the Act, shall guide the departmental proceedings against the PIOs violating the provisions of the FIO Act 2002, in absence of the suitable amendment to these instruments. With the existing service-related instruments continuing, it is absolutely certain that no defaulting PIO shall ever be punished and that too in a time-bound manner.
So we demand, the Draft Rules should have an additional provision to provide for amendment to all laws and instruments on service matters and office procedure so as to bring them in harmony with the FIO Act 2002 and especially to ensure that the defaulting PIOs are proceeded and discipliary action taken against them in a time-bound manner.
11)Right to Information from Political Parties and MLAs/MPs/Ministers
As such there is no law at present under which a citizen is entitled to get information from Political Parties, MLAs/MPs and Ministers on demand. But the National Commission to Review the Working of the Constitution -2002 had recommended that they should remain transparent to the public in respect of their inner-party democracy and also income and expenditure.
As per the definition of public authority as provided under Section 2 (f) of FOI Act 2002, the aforementioned persons and organisations should be consisdered as such and liable to disclose the information held by them relating to the public interest to citizens as per the provisions of the Act.
So we demand, the political parties, MLAs/MPs/Ministers and such other public representatives should be mentioned under the category of public authorities under the Section 2(f) of FOI Act 2002.
12)Ultimate Appeal to the Court to be allowed:
The Section 15 of FOI Act 2002 ( bar of jurisdiction of Courts) says that no appeal can be made to Courts against final decision of the appellate authorities as defined by the Act and Draft Rules. Such a provision seems to be unconstitutional, since the Constitution designates the High Courts as the seat of first appeal against the acts of omission or commission by any of the legislative and executive agencies of the State and then the Supreme Court as that of the last appeal for the said purpose.
So we demand, the Draft Rules of FOI Act should remove the bar of jurisdiction to Courts as mentioned under Section 15 of the Act and reversely provide for High Courts and Supreme Court to act as the courts of further appeal against the decisions of the appellate authorities defined by the Act.
13)The Exemption grounds to be limited on the basis a public interest override
The FOI Act in its Section 8 ( Exemptions from discosure of Information) and in Section 9 ( Grounds for refusal to access in certain cases) provides for a wide range of subjects and grounds, which can be stretched by way of a subjective interpretation by the concerned PIO to justify his denial of any and every information to an applicant. Again, the Section 16 of the Act ( Act not to apply to certain organisations) excludes 19 nos. of Intelligence and Security Organisations listed under a Schedule from the purview of public access to information. But it is a known fact that the various agencies as would come under Sections 8 and 9 and the Scheduled Organisations as referred under Section 16 of the Act , though of critical importance to the integrity and security of the country are nevertheless not free from financial corruption and arbitrariness in policy making and implementation.
So we demand, the Draft Rules should provide that the exemption clauses as mentioned under Sections 8, 9 and 16 should be qualified with a strong public interest override, in the sense that the citizens shall have access to information about the exempted agencies, policies and personnel etc., so far the information relates to corruption and issues of public interest.
14)Oath of Secrecy to be abolished:
The Oath of Secrecy as it appears in the 3rd Schedule of the Constitution and binding on the Ministers at Centre or in States at the time of assumption of the office, runs counter to the Objects and Reasons of the FOI Act 2002, which inter alia aims at promoting 'openness, transparency and accountability in administration'. There is no other democracy in the world, where the Constitution itself compels the country's people's representatives to swear in the name of God, 'not to communicate or reveal directly or indirectly to any person or persons any matter, which shall be brought under my consideration or shall be known to me as a Minister … except as may be required for the due discharge of my duties as such Minister .' The NCRWC-2002 had also recommended the abolition of Oath of Secrecy and its replacement by an Oath of Transparency.
So we demand, the Objects and Reasons of the FOI Act 2002 should be so reworded as to incorporate the need for abolishing the Oath of Secrecy from the 3rd Schedule of the Constitution.