8 Dec 2010: Yesterday, G R Vora, Mohammed Afzal and I had a two-hour meeting with Chief SIC Vilas Patil to open the dialogue for solving long-standing issues of RTI implementation in Maharashtra. We were pleasantly surprised to have openness and agreement on most issues, and we are hopeful of concrete reforms being implemented before he retires in July 2011.
Our letter with 10 submissions about Maharashtra's problems: http://tinyurl.com/MahRTIissues
Copy-pasted below are the ten issues that we raised. Below each point in square brackets, you will see the Chief SIC's reply. The green highlights are his positive replies. Yellow highlights are the documents that he gave us as part of his reply. (PLEASE NOTE: Many of these notices etc. are in Marathi. We appeal to Marathi-speaking activists to assess them and give us their feedback about effectiveness, and to point out problems. We can take up these problems with him in our next meeting, which we intend to have in 15-20 days.)
ISSUES THAT WE RAISED:
1) SIC's court-like powers u/s 18 are under-utilized. Although Section 18 bestows strong powers to summon and examine witnesses, compel them to give evidence on oath, produce all documents etc., these powers are underutilized. As a result, the hearings and orders are "weak", and RTI appellants do not get full benefit of the RTI Act. As a result, thousands of appellants are struggling for months and years without getting information. [MR PATIL'S RESPONSE: Broad agreement.]
2) Section 4 compliance is at a low level. Please set up mechanisms, norms and fresh deadlines for suo moto disclosure by each public authority on their websites at least. Responding to complaints about non-compliance which you may receive from RTI activists and appellants, please use your court-like powers u/s 18. [MR PATIL'S RESPONSE: Agreed, and action has been already. On November22 , he has issued notice to the heads of around 300 public authorities to comply with Section 4 and report back before January 31. See notice: http://tinyurl.com/MahSec4notice Lists of compliant and also non-compliant public authorities will be put into the Commission's annual report to the government, being compiled. However, as SIC has no penal powers over heads of public authorities, they can only report to higher authorities. Activists' complaints concerning non-compliance by specific authorities will be taken up on priority and directions will be issued.]
3) Threats & attacks on RTI activists are high in Maharashtra. Please announce a fast-track procedure for receiving complaints about threats & attacks, and immediately enquiring and initiating remedial action. Please use your court-like powers u/s 18 to summon evidence, witness, all the RTI documents that the attacked/threatened RTI applicant wants, etc. [MR PATIL'S RESPONSE: Agreed, after expressing some initial doubts. He said he would take a decision on this after understanding the legal processes and constraints. He promised to consider how to respond to complaints about attacks and threats by holding investigative hearings on the RTI-related issues on a fast-track basis, and proactively communicating with law-enforcement agencies.]
4) Maharashtra SICs do not follow court-like proceedings. Statements are not recorded by a steno-typist. SIC conducting the hearing writes down or ignores points as he pleases. Hence, loose talk prevails. On the one hand, appellants struggle but fail to bring relevant facts and arguments on record. On the other hand, many significant statements and self-contradictions of PIOs during the hearings go unrecorded. The order passed by SICs often has no connection with proceedings during the hearings. State Information Commission as a whole must be explicitly directed to observe court-like proceedings and record-keeping. [MR PATIL'S RESPONSE: Given the large volume and backlog of cases in Maharashtra, it is not feasible to record statements with a steno-typist. It would slow down disposal and increase backlogs. However, record management and file maintenance – which is shoddy at the moment – will be systematized. He is already on the job. But staffing at SIC is a big constraint, he said.]
5) "Continuing mandamus" principle is not followed. Once SICs have given orders stating "Give Information within 15 days" etc., the case stands "disposed off". Unlike Central Information Commissioners, they take no further onus for ensuring compliance with their orders. Please issue clear instructions so that Maharashtra SICs change their ways.
IMMEDIATE REMEDY: Create a mechanism whereby if SIC's orders are not complied by PIO and public authority, disciplinary action is automatically initiated against both PIO and head of the public authority, and the same is recorded in their Annual Confidential Report and Service Book. The onus is on PIO and head of public authority for providing to both IC and RTI appellant the documentary evidence of their compliance with each point of SIC's orders, including penalty, disciplinary action and their mention in ACR and Service Record. Thousands of SIC's orders till date have zero compliance, and yet no punitive action has been initiated; this cries out for an immediate remedy. [MR PATIL'S RESPONSE: The large number of cases in Maharashtra makes it difficult for SIC to follow up and ensure compliance. Continuing mandamus will slow down disposal and increase backlog. He argues that it is important for Information Commissioners to have penal powers over heads of authorities if they flout SIC's orders to deduct penalty, mention it in ACR etc. Some years back, he wrote to the government asking for an amendment to this effect, and of course, other things also. ]
6) Unlawful procedure of "Remand back to FAA" is followed. The order of "Remand back to FAA" is routinely used by individual Information Commissioners, frustrating the appellant's quest for timely information. Please issue clear instructions to SICs to change their ways. [MR PATIL'S RESPONSE: Agreed. He completely opposes "Remand back to FAA". Once the case has come to SIC in the form of appeal or complaint, SIC must take a decision one way or another. There is no question of remand-back. Accordingly, he will issue directions to all State Information Commissioners. ]
7) Many SICs are not putting onus on PIOs. Section 19(5) and 20(1) last paragraph state that the onus is on PIO to justify that he acted diligently according to the RTI Act. As a practice, many SICs avoid putting the onus on PIO. They refuse to demand written explanations that cite relevant sub-sections of Sec 8, 9, etc. Instead, the appellant is put under pressure during hearings to argue his own grounds of appeal. Also, some SICs suggest grounds of rejection to PIOs, acting as their advocates. Please issue clear instructions so that the RTI Act is not subverted in this manner. [MR PATIL'S RESPONSE: Completely agreed. There is no need for appellant to argue his own grounds of appeal. Also PIO's justification must be in writing, and it must be categorical on several points. His notice of hearing is simultaneously a tough show-cause notice to PIOs, and it demands clear answers: http://tinyurl.com/Mahshowcause He has also prescribed a format for PIO's reply to this notice: http://tinyurl.com/MahPIOreport ]
8) Maharashtra RTI rules are not adequately fleshed out with forms. The rules do not provide PIOs with form-letters for acknowledging RTI application, asking for payment for documents to be deposited, denying information while giving specifying reasons under Section 8 and 9, etc. Contrast this with various RTI formats provided by Gujarat, which makes it easy for PIOs to take decisions and promptly respond to applicant. [MR PATIL'S RESPONSE: Agreed. Furthermore, Maharashtra is the only state that has not framed its Appeal Procedure Regulations. He had himself framed draft regulations a couple of years ago, and then a further draft was made in Mantralaya, but the whole issue was hanging fire. It needs to be taken up by activists with the State Government directly. However, to assist PIOs and FAAs, he has issued a guide for them: http://tinyurl.com/MahRTIguide ]
Guidance for implementation is needed at every level. While RTI Act is relatively simple, interpretation of individual PIOs, public authorities, and Information Commissioners vary widely. They all need formats to inform and guide them in decision-making. Such formats have been prescribed by Price Waterhouse Coopers (PWC) in their report on RTI implementation. Please take a lead by carrying out PWC recommendations in Maharashtra. FIRST STEP: Speaking Order of all ICs and First Appellate Authorities (FAA). The minimum requirement for every Order is that it must record key points specified in the RTI Act, namely:
a) Date of RTI Application:
Last date for providing info. as per RTI Act:
Actual date that information was sent:
No. of days delay:
Therefore, penalty that may be levied @ Rs 250 per day:
Does appellant allege that info. provided is incomplete, misleading or false? YES / NO
b) Did PIO submit written justification with necessary documentary evidence? YES / NO
If yes, is PIO's justification correctly reasoned under the RTI Act? YES / NO / PARTLY
c) Is penalty ordered to be levied? YES / NO
Is disciplinary action recommended by SIC? YES / NO
Is appellant to be compensated by Public Authority? YES / NO
d) If answers to (b) are NO or PARTLY, and answers to (c) are NO, then give brief reasoning of SIC for waiving penal provisions u/s 20 and compensation u/s 19(8), citing relevant sections of RTI Act 2005.
e) Is information ordered to be provided? YES / NO
[MR PATIL'S RESPONSE: Wholehearted agreement. The format as indicated shall be immediately implemented. It will involve training staff to fill up most of the details before the Information Commissioner looks at it. There are staff-shortage issues also to be dealt with, but nonetheless, this necessary step will be carried out.]
9) Sir, we have heard that you have stopped allowing appellants to send their authorized representatives to hearings. Is this true? If so, what is the reason? If this is indeed true, we beg you to reconsider, because disallowing representatives will prevent thousands of appellants – such as those with 9-to-5 jobs, those living in remote areas, and senior citizens suffering from physical limitations – from exercising their Right to Information. Also, it would be contrary to best practices being followed at Central Information Commission and elsewhere. [MR PATIL'S RESPONSE: Only a few appellants are disallowed from sending representatives because they never appear before SIC. But in general, appellants shall be allowed to authorize representatives as before.]
10) To promote transparency, SICs' hearings should be videotaped and a copy should be given to the appellant (at a charge of Rs 20-30 if necessary). These recordings must also be promptly uploaded on the internet and put in the public domain to ensure accountability and transparency in all interactions with activists, appellants and public. This will help to reduce many discrepancies in RTI implementation. [THIS WAS NOT DISCUSSED DUE TO SHORTAGE OF TIME. ]
In all your initiatives for the betterment of RTI, please involve the activists' community. In Mumbai, Pune and other cities, Maharashtra is blessed with abundant numbers of hard-working RTI activists who will voluntarily assist you. We wish you a successful tenure, and assure you of our constant cooperation.
[MR PATIL'S RESPONSE: Guarded response to the idea of involving activists, but the doors are reasonably open.]
Our group photo with CSIC Vilas Patil http://tinyurl.com/vilaspic1
[Hi-res pic http://tinyurl.com/vilaspic2 ]
Warm Regards,
Krish
98215 88114
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