In this article, Akshita Gopal discusses hearing by first appellate authority under the Right to Information Act.
Working mechanism of RTI
- An RTI can be filed to a Central Public Information Officer (CPIO) or State Public Information Officer (SPIO). Proviso of section 5(2) states that, in cases where the application is filed to Central Assistant Public Information Officer or State Assistant Public Information Officer, the respective officer shall forward the same to the CPIO or the SPIO respectively and in this case, five days should be added to the stipulated 30 days period of response that is required by the Act.
- The PIO is not bound to disseminate the information which the applicant requires. According to section 7 of the Act, he has to either provide the information or reject the application within 30 days from the receipt of the application.
- If PIO without any reasonable cause or malafidely refuses to receive application or provide information within the stipulated 30 days period of time, then the Central Information Commission or the State Information Commission shall impose a fine of two hundred and fifty rupees each day on such PIO.
- If PIO does not reply to the request within 30-45 days from the receipt of the application or if the applicant is not satisfied by the decision of the PIO, then he or she may file for an appeal to the First Appellate Authority.
- If the applicant is not satisfied by the decision of the FAA then he may file a second appeal with the Central Information Commission or the State Information Commission within 90 days from the date when such decision was made or was actually received.
- The decision of the CIC or the SIC would be final and binding.
Filing an RTI request
- When submitting an application under RTI Act 2005, there is no specific format that an individual needs to follow.
- It is also pertinent to note that applicant is not required to mention purpose or reason for filing an RTI.
- He also need not mention any other personal details except for the information that may be necessary for contacting him.
Rejection of RTI application by the PIO
When you file an application for seeking information under RTI Act, there are chances that your application may be rejected. There are various grounds upon which an application may be rejected.
When application is incomplete
The PIO may send back your application on the ground that it lacks specificity.
For example – You filed an RTI seeking details of meeting that was held by a public department but you did not specify the date and time of such meeting. In such a case your application may be sent back by the PIO.
It is important for the applicant to draft his or her application in very precise manner which leaves no scope of ambiguity in it. In such a case the applicant will be given an opportunity to re-draft the application which was sent back.
When application is rejected outrightly
Under Section 8 of the Act there are conditions under which the public authorities are exempted from the obligation of disseminating information to the citizens. In such cases the Act requires that the PIO should mention the following in the rejection notice:
- It should mention the specific exemption clause mentioned under section 8, by virtue of which the application was rejected.
- The period within which you can lodge an appeal.
- The details of the appellate authority under which such appeal should be filed.
When application is partially rejected
Where the applicant seeks disclosure of documents and some part of information in such documents fall under the exemption clause, then according to Section 9 of the Act, the PIO may reject the disclosure of such sensitive information but the remaining documents or information should be disclosed to the applicant. The Act provides that when an application is partially rejected, the applicant must be given a notice comprising of following points:
- That only a portion of document is being disclosed.
- The reasons for the decision, including any finding on which such decision is based.
- The decision maker’s name and designation
- The details of fees
- His or her rights with respect to review of the decision regarding non-disclosure of part of the information.
Situations where First Appeal can be filed along with time limits for filing the same
|Sr no.||Situations where First Appeal can be filed||Time limit for filing First Appeal before FAA|
|1.||Applicant did not receive information within 30 days of the receipt of the request or is aggrieved by the decision of the PIO.||After the expiry of 30 days ( plus 7 days for postal transit) but not beyond 60 days from the date of receipt of application at the office of PIO.|
|2.||RTI application was submitted through Assistant Public Information but PIO did not respond to it within the stipulated time frame of 30 days from the receipt of application in the office of PIO||After 35 days( plus 7 days for postal transit) but not beyond 60 days from the date of receipt of RTI application at the office of PIO.|
|3.||When the RTI application is transferred from one public authority to another public authority of some other department and the transferee PIO did not respond within 30 days from the receipt of the application.||After the expiry of 30 days( plus 7 days for postal transit) but not beyond 60 days from the date of receipt of RTI application at the transferee PIO’s office.|
|4.||Notice was issued to third party by PIO under section 11(1) of the Act but did not respond to the application within 40 days from the date of receipt of the application.||After the expiry of 40 ( plus 7 days for postal transit) but not beyond 70 days from the date of receipt of RTI application at the office of PIO.|
|5.||Decision of PIO as to whether or not to disclose information by giving a notice of the same to third party under section 11(3) of the Act.||According to section 19(2) appeal by third party can be made within 30 days from the date of the order made under section 11.|
Sample of application to the First Appellate Authority
The First Appellate Authority,
Road Transport Authority of Nagpur, Civil Lines, Nagpur- 440013
District. Nagpur, Maharashtra, India
Subject: First Appeal upon reply to RTI application under section 19 of the RTI Act, 2005
- Kindly refer to my RTI application dated 04.12.2017 (copy enclosed in Appendix A). The RTI application was received by the PIO of the department on 07.12.2017.
- That PIO has given no response to the application within the stipulated time of 30 days, hence I am filing this appeal before the First Appellate Authority under section 19 of the RTI Act.
- I humbly request you to forward this appeal to concerned First Appellate Authority keeping me in loop, if in case the subject of this appeal does pertain to you. Kindly acknowledge the receipt. If you need any clarification, you can reach me on my phone number xxxxxxx.
NOTE: Point no. 2 in the above sample application can be modified in case PIO had responded to the RTI application but the appellant was not satisfied by the decision of the PIO or in case the PIO demanded for excess fees.
Format of First Appeal according to the Form-D, Rule 7(1) is attached in annexure 1 attached at the end of the article.Click Here
Requirement of Natural Justice: Personal Hearing
- If an appellant desires to be heard by the FAA, he/she shall mention the same in the at the end of the appeal.
- In such a case the FAA is under an obligation to grant the permission of personal hearing so as to comply with the principles of natural justice.
- If in case the appellant will not be able to attend the hearing then he may not not include it in the appeal, as it is not mandatory to be present for the First Appeal hearing.
Points to be included in the prayer
- If the appellant wants to be personally heard then he must ask to grant personal hearing before the FAA.
- Direction to the PIO to supply information within a stipulated time from the date of the First Appeal.
- Direction be given to the PIO to supply full and correct information, free of cost because of his failure to supply information.
- PIO be directed to supply certified copies of information or the documents asked for.
- PIO should be asked to furnish reasons as why he declined to provide information that was asked for.
Fees for RTI First Appeal
- In case of RTI First Appeal is made to a public authority under the Central Government of India, no fees is required for the same.
- In certain states, however, there is a prescribed fees to be given for the First Appeal.
Documents to be attached with the first appeal
- Photo copy of RTI Application
- Photo copy of response of PIO (if any) or any other document may be attached to support the appellant’s contention.
- Both the above documents should be self attested. Self attestation means that ‘Attested’ written at the bottom of the sheet with full signature of the appellant.
Mode of submission of RTI First Appeal
- RTI First appeal is filed before the FFA, whose rank is higher than the rank of the PIO.
- The appeal should be delivered through Speed Post or Registered Post and the delivery status if the same can be checked on the India Post website.
- Appellant should never use courier services for submitting RTI documents.
Drawbacks of RTI First Appellate Authority
- The RTI Act does not mention any special qualification for the PIO or the First Appellate Authority as it is mentioned for the Second Appellate Authority i.e the Chief Information Commissioner and Information Commissioners. Section 12 talks about the qualification required for Chief Information Commissioner and Information Commissioners, while section 15 talks about the qualification required for State Chief Information Commissioner and State Information Commissioners.
- Since there is no qualification required, the FAA would not function efficiently as the personnel do not have the expertise in the field.
- There is no special position or cadre created for the PIO or the FAA. The Act simply mentions that the FAA would be an officer of senior rank to the PIO. This creates a sort of burden on the PIO and FAA as they do not get any salary or incentive for these engagements. However, section 13(5) of the Act mentions salary and allowances payable to the Chief Information Commissioner and Information Commissioners and section 16(5) State Chief Information Commissioner or a State Information Commissioner.
- The mechanism laid in the Act relating to the appeal to the First Appellate Authority may in all possibilities become infructuous because practically PIO while responding to an application of RTI would consult an officer of senior to him regarding the disclosure of an information. Further, if an appeal is filed under such senior officer or the FAA, then there is high probability of the decision not being changed because the FAA has already applied his mind to decide whether the information is to be given or not.
- Under section 20 of the Act if the Central Information Commission or the State Information Commission finds out that the PIO has malafidely given incomplete, incorrect information or has without any reasonable cause denied to give information or did not give information within specified time or destroyed any information which was subject of the request, it shall impose a penalty of two hundred and fifty rupees each day on the PIO. In such case burden of proof lies on the PIO to show that he acted reasonably and diligently. This can be misused by the applicants which will again create a burden on the PIO who might be innocent but for no reason he will have to disprove his guilt.
See Rule – 7(1)
Form of Memorandum of Appeal to the First Appellate Authority u/s 19(1) of the Act
(Applicant’s Name & address)
Before The First Appellate Authority
- Full name of the Appellant
- Particulars of Public Information Officer
- Date of receipt of the order appealed against
- Last date for filing the appeal
- Particulars of information:
(a) Nature and subject matter of the information required
(b) Name of the office or department to which the information relates
- The grounds for appeal (Details if any to be enclosed in separate sheet)
I, ________________________________________ Name of the appellant, son of / daughter of / wife of _______________________________________ hereby declare that the particulars furnished in the appeal are to the best of my knowledge and belief, true and correct and that I have not suppressed any material fact.
Signature of the Appellant
Name and address of Appellate Authority