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Monday, September 7, 2009

The ‘Why’ of it !

Certain public authorities these days are rejecting RTI queries wherein RTI applicants seek information in a ‘questioning’ tone or seek justification or opinion of the concerned public authority on a particular issue. The matter got even more complicated after issuance of this circular on the subject by the DoPT.

This approach of PIOs may not be entirely correct. While to an extent it is true that justification or opinion cannot be sought from a decision making authority since a public authority who may have acted on an issue is not supposed to provide information on what went in his / her mind while taking the said decision, but on the other side, if any such opinion or justification or reason has been recorded on paper or on file, then the public authority is totally duty-bound to disclose such opinion / justification / reason. To make matters easier for the public, the RTI Act, apart from providing a right to seek information, also lays down that every public authority shall give reasons for each administrative or quasi-judicial decision taken by it. Unknown to many, this has been explicitly laid down in Section 4 (1) (d) of the Act. Hence, it is the duty of each public authority to record reasons for every action taken by it and it is well within the statute to seek these reasons or opinions or justifications for such actions.

To take an example, a person seeks information to the following effect from a Municipal Corporation :

“Why did you cut down 6 trees in Lane 123 in Sector ABC ?”

To this, in case the reason or justification or opinion has been placed on file authorising the removal of the trees, the Public authority is not correct in replying that it is not bound to answer ‘Why’ or to provide justification for the same. If the answer to the question ‘Why’ is recorded or reduced to writing or available anywhere on the file or on the record, then the public authority is totally duty-bound to provide a copy of the same to the applicant. And it is the bounden duty of the public authority under Section 4 (1) (d) to anyway record reasons for any such action. To avoid such leverage to public authorities taking the road opposite to transparency, instead of seeking information as to ‘why’ a particular action was taken, it is better to re-phrase such a query in the following terms :

“Please provide me a copy of the complete file on which the decision was taken to cut down 6 trees in Lane 123 in Sector ABC”

In short, justification, opinion or reason whenever available anywhere on paper or reduced in writing, has to be provided under the RTI Act, and as it is, all public authorities are now supposed to reduce these in writing. A decision on similar lines by the Central Information Commission can be accessed here.

Of course what went on in a particular authority’s mind cannot be provided under the RTI Act. For example, if a quasi-judicial authority takes a decision to impose fine on a tax-defaulter by way of a judicial order, one cannot question that authority as to ‘why’ he or she took the decision in question. The application of mind on a particular issue is not available as physical information and the reasons or justifications would be accessible in the form of the decision rendered by that particular authority which would already be available in the public domain.


Col NR Kurup (Retd) said...

This is one of the apt explanations of the provision I had come across. Section 4(1)(d) of the RTI Act is one of the least understood sections. There are innumerable decisions of Hon'ble Supreme Court emphasising the need of "Reasoned Decision". The RTI Act as such has no clausse complelling a public authority to give reasoned decisions. But wherever it exist they have no option but to disclose it. As correctly brought out the key word is "EXISTING". The reason in writting has to exist on record.
As regards the method suggestted in seeking such information, one is not likely to get it if one seek copy of the entire file. The PIO/AA can refuce it on a plea that "It would disproportionately divert the resoures of the public authority".In such a cituation I have been seeking "Inspection" of the entire files on the issue. During inspection, I have been noting down the particulars of the pages that contain the required information and seek for certified copy of those pages. No PIO/AA could ever refuce them in any of the cases I had attempted

Col NR Kurup (Retd) said...

Another issue brought out is about "denial of information sought in the questionnaire form". On observing that such is the stand taken by CIC and many SICs, I decided thrash the issue by seeking information in the questionnire form in one of my request to the Additional Secretary of Government Secreariate (SPIO). As expected the information was denied replying that "the infomation sought for is in the form of a questionnaire which do not come under Section 2(f) of the RTI Act" My first appeal also was turned down stating that "the RTI Act does not envisage answering questionnaires not basedd on any specified records maintained by the PA and and, as such it is outside the purview of Section 2(f) ofthe Act"
I went on second appeal. My plea apart from quotting Section 7(9) adding tht "the meanings of the word "FORM" are "METHOD USED TO CONVEY THE CONTENTS', "THE WAY IT IS SAID" etc., and the meaning of the word "QUESTIONNAIRE" IS " A FORM CONTAINING A SET OF QUESTIONS AS A WAY OF GATHERING INFORMATION" etc.
The SIC, Kerala in his ordersNo.AP 595(4)SIC-G1/2007 dated 27-5-2008 had agreed with me. With my clarification the SIC has askd the SPIO to explain as to how the information sought would not come under "Information under 2(f) of the RTI Act. No one could defeat my argument and the SIC order to provide me the information sought by me in the questionnaire form. the complete orders are available in th SIC, Kerala's cite.

pied piper said...

In absence of CIC imposing stringent penalties on PIOs, few PIO takes the issue seriously. The information is not provided and the applicant has to appeal then wait for months for the 2nd appeal to be heard by the CIC. Only then the PIOs provide some information.

As aa result of this, the cumulative cases pending with CIC has increased manifold.

Unless CIC imposes stringent penalties, RTI will fail to achieve the purpose.

BC said...

It seems there is tissle between the Information seeker and the Public authority.
Still we can grant them the space. As suggested by Maj. Navdeep to take out a inforfation we can frame our question in different form.
Like using "What". A perticular thing was to be happened as per law/otherwise but could not be happened. Can't the information seeker seek the information like "A matter was to happen like this. What all actions have been taken so far and by whom?"
A matter of ENGLISH.