Question: Is it true that penalty for delay/denial is mandatory? Or is it a discretionary power of SIC/CIC?
Answer: The RTI Act is clear that penalty for delay/ denial is mandatory. The PIO may however lawfully avoid penalty or disciplinary action based on some conditions.
Section 20(1) and 20(2) — Penalties and Disciplinary Action respectively — are the teeth of the RTI Act 2005. Information seekers all over India feel that this Section gives them leverage over unresponsive administrative officials. However, Information Commissioners are bent on showing that Penalty and Disciplinary Action depends more on their "discretionary powers".
To understand the correct legal position, let us carefully read this Section:
Section 20 PENALTIES ETC. (Simplified*)
20(1) Where the Information Commission at the time of deciding any complaint or appeal is of the opinion that the PIO has, without any reasonable cause, refused to receive an application for information or has not furnished information within the time specified under sub-section (1) of section 7 or mala fidely denied the request for information or knowingly given incorrect, incomplete or misleading information or destroyed information which was the subject of the request or obstructed in any manner in furnishing the information, it shall impose a penalty of two hundred and fifty rupees each day till application is received or information is furnished, so however, the total amount of such penalty shall not exceed twenty-five thousand rupees:
The PIO shall be given a reasonable opportunity of being heard before any penalty is imposed on him:
The burden of proving that he acted reasonably and diligently shall be on the Public Information Officer
20(2) Where the Information Commission at the time of deciding any complaint or appeal is of the opinion that the PIO has, without any reasonable cause and persistently, failed to receive an application for information or has not furnished information within the time specified under sub-section (1) of section 7 or malafidely denied the request for information or knowingly given incorrect, incomplete or misleading information or destroyed information which was the subject of the request or obstructed in any manner in furnishing the information, it shall recommend for disciplinary action against the PIO under the service rules applicable to him.
* Simplified means that lengthy phrases such as "Central Information Commissioner or State Information Commissioner, as the case may be," are replaced with short ones like "Information Commissioner."
The word "shall" means that if some conditions are fulfilled, Information Commissioner MUST impose penalties and/or recommend disciplinary action against PIOs. What are these conditions? They are:
1) PIO has, without any reasonable cause, refused to receive an application for information or has not furnished information within the time specified under section 7(1)
2) mala fidely denied the request for information
3) knowingly given incorrect, incomplete or misleading information or destroyed information which was the subject of the request
4) obstructed in any manner in furnishing the information
For the law to be effective, the Information Commissioner is required to record his opinion in his Order, stating whether or not one or more of the above points are true. If his Order indicates that he believes one of these above to be true, then he cannot legally avoid imposing penalty or recommending disciplinary action. (If he fails to do so, one may file a writ petition with the High Court, asking for a writ of mandamus directing him to impose suitable penalty and/or recommend disciplinary action.)
Meanings & Interpretations of important terms:
u "Any reasonable cause" means reasonable causes under RTI Act,
a) Exemptions mentioned in Section 8 and 9
b) Denial u/s 11 ie. information requested is of a third-party "confidential" nature, and the PIO, being expressly requested by the third party not to disclose it, decides not to disclose, especially as disclosure is not in public interest.
c) The item requested is not "information" as defined under Section 2(f)
d) The authority from whom the information is demanded is not "public authority" as defined under section 2(h).
To a small extent, extraneous reasons of delay (but not outright denial) that are not mentioned in the RTI Act may also be considered. For example:
e) The file is lost, and all due attempts have been made, or are being made, to recover the contents of the file from other relevant files stored with other government departments.
f) The public authority was busy for some days or weeks coping with the fallout of a force majeure event such as 26/7 or 26/11, or other events like elections, Ganesh festival etc.
However, as the list of extraneous reasons expands, the RTI Act gets diluted. The Act is diluted when PIOs are allowed to escape with excuses such as "I accompanied the minister on a foreign tour, and so I couldn't reply to the RTI applications", "I went to my native place for two weeks" or "I was on election duty". Many Information Commissioners are routinely accepting such excuses for failure to comply with the deadlines of Section 7(1). Some are noting these reasons in their Orders. Others are not recording the reasons, but are giving clean chits by stating, "I am of the opinion that the PIO had genuine reasons for not providing information on time."
RED ALERT! Even if such extraneous reasons are allowed as reasons for delay, they must never be accepted as valid reasons for denial of information, otherwise it amounts to creating new exemption clauses, over and above the ones listed in the RTI Act! Citizens must resist Information Commissioners' tendencies to create new exemptions!
u "Mala fidely" literally means "in bad faith". However, in practice, it means "without reasonable cause" under RTI Act, as detailed in the earlier section. Negligence, repetitive delays / denial etc are also to be deemed as being in bad faith. Many Information Commissioners allow even repeated non-compliance by the same PIO to go unpunished. They say, "Kya karega bechara? The poor fellow is overworked by his department! He is really a sincere fellow, and whatever his lapses are, his intentions are not bad." Some Information Commissioners argue that even habitual offenders are not mala fidely denying the information, as they bear no personal malice towards the appellant, or have no intention to hide the facts!
Please send feedback to Krishnaraj Rao • email@example.com • 098215 88114