Your circular on RTI is illegal, it undermines transparency: Former CICs to CS Somesh Kumar

An open letter from Shailesh Gandhi and M. Sridhar Acharyulu, Former Central Information Commissioners (CICs) to CS Somesh Kumar.

By M Sridhar  Published on  22 Oct 2021 5:25 AM GMT
Your circular on RTI is illegal, it undermines transparency: Former CICs to CS Somesh Kumar

Dear Mr. Somesh Kumar

Reference: Your circular dated October 13, 2021, asking all special chief secretaries, principal secretaries, and secretaries to the government to instruct Public Information Officers (PIO) appointed under the RTI Act to obtain their "orders" before furnishing the information to applicants concerned.

This is to bring to your notice that the 'instruction' circulated under your name and designation will defeat the objective of the Parliamentary enactment RTI Act, 2005. In fact, the government of Telangana has properly understood as indicated on its website.

This circular explained the reason for this "certain instructions issued'. It said: "It has come to the notice of the undersigned that the State public information officers designated/appointed under the Right to Information Act 2005 in certain administrative units or offices are furnishing information to the applicants in a routine manner without proper verification of records".

If this is the reason, the government could have corrected the situation by performing the following duties prescribed as per the RTI Act 2005.

1. Designate responsible officers as Public Information Officers, instead of making clerks, superintendents or juniors, or inexperienced employees.

2. Give the PIOs required training to properly discharge their duties. This is the mandate of the Parliament through the RTI Act. Please see Section 26 of the Act, which lists out the duties of the government including the training to be given to PIOs. The government has a duty to educate people, encourage public authorities to undertake RTI awareness programs, train PIOs, and produce training modules, providing for the voluntary disclosure of categories of records in accordance with section 4, etc

3. Importantly, the government should have checked whether the records are kept in order so that PIOs could verify them 'properly'. This is again the mandate imposed by the Parliament through Section 4 (1) (a) of the Act, which says:

4(1) Every public authority shall—(a) maintain all its records duly cataloged and indexed in a manner and the form which facilitates the right to information under this Act and ensure that all records that are appropriate to be computerized are, within a reasonable time and subject to availability of resources, computerized and connected through a network all over the country on different systems so that access to such records is facilitated;

Though it is 'subject to availability of resources', it is a mandate and the government cannot say that after 15 years it does not have enough resources to perform this duty. If the Government cannot keep the records as suggested, it cannot shift the liability to PIOs.

Section 4(1)(b) of the Act, mandates every public authority to furnish 17 categories of information on their own, without anybody seeking it, The government should have instructed the public authorities to first perform this duty of suo motu disclosure, which would have removed the need to file many RTI requests.

This Circular has caused serious concern and apprehensions among the RTI applicants and activists, whether any information sought would come out within 30 days. Generally, a subordinate officer is designated as PIO and the history indicates mostly that PIO acts only under the instructions of the officers. Another factor that was noticed in the past 16 years is that the first appellate authority, though a senior and mostly a gazetted officer, will not alter the order of PIO, as he simply endorses whatever the PIO writes. It is because the entire office or at least the officer designated as FAA might have instructed the PIO to refuse. When and which PIO gave information without instructions from the higher officers? The circular is specific that the information was given routine, without proper verification of records. Did they give any wrongful information? If it is true, that indicates a lack of sufficient training to the PIOs or no initiative in proper maintenance of records. Anyway, the public authority and its PIO gets 30 days maximum to respond, and Act provided for seeking assistance from others to furnish information.

What is the basis of this circular? Before issuing such a circular, the government should have given the reasons for this restricting instruction to public authorities. It is again the mandate of the RTI Act that was defied. Section 4(1) (c) says:

"Publish all relevant facts while formulating important policies or announcing the decisions which affect public;"

The government did not publish any relevant facts regarding this new policy through this circular. When it is mandatory for the government to frame policy and the PIOs have the duty to follow. How can circular blame PIOs?

If the lawmakers had the same comprehension as the circular expressed, the Act would have not created a post called PIO at all. It would have made the heads, special or principal or Chief Secretaries as concerned officers directly responsible for receiving RTI applications like present PIOs and be liable if not acted as per Act. The parliament left it to the discretion of heads of public authorities to designate any officer as PIO and FAA (First Appellate Authorities). If the government of Telangana has found any problem with the ability and efficiency of the present officers who are designated as PIOs, your good self should have chosen to designate senior and responsible officers as PIOs for the efficient RTI Act.

Will higher officers take 'liability'?

The government should have studied the issue of liability for wrongful denial of information, in case the PIOs have to take written orders from higher officers. As per the circular, the file note should contain an endorsement for disclosing or preventing the information by higher officers. If the information, though not exempted, was denied by PIO under the 'instructions' of higher officers, that higher officer will become liable to pay a penalty up to 25,000 and not the PIO. Whether a government wants the higher officers to be penalized for wrongful denial?

PIOs disempowered

If the government insists on the implementation of this circular, it will tie up the hands of PIOs and run against the letter and spirit of RTI Act, 2005, which resulted from a great struggle of the civil society for decades.

We would like to put before you the following recommendations:

1. It is the duty of the government to see that each public authority makes suo motu disclosures as mandated by Section 4(1) (b) of the RTI Act, which would have reduced the RTI requests substantially.

2. Senior, experienced and responsible officers should be designated as PIOs so that they take independent decisions according to law.

3. There should be sufficient training of the PIOs and appellate authorities in the state to enable them to furnish information according to RTI Act.

4. The records should be properly categorized and listed for easy disclosure.

5. The entire file and reasons for issuance of this circular should be brought into the public domain as mandated by Section 4(1) (c).

6. The government cannot deny the information except under Section 8 and 9. But your circular imposed another restriction that no information could be given without permission of principal secretary. It is illegal.

7. This illegal circular needs to be withdrawn immediately, as it seriously undermines the transparency and access to information held by public authorities.

We hope you will help the transparency to facilitate proper utilization of the enormous funds allocated by the government to reach genuine beneficiaries, through proper implementation of the RTI Act. Please facilitate scrutiny of public servants' actions.

Yours sincerely

Shailesh Gandhi,

M. Sridhar Acharyulu

Former Central Information Commissioners (CICs)

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