Appeals and Penalties under the RTI Act

• The appeal is to be disposed of within thirty days of its receipt, or within such extended period not exceeding a total of forty-five days, for reasons to be recorded in writing.
• In any appeal proceeding, the onus to prove that a denial of a request was justified lies on the Public Information Officer who denied the request. This reverse burden is the single most important procedural feature of the Act: the citizen does not have to show he is entitled, the officer has to show why he is not.
• In its decision the Commission has the power to require the public authority to take any such steps as may be necessary to secure compliance, including by providing access in a particular form, appointing a Public Information Officer, publishing information or categories of information, making changes to its practices in relation to the maintenance, management and destruction of records, enhancing the training of its officials, and providing an annual report in compliance with section 4(1)(b).
• The Commission may require the public authority to compensate the complainant for any loss or other detriment suffered.
• It may impose any of the penalties provided under the Act, and it may reject the application.
• The Commission shall give notice of its decision, including any right of appeal, to the complainant and the public authority.
• Its decision shall be binding.

Complaint under section 18, and how it differs from an appeal

This distinction is regularly examined and regularly confused.

A practical answer says: an appeal is the ordinary route where information has been refused; a complaint is the route where the process itself has broken down. Both may lead to a penalty under section 20.

Penalties: section 20

Section 20(1): the monetary penalty

Where the Commission, at the time of deciding any complaint or appeal, is of opinion that the Public Information Officer has, without any reasonable cause:

1. refused to receive an application for information;
2. not furnished information within the time specified under section 7(1);
3. malafidely denied the request for information;
4. knowingly given incorrect, incomplete or misleading information;
5. destroyed information which was the subject of the request; or
6. obstructed in any manner in furnishing the information,

it shall impose a penalty of two hundred and fifty rupees each day till the application is received or the information is furnished, so however that the total amount of such penalty shall not exceed twenty-five thousand rupees.

Three features to note, and each is examinable.

It is personal. The penalty is imposed on the officer, not on the public authority, and it is recovered from him. That is what gives the Act its bite: a citizen's request creates a personal financial risk for the individual who ignores it.

It is mandatory in form. The section says the Commission "shall impose" once it forms the opinion, though the opinion itself requires the absence of reasonable cause.

Two provisos protect the officer. First, he shall be given a reasonable opportunity of being heard before any penalty is imposed, which is natural justice written into the section: [Audi Alteram Partem]. Second, the burden of proving that he acted reasonably and diligently shall be on him. So on penalty as on refusal, the burden lies on the officer and not on the citizen.

Section 20(2): disciplinary action

Where the Commission is of opinion, at the time of deciding any complaint or appeal, that the Public Information Officer has persistently failed to provide information without any reasonable cause, within the period specified, or has done any of the other things in sub-section (1), it shall recommend disciplinary action against him under the service rules applicable to him.

Note the difference: sub-section (1) allows the Commission to impose a penalty itself; sub-section (2) allows it only to recommend disciplinary action, which the department then takes or does not take.

Sections 21, 22 and 23

Section 21, protection of action taken in good faith: no suit, prosecution or other legal proceeding shall lie against any person for anything which is in good faith done or intended to be done under the Act or any rule made under it. This is the statutory immunity discussed in [Act of State and Statutory Immunity], and it protects the officer who discloses in good faith, which matters because the alternative would be a strong incentive to refuse.

Section 22, overriding effect: the provisions of the Act have effect notwithstanding anything inconsistent contained in the Official Secrets Act 1923 and in any other law for the time being in force or in any instrument having effect by virtue of any law other than the Act.

Section 23, bar of jurisdiction: no court shall entertain any suit, application or other proceeding in respect of any order made under the Act, and no such order shall be called in question otherwise than by way of an appeal under the Act.

Section 23 does not exclude the writ jurisdiction. A statutory bar cannot exclude Articles 226, 227 and 32, which L. Chandra Kumar v. Union of India, AIR 1997 SC 1125, holds to be part of the inviolable basic structure of the Constitution. What section 23 excludes is a civil suit and a challenge outside the Act's own appeal structure.

A worked example

Rehana Shaikh applies on 1 March for the inspection reports of a municipal school. Nothing happens.

1. 31 March. Thirty days expire. Under section 7(2) the request is deemed refused, which is what gives her something to appeal against.
2. First appeal. Within thirty days of that date, to an officer senior in rank to the Public Information Officer in the corporation, under section 19(1). It must be decided within thirty days, or within a total of forty-five days for reasons recorded.
3. The burden. In that appeal, the onus of proving that the denial was justified is on the Public Information Officer, not on Rehana.
4. Second appeal. If the first appeal fails or is not decided, a second appeal to the State Information Commission within ninety days under section 19(3).
5. The Commission's inquiry. It may summon the officer, take evidence on oath and require production of the file under section 18(3), and may examine the record itself under section 18(4), no record being capable of being withheld from it.
6. The order. The Commission may direct disclosure, require the corporation to take steps to secure compliance, including publishing categories of information and improving record management under section 4(1)(b), and may require compensation for loss or detriment.
7. The penalty. If the officer had no reasonable cause, the Commission shall impose two hundred and fifty rupees for each day from 31 March until the information is furnished, capped at twenty-five thousand. He must first be given a reasonable opportunity of being heard, and the burden of showing that he acted reasonably and diligently is on him.
8. Persistent failure. If this is not the first time, the Commission shall also recommend disciplinary action under section 20(2).
9. If the Commission decides against her. Section 23 bars a civil suit, but not a writ petition under Article 226.

What it does NOT mean

It does not mean the applicant must prove his entitlement. The burden of justifying a denial is on the officer, in both the appeal and the penalty proceeding.

It does not mean the penalty falls on the department. It is personal to the officer.

It does not mean the Commission can order disciplinary action. It can impose the penalty itself but only recommend disciplinary action.

It does not mean section 23 excludes judicial review. It bars a suit and a challenge outside the Act, not a writ petition.

Quick revision

1. Two tier appeal. First appeal within thirty days to an officer senior in rank in the same public authority, section 19(1), with condonation for sufficient cause. Second appeal within ninety days to the Commission, section 19(3), with the same power of condonation.
2. Section 19(2): a third party appeals within thirty days from the date of an order under section 11 to disclose. Section 19(4): the third party must be heard by the Commission.
3. An appeal is to be disposed of within thirty days, extendable to a total of forty-five days for reasons recorded.
4. The onus of proving that a denial was justified is on the Public Information Officer who denied the request.
5. The Commission may require steps to secure compliance, including access in a particular form, appointment of an officer, publication of information, changes to record management, training and an annual report under section 4(1)(b); may require compensation for loss or detriment; may impose penalties; may reject the application; and its decision is binding.
6. Section 18 complaint, direct to the Commission, for a breakdown of the machinery; section 19 appeal, two tier, against a decision or deemed refusal.
7. Section 20(1): a penalty of two hundred and fifty rupees a day, maximum twenty-five thousand, on the officer personally, for refusing to receive an application, not furnishing information in time, mala fide denial, knowingly giving incorrect, incomplete or misleading information, destroying information, or obstructing. He must be heard first, and the burden of proving he acted reasonably and diligently is on him.
8. Section 20(2): recommendation of disciplinary action for persistent failure.
9. Section 21: good faith protection. Section 22: overriding effect over the Official Secrets Act 1923 and other laws. Section 23: bar of jurisdiction of courts over orders under the Act, which does not exclude the writ jurisdiction: L. Chandra Kumar v. Union of India, AIR 1997 SC 1125.

Test yourself

1. Describe the appeal structure under the Right to Information Act 2005. There are two tiers. Under section 19(1), a person who does not receive a decision within the time specified in section 7, or who is aggrieved by a decision of the Public Information Officer, may within thirty days appeal to an officer senior in rank to that officer within the same public authority, and the appellate officer may condone delay where satisfied that the appellant was prevented by sufficient cause. Under section 19(3), a second appeal lies within ninety days to the Central or State Information Commission, with a like power to condone delay. A third party aggrieved by an order under section 11 to disclose his information appeals within thirty days of the order under section 19(2), and must be given a reasonable opportunity of being heard by the Commission under section 19(4). An appeal is to be disposed of within thirty days of receipt, or within a total of forty-five days for reasons recorded in writing, and the Commission's decision is binding.

2. On whom does the burden of proof lie in an appeal, and why does it matter? On the Public Information Officer who denied the request. Section 19 provides that in any appeal proceeding the onus to prove that a denial of a request was justified lies on him. It matters because it reverses the ordinary position in which a person asserting a right must establish it. Under the Act the citizen need not show why he is entitled to the information, since section 6(2) forbids requiring a reason for the request at all; the officer must show that the information falls within an exemption. The same reversal appears in the penalty provision, where the second proviso to section 20(1) places on the officer the burden of proving that he acted reasonably and diligently.

3. Distinguish a complaint under section 18 from an appeal under section 19. A complaint lies directly to the Information Commission, in a single tier, on the grounds set out in section 18(1): that no Public Information Officer has been appointed or an Assistant Public Information Officer refused to accept the application or appeal, that access has been refused, that no response was given within the time limit, that the fee demanded is unreasonable, that the information given is incomplete, misleading or false, or any other matter relating to requesting or obtaining access. An appeal lies under section 19 against a decision or a deemed refusal, first to a senior officer in the public authority and then to the Commission. In practice the appeal is the ordinary route where information has been refused, and the complaint is the route where the machinery itself has broken down. In either proceeding the Commission may impose a penalty under section 20.

4. What penalties may be imposed under section 20? Under section 20(1), where the Commission at the time of deciding any complaint or appeal is of opinion that the Public Information Officer has, without any reasonable cause, refused to receive an application, failed to furnish information within the time specified under section 7(1), mala fide denied the request, knowingly given incorrect, incomplete or misleading information, destroyed information which was the subject of the request, or obstructed in any manner the furnishing of information, it shall impose a penalty of two hundred and fifty rupees for each day until the application is received or the information is furnished, subject to a maximum of twenty-five thousand rupees. The penalty is personal to the officer. Two provisos protect him: he must be given a reasonable opportunity of being heard before any penalty is imposed, and the burden of proving that he acted reasonably and diligently lies on him. Under section 20(2), where the officer has persistently failed without reasonable cause, the Commission shall recommend disciplinary action against him under the service rules applicable to him.

5. Does section 23 exclude judicial review of an order of an Information Commission? No. Section 23 provides that no court shall entertain any suit, application or other proceeding in respect of any order made under the Act, and that no such order shall be called in question otherwise than by way of an appeal under the Act. What it excludes is a civil suit and a collateral challenge outside the Act's own structure. It cannot exclude the writ jurisdiction of the High Courts under Articles 226 and 227 or of the Supreme Court under Article 32, because L. Chandra Kumar v. Union of India, AIR 1997 SC 1125, held that jurisdiction to be part of the inviolable basic structure of the Constitution, so that exclusion clauses in ordinary legislation are unconstitutional to the extent that they purport to take it away.