Wednesday, March 11, 2009

Letter to the Tamil Nadu State Information Commission

The Chief Information Commissioner,
Tamil Nadu State Information Commission.

Copy to:
State Information Commissioner,

State Information Commissioner,

State Information Commissioner,

State Information Commissioner,

State Information Commissioner,

Mrs.Sarada Nambi Arooran
State Information Commissioner.

The Right to Information Act was passed on 15th June 2005 and came into force on 13th October 2005. As the preamble says, this act was passed “in order to promote transparency and accountability in the working of every public authority”. The rationale was that “an informed citizenry and transparency of information which are vital to its functioning and also to contain corruption and to hold Governments and their instrumentalities accountable to the governed”.

Even with such a legislation, access to Information is not easy. There are vested interests at all levels of the government which would still prefer to keep the Government functioning shrouded in secrecy. And it is for this reason, that the State Information Commission has been formed under the Act. The Commission forms the backbone of the Right to Information Act, since it is the fear of penalty and/or recommendations of disciplinary proceedings, that forces the Government Servants to part with information, which they would otherwise not disclose. Hence, only an honest and efficient State Information Commission that strictly adheres to the Right to Information Act, can keep the Act alive.

Given below briefly are our observations on the functioning of the Commission.

1. Disposal rate
One of the most important parameters of the performance of any Information Commission is the disposal rate. The Commission has no data on its own performance. But there are many indicators which tell us how the State Information Commission is functioning. As of February end, the hearings for appeals filed in the beginning of June 2008 are being handled. This is about 9 months delay in holding hearings. In some cases the appeals are disposed of without a hearing and in such cases a written order is issued. Even in such cases there are delays of close to 6 months.
The possibility that the delay of nine months for conducting hearings is due to genuinely huge number of complaints is also belied by the data of the number of hearings conducted last year. In 2008, the number of hearings conducted at the commission was 1017. Four new Commissioners were appointed in 2008, and they have started functioning independently since August 2008. So looking at hearings from Aug-Dec 2008 the total number is 654 with a monthly average of 130. Considering that there are 7 commissioners, this comes to just 19 hearings per commissioner per month.
Moreover, in cases where the Public Authority refuses to give information even after a direction from the Commission, the appellant is forced to file a complaint again which again joins the queue and has to go through the nine months process, taking the total time for appeal to more than 1½ years.

2. Penalties:
Section 20(1) of the Right to Information Act clearly says that the State Information Commission “SHALL impose a penalty” in all cases where information has been delayed without “any reasonable cause” or has “knowingly given incorrect, incomplete or misleading information or destroyed information” or “malafidely denied the request for information”. Discretion is only in deciding whether there has been any reasonable cause or not, but once that is decided, penalty HAS to be imposed. It is mandatory under the act.
Despite this mandatory provision, the Commission does not pay heed to this provision almost all of the time. Penalties are imposed in very few cases. Penalties are the only reason why Public Authorities disclose information. And if the Commission does not impose penalties, the Public Authorities would have no reason to be afraid of the Commission, thus rendering the Act ineffective. Thanks to the Information Commision, today Public Authorities can happily refuse information safe in the knowledge of the fact that the commission imposes penalties very rarely.

3. Lack of follow-up of orders
The Commission issues a lot of Show Cause Notices and other directions to disclose information. But none of these are followed up. So all the Show Cause Notices issued actually mean nothing. But there is something even worse. Even the penalties imposed are not recovered. This is again because the commission does not bother to ensure that the rights of the applicants are protected and does not take any initiative to check whether their orders are implemented.

4. The commission itself does not implement the Right to Information Act. It does not have section 4 disclosures. It also does not answer Right to Information applications filed with it.

5. There is no data available with the Information Commission on its functioning. It does not know how many appeals and complaints it has got, how many penalties are imposed, how many show cause notices are issued.

6. Lack of proper filing system in the State Information Commission. Every time data is sought from the State Information Commission, the reply is that the information is not readily available and will involve going through lots of files to find the data. In some cases appeals have even gone missing from the Commission.

The first three issues identified in the workings of the State Information Commission are sufficient to kill the Act completely. First, cases are not heard for a long time, and when the cases are looked at and disposed, penalty requirements under the act are not adhered to, and in the rare case that penalty is imposed, they are not followed up. It does not need much to deduce how the commission would function.

The monthly average per commissioner clearly shows that the capacity of the Tamil Nadu Information Commission is greatly underutilized. A part of the problem is the fact that hearings are usually held in two member benches, which is really not warranted for hearing appeals and complaints under this Act. Instead the Commissioners may hear the appeals independently and work for the speedy disposal of the complaints and appeals. There is no reason why every case needs two or more commissioners. Every commissioner can easily handle cases independently. There might be a few complicated cases which might require a Bench of more than one commissioner, but that can only be an exception and not the rule.

The other problem is plain inefficiency. Even if Commissioners are working independently, the present rate of just 15 cases per month is nothing to be happy about. A single commissioner should handle 100 hearings easily in a month. But nothing of that sort is happening now.

A proper planning in allocation of the Commission’s work will easily resolve the follow-up issue. For example, having one Commissioner dedicated, to look at Show Cause Notices and decide whether penalties have to be imposed or not, would ensure that all orders of the Commission are complied with. Of course all commissioners can take up this role in rotation say once every two months. But without this, issuing Show Cause notices and even the very rare cases of the commission adhering to act and imposing penalties and, come to nothing. Moreover, posting some Commissioners in the districts could also be considered for the benefit of citizens living in places that are far away from the State Capital.

Our dialogue with Government of Tamil Nadu and State Information Commission

As groups interested in the proper implementation of the Right to Information act, we have been observing the functioning of the Commission since the time of its inception. Several consistent efforts have been put in by our groups, both individually and collectively, to address these issues. On 21st October, 2008 the Personnel & Administrative Reforms department organised a meeting at the Anna Institute of Management on the implementation of the Right to Information act. At this meeting the Chief Commissioner made a commitment that all the backlog of cases would be cleared by December 2008. But this commitment has not been fulfilled till date.

In order to have a continuous feedback and engagement with the Commission, we proposed a monthly meeting with the Chief Commissioner of which the first meeting was held on December 23rd 2008. In this meeting a group of 8 people representing the organizations Anti Corruption Movement, CAG (Citizen, consumer and civic action group), Makkal Sakthi Iyakkam, 5th Pillar and Association for India’s Development, met the Chief Commissioner in which the Chief Commissioner made some commitments at the request of the groups. They were

1.Putting out hard copies of the SIC decisions and cause lists at the reception of the Commission so that those who visit the commission can go through them.
2.Starting January 1st 2009, monthly statistics like the number of appeals, complaints, penalties, Show Cause Notices will be made available.
3.Clearing the back log of cases pending in the commission till December by end of January.
4.That the Commission will meet the requirements of RTI like Section 4 disclosures.

By end of January 2009 we learnt that the meeting was not taken seriously and that none of these commitments were implemented. Moreover, since January end, our repeated attempts to schedule a second meeting were in vain since the Chief Commissioner evaded giving a date for the meeting.

All our attempts to engage the Commission in dialogue and to solve these issues have been in vain. We all are of the opinion that the State Information Commission has not only under performed but has also gone against the letter and spirit of the Right to Information Act, in effect sabotaging the whole implementation of the Act in the State.

Since all our previous attempts at salvaging the Right to Information Act in the state have failed, we, the undersigned, have decided to hold a demonstration in front of the State Information Commission on March 16th pressing the following demands.

1.Immediate reduction in delays in disposal of appeals. All appeals to the State Information Commission should be disposed within 2 months of the appeal reaching the Commission.

2.Adherence to the penal provisions of the Right to Information Act, by imposing penalty in ALL cases where information has been delayed without reasonable cause, where information has been malafidely denied and where incorrect, incomplete and misleading information was given knowingly and where information has been destroyed.

3.Set up a proper and efficient mechanism for follow up of orders issued by the Commission. These orders could be directions to disclose information, or issuing Show Cause Notices or imposing penalties.

4.Evolve a set of guidelines or procedure on how appeals coming to the Commission will be handled and preparing guidelines for consistent decision making by all the Information Commissioners. Such guidelines/procedure should be made public.

5.Conduct monthly feedback discussions every month where members of the public can interact with all the Commissioners to highlight problems in the functioning of the commission and to discuss ideas to solve problems that come up.

6.Provide monthly reports on the functioning of the Information Commission at the feedback meeting, especially giving the following statistics.
a.Number of appeals/complaints received
b.Number of appeals/complaints disposed
c.Number of penalties imposed
d.Copies of SIC decisions and Cause lists available easily to the public through the internet and by keeping hard copies at the Commission

7.Adhere to the reporting requirements of section 25(1) of the Right to Information Act.

Yours sincerely,

S.M.Arasu (Anti Corruption Movement)
Louis Menezes (Transparency International, India - TN Chapter)
L.S.Jeganathan (Tamil Nadu Lanjam Kodathor Iyakkam)
M.Sowmya (Citizen, consumer and civic Action Group)
Vijayanand (5th Pillar)
Siva Elango (Makkal Sakthi Iyakkam)
V.Gopalakrishnan (RTI Activist, MGR Nagar)
Rupesh Kumar (Corporate Accountability Desk)
V.Madhav (Association for India’s Development)

1 comment:

Anonymous said...

Very heartening efforts by you. Please update the blog with subsequent developments.It is very rare to corner a lion in its cave! In solidarity,