Understaffing of the TN Information Commission

On July 17th 2009, I was part of a set of 4 people who met the Chief Secretary of Tamil Nadu a week back, to discuss government implementation of the RTI. Mr.AKV organised the meeting with the hope of bringing in some mechanism like a regular meeting where NGOs/Citizens, Information Commission and Government Officials could interact and evolve solutions over the problems plaguing the implementation of the RTI act. The Chief Secretary did not agree that there ought to be a regular meeting and also refused to admit that awareness levels among officials were poor. When I gave him an example, he refused to believe me. Finally, where I raised the issue of understaffing. It was pretty obvious that the Chief Secretary was very antagonistic towards the commission. He told me that, that was the problem of the Chief Commissioner and not mine. I told him that it was indeed mine too, since it is my appeal that gets delayed upto 10 months because there are not enough staff. At this the P&AR secretary said that they have sanctioned all the staff that were asked for.

After the meeting I just searched the internet for a few details and found that the background of the Chief Secretary. He was the State Vigilance Commissioner when DVAC and TSVC were exempted from the RTI act here under section 24(4). With him at the helm of the TN bureaucracy, I have little hope that the Commission will be given enough resources to function properly. This, I think, will become a huge problem as the Commission staff are working even on saturdays (not all saturdays though) to clear the backlog.

Sit-in at the Information Commission

As a follow up to the letter asking for reasons for passing a two line order mentioned here, I along with Mr.Rajkumar (who are previously working with 5th Pillar) went to meet the PIO yesterday. The PIO tried to explain to us things like they dont come under section 4(1) of the act and that there is no time limit etc. The discussion at some stages bordered on the insane, like saying that the Information Commission is not a Public Authority, and at other times saying that the department is not the Public Authority but the head of the department who was the Public Authority. I really did not have the patience to argue with him. At the end when I demanded a reply to my letter, he just asked me to meet the Chief Commissioner. When I met him he rudely told me that reasons will not be given. When I pressed that some form of reply needs to be given to my letter, he said that I might or might not get it. At this I went back to the PIO and sat in front of him and told him that I will not leave the seat till I get the reasons properly explained. He kept telling us to leave and that he will send a reply soon. When I asked him when the reply would come, he refused to commit to anything. So I told him that we are not leaving. He tried to cajole us, and he also tried to threaten us. We just asked him to do what he can, and that we wont leave. We sat there for an hour. Then the PIO left for lunch. We were still sitting there. But since it was a cabin sort of thing, not many people knew that this kind of a sit in was happening. The PIO also kept telling us that if at all we wanted to sit we had to sit in the cabin near the reception where there is place for visitors to sit, since our sitting in his cabin means listening to what all orders he was passing etc, which according to him, we are not supposed to know. I used this opportunity to move out of his cabin and sat right next to the reception on the floor.
And this did the trick.

The office assistants kept asking us why we were sitting on the floor. We explained to them the whole issue. Then the officers started coming to us. First the assistant registrar, with whom I had been in regular contact. He was surprised at the sit-in. He said that he didnt expect us to do such a thing. But to him too we explained the whole thing. And soon the whole commission knew that something like this was happening. All through this I kept Nityanand informed, so that in case were arrested, we will need help. He was not in town but he had informed his colleague about us just in case something happened.

Mr.Retnapandian, who is an RTI activist, had coincidentally come to the commission and met the Cheif Commissioner, who told him that we were sitting on a dharna outside. He came and met us. He asked me not to do such things and told me that this was liable to be arrested and could be brought out only on bail. I knew this well. Sometime back I had checked this with Nity and the general procedure is this. If you do a protest OUTSIDE the premises of any orgn without permission you will be arrested and let out in the evening. But if you do it inside the premises, you would be arrested but not let out in the evening, but it will be a proper arrest, needing a bail to be let out. I told him that I knew that, but told him that I have been patient for two years and that I cannot wait any longer. He said that he too was anguished at the way the commission was functioning, and that he planned to file a writ in the high court. I told him that I will support that too, but that does not mean I have to give this up. Eventually even after a lot of discussion I refused to leave. He finally told me that he felt that we should not be doing it and left.

Then we sat there till about 5.45 PM. Close to 5 hours. At the end of it the Under secretary (adiministration) came and asked us to come and talk to the Chief Commissioner. We refused. We explained to him the whole issue and told him that our deamands were that Show Cause Notices for penalties should go out in the summons itself (Here I showed a copy of the Maharashtra Information Commissions' summons where such a practice is being followed) and also in the interim directions that are passed. I talked with him for about 15 mins at the end of which he requested me to come and talk to the Commissioner and that he would also accompany us. Finally I relented and both of us along with the official went into the Chief Commissioner's room. Here he told me that I should chose whether I wanted to be treated the way I was till sometime back or that I wanted to do it the dharna way. I was about to say that I dont mind being treated anyway, and that if needed I will use any tactics for achieveing my goals, but before I completed my sentence he moved on to soemthing else. There he discussed how not havin enough staff cripplied the commission's functioning and we also had discussion on some legal points of issuing Show Cause Notices for penalty in the summons itself. At one point, when I showed him the Maharashtra Information Commission's summons, he told me that it was not a Show Cause Notice. His argument was that the summons did not have the words "Show Cause Why", but I told him that it was indeed a show cause notice. To this he asked his official who was with us to give his opinion since he was a lawyer. This official, a very meek person, said that if the Chief said it was not, then it was not. I could not control my laughing at it. That he did not confidently say that it was not a show cause notice was a dead giveaway that it was indeed a show cause notice. But the Chief refused to agree. I told him that he had given so many promises so far but have not fulfilled them, to which he replied with statistics of how the TN commission had the most number of appeals even higher than the CIC and that he was able to handle those appeals with very few staff. But he said that he will consider this suggestion of issuing show cause notices in summons. I told him that I wanted something in written in a month as to how the suggestion was considered and if not implemented why it was not implemented. He said he will do it in a month. Since the other official was also there, I agreed to it and decided to wait for a month. If he does this it will be a very important move. Let us see. And hope.

High Court Judges' disclosure of assets

Last year there was a report in the Hindu saying that the Tamil Nadu High CourtJudges have agreed to disclose their assets. But the Chief Justices said that these records cannot be accessed under the Right to Information act, 2005. I wondered how the Chief Justice can make such a statement without passing appropriate rules. So I filed an RTI to know the status of how many judges have declared assets so far and the copies of those declarations. I did not get any reply for a month and so I filed a first appeal. Since I did not get a reply even for my first appeal, I filed a second appeal on 4th February 2009 with the State Information Commission. To this I received a 2 sentence order from the Commission in which the PIO was asked to give me the information I had asked for.I went and enquired which commissioner it was who passed such a direction.

So I went and confronted him as to why he did not issue a SCN. I also told him bluntly that such an order will not have any effect, and also that he was legally wrong and that he should have issued a SCN since there was already a delay. First he tried to confuse me saying, that the prime intention of the RTI act was to get information and so that was his priority. He said that penalising will come in later. When I persisted that he should have penalised, he said that since the order is a formal order issued by the Commission, he will not allow me to discuss it. He also told me that if I was not happy with the order, then I had to file a writ in the High Court. I told him that it was not just about my order, but also about the general practice of sending such useless directions in many cases. If the directions have no effect, then we need to complain again to the commission which means another 8 month wait. He refused to talk anything about this, and told me that he will not discuss a formal order since his was a judicial forum. I tried a couple of times, but he did not budge. So I walked away.

After coming back from the Commission, I did some amount of checking on various aspects with respect to what the Chief Commissioner told me. I talked to RTI activists from Kerala, Andhra Pradesh and Maharashtra and learnt that Tamil Nadu is the only state where directions are given without a hearing. The essential points of what I learnt were.


1. First of all, is the question of whether the State Information Commission is a judicial or a quasi judicial body? This is important since this is what decides whether the Information Commission can pass orders without giving an opportunity to the parties to present their cases. There seems to be a strong consensus among lawyers and activists, that the Information Commissions are indeed Quasi-Judicial bodies and hence that is how they have to be dealt with.

2. There are two consequences of it being a quasi-judicial body. The first one is that the Chief SIC was correct in his stand that he cannot discuss his order with me without the other party being present. But the second, and the more important, consequence, is that quasi-judicial bodies cannot pass orders without giving the parties an opportunity for hearing. In my specific case and in most other cases where orders are passed without a hearing at the Commission, the commission's orders are favourable to the applicant in that, the order says that the information has to be disclosed. Though we might think that the SIC is erring in our favour, the problem is that if the PIO does not comply with this, we have to file a follow-up again with the SIC which will again take 8-10 months (in addition to the delay already had for getting the written order). In case of hearings, we can at least insist on a Show Cause for penalty. But since these written orders are passed without any hearings, we cannot even insist on that.

As a consequence of this being a quasi Judicial body, the SIC should not pass such orders. This has been clearly established in the Supreme Court judgment that can be found here. Please read point number 35 of the judgment. Thus, a second problem with such orders is that though it is in our favour, the order becomes illegal since no hearing was done. Thus if this order goes to the high court, our case will become very weak if there was no hearing. As far as I have checked, no other state in India or the CIC passes orders without a hearing. Tamil Nadu is the only state where this practice is followed. For both these reasons, I think I should insist on a hearing. I realise that given the present backlog of cases, it is impractical to have a hearing in all cases, but I really wonder if that is a good enough justification for allowing the SIC do something that is illegal.

I think such a practice of passing orders which dont carry Show Cause Notices for penalties, is detrimental to the RTI act in the state, since it doubles the time taken to resolve a case. In my case, what I did was this. Sometime back, I remember Mr.Krishnaraj Rao an RTI activist from Maharashtra, using section 4(1)(d) of the Right to Information act, which says that

“Every Public Authority shall provide reasons for its administrative or quasi-judicial decisions to affected persons”.

So I gave a letter to the Public Information Officer of the State Information Commission with a copy to the Chief Commissioner asking me to give reasons for not imposing Show Cause Penalty and not stipulating time limits for the High Court within which they should furnish information. Let me see what happens on thursday.

While on this issue of Judges assets declaration, it has come has a real good news, that the Judges assets bill, which prevented public access of the assets declaration statements of judges has been withdrawn (at least for now).

On oral instructions, MTC loses more than a crore.

This happened before the elections. Metropolitan Transport Corporation (MTC) suddenly dropped fares without any prior intimation. It was evident that this was done with an eye on the elections. This was, of course, widely reported in the newspapers.

http://timesofindia.indiatimes.com/Cities/Chennai/Bus-fares-down-EC-not-amused/articleshow/4470040.cms
http://www.hindu.com/2009/05/01/stories/2009050158450300.htm
http://www.hindu.com/2009/05/03/stories/2009050359930400.htm

This reduced fares were maintained for 4 days, but it was withdrawn, when EC came down heavily on this. As reported in the third article listed above, the MTC lost 35 lakhs on 30th April alone. I filed an RTI to know further information about this. The RTI application can be seen here. The replies I got to this can be seen here. Rough calculations (considering that May 1st was a public holiday, and that May 2nd and 3rd were Saturday and Sunday), MTC lost more than a crore on these 4 days. Considering that a bus costs roughly Rs.15 Lakhs, MTC could have added 6-7 buses to their fleet with this money. And it was wasted. Just because some politician asked MTC reduce fares just to please voters. I think what is more important to do in this case is to try nail down the responsibility of this reduction to one person and extract from him as to who exactly asked him to reduce fares. And then hope that it will serve as a lesson for others who want to interfere in the future. As is obvious from the reply, for questions 2-9 they have given a vague reply. I have filed a first appeal. Let me see if I get proper answers from them. If not, it will again be a long drawn out case, since I will have to approach the State Information Commission. This information was highlighted in The Hindu here. Actually, that I should file an RTI application, was itself suggested by Shyam of The Hindu. I think it will be a worthwhile cause to pursuse it to the end.

What is the shortest time needed for RTI to have effect?

Less than 24 hours is the answer. A colleague, Jayalakshmi told me that she had applied for an "Address Proof Card" which is being issued by the post offices on payment of Rs.240. She had applied for this in February, and she hasnt heard anything about it yet. Her repeated attempts to find out the status of her application at the Post Officer were only answered with "It will come". So she came to me. I told her that we can file an RTI applicaiton. And so I drafted an application, emailed her, asked her to fill in her details like address etc, enclose a copy of the receipt she obtained on payment of Rs.240 and asked her to enclose a Postal Order for Rs.10 as application fee. This she sent by post.

I gave the draft in the morning. She took a printout in the afternoon and sent it by post. The next morning at 10 AM she was at my place smiling. She said that the Post master there had called her and told her that the ID card was ready long time back and that she needs to go to the Mylapore office and collect the card. He also told her that she could have just come and asked him and as to where there was a need to file an RTI. She told him that she tried that many times and that she could not get an reply. He also requested her to come to his office and get back the application. He also offered that he will ask his people to cancel the Postal order and refund the amount of Rs.10.

After meeting me she went to Mylapore post office to collect the card. There too a senior official gave her his mobile number and told her that she can contact him directly over phone if she has any problems. She came back to my office at 11 Am with the card in hand. The card that was eluding her for 5 months, brought to her hand in 24 hours, by the Right to Information act, 2005.

The draft RTI application can be seen here.

Additional Fee - CIC's Important Order

I filed an RTI application with the Southern Railways in February 2008. In that application, I asked for copies of various rules related to different quotas in train tickets booking (like emergency, tatkal) and also asked for the number of tickets booked under each quota. In reply to this I got a letter from Mr.A.Cyril Raj, Asst. Public Information Officer & Dy. Chief Manager/Claims. This communication stated that the information I had asked for comes to 47 pages, and that I have to furnish 94 rupees to get that. In addition to that, I was also asked to pay 750 rupees for the 8 man hours it would take to collect the information.

I filed a first appeal against this and the appeallate authority upheld the order of the PIO saying that the cost of maintenance of MIS applications, CPU and hard disk power etc were considered when 750 rupees were asked. Against this I filed a second appeal with the Central Information Commision on 10th June 2008. Nothing much happened after this and I kept waiting. Another appeal that I filed with the CIC after this appeal was also heard, but I did not hear much about this earlier appeal.

About a month back, there was this notice on the CIC website which I came to know of. This said that a hearing was scheduled for June 8th in which the scope of section 7(3) (additional fee) was going to be heard by a bench of commissioners. So I thought that my case was put on hold till this bench decides on the issue. But to my surprise I received a notice for a hearing of my case on 19th June 2009. I called up the commission and informed them that since I will not be able to come to Delhi for this, I wanted the hearing to be held through video conferencing. To this the official told me that if a video conference has to be scheduled, then the date of hearing has to be changed which cannot be done. So I asked him to hold the hearing through audio conferencing to which he agreed and took down my number.

On 19th June 2009 at 3.30 PM the hearing was held. I joined in on my phone. But by the time they called me, it seemed that the PIO has already put forward his arguemnts. When I joined the commissioner Ms.Annapurna Dixit, asked me put forward my points in the argument. I pointed out that there was inconsistency in the what the PIO and the Appellate Authority said. While the PIO talked only about man hours, the Appellate Authority said that the cost includes maintenance of MIS applications, hard disk, CPU power etc. I said that this clearly shows that the demand of Rs.750 was arbitrary. The more important point was that under RTI there is no scope for charging man power and maintenance costs as "further fee" under RTI.

The commissioner agreed that there was no scope for charging this information under RTI, but advised me not to ask voluminous information in future. I immediately refused saying that the information I had asked was not voluminous in nature, and that I had asked only information related to only 1 train for a continuous period of 10 days. To this the PIO said that running this query will affect the online booking system. Then I pointed out that having done my Masters in Computer Applications, I knew a little bit about databases and that what the PIO claimed was wrong. I also pointed out that when I make a booking online, I run several queries before finalising my trip schedule, and that one more query wont bring the system down.

To this the PIO said that the information I asked cannot be compared to my querying while online booking since online booking contains details only about the last 5 days, and the information I had asked for was from the archived data. This clearly was a contradiction. When the query I had to run was on archived data, how can the PIO claim that this query will bring the online booking system down. This I pointed out to the Commissioner.

At this point, the commissioner said that she did not want to get into a debate about this and so I left it at that. I also requested her to state clearly in her order that there is no scope for man power and maintenance fee costs under RTI.

I was reasonably happy at the way the hearing went, except for the fact that when the PIO claimed that the information I sought was voluminous the Commissioner wanted to advise me, but when I pointed out how the claim of "Voluminous" data, was wrong, she backed out of the debate.

About a week later the decision was put up on the web (can be seen here). The order categorically stated that there was no scope for charging manpower and maintenance costs under section 7(3) of the Right to Information act, 2005. But there was a disappointment for me.

The order says that I agreed that the information I had asked for was voluminous. This is totally untrue. I dont know why the order says so. In fact I spent a considerable part of the hearing bringing out the inconsistencies of the Southern Railways claim that the information I had asked for was voluminous. I wonder how such a statement can be given in the order. I have already filed a complaint with the Commissioner and the Assistant registrar about this sentence in the order. But when I called up the Asst registrar, I was told that the Commissioner was on leave for 1 month and hence nothing can be done right now. Will have to wait for a month for that to see what can be done.

This was covered in Dinamalar, a Tamil Newspaper and Times of India. The link to the Times of India article is given below.

Authorities can't ask for money to give info, says CIC

The Dinamalar article can be seen here.

Some General Updates

My recent posts have been about specific issues, and so a the regular work I do has been missed out. I will try to cover them here. All through the last 6-8 weeks I have been trying to get the State Information Commission to look at follow-up of Show Cause Notices seriously. In reply to an RTI application I filed with the State Information Commission, I got the following Information.

Month, Year	Number of Appeals & Complaints	Number of cases disposed without hearing	Number of cases disposed after a hearing	Number of Show Cause Notices	Number of Penalties
Jan '09	2421	1019	74	35	0
Feb '09	2211	1177	249	21	0
Mar '09	2821	1373	443	35	0

The discrepancy in the last two columns is because SCNs are not followed up by the commission. I raised this issue with the registrar, and he too said that, that was a weak area. I asked him to begin with follow-up right away and as a start, he can begin with Show Cause Notices of Jan 2009. He said that finding out the cases where a SCN has been issued is difficult. I offered to him, that I can get him the list of cases of Jan 2009 where a Show Cause Notice has been issued, and that he can do a follow-up of them. This list I gave him the very next day and he asked me to give him a week for that. I gave him two weeks. Since the registrar gave me proper details I also tried to find him the details of the backlog of cases. He said that the problem was with the lack of clerical staff. On Jun 19th he told me that appeals/complaints that had come till May 2009 have been seen by the commissioners. But it was typing of these orders that were causing the delays. He also said that if only they worked on saturdays too, could they clear the backlog. I went to meet him again yesterday and he said that last saturday all the staff had come to office and worked and that this will continue this saturday also. That was some good news.

As for the follow-up of Show Cause Notices, he himself had asked the staff to draw up the list of cases from Jan in which show cause notices were issued, and he told me that he would do something about it by the first week of July.

Everytime I meet the registrar, I make it a point to raise the issue of web updates, since that is the only way that that the public can keep a tab on the quality of decisions of the Information Commission. So far decisions till Feb 2009 have been uploaded to the website. This is a huge improvement over what the scenario was, a few months back.

In the meanwhile I have also done an analysis of the January 2009 jugments of the State Information Commission. In a discussion yesterday regarding isuing Show Cause Notices to all cases where it is due, or at least, if the commissioner decides not to issue a Show Cause Notice, an explanation, as to why SCN was not issued, the Chief Commissioner said that similar orders have already been passed both in written and orally, but that the other commissioners were not heeding him. I will take this up with each of the commissioners tomorrow and the following week.

On 17th June I was invited to participate in a discussion on the functioning of the Information Commission in WIN TV. The anchor had based on the statement of the Chief Central Information Commissioner, that the government is trying to stifle the act, by not allocating enough funds. Elango from Makkal Sakthi Iyakkam with whom I worked on the protest, and another lawyer, whom I had not met before, was part of the discussion. I somehow felt, that the whole discussion was not really focussed. It seemed that the anchor was trying to sensationalise the whole thing. The lawyer, who was part of the discussion, did not really have much experience with RTI, but was there just because she was a lawyer. The anchor too kept jumping from one issue to another without discussing the details of one specific issue fully. Discussing the condition of the State Information Commission, would have been a useful topic, and that is what I thought, at the beginning of the session, would be discussed. I somehow, at the end of it all, felt that the discussion was pointless and it would have been much better, if there had been a pre show discussion with the participants on the issues to be discussed and the direction the discussion should take.

The following incident in the programme, will sum up the level of discussion. At the end of the phone call to the State Information Commission, the anchor asked the Registrar, if the Registrar knew that this specific program that has been running on WIN TV, has been espousing the cause of the Right to Information, the registrar said that he didnt. After the phone call, the anchor made a statement that went like "If the Commission does not know about this program on WIN TV, that has trying to spread the word about the Right to Information, that shows the how well the commission was functioning". I wondered how knowledge of the TV program could in anyway be an indicator of the functioning of the commission. In fact, before I was called for the program, I had no idea that such a program was on.