Insertion of new clause in CIC (management) Regulations 2007 - re remanding cases back to the FAA

[karira]

In the minutes of meeting held on 22 July 2008, the CIC has decided to insert a new clause in the CIC (Management) Regulations 2007 regarding "special reference to remanding the cases to the Appellate Authority of the Public Authorities."

No further clarification or explanation is available.

members are requested to watch for further developments in view of a large number of CIC decisions remanding the matter back to the FAA with the words "Since the First Appellate Authority has not considered the matter.....it is remanded back to the First Appellate Authority."

http://cic.gov.in/CIC-Minutes/Minutes22072008.pdf

3. Commission discussed the provisions of the Act with special reference to
remanding the cases to the Appellate Authority of the Public Authorities. It
directed that a clause to this effect may be inserted in CIC (Management.)
Regulations 2007.

[colnrkurup]

Whatever future actions envisaged by the CIC, present non-accountability of certain FAAs has crossed limits. When the FAAs wants to wash off their hands from their role in the RTI Act, present facility enable them to give no response or reply that "He has nothing more to add to what the PIO has replied". The Commission remanding a case to the FAA after its normal hybernation period of an year does not serve any purpose. In case the Commission desire to remand to the FAA it has to be within a month from its receipt by the Commission. What is required is directions from government to all public authorities making the FAA incumbant to hear the appellant and give a reasoned decision.

[opsharma]

"What is required is directions from government to all public authorities making the FAA incumbant to hear the appellant and give a reasoned decision.[/quote]

Ref DOPT. Memo 1/14/2008-IR dated 28th July2008 regarding sub-sections(4)and(5), discussed in another thread today. What happens to Govt directions/circulars/Memos/Orders to PIOs and FAAs?

Guidelines to FAAs and PIOS were issued by DOPT earlier this year on 25th April 2008.

Only solution for improving FAA's conduct wrt RTI applications is to impose personal penalties and departmental disciplinary action as in the case of PIOs ,additionally including remarks in their ACRs.
There is no substitute to fear of retribution.

[colnrkurup]

The RTI Act has inbuilt hidden provisions for everything if the persons concerned are willing to abide. For Eg; look at Section 19(8)(b) of the Act. It bestow on the CIC/SICs power to require the public authority to compensate the complainant for any loss or other detriment suffered, If the Commission start excercising this and start awarding compensation to the complainant in cases the PIO refuced the information and the FAA supported , from where they will get fund for such compensation.? When public authorities are made to compensate they have to recover this amount from the persons responsible as per the Financial Regulations. The C&AG will not leave it unless the amount is recovered. Naturally the poblic authority has to make the FAA responsible for the loss. But which CIC or SIC will exercise this provision ?

[taurus]

It may not be practical to imagine that the CIC will be able to decide all matters finally with the facts available on records. From the facts put up by both the sides, the CIC may find, in some cases, that there are some grey areas. It may not be clear whether certain aspects of the case has been adequately appreciated by the FAA. In such cases the CIC cannot assume one way or the other. Thus it becomes necessary is such circumstances to remit the case back to FAA for reconsideration. This is quite logical. In our anxiety to get the issue settled quickly we may feel that the CIC itself should have analysed the matter and settled the issue one way or the other without remitting it back to the FAA. This may not be possible because neither the CIC has time to go into factual accuracies and details nor all the info be available in file at the given point of time. Even assuming that the CIC does not have the power to do so and decides the case based on its appreciation and understanding (with all doubts swept under the carpet) the Public Authority concerned may point out such lacunae in the decision and go on appeal to the High Court by way of writ. Then the whole process gets further delayed. The balance of convenience may lie in remitting the matter back to the FAA rather than giving scope to the PA to go to the HiGH Court.

[opsharma]

Originally Posted by colnrkurup

The RTI Act has inbuilt hidden provisions for everything if the persons concerned are willing to abide. For Eg; look at Section 19(8)(b) of the Act. It bestow on the CIC/SICs power to require the public authority to compensate the complainant for any loss or other detriment suffered, If the Commission start excercising this and start awarding compensation to the complainant in cases the PIO refuced the information and the FAA supported , from where they will get fund for such compensation.? When public authorities are made to compensate they have to recover this amount from the persons responsible as per the Financial Regulations. The C&AG will not leave it unless the amount is recovered. Naturally the poblic authority has to make the FAA responsible for the loss. But which CIC or SIC will exercise this provision ?

DOPT Memo No. 1/4/2008-IR dated 25th April,2008 Regarding Guidelines for the Public Authorities.

Para 27 "The commission has the power to pass orders requiring a public authority to compensate the complainant for any loss or other detriment suffered by him..................................... It may be noted that penalty is imposed on the Public Information Officer which is to be paid by him. However,the compensation,ordered,by the Commission to be paid to an applicant would have to be paid by the Public Authority."

Therefore it is evident that compensation is ,for example, on account of multiple visits to the CIC/SIC due to absence of PIO/FAA resulting in travel and stay expenses for the applicant ,in addition to tension and physical fatigue .Compensation of TA/DA was awarded recently by CIC.

And the fund from which compensation is to be paid could be specific RTI fund, eg Army Headquarters has "RTI Fund ADGPI" for RTI fees/charges "Payable at New Delhi'.

[taurus]

The DOPT guidelies make it clear that whereas 'penalty' has to be paid by the PIO, "compensation" has to be paid by the PA. It appears to be logical.

[colnrkurup]

We should not drag in the DoPT. Section 19(8)(b) dealing with compensation is GOLD MINE. No funds are allotted to Public Authorities for this. They have no means to pay but can make the persons responsible to pay the compensation. The compensation can be deemed as a loss sustained by the PA due to fraud or neglect of some of the pblic servants. The PA can order enquiry to fix the responsibility. We have been crying that the FAA cannot be penalised. The PA can penalise the FAA if on enquiry the FAA is found to be respnsible for the loss or compensation.

[taurus]

As long as the amount of compensation to be paid is comparatively less - compared to the total budget allotment to the PA concerned - no one will think much about paying it up. It will be paid from the incidental and miscellaneous funds. But if someone in the audit insists that such compensation has to be treated as charged expenditure (requiring special allotment, following the lengthy procedure laid down for that) then naturally responsibility for the 'loss' will have to be fixed and suitable action (it may even be recovery from the person responsible) would be taken. The existing system caters for that also. There is no need to have special legislation or rule for that.

[colnrkurup]

All normal budgettary allotments of various departments come under "Voted" espenditure and not "Charged". Charged expenditure is entirely different. For Eg. the pay and allowances of the President of India or C&AG etc fall under the 'charged' head. One need not wait for the parliament to vote this expenditure. Audit has no power to insist such provision. Payment of compensation fall under "Loss due to fraud neglect or theft". Finanacial power of a sanctioning authority to write off or incur under this sub head of account is too meagre that it will not be suffice for compenstion of even Rs.500/.

[taurus]

All payments that are to be made consequent to a court order are not, obviously, allotted or 'voted' funds, because such eventualities cannot be forecast before making provisions in the budget. That is why such payments are classified as charged expenditure. The department concerned has to take up for allotment of fund in such cases under the head 'charged expenditure'. As a matter of procedure, in this process they have to explain the reason behind the necessity to make such payment and persons responsible for the same as well as the steps taken to avoid recurrence of such eventualities in future. The financial powers to write off losses under various categories is not uniform. It varies from authority to authority. Audit has the authority to ensure that the funds are classified in the appropriate heads of account.

[colnrkurup]

The issue is not whether the expenditure fall under "charged" or "voted ". When the CIC/SIC order the public authority to compensate an appellant, they will be forced to recover the money from the person responsible. This is good enough. My plea is that the CIC/SIC can penalise an FAA in this way. The contention that the RTI Act has no provision to penalise an FAA is therefore not correct. A determined CIC/SIC can penalise the PIO, FAA and everyone responsible for denying the information by awarding compensation to the appellant. The FAA or anyone responsible in denying the information will naturally get penalised