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Orders/Decisions

Orders/Decisions in Appeal under and by virtue of Section 32 of the RTI Act dealing with the power of the Commission to hear Appeals read with Section 38 (Disciplinary action) and Section 39 (Offences) under the RTI Act.

 

Section 32 of the Act:

32.
 (1) Any citizen aggrieved by:–

 (a) the decision made in respect of an appeal under section 31(1), may within two months of the communication of such decision; or
 (b) the failure to obtain a decision on any appeal made within the time specified for giving the same under section 31(3), may within two months of the expiry of the period so specified, may appeal against that decision or the failure, to the Commission and the Commission may within thirty days of the receipt of such appeal affirm, vary or reverse the decision appealed against and forward the request back to the information officer concerned for necessary action.

 (2) The Commission may admit the appeal after the expiry of the period of two months if the commission is satisfied that the appellant was prevented by a reason beyond his or her control from filing the appeal in time.

 (3) The Commission shall give reasons for its decisions in writing, to the appellant, the information officer and the public authority concerned.

(4) On appeal, the burden of proof shall be on the public authority to show that it acted in compliance with this Act in processing a request.

 

Section 38 of the Act:

38.
 (1) Where–

 (a) any information officer willfully -

 (i) refuses to receive an application for information from any citizen;
 (ii) refuses a request made for information, without giving reasons for such refusal;
 (iii) stipulates excessive fees in breach of the fee Schedule referred to in section 14 (e);
 (iv) otherwise fails to process a request in accordance with the provisions of this Act;
or

 (b) any designated officer willfully –

 (i) under section 31 refuses an appeal, made on any ground other than a ground specified in section 5 of this Act;
 (ii) failed without any reasonable cause to make a decision on an appeal, within the time specified under section 31(3) for making such decision, the Commission shall, bring the matter to the notice of the appropriate disciplinary authority.

 (2) The relevant disciplinary authority shall inform the Commission of the steps taken in respect of any matter brought to the notice of such disciplinary authority within a period of one month.

 

Section 39 of the Act:

39.
(1) Every person who–

(a) deliberately obstructs the provision of information or intentionally provides incorrect, incomplete or inaccurate information;

(b) destroys, invalidates, alters or totally or partially conceal information under his or her custody, or to which he or she has access to or knowledge of due to the exercise of his or her employment in such public authority;

(c) fails or refuses to appear before the Commission when requested to do so by the Commission;

(d) appears before the Commission, and fails or refuses to be examined by the Commission or to produce any information which is in that persons possession or power or deliberately provides false information under oath or affirmation;

(e) fails or refuses to comply with or give effect to a decision of the Commission;

(f) resists or obstructs the Commission or any officer or other employee of the Commission, in the exercise of any power conferred on the Commission or such officer or employee, by this Act;

(g) discloses any information in contravention of the provisions of section 12(7) of this Act, commits an offence under this Act and shall on conviction after summary trial by a Magistrate be liable to a fine not exceeding fifty thousand rupees or to imprisonment for a term not exceeding two years or to both such fine and imprisonment.

(2) Any officer whose assistance was sought for by an information officer under section 23(3) and who fails without reasonable cause to provide such assistance, shall commit an offence under this Act, and shall on conviction after summary trial by a Magistrate be liable to a fine not exceeding ten thousand rupees.

(3) A fine imposed for the commission of an offence referred to in subsection (1) or (2) of this section, shall be in addition to and not in derogation of any disciplinary action that may be taken against such officer by the relevant authority empowered to do so.

(4) A prosecution under this Act shall be instituted by the Commission.

- Appeals are categorised in three types, initial assessments, documentary proceedings and in-person hearings in terms of Rules 18 to 20 of the Rules of the Commission (Fees and Appeals Procedure),(Gazette No 2004/66, Friday February 3rd 2017)

- Defective Appeals relate to appeals that do not contain the requisite information or are otherwise substantially deficient in a manner that is curable at the stage of appeal before the Commission. Such appeals will be classified as Deficient Appeals and entered into the relevant Register. The appellant will be asked to remedy the appeal and submit an amended appeal upon which the appeal will be transferred to the Register of Appeals in terms of Regulation 17 of Regulations promulgated under the RTI Act, No 12 of 2016 (Gazette No 2004/66, Friday February 3rd 2017)

- Inquiry Orders relate to Orders made at the conclusion of Inquiries under Rules in regard to the Procedure for Holding Inquiries (Section 42)

- Other Decisions of the Commission relate to responses of the Commission to purported Appeals from citizens that are procedurally flawed in as much as they do not conform to the RTI Act and Regulations. These include not appealing to a Designated Officer (DO) when a DO is in place or sending an 'Appeal' to the Commission through email which contravenes Rule 13 (2) of the Rules (Fees and Appeals Procedure) (gazetted on 03.02.2017 in Gazette No. 2004/66). Appeals to the Commission can only be through registered post or in person.

Failures to adhere to the mandated statutory procedures laid down in the RTI Act or failure to include material particulars required by the RTI Act in an information request in the first instance may result in the purported appellant having to submit the appeal afresh.

 

Directives

- Vis a vis Public Authorities, these Directives include responses from the RTI Commission in regard to providing advice in terms of Section 5(5) of the RTI Act where advice is being sought regarding a procedural matter ‘connected with the grant of access to any information.’

However the Commission has taken the position that it will not be able to advice on a substantial matter relating to the application of the Act to certain types or categories of information given that this may prejudice the hearing of that same matter, in the event that it comes up formally before the Commission in appeal.

In that context and in regard to advice being requested by information officers of Public Authorities relating to potential denial of types or categories of information under Section 5 of the Act, the Commission has emphasized and advised Public Authorities that the primary aim of the RTI Act is the maximum disclosure of information subject to narrowly drawn exemptions that again must yield to the overriding principle of the public interest.

Recent Decisions in Appeal

Ongoing In-Person Hearings