How does the the National Right to Information Act compare with the Maharashtra RTI Act?

1. coverage

Judiciary and legislature are covered under the NRTI.

MRTI does not cover judiciary and legislature.

Under the NRTI one can demand inspection of documents and taking of samples for testing.

2. what can be demanded

MRTI does not allow inspection of documents, forcing citizens to essentially demand copies of documents and the requisition may get turned down if the request is for `voluminous’ quantity of documents.

MRTI does not allow demanding samples for testing, which has been very effective in Delhi.

Quoting NRTI: "right to information" means the right to information accessible under this Act, which is held by or under the control of any public authority and includes the right to-           

                         (i)             inspection of work, documents, records;

                         (ii)        taking notes, extracts, or certified copies of documents or records;

                 (iii)             taking certified samples of material;

obtaining information in the form of diskettes, floppies. tapes, video cassettes or in any other electronic mode or through printouts where such information is stored in a computer or in any other device; .

Definition of `information’s likewise is comprehensive in MRTI: 

"information" means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force;’’

The definition under MRTI merely says: `` Information " means information relating to any matter in respect of the affairs of the Government and of any public authority’’. Lesser the details, more chances of disputes.

3. questioning purpose of requisition

NRTI specifically provides: ``An applicant making request for information shall not be required to give any reason for requesting the information or any other personal details except those that may be necessary for contacting him.’’

Rules under MRTI make it mandatory for the requisitioner to state the purpose of seeking information. We, including the state monitoring council, have not been able to get this illegal and unconstitutional provision, during the two years of the Act.

 4. NRTI over-rides Official Secrets Act. MRTI does not.

Quoting NRTI: ``Notwithstanding anything in the Official Secrets Act, 1923 nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interests in disclosure outweighs the harm to the protected interests.’’

And

``The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923, and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.’’

One of the exclusions under MRTI says:

``information the disclosure of which is prohibited under the provisions of the Official Secrets Act, 1923; ‘’ (not to be disclosed)

5.Prescribed time limit for disposal of requisition

Thirty days under NRTI. No extension granted.

Fifteen working days under MRTI. PIO allowed to take further 15 working days.

(it is common in legalese that `days’ means `calendar days’, unless otherwise qualified. )

Fifteen working days under MRTI can be 18 days or more. With extended period of 15 working days, it could mean 36 days or more.

6. transferring a requisition

The NRTI provides that where an application is made to a public authority requesting for an information,­- (i)  which is held by another public authority; or (ii)  the subject matter of which is more closely connected with the functions of another public authority,  the public authority, to which such application is made, shall transfer the application or such part of it as may be appropriate to that other public authority and inform the applicant immediately about such transfer.

This has to be done within five days.

Under MRTI, the PIO is supposed to guide the requisitioner. This rare happens in absence on a mandate to transfer the requisition to the appropriate authority.

(in repale case, a pio gave truncated information and then pleaded in the second appeal that he was not the right pio and yet gave some information that he had (as if to oblige the requisitoner) and therefore he was not responsible for incomplete info.)

7. Fees:

MRTI says: ``the fees prescribed or the additional fees payable, as the case may be, shall not exceed the actual cost of supplying the information.’’

NRTI says: the fees shall be reasonable and no such fee shall charged from the persons who are of below poverty line as may be determined by the appropriate Government.”

In addition, there is a provision in the NRTI which is absent in MRTI:

``Notwithstanding anything contained in sub-section (5), the person making request for the information shall be provided the information free of charge where a public authority fails to comply with the time limits specified’’            .

8. first appeal

under the mrti, the appellate authority is not identified. Requisitioner has to find out if the pio ignores the provision of the Act and does not identify the appellate authority in his response to requisition.

Appeal to be made within 30 days.

Under the nrti the first appeal is made to the appellate authority who is `` such officer who is senior in rank to the Central Public Information Officer or the State Public Information Officer, as the case may be, in each public authority ‘’

Appeal to be made within 30 days but such appellate authority `` may admit the appeal after the expiry of the period of thirty days if he or she is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time. ‘’

No such concession has been granted under mrti.

9. second appeal

under the mrti, it goes to Lokayukta ``or’’ Upa-Lokayuktas ``as the case may be…’’

it has not been explained what is ``as the case may be’’

appeal has to be made within 30 days.

Under the nrti, second appeal is filed with the information commission.. it can be filed within 90 days as against 30 days provided in mrti. In addition, the commission may admit the appeal after the expiry of the period of 90 days if it is satisfied that the applicant was prevented by sufficient cause from filing the appeal in time;

10. deemed disposal

In both first appeal and the second, the principle of deemed rejection has been clearly spelt out in nrti. It has not been spelt out for second appeal under mrti creating hardship for requisitioners. 

mrti says: ``Any person aggrieved by the order of the appellate authority under sub-section (2), may within thirty days from the receipt of such order, prefer second appeal to the Lokayukta or Upa-Lokayuktas, as the case may be, of the State.’’

we are aware of the disastrous consequences of this.

nrti provides: ``A second appeal against the decision under sub-section (1) shall lie within ninety days from the date on which the decision should have been made or was actually received, with the Central Information Commission or the State Information Commission:

11. disposal of second appeal

like the first appeal, the second appeal under the nrti has to be `` disposed of within thirty days of the receipt of the appeal or within such extended period not exceeding a total of forty-five days from the date of filing.’’

Under the mrti, it is 30 days which can be extended by another 30 days.

While deciding the second appeal, the information commission  ``shall…have the same powers as are vested in a civil court while trying a suit under the Code of Civil Procedure, 1908, in respect of the following matters, namely:­-

(a)  summoning and enforcing the attendance of persons and compel them to give oral or written evidence on oath and to produce the documents or things; (b) requiring the discovery and inspection of documents; (c) receiving evidence on affidavit; (d) requisitioning any public record or copies thereof from any court or office; (e) issuing summons for examination of witnesses or documents; and (f)  any other matter which may be prescribed.

Lokayukta under the mrti does not enjoy these powers. Note the words: ``as vested in a civil court’. This does not mean the information commission has to turn a second appeal hearing into a `civil suit’. He has to dispose it of in 30 plus 15 days. But while doing so the commission enjoy far greater powers than those enjoyed by the lokayukta. And as for `civil suit’, we have recently seen the manner in which the lokayukta has been functioning – eg repale case where the matter was taken up for hearing after 60 days and the respondent pio was granted at least two adjournments.

12. sanctity of decision on second appeal

The decision of the Central Information Commission or State Information Commission (under nrti) shall be binding.

Under mrti, the decision of the Lokayukta or Upa-Lokayuktas, as the case may be, in appeals shall be final.

nrti further provides:

``In its (binding) decision, the Central Information Commission or State Information Commission, as the case may be, has the power to,­-

(a)        require the public authority to take any such steps as may be necessary to secure compliance with the provisions of this Act, including

            (i) by providing access to information, if so requested, in a particular form;

(ii) by appointing a Central Public Information Officer or State Public Information Officer, as the case may be;

(iii) by publishing certain information or categories of information;

            (iv) by making necessary changes to its practices in relation to the

            maintenance, management and destruction of records;

(v) by enhancing the provision of training on the right to information for its officials;

(vi) by providing it with an annual report in compliance with clause (b) of sub-section (1) of section 4;

(b)        require the public authority to compensate the complainant for any loss or other detriment suffered;

impose any of the penalties provided under this Act;

all this, except penalty, is absent under mrti.

13. burden of proof

The onus of proving himself innocent during the hearing is on the pio. The nrti provides:

``Provided further that the burden of proving that he acted reasonably and diligently shall be on the Central Public Information Officer or the State Public Information Officer, as the case may be.’’

14. Penalty 

Rs 250 per day of delay both in nrti and mrti. The latter however provides that it can be recovered from the pio’s salary or recovered as renvenue arrears. The nrti does not spell this out.  nrti caps the fine at rs 25,000. there is no limit of the fine amount under mrti.

15. information commission dedicated to rti

the task of hearing second appeal is saddled on the lokayukta under mrti who has his primary function something else than rti. Same is the case with all apex appellate authorities under other state rti acts. The information commission under nrti is solely created for not only disposal of second appeals under rti but also for general superintendence of the functioning of the rti law. The  commission is given a staff that is dedicted to rti matters.

The nrti provides:

``The State Government shall provide the State Chief Information Commissioner and the State Information Commissioners with such officers and employees as may be necessary for the efficient performance of their functions under this Act, and the salaries and allowances payable to and the terms and conditions of service of the officers and other employees appointed for the purpose of this Act shall be such as may be prescribed. ‘’

16. accessibility of info commission

under the chief information commission, there can be NOT MORE THAN 10 (does not mean essentially 10) information commission suitably stationed to perform the commission work. In maharashtra, there can be six commissioners at each divisional place under the chief commissioner at mumbai. Or to start with there can be three – each looking after two adjoining divisions. (eg, one at nagpur – for nagpur and amaravati divisions).

Under mrti, BOTH lokayukta and upa-lokayukta are stationed in mumbai. The requisitioner either has to commute to mumbai or wait for their visits to the nearest divisional place.

17, 18, 19 superitendence, monitoring and promotion

superintendence, monitoring and promotion is solely under the government under mrti.

The act, however, prescribes appointment of  monitoring councils comprising citizens which functions under the chief secretary at the state level and divisional commissioner at the division level which meets ``not less than once in six months and makes suitable recommendations to the government.’’

17 superintendence

Under the nrti, superintendence is with the information commission which is dedicated to the Act.

The Act provides:

``The general superintendence, direction and management of the affairs of the Central Information Commission shall vest in the Chief Information Commissioner who shall be assisted by the Information Commissioners and may exercise all such powers and do all such acts and things which may be exercised or done by the Central Information Commission autonomously without being subjected to directions by any other authority under this act.

(the chief information commissioner, incidentally, is higher in status than the state chief secretary)

18 monitoring

as for monitoring the Act provides

``(1)     The Central Information Commission or State Information Commission, as the case may be, shall, as soon as practicable after the end of each year, prepare a report on the implementation of the provisions of this Act during that year and forward a copy thereof to the appropriate Government.

            (2)             Each Ministry or Department shall, in relation to the public authorities within their jurisdiction, collect and provide such information to the Central Information Commission or State Information Commission, as the case may be, as is required to prepare the report under this section and comply with the requirements concerning the furnishing of that information and keeping of records for the purposes of this section.

            (3)            Each report shall state in respect of the year to which the report relates,-

­(a)        the number of requests made to each public authority;

(b)        the number of decisions where applicants were not entitled to access to the documents pursuant to the requests, the provisions of this Act under which these decisions were made and the

(c)        the number of appeals referred to the Central Information Commission or State Information Commission, as the case may be, for review, the nature of the appeals and the outcome of the appeals;

(d)             particulars of any disciplinary action taken against any officer in respect of the administration of this Act;

(e)        the amount of charges collected by each public authority under this Act;

(f)         any facts which indicate an effort by the public authorities to administer and implement the spirit and intention of this Act;

(g)             recommendations for reform, including recommendations in respect of the particular public authorities, for the development, improvement, modernisation, reform or amendment to this Act or other legislation or common law or any other matter relevant for operationalising the right to access information.

The Central Government or the State Government, as the case may be may, as soon as practicable after the end of each year, cause a copy of the report of the Central Information Commission or the State Information Commission, as the case may be, before each House of Parliament or, as the case may be, before each House of the State Legislature, where there are two houses, and where there is one House of the State Legislature before that House.

(5)               If it appears to the Central Information Commission or State Information Commission, as the case may be that the practice of a public authority in relation to the exercise of its functions under this Act does not conform with the provisions or spirit of this Act, it may give to the authority a recommendation specifying the steps which ought in its opinion to be taken for promoting such conformity.’’

This, I should say, is statutory monitoring! Such statutory monitoring is absent in MRTI.

19 promotion

As regards promotion:

The nrti provides:

``The appropriate Government shall, within eighteen months from the commencement of this Act, compile in its official language a guide containing such information, in an easily comprehensible form and manner, as may reasonably be required by a person who wishes to exercise any right specified in this Act.

            (3)             The appropriate Government shall, if necessary, update and publish the guidelines referred to in sub-section (2) at regular intervals, which shall, in particular and without prejudice to the generality of sub-section (2), include-

(a)        the objects of this Act;

(b)        the postal and street address, the phone and fax number and, if available, electronic mail address of the Central Public Information Officer or State Public Information Officer, as the case may be of every public authority appointed under sub-section (1) of section 5;

(c)                the manner and the form in which request for access to an information shall be

made to Central Public Information Officer or State Public Information Officer, as the case may be;

(d)        the assistance available from and the duties of the Central Public Information Officer or State Public Information Officer, as the case may be of a public authority under this Act;

(e)        the assistance available from the Central Information Commission or State Information Commission, as the case may be;

(f)         all remedies in law available regarding an act or failure to act in respect of a right or duty conferred or imposed by this Act inc1uding the manner of filing an appeal to the Commission;    

the provisions providing for the voluntary disclosure of categories of records in accordance with section 4;

4.                (h)            the notices regarding fees to be paid in relation to requests for access to an

information; and      

(i)         any additional regulations or circulars made or issued in relation to obtaining access to an information in accordance with this Act.

            (4)             The appropriate Government must, if necessary, update and publish the guidelines at regular intervals.’’

Such statutory provisions are absent in MRTI. Yet, maharashtra government, we must concede, is doing a reasonably good job on promotion. At the same time, we must also concede that whatever is being done at present falls short of the statutory prescriptions enumerated in the NRTI.

 20. statutory mandate on voluntary disclosure

a vital component of any access to information law is the mandate on public authority to voluntary and periodically publish certain essential information so that citizenry does not have to undergo the rigours of the info law to seek routine information.

Maharashtra rti act has reasonably good provisions on this (reproduced below). But when you compare these provisions with those of nrti (also reproduced below), one realises that mrti provisions are rendered tame.

mrti provisions

``(b ) publish in the manner prescribed, from time to time, -

(i) the particulars of it's organization, functions and duties :

(ii) the powers and duties of its officers and employees and the procedure to be followed by them in decision making process ;

(iii) the norms set by the public authority for the discharge of its functions ;

(iv) the rules, regulations, instructions, manuals, government resolutions, orders and guidelines and the list of record in the office, which can be made available to the citizens :(v) the details of facilities available to citizens for obtaining information ;

(vi) the name, designation and other particulars of the Public Information Officer; and

(vii) such additional information as may be prescribed by the Competent Authority concerned from time to time;

(c) publish all relevant facts concerning important decisions whether administrative or quasi-judicial and policies that affect the public while announcing such decisions and policies ;

(d) before initiating any project, publish or communicate to the public generally and to the persons affected by the project in particular, the facts available to it or to which it has reasonable access and which in its opinion should be known to the affected persons.

compare these with the provisions in the nrti (as follows) (highlighted provisions are conspicuously absent in mrti)

nrti provisions

(b)        publish within one hundred and twenty days from the enactment of this Act,-

­(i)         the particulars of its organisation, functions and duties;

                              (ii)                the powers and duties of its officers and employees;

(iii)       the procedure followed in the decision making process, including channels of supervision and accountability;

(iv)       the norms set by it for the discharge of its functions;

(v)        the rules, regulations, instructions, manuals and records, held by it or under its control or used by its employees for discharging its functions;

(vi)       a statement of the categories of documents that are held by it or under its control;

 (vii)     the particulars of any arrangement that exists for consultation with, or representation by, the members of the public in relation to the formulation of its policy or implementation thereof;

(viii)      a statement of the boards, councils, committees and other bodies consisting of two or more persons constituted as its part or for the purpose of its advise, and as to whether meetings of those boards, councils, committees and other bodies are open to the public, or the minutes 'of such meetings are accessible for public;

(ix)       a directory of its officers and employees;

(x)        the monthly remuneration received by each of its officers and employees, including the system of compensation as provided in its regulations;

(xi)       the budget allocated to each of its agency, indicating the particulars of all plans, proposed expenditures and reports on disbursements made;

(xii)      the manner of execution of subsidy programmes, including the             amounts allocated and the details of beneficiaries of such             programmes;

(xiii)             particulars of recipients of concessions, permits or authorisations granted by it;

(xiv)     details in respect of the information, available to or held by it, reduced in an electronic form;

(xv)      the particulars of facilities available to citizens for obtaining information, including the working hours of a library or reading room, if maintained for public use;

(xvi)     the names, designations and other particulars of the Public  Information Officers; ,

           (xvii)             such other information as may be prescribed;

            and thereafter update these publications every year;

(c)        publish all relevant facts while formulating important policies or announcing the decisions which affect public;

            (d)             provide reasons for its administrative or quasi judicial decisions to affected persons;

 now, before I go into the well known deficiencies in the nrti, let me reply to each of the objections raised by col ramesh wasudeo:

rw: In fact confusion they created regarding “competent authority” in new act is result of careless copying.

pk: I must say, I am confused myself on this allegation of confusion ``regarding competent authority’ will col rw kindly spell out this alleged confusion? We can deal with this point after we have received his explanation on the `confusion’.

rw: Can we challenge inclusion of third party in courts?

pk: yes, we can. We will have to spell out violation of our fundamental right (to know). In fact, anything that we perceive is an infringement of our fundamental right can be challenged. Let us spell out how this third party clause violates our fundamental right.

Let this be a nationwide exercise of all rti campaigners together than confining it to those from maharashtra.

rw: can we challenge preamble in courts?

pk: answer as above. What is the matter? As I guess, col rw is quoting from rti advocates who were struggling to get an impeccable nrti act and wanted fundamental rights specifically mentioned in the preamble.

Yes, it has not been mentioned. Does this mean my fundamental right to know has been taken away? Can any statute take away, eclipse any fundamental right?

The NRTI preamble specifically mentions containing corruption:

Quote: `` AND WHEREAS democracy requires an informed citizenry and transparency of information which are vital to its functioning and also to contain corruption and to hold Goverments and their instrumentalities accountable to the governed;’’

MRTI makes no such specific mention.

Does this mean MRTI could not be used to contain corruption?

rw:  can we challenge abolition of disciplinary action against errant PIO in the court?,

pk: abolution? I find the following provision in the nrti:

``Where the Central Information Commission or the State Information Commission, as the case may be, at the time of deciding any complaint or appeal is of the opinion that the Central Public Information Officer or the State Public Information Officer, as the case may be, has, without any reasonable cause and persistently, failed to receive an application for information or has not furnished information within the time specified under sub-section (1) of section 7 or malafidely denied the request for information  or knowingly given incorrect, incomplete  or misleading information or destroyed information which was the subject of the request or obstructed in any manner in furnishing the information, it shall recommend for disciplinary action against  the Central Public Information Officer or the State Public Information Officer, as the case may be, under the service rules applicable to him.

rw: can we challenge absence of monitoring mechanism in courts?

pk: I have already given the detailed provisions to provide that the statutory monitoring in nrti is far more formidable than the provision in the mrti

rw: can we challenge absence of  word “designated AA”?

pk: what is `designated AA”? Probably you mean, designated PIO.

I would like to bring to your notice that the provision in the NRTI is direct on this, whereas that in the MRTI is oblique. The NRTI spells out that the officer who is supposed to cooperate with the PIO ``shall be treated’’ as a PIO.

MRTI merely says he shall cooperate and then one has to go back to the definition to prove that this officer also is deemed (designated etc) PIO:

Let us read the provisions:

NRTI:

Any officer, whose assistance has been sought under sub-section (4), shall render all assistance to the Central Public Information Officer or State Public Information Officer, as the case may be, seeking his or her assistance and for the purposes of any contravention of the provisions of this Act, such other officer shall be treated as a Central Public Information Officer or State Public Information Officer, as the case may be .

MRTI:

(4) Any Officer or Employee whose assistance has been sought under sub-section (3), shall render all assistance to the Public Information Officer seeking his assistance.

Definition: " Public Information Officer " means an Officer designated by any Competent Authority under sub-section (1) of Section 5 and shall include such Officer or Employee whose assistance has been taken by the Public Information Officer for the performance of his duties under this Act;

rw: NRTI sec 19 (1) refers to an officer senior in rank in place of AA?

pk: This has been spelt out above. MRTI provides NO IDENTIFICATION of AA. Requisitoiners have been going from pillar to post to find out the right AA.The NRTI at least says he is immediately senior to the PIO. This makes it easier to identify the AA.

rw:  can we challenge sec 5 (2), designating PIOs only at sub divisional and sub district level - instead of every office MRTI sec 5 (1) in courts?

pk: probably what you mean is designating PIOs only at district level and above and assistant PIOs at sub divisional and sub district level. What is the problem? Can you plse spell out?

rw: can we challenge fees to be charged as informed by PIO (after calculation - sec 7 (1))in NRTI,  against MRTI stipulated Rs.10/- application fee and 50 paise per page copy charges ( proposed rules ask for Rs.1 per page zeroxing)?

pk: I am afraid, in our zeal to condemn the NRTI lock stock and barrel, we are jumping the gun. This is to be covered under rules and the rules under NRTI have not yet been announced. So let us wait. We will surely challenge any unreasonably high levy (if not in the conventional court, but in the people’s court)

rw: can we challenge  absence of clear definition of stipulated days (working days or calendar days )?

pk: this has been dealt with earlier. However, if you read our own MRTI carefully, you will find mention of `days’ without the qualifying word `calendar’’, because unless qualified (like `working’ etc, days means calendar days.

Anyway, I will quote from the MRTI:

``11. Appeals

(i) Any person aggrieved by an order of the Public Information Officer may, within thirty days from the date of receipt of such order; or

(ii) any person who has not received any communication within the period of fifteen working days as specified in sub-section ( 2 ) of section 6 or the extended period as specified in the second proviso to the said sub-section ( 2 ) , from the date of making such application; may, appeal to the appellate authority, within a period of thirty days of the lapse of such period in such form and with such fees, as may be prescribed :’’

rw: can we challenge absence of time limit for ICs to decide cases?

pk: This has been dealt with earlier in this argument.

Now finally I come to the deficiencies in the NRTI

Deficiencies in NRTI Act

1. Yes, the provision on reference to the third party has been inserted in the Act despite our protests.

But before we go into details, let us try to understand that

Such provisions exist in access to information laws elsewhere in the world to protect privacy rights of individuals.

We had, however, argued that in India such separate provision is likely to be misused by PIOs and that making specific mention of some additional genuine privacy matters rather than having a generic clause (likely to be miused).

Yet, let us also admit:

Sky is not going to fall if the generic clause finally is part of the legislation.

We will contest each case of misuse, if any – if necessary in the courts of law. But remember, before that we have a powerful and informed commission who is expected to distinguish between genuine case and not genuine.

Let us read the provision: Provided that except in the case of trade or commercial secrets protected by law, disclosure may be allowed if the public interest in disclosure out weighs in importance any possible harm or injury to the interests of such third party.

Remember also that even if a reference is made (perhaps unwarranted reference), the PIO is obliged to take a decision within 40 days from the date of the receipt of the requision (that is, the delay is only 10 days).

The provision reads:

``Notwithstanding anything contained in section 7, the Central Public Information Officer or State Public Information Officer, as the case may be, shall, within forty days after receipt of the request under section 6, if the third party has been given an opportunity to make representation under sub-section (2), make a decision as to whether or not to disclose the information or record or part thereof and give in writing the notice of his decision to the third party.’’

2. Yes, unlike state acts, the NRTI protects `intelligence’ agencies:

this is a legacy of the previous FOI Act of 2002. It shouldn’t have been carried forward in the NRTI Act.

But remembers, RTI campaigners at the national level have been able to dilute this provision to a reasonable extent, making allegations of corruption and human rights violation accessible under the RTI Act.

The provision reads:

`` Nothing contained in this Act shall apply to the intelligence and security organisations specified in the Second Schedule, being organisations established by the Central Government or any information furnished by such organisations to that Government:

Provided that the information pertaining. to the allegations of corruption and human rights violations shall not be excluded under this sub-section:’’

This should cover most of our genuine requisitions. Surely we do not intend to interfere with their normal functioning, which is prohibited anyway under the exclusion clauses of both the NRTI and MRTI.