Analysis of the RTI Rules notified by the J & K High Court

Rules

Text of the Rules

Recommendations for Change

Justification for Change

Rule 1: No change recommended.

Rule 2: No change recommended.

Rule 3

Application for seeking information

a) Any person seeking information under the Act , shall file and application during working hours of the court to the authorised person , in Form A and deposit application fee as per Rule 10 with the authorised person;

b) The authorised person shall duly acknowledge the application as provided in Form B.

Provided that a person who makes a request through electronic form shall ensure that the requisite fee is deposited in cash with the authorised person within 7 days of his sending the request through the electronic form, failing which his application shall be treated as dismissed.

c) Explanation: For each information sought, separate application shall be made. However where more than one information sought is consequential or related to one another, the applicant will be permitted to seek the information through one application only.

a) Insert a second proviso as follows:

“Provided further, that the authorised person shall accept a request for information made on plain paper if it contains all relevant particulars specified in Form A.”

b) Amend the proviso as follows:

“Provided that a person who makes a request through electronic form shall be required to pay the requisite fee through any of the modes specified in Rule 10 failing which the authorised person shall send him a request for payment of the requisite fee upon receipt of the request or along with the intimation of additional fee payable in accordance with Rule 10.”

c) The Explanation may be deleted.

a) The said Rule makes the use of Form A compulsory for the purpose of submitting an information request. There is a danger that the ‘authorised persons’ may reject such requests at the very outset if they are made on plain paper. This is not in keeping with the letter and spirit of the RTI Act spelt out in Section 7(1) Subject to the proviso to sub-section (2) of section 5 or the proviso to subsection (3) of section 6, the Central Public Information Officer or State Public Information Officer, as the case may be, on receipt of a request under section 6 shall, as expeditiously as possible, and in any case within thirty days of the receipt of the request, either provide the information on payment of such fee as may be prescribed or reject the request for any of the reasons specified in sections 8 and 9: Subject to the proviso to sub-section (2) of section 5 or the proviso to subsection (3) of section 6, the Central Public Information Officer or State Public Information Officer, as the case may be, on receipt of a request under section 6 shall, as expeditiously as possible, and in any case within thirty days of the receipt of the request, either provide the information on payment of such fee as may be prescribed or reject the request for any of the reasons specified in sections 8 and 9: that a request may be rejected only for reasons specified in Sections 8 and 9 of the Act. Plain paper applications must also be accepted in so far as they contain the minimum details that will enable the authorised person to process it. Neither the J&K State Government, nor the Central Government prescribe any formats for seeking information. Further, the RTI Rules notified in Gujarat state that plain paper applications shall also be accepted. There is no reason why the Hon’ble Court cannot take a similarly progressive step in order to create greater convenience for RTI applicants.

b) For the same reasons stated above it would be improper to empower the authorised person to reject a request for reason of non-payment of the application fee. Rejections is permitted only for reasons based on the exemption clauses. The rule-making power cannot be utilised to expand the powers of the authorised persons in this manner. Expansion or contraction of powers are possible only through an amendment of the principal Act.

c) What constitutes ‘each information’ is a highly subjective issue. Including such an explanation in the Rules places unreasonably vast discretionary powers in the hands of the authorised persons. In other States where such subject-matter restrictions have been imposed this power has been abused a lot. Including such an explanation will only increase litigation before the Appellate Authority and later before the J&K State Information Commission (J&KSIC) needlessly. Neither the J&K RTI Rules notified by the State Government nor the Central RI Rules notified by the Government of India contain such an arbitrary provision.

Rule 4

Disposal of application by the authorised person

i) If the requested information does not fall within the jurisdiction of the authorised person , it shall transfer the application or such part of it , as is beyond his jurisdiction , to that other authority along with fees, as soon as practicable but not later than five days from the receipt of application, in form C .

ii)            If the requested information is within the authorised person’s jurisdiction but falls in one or more of the categories listed/mentioned in the Section 8 and 9 of the Act, the authorised person, on being satisfied, will issue the rejection order in Form D as soon as practicable, as expeditiously as possible and in any case not later than 30 days from the date of the receipt of the information.

iii)  If the requested information falls within the authorised person’s jurisdiction, but does not fall in one or more of the of the categories listed in Section 8 and 9 of the Act, the authorised person, on being so satisfied, shall supply the information to the applicant in Form E, falling within its jurisdiction as expeditiously as possible and in any case within 30 days of the receipt of the request. In case the information sought is partly outside the jurisdiction of the authorised person or partly falls in the categories listed in Section 8 and 9 of the Act , the authorised person shall supply only such information as is permissible under the Act and is within its own jurisdiction and reject the remaining part giving reasons therefore.

iv) The information should be supplied as soon as practicable and in any case not later than 30 days from the date of receipt of the application.

Provided that, if the information sought for, concerns the life and liberty of a person, same shall be provided within 48 hours of the receipt of the request.

However, the date of the application shall be deemed to be the date of deposit of the entire fee or the balance fee or deficit amount of the fee to the authorised person. A proper acknowledgment shall be obtained from the applicant in token of receipt of information after production of Form B. 

a) Substitute the phrase ‘authorised person’ with the term – “Public Information officer” throughout Rule 4 and subsequent Rules.

b) Rule 4(ii) may be amended as follows:

“If the requested information is within the authorised person’s jurisdiction but falls in one or more of the categories listed/mentioned in the Section 8 and 9 of the Act, the authorised person, on taking all such steps as may be necessary for determining the applicability of Section 8(2) Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests. Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests. Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests. Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests. Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests. Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests. Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests. of the Act, will issue the rejection order in Form D as soon as practicable, as expeditiously as possible and in any case not later than 30 days from the date of the receipt of the information.”

c) Sub-Rule 4(iii) may be amended as follows:

“If the requested information falls within the authorised person’s jurisdiction, but does not fall in one or more of the of the categories listed in Section 8 and 9 of the Act, the authorised person, on being so satisfied, shall supply the information to the applicant in Form E, falling within its jurisdiction as expeditiously as possible and in any case within 30 days of the receipt of the request. In case the information sought is partly outside the jurisdiction of the authorised person or partly falls in the categories listed in Section 8 and 9 of the Act, the authorised person shall supply only such information as is permitted by the competent authority as may be notified under the Act and is within its own jurisdiction and reject the remaining part giving reasons therefore.”

d) This sub-Rule may be deleted.

a) Rule 2(c) defines an ‘authorised person’ as meaning the ‘public information officer’ and the ‘assistant public information officer’ designated under Sections 5(1) and 5(2) of the principal Act respectively. While this definition will serve the purpose of processing RTI applications up to Rule 3, the principal Act requires that all subsequent actions be performed by the ‘Public Information Officer’ (PIO) only. For example, the duties of transferring an RTI application under Section 6(3), determining whether to disclose information or not under Section 7(1) Subject to the proviso to sub-section (2) of section 5 or the proviso to subsection (3) of section 6, the Central Public Information Officer or State Public Information Officer, as the case may be, on receipt of a request under section 6 shall, as expeditiously as possible, and in any case within thirty days of the receipt of the request, either provide the information on payment of such fee as may be prescribed or reject the request for any of the reasons specified in sections 8 and 9: Subject to the proviso to sub-section (2) of section 5 or the proviso to subsection (3) of section 6, the Central Public Information Officer or State Public Information Officer, as the case may be, on receipt of a request under section 6 shall, as expeditiously as possible, and in any case within thirty days of the receipt of the request, either provide the information on payment of such fee as may be prescribed or reject the request for any of the reasons specified in sections 8 and 9: and charging fees for furnishing of information under Section 7(3), invoking third party procedures under Section 11 of the principal Act are all placed on the shoulders of the designated PIO. Nothing in the principal Act permits the delegation of these duties and responsibilities to the Assistant PIO (APIO). Therefore the Rules cannot be used to delegate such powers and duties to the APIO when no provision of the principal Act supports such action. In fact the principal Act does not permit the delegation of powers to any authority other than the State Government and the competent authorities and that too for limited purposes only. As APIOs are usually junior in rank to the PIOs, there will be a tendency for the PIOs to pass down all their responsibilities of making decisions on RTI applications if this sub-Rule are not amended as recommended above.

b) Rule 4(ii) has been formulated without regard to Section 8(2) Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests. Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests. Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests. Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests. Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests. Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests. Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests. of the principal Act which expressly requires the disclosure of even exempt information if doing so would serve the public interest better. In relation to information falling under Section 8(1)(i) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers: Provided that the decisions of Council of Ministers, the reasons thereof, and the material on the basis of which the decisions were taken shall be made public after the decision has been taken, and the matter is complete, or over: Provided further that those matters which come under the exemptions specified in this section shall not be disclosed; , this decision to disclose information in the larger public interest can be made by the PIO himself/herself. In relation to information falling within Section 8(1)(d) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information; and (e), such decision is to be made by the competent authority. Further. Section 8(2) Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests. Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests. Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests. Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests. Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests. Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests. Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests. permits the disclosure of any exempt information if it will benefit the larger public interest. If these clear provisions are not factored in the Rules, rejection of an RTI application will become the default option for PIOs when in doubt. This will also unreasonably increase the burden of appeals and complaints that will be lodged before the first appellate authority and the J&K SIC.

c) Section 10 provides for partial disclosure of information. The latter half of Rule 4(iii) seeks to vest this decision making authority in the PIO. This is not correct. According to Section 10(2)(c) of the principal Act, the PIO merely has a duty to convey the name and designation of the officer who gives a decision of partial disclosure, apart from the fees payable for obtaining the information. Clearly, the PIO is not competent to make a decision of partial disclosure. Therefore it is necessary for the Hon’ble Court to notify the names and designations of officers who are competent to issue decisions of partial disclosure. The suggested amendment reflects the correct position laid down in the principal Act.

d) This sub-Rule unreasonably contradicts the very clear procedures for calculating time lines laid down in Section 7(3) of the principal Act. The 30-day clock will start ticking the moment the RTI application with fee is submitted to the authorised person. However it stops ticking mid-way after the intimation for payment of additional fee is sent to the applicant under Section 7(3) of the principal Act. It starts ticking again only after the additional fee has been deposited. The intention of the J&K State Legislature was clear that the 30-day duration would be counted form the date of submission of the RTI application and the application fee. If its intention were otherwise, it would not have made a clear provision for stopping the counting of time between the sending of the fee intimation letter and the actual payment of additional fee.

Further, the proviso under Section 7(5) Where access to information is to be provided in the printed or in any electronic format, the applicant shall, subject to the provisions of sub-section (6), pay such fee as may be prescribed: Provided that the fee prescribed under sub-section (1) of section 6 and sub-sections (1) and (5) of section 7 shall be reasonable and no such fee shall be charged from the persons who are of below poverty line as may be determined by the appropriate Government. of the principal Act waives the requirement of paying any fee for requestors who are below the poverty line. If the sub-Rule were retained there would be no way of calculating the time limit within which a BPL person’s RTI application must be responded to. The sub-Rule, if retained, would create absurdities in practice. Therefore its deletion is recommended in order to avoid contradiction with the principal Act.

Rule 5

Exemption from disclosure of information

The information specified under Section 8 of the Act shall not be disclosed and made available and in particular the following information shall not be disclosed.

a)            Such information which relates to judicial functions and duties of the court and matters incidental and ancillary thereto.

Provided that the question as to which information relates to judicial functions and duties of the Court and matters incidental and ancillary thereto , shall be decided by the competing authority or by his delegate whose decision shall be final.

b)            Information which has been expressly forbidden to be published by the Court or the disclosure whereof may constitute Contempt of Court; or information which includes commercial confidence, trade secrets or intellectual property , the disclosure of which would harm the competitive position of a third party , unless the competent authority is satisfied that larger public interests warrants the disclosure of such information ; or information which would impede the process of investigation or apprehension of prosecution of offenders; or information which relates to any public activity or interests or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority ,as the case may be , is satisfied that the larger public interests justifies the disclosure of such information.

c)            Any information affecting the confidentiality of any information conducted by High Court. The question of confidentiality shall be decided by the Competent Authority whose decision shall be final.

d)            Any information supplied by the third party which has been treated as confidential by that party , unless third party who has supplied the information, is given an opportunity of making his/her submissions.

a) The opening limb of Rule 5 may be amended as follows:

“There shall be no obligation to provide the following information unless, the provisions of Section 8(2) Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests. Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests. Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests. Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests. Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests. Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests. Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests. of the Act are attracted:”

b) Sub-Rule 5(a) may be deleted.

c) The term “personal” may be inserted between the words “or” and “information which would” in Sub-Rule 5(b).

d) Sub-Rule 5(d) may be deleted.

a) Ideally, there is no need to repeat the provisions of the principal Act in the Rules. Rule 5 in large part summarises Section 8 of the principal Act. The summarisation of the exemptions may be deleted as they create more confusion. However if it is decided that these repetitions will be retained they need to be modified in the following manner:

The opening limb of Rule 5 turns the circumstantial exemptions provided for in Section 8 of the principal Act into category exemptions. Section 8(1) begins as follows:

“Notwithstanding anything contained in the Act, there shall be no obligation to give any citizen…”.

The express intent of legislature in using this formulation is very clear- an RTI applicant cannot claim information as a matter of right if it falls under any of the circumstances specified in Section 8(1). Correspondingly there is not duty to provide such information on a public authority. However Section 8(2) Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests. Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests. Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests. Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests. Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests. Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests. Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests. explains the real import of Section 8(1). Despite the information being exempt, it may still be disclosed in the larger public interest. Therefore J&K State Legislature took extra care not to formulate the opening limb of Section 8(1) as follows: “The following information shall not be provided:”.

Unfortunately, Rule 5 seeks to do what the J&K State Legislature itself had not intended to do. The exemptions in Section 8(1) of the principal Act are based on harm tests namely, disclosure will not be permitted only if it is likely to harm any of the interests protected in Section 8(1). They cannot be turned into blanket ban on the disclosure of certain categories of information.

b) It is a cardinal principle underlying the exercise of the powers of delegated legislation that they cannot be used to introduce new rights or powers or extinguish rights or powers granted by the principal Act. Section 25 permits the exercise of the power pf delegated legislation only for “carrying out the provisions of the J&K RTI Act”, not for curtaining the scope of the right to information by introducing new exemptions. The Rule-making power cannot be used to create new grounds for rejecting RTI applications. The power to amend the exemptions is available only to the J&K Legislature. The competent authority being a ‘delegatee’ must forbear from usurping the powers of the J&K State Legislature.

Further, this sub-Rule curtails the power of the J&K SIC to decide whether exempt information may be disclosed in the public interest or not under Section 8(2) Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests. Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests. Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests. Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests. Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests. Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests. Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests. of the principal Act. Section 20 of the principal Act bars the jurisdiction of any court in RTI matters except by way of an appeal. Such an appeal may lie only after all available avenues for redress under this Act, namely, first appellate authority under Section 16(1) and the J&KSIC under Section 16(3) and (4) are exhausted. Therefore this sub-Rule is unreasonably restrictive of the powers of the J&KSIC as well and deserves to be deleted.

c) While repeating the list of exemptions provided for in Section 8(1) of the principal Act, sub-Rule 5(b) ends up exempting any and all ‘information’ if it is unrelated to any public activity or interest. It appears that this might be a typographical error. The exemption available in Section 8(1)(i) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers: Provided that the decisions of Council of Ministers, the reasons thereof, and the material on the basis of which the decisions were taken shall be made public after the decision has been taken, and the matter is complete, or over: Provided further that those matters which come under the exemptions specified in this section shall not be disclosed; is only to “personal information that has no relationship to any public activity or public interest” and not any information in general.

d) Section 11 of the principal Act lays down a crystal clear procedure for dealing with requests for information about third parties. In reproducing that provision in brief, the import of that provisions is completely lost. Section 11 was never intended as an additional ground for rejecting an RTI application. It only prescribes a procedure that must be followed if the PIO thinks it fit to disclose the information but it has been supplied by or relates to a third party which has treated such information as being ‘confidential.’ Any decision to reject an RTI application must still be based on reasons specified in Sections 8 and 9 while taking into account the objections of the third party. It is better that the offending Rule is deleted to avoid confusion. Section 11 provides adequate guidance for handling third party procedures.

Rule 6

Information which is to be furnished and access to records shall be subject to the restrictions and prohibitions contained in rules/regulations and destruction of records in force from time to time which may have been notified or implemented by this Court.

This Rule may be amended as follows:

“Subject to the provisions contained in Sections 17 and 19of the Act, information which is to be furnished and access to records shall be limited by the restrictions and prohibitions contained in rules/regulations and destruction of records in force from time to time which may have been notified or implemented by this Court.”

Section 19 of the principal Act gives this law an overriding effect over all other laws, rules, regulations and instruments having the effect of a law to the extent of inconsistency. Section 17 empowers the J&KSIC to impose penalties and recommend disciplinary action (in cases of repeated contraventions of the provisions of the Act) against a PIO if he/she destroys information that was the subject of an RTI application. Unless linked to these Sections, there is a strong likelihood that PIOs may escape their obligation of providing access to information by taking refuge under record weeding Rules. Therefore, it is important to reiterate these matters in the Rules as well.

Rule 7

Appeal

i) Any person-

a)           Who fails to get a response in Form C or Form D from the authorised person within 30 days of submission of Form A, or

b)           is aggrieved by the response received within the prescribed period may file an appeal in Form F before the Appellate Authority and deposit fee for appeal as per Rule 10 with the Appellate Authority.

ii) On receipt of the appeal along with the required fee the Appellate Authority shall acknowledge the receipt of the appeal and after giving the appellant an opportunity of being heard, shall endeavour to dispose it of within thirty days from the date on which it is presented and send a copy of the decision to the authorised person concerned.

iii) In case the appeal is allowed, the information shall be supplied to the applicant by the authorised person within such period as ordered by the Appellate Authority. This period shall not exceed thirty days from the date of the receipt of the order.

a) Insert a second proviso as follows:

“Provided further, that the authorised person shall accept anappeal made on plain paper if it contains all relevant particulars specified in Form C or Form D.”

b) the words- “and deposit fee for appeal as per Rule 10 with the Appellate Authority” may be deleted.

c) The words- “along with the required fee” may be deleted from Rule 7(i)(b)

A new sub-Rule (iv) may be inserted as follows:

“(iv) The Appellate Authority shall furnish a copy of his or her order to the Appellant free of charge promptly.”

a) The said Rule makes the use of Form C and Form D compulsory for the purpose of submitting a first appeal. There is a danger that the designated first appellate authority may reject such appeals at the very outset if they are made on plain paper. This is not in keeping with the letter and spirit of the RTI Act.Plain paper appeals must also be accepted in so far as they contain the minimum details that will enable the authorised person to process it. Neither the J&K State Government, nor the Central Government prescribe any formats for submitting first appeals. There is no reason why the Hon’ble Court cannot take a similarly progressive step in order to create greater convenience for RTI appellants.

Nothing in the principal Act empowers either the State Government or the competent authorities to charge fees for deciding first appeals. Otherwise there would have been an express provision stating the same. The only fee chargeable under the principal Act are- application fee and additional fee for obtaining information. Neither the J&K State Government nor the Government of India have notified appeal fee. The Hon’ble Supreme Court of India has also not stipulated any fee for deciding first appeals. Therefore all references to appeal fee may be deleted in order to retain the progressiveness of the Rules under analysis. Appeal fee can be a discouraging factor for aggrieved RTI applicants from approaching the Appellate Authority.

As the order of the Appellate Authority can be appealed against before the J&KSIC, it is advisable to include in the Rules an express provision requiring the Appellate Authority to furnish a copy of his or her decision/order free of charge without any undue delay whatever be the nature of the decision/order. This is a minimum requirement under the principles of natural justice.

Rule 8

i)Whoever being bound to supply information, fails to furnish the information asked for under the Act within the time specified or fails to communicate the rejection order by notification, or where the information supplied is found to be false in any material particular and which the person is bound to supply it knows and has reasons to believe it to be false, or does not believe it to be true , shall be liable to pay penalty up to Rs 250 per day for the delayed period beyond 30 days subject to maximum of Rs 25000 per application filed under rule 3, as may be determined by the appellate authority and or the appellate authority shall recommend disciplinary action against the authorised officer under the service rules applicable to him.

Rule 8 may be deleted.

Section 16(3) of the principal Act empowers the Appellate Authority to refer a matter about a contravention of the provisions of the Act to the J&KSIC for initiating appropriate penalty proceedings. The J&K State Legislature’s intention of not vesting penal powers in the Appellate Authority is crystal clear form this arrangement. The Rule-making power cannot be used by a delegate to create new powers which the State Legislature has not approved in the first place. Endowing the appellate authority with such powers will require an amendment to the principal Act. Until such an amendment is incorporated Rule 8 will be in excess of the rule-making powers granted to the competent authority.

Rule 9

Suo moto publication of information by public authorities

i)The public authority may suo moto publish information as per sub-section (1) of Section 4 of the Act by publishing booklets and/or folders and/or pamphlets and update these publications every year as required by sub-section (1) of section 4 of the Act.

Additional guidance may be provided to the public authority for preparing information for suo motu publication in the manner provided by the Government of India in April 2013 through its published guidelines (see attachment). Specific responsibility for ensuring compliance may be vested in a PIO or senior officer designated for this purpose.

If the judiciary wishes to reduce the burden of dealing with RTI applications and appeals for its PIOs and Appellate Authorities, it is advisable to work harder and deeper on proactive disclosure of information relating to its working. Adequate guidance is now available in the public domain under the Central RTI Act which may be used mutatis mutandis in J&K.

Further, it is important for the competent authority to fix responsibility of ensuring compliance the requirement of suo motu disclosure of information. This can be done by designating a PIO or a senior officer as the authority responsible for ensuring publication of all information required under Section 4(1) and their updating from time to time.

Rule 10

Charging of application fee

i)         The authorised person shall charge the fee in the following manner :

The fee shall be charged by way of cash against proper receipt or by demand draft or banker’s cheque or Indian Postal Order payable to the authorised person at the following rates.

 d) For inspection of records, no fee for the first hour; and a fee of Rupees five for each fifteen minutes (or faction thereof) thereafter.

f) For information provided in printed form at the price fixed for such publication or rupees two per page of photocopy for extracts from the publication.

Provided that no fee shall be charged from the persons falling below poverty line as may be determined by the competent authority.

g) The appellate authority shall charge a fee of Rs 50/- per appeal.

a) In Rule 10(i) the words- “of rupees ten” may be inserted after the words- “the fee”.

b) In Rule 10(d) the words- “one hour” may be substituted for the words- “fifteen minutes)

Rule 10(g) may be deleted.

Despite the stipulation of application fee in Rules 3 and 10 the quantum of fee that requires to be paid is not specified anywhere in the Rules. This may be fixed at the minimum bench mark of Rs. 10/- set down by the J&K State Government and the Government of India.

The lowest bench mark of Rs. 5/- per extra hour is set in the Central Government’s RTI Rules, 2012. There is no reason why the judiciary in J&K cannot match this standard to create more convenience for the RTI applicant.

In accordance with the reasoning provided above for deleting Rule 7(i)(b), Rule 10(g) may also be deleted.

Rule 11

Maintenance of records

i)  The authorised persons shall maintain records of all applications received for supply of information and fee charged.

ii) The appellate authority shall maintain records of all appeals filed before it and account of fee charged.

A new sub-Rule (iii) may be inserted as follows:

“The authorised persons and the appellate authority shall furnish such returns to the Jammu and Kashmir State Information Commission as specified in Section 22 The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 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. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 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. of the Act.”

Section 22 The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 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. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 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. of the principal Act requires every public authority to submit RTI returns from time to time containing specific information about the receipt and disposal of RTI applications and appeals. This obligation is binding on the authorised persons and the appellate authority in the judiciary as well. A new sub-Rule must be inserted in the manner recommended alongside.

Form A

Form of application for seeking information

4) I state that the information sought does not fall within the restrictions contained in Section 8 of the Act and to the best of my knowledge it pertains to your office.

Para #4 may be deleted from Form A.

The RTI applicant is not competent to decide which information is covered by the exemptions listed in Sections 8 and 9 of the principal Act. That is the job of the PIO and the Appellate Authority as they will be more familiar with the contents of the requested information. There is no need to compel the RTI applicant to sign any statement regarding the applicability of Section 8 or 9 to the request. In any case Section 8(2) Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests. Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests. Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests. Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests. Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests. Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests. Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests. read with Section 19 of the principal Act subject not only the exemptions but also all other contradictory laws to the regime of transparency established by the RTI Act.

Form B

Acknowledgment of application in Form A

5) The applicant shall have to deposit the balance fee, if any, with the authorised person before collection of information.

Para #5 may be deleted.

Section 7(3) of the principal Act clearly states that an applicant will be informed of the additional fee payable for obtaining information by the PIO. There is no reference to any balance fee anywhere in the principal Act. If the RTI applicant is aggrieved by the quantum of fees charged, he/she may seek a review before the first appellate authority. So there is no point in compelling the RTI applicant to pay any fee in instalments. If the applicant is an APL person, he/she is required to pay the application fee at the time of submissions of the information request and the additional fee upon receiving the intimation along with the calculation of the amount from the PIO.

Form C : No change recommended

Form D

 Rejection order

3) As per Section 16 of the Right to Information Act, 2009, you may file an appeal to the Appellate Authority within 30 days of the issue of this order. 

A new para #4 may be inserted in Form D as follows:

“4) The contact details of the Appellate Authority are:…………………………………..”

According to Section 7(8) of the principal Act, it is obligatory for the PIO to supply the contact details of the Appellate Authority while issuing a rejection order. Hence the recommended change.

Forms E and F : No change recommended

Other Recommendations:

1)    It is necessary to have a separate form for the PIO to give a decision of partial disclosure. This proforma may be modelled on the requirements of Section 10 of the principal Act.