APPLYING THE LAW

Internal Appeals: Conducting A Review

Process

At a general level, any appeal body - whether internal or external - is required to look at the documents in question and decide whether the PIO was correct in rejecting the application. The Central Act states specifically that the Information Commissions, at least, have the right to look at every document under appeal - whether or not an exemption has been claimed. This is a key provision - it recognises that appeal bodies have the right and in fact, the duty, to look at all the information again and then make a reconsider whether the correct decision has been made.

As a first step, once the appeal body has been given all the information which is the subject of the complaint, the appeal body should consider contacting the PIO to talk to them about why they decided not to disclose the documents. This recognises that under the Central Act the burden of proof is on the person who is withholding the information - which means in practice that the PIO has to justify why they are refusing to disclose the information requested.

Notably, the appeal process does not have to be overly formal; it is not a court proceeding. In fact, in many other countries, appeal bodies (including Information Commissions) strongly discourage the use of lawyers, making it clear to parties that there will be no advantage in bringing a lawyer to proceedings because staff will anyway fill any gaps in research resulting out of the lack of legal representation. The idea is to keep the process simple, cheap and accessible to the ordinary person.

Appeals bodies are also usually explicitly required to contact the aggrieved requester and give them a chance to be heard too. In any case, fairness means that the requester should be given an opportunity to explain to the appeals body why they believe the information should be released.

When approaching the appeal process, appeal bodies should always keep in mind the law's objective of open government. In this context, it should be a priority to promote maximum disclosure if at all possible. As such, appeal bodies should consider the possibility of mediating the complaint. Rather than adopting an adversarial approach, where both parties are arguing against each other, appeal bodies could talk to the parties to see if a compromise could be reached on disclosure. Consider whether there is some middle ground that can be reached. For example, even if an exemption CAN be applied, is it really necessary for the information to be withheld? If a large number of records are requested, is there any way the requester could tighten their search? Would partial disclosure of a record provide the applicant with the information they want while still protecting sensitive information?

At all times, appeals bodies need to recognise that, just like the PIO, they can only refuse to disclose information if an exemption contained in the law applies to the information requested. Even then, if any exemption applies, the appeal body should consider the s.8(2) public interest override, which requires that they must still order disclosure if the public interest in disclosure outweighs the need for secrecy.

Time Limits

The Central Act requires that first appeals are made within 30 days or the last date that a rejection notice should have been sent. However, the Appellate Authority is given the discretion to accept the appeal after these time limits are exhausted.

The Central Act requires the first internal appellate authority to dispose of an appeal within 30 day, although this period can be extended by 15 days if the appeal relates to third party information such that a third party needs to be contacted and has the option to make a representation to the Appellate Authority.

Fees

Some Indian State laws permit fees to be charged where a requester wants to complain about a decision. However, the Central Act makes no mention of any fee for an appeal.

Please click on the link to the Central RTI Act to read the detailed provisions contained in the law. Please click on the link to CHRI's State RTI pages to find out more about relevant rules and implementation in your specific State.