APPLYING THE LAW

Handling Appeals: Investigations

Section 18(3) of the Central Act sets out the Central and State Information Commissions powers of investigation. Information Commissions have very broad powers, and are permitting, while inquiring into any matter, to exercise 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:-

• 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;
• requiring the discovery and inspection of documents;
• receiving evidence on affidavit;
• requisitioning any public record or copies thereof from any court or office;
• issuing summons for examination of witnesses or documents; and
• any other matter which may be prescribed.

In practice, in the early days of implementation, many appeals may be able to dealt with summarily because it is clear on the face of the documents that PIO's or AAs have simply misapplied the law. However, over time Information Commissions may be presented with more complex cases, where it will be necessary to conduct more detailed investigations and undertake research, interviews and take formal statements from parties.

Of course, in all cases, as a first step, the Information Commission will be required to requisition the information which is being disputed so that he/she can examine the information and decide whether the PIO/AA was correct in withholding disclosure. In this context, it is important to note that section 18(4) of the Central Act specifically states that Information Commissions have the right to look at every piece of information subject to an 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.

Once the Information Commission has been given all the information which is the subject of the complaint, if the Commission is still unclear on whether disclosure is required, the Commission will need to contact the PIO to talk to him/her about why he/she decided not to disclose the documents. This approach recognises that the appeals 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) encourage mediation and strongly discourage the use of lawyers because they are keen to keep the process simple, cheap and accessible. The Information Commission can invite the PIO to submit an explanation in writing, if the original order denying the application is insufficient or may interview the PIO in person and take a statement from him/her at that time.

If, after interviewing the PIO/AA, the Commission believes there are no good grounds for withholding information, a decision can be made at that point. If however, the Commission believes that a compelling argument has been made in favour of non-disclosure, then the Commission must contact the requester and give him/her 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 he/she believes the information should be released.

Section 19(4) specifically requires that where an appeal relates to information of a third party, the third party should be given a "reasonable opportunity of being heard". Under s.19(2), third parties themselves may also submit appeals against a decision of a PIO. Notably, while a third party has a right to be heard however, the Information Commission retains the ultimate right to decide on disclosure. A refusal of a third party to consent to disclosure does not, in the absence of anything else, mean that information should be withheld. Even if a third party claims confidentiality, the Commission cannot withhold information unless an exemption applies.