APPLYING THE LAW

Penalties for Failing to Release Information

Any public official who deliberately delays or obstructs an application for information, or who deliberately provide incorrect or misleading information can be punished under the Central Act. Penalties have been included in RTI laws by legislators because they recognise that some sanction might be necessary to change bureaucratic cultures of secrecy, particularly where these have served to cover up corruption. Notably though, sanctions cannot be imposed on public officials who did their best to process applications and provide information in the spirit of the law.

It is important to note that the penalty provisions under the Central Act can be imposed personally on the official responsible for non-compliance with the Act. You should be aware that penalties can not only be imposed on the Public Information Officer (PIO) responsible for managing applications, but also on any officer whose assistance they requested, if that officer did not help them. Thus, if the PIO asked another officer to provide them with a file and that officer refused or delayed unreasonably, that officer and not the PIO will be sanctioned.

Section 20(1) of the Central Act allows for the imposition of penalties. Most notably, where a PIO has, without any reasonable cause:

• refused to receive an application;
• not furnished information within time limits;
• malafidely denied the request;
• knowingly given incorrect, incomplete or misleading information;
• destroyed information subject to a request;or
• obstructed the process,

the Information Commission can impose a penalty of Rs 250 per day. The total penalty cannot exceed Rs 25,000.

Section 20(1) of the Central Act states that "Public Information Officers" can be penalised, but when read with s.5(5) of the Central Act (which states that any officer whose assistance is sought by a PIO will be treated as a PIO for purposes of the Act's penalty clauses) it is clear that in practice any official can be sanctioned for non-compliance if they have shirked their duties under the law.

Before a penalty is imposed under s.20(1) of the Central Act however, an official must be given a reasonably opportunity of being heard. The official is responsible for providing that he/she acted reasonable and diligently.

Under section 20(2) of the Central Act, where a monetary penalty is imposed, the Information Commission can also recommend disciplinary action against the PIO under the applicable service rules.

Penalties can usually be imposed by appeal bodies, whether or not they are internal appeals bodies or external appeals bodies. Unfortunately, under the Central Act it is unclear under the law whether the first Appellate Authority can impose penalties, although it is explicit that the Information Commission can. It is not clear therefore, whether there can be any penalty for non-compliance that is identified during an internal appeal. Information Commissions will need to clarify whether Appellate Authorities can refer cases to the Commission for consideration under s.20. It is possible that Commissions could hear such cases under the broad appeal remit under s.18(1)(f) of the Central Act which empower Commissions to handle any complaint "in respect of any other matter relating to requesting or obtaining access to records under this Act".

Appeal bodies should be aware of their power to impose penalties and should use them judiciously to sanction officers who have failed to discharge their duties under the law properly. It needs to be made clear from the outset that officers who don't respect the terms of the law will be punished. This will set a proper standard within the bureaucracy and will also satisfy the public that the bureaucracy is taking the Central Act seriously.

Already, under the State Acts there are reports of personal penalties being imposed on officers and disciplinary procedures being invoked which have led to suspension of erring officials. Although it is hoped that most bureaucrats will implement the law in the correct spirit, nonetheless it has already been shown in a number of States that penalties can be a key tool in forcing a change in culture as bureaucrats are made to pay personally for their resistance to implementing open government.

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.