> Dear friends,
>
> Many of you are enthusiastically working for the implementation of the Jammu
> and Kashmir Right to Information Act, 2009 (JKRTIA). I would like to share
> with you an important development that has happened recently in connection
> with the Central Right to Information Act, 2005 (CRTIA). This development
> has a bearing on Rule 7 of the J&K RTI Rules, 2009 read with section 7(3) of
> JKRTIA.
>
>
>
> What is in section 7(3) of JKRTIA?
>
> Before we discuss what is in section 7(3) we must understand the scheme
> regards fees laid down by the JKRTIA. The fee-related provisions in sections
> 6 and 7 of the JKRTIA almost replicate sections 6 and 7 of CRTIA. The only
> difference is that references to the Central Public Information Officer
> (PIO) and State PIO are replaced with a singular reference to the PIO in
> JKRTIA. Section 6(1) of JKRTIA states that every application for information
> must be submitted along with a fee. This is generally known as application
> fee. Section 7(1) states that the PIO will either reject the application for
> any of the reasons mentioned in sections 8 and 9 or give the information on
> payment of fees as may be prescribed. This is generally known as additional
> fee. Section 7(5) of JKRTIA states that the government may prescribe a fee
> for providing information in the printed or any electronic format. This is
> also generally understood to be part of the same additional fee.
>
>
>
> In addition to the above there is a section 7(3) in JKRTIA which reads as
> follows:
>
>
>
> "(3) Where a decision is taken to provide the information on payment of any
> further fee representing the cost of providing the information, the Public
> Information Officer shall send an intimation to the person making the
> request, giving-
>
> (a) the details of further fees representing the
> cost of providing the information as determined by him, together with the
> calculations made to arrive at the amount in accordance with fee prescribed
> under sub-section (1), requesting him to deposit that fees, and the period
> intervening between the despatch of the said intimation and payment of fees
> shall be excluded for the purpose of calculating the period of thirty days
> referred to in that sub-section;
>
> (b) information concerning his or her right with
> respect to review the decision as to the amount of fees charged or the form
> of access provided, including the particulars of the appellate authority,
> time limit, process and any other forms."
>
> This sub-section is very similar to its corresponding section in CRTIA. Many
> PIOs in Central Government and in the States have misinterpreted section
> 7(3) of CRTIA to mean that it is a provision for imposing a third kind of
> fee on the applicant in the name of 'costs'. So some PIOs have charged their
> wages as well as for other officials involved in searching the documents,
> compilation and collation charges and the like. The RTI Fee and Cost Rules
> issued by the Central Government do not contain any Rule regards section
> 7(3). So these PIOs argued that they can charge humanpower and other costs
> at their discretion and this is how Parliament wanted it to be.
>
>
>
> What is wrong with this interpretation of section 7(3)?
>
> For some time until November 2008 there were contradictory decisions
> emerging from the CIC. Some Commissioners held that section 7(3) was not a
> separate provision and only two kinds of fees could be charged. A few others
> held that the PIO could charge humanpower costs and such other costs at
> his/her discretion. In some of the States PIOs charged several thousand
> rupees for giving information using this provision. In some cases the figure
> crossed a lakh also. So this matter was referred to a full bench of the
> Central Information Commission (CIC). In November 2008 the CIC constituted a
> full bench and invited people to send their views on the ambit and scope of
> section 7(3) of CRTIA.
>
>
>
> CHRI submitted a detailed analysis of section 7 showing how section 7(3) is
> not a separate provision for levying a third fee on the applicant. CHRI
> argued that 7(3) only explained section 7(1) in detail and was only a
> procedural provision. For the full text of our analysis and submission click
> on or copy paste the URL in your browser's address box: http://www.
> <http://www.humanrightsinitiative.org/programs/ai/rti/india/national/2009/em
> ail_alerts/interpreting_the_scope_of_section_7(3)_of_rti_act_cic's_larger_be
> nch_to_rehear_the_matter_on_23-09-09_at_istm_old_jnu_campus_11sep09.pdf>
> humanrightsinitiative.org/programs/ai/rti/india/national/2009/email_alerts/i
> nterpreting_the_scope_of_section_7(3)_of_rti_act_cic's_larger_bench_to_rehea
> r_the_matter_on_23-09-09_at_istm_old_jnu_campus_11sep09.pdf
>
>
>
> A few other activists sent their submissions as well. A three-member bench
> heard this matter first in February 2009. Later the CIC thought it fit to
> constitute a larger bench to consider the matter. A four member bench heard
> the matter on 23rd September and gave its decision on 30th October. The CIC
> stated that section 7(3) is only a procedural provision and cannot be
> misinterpreted by the PIO to demand costs such as salary of officers etc.
> from applicants. To access the text of the decision click on
> http://cic.gov.in/CIC-Orders/
> <http://cic.gov.in/CIC-Orders/FB-30102009-01.pdf> FB-30102009-01.pdf or copy
> paste this URL in the address box of your browser. I have also attached a
> copy to this email.
>
>
>
> Excerpts from this decision are given below:
>
>
>
> "40. Thus there is provision for charging of fee only under Section 6(1)
> which is the application fee; Section 7(1) which is the fee charged for
> photocopying etc and Section 7(5) which is for getting information in
> printed or electronic format. But there is no provision for any further fee
> and if any further fee is being charged by the Public Authorities in
> addition to what is already prescribed under Sections 6(1), 7(1) and 7(5) of
> the Act, the same would be in contravention of the Right to Information Act.
> The "further fee" mentioned in Section 7(3) only refers to the procedure in
> availing of the further fee already prescribed under 7(5) of the RTI Act,
> which is "further" in terms of the basic fee of Rs 10/-. Section 7(3),
> therefore, provides for procedure for realizing the fees so prescribed.
>
>
>
> 41. Even assuming that there is provision for charging additional fee u/s
> 7(3) as learned Additional Legal Adviser Shri D. Bhardwaj would have us
> believe, the very fact that the legislature has not made any provision for
> applicants who are below poverty line as is made under proviso to Section
> 7(5) makes the legislative intent clear that fee mentioned in Section 7(3)
> only refers to the fee prescribed under Sections 7(1) and 7(5).
>
>
>
> X X X X
>
>
>
> 43. The Rules too have prescribed charging of actual cost in specific
> instances alongside the fee u/s 7.1. From this, it can well be seen that
> reasonableness or otherwise of the fee charged by a CPIO can only be in
> respect of the fee provided for under clause (c) of Rule 4 of the above
> Rules. We must then conclude that the provision to review the decision as to
> the amount of fees charged as contained in clause (b) of Section 7(3) is not
> in respect of any new or further fee but in respect of the fee provided for
> under Section 7(1) and Section 7(5) of the RTI Act. The legislative intent
> as reflected in Section 7(3)(b) is -
>
>
>
> (i) right with respect to review the decision as to the
> amount of fee charged; and
>
> (ii) right with respect to review the decision as to the
> form of access provided.
>
>
>
> 44. The argument that `further fee' is another class of fee which can be
> charged by the information provider is then, as per present Rules,
> fallacious because legislative intent can on no account be such as to give
> unbridled discretionary powers to the information provider without laying
> any guidelines as to the reasonableness of `further fees' or to give a right
> to the information seekers, which would then become notional, to obtain a
> review of decision with respect to `further fee' or reasonableness of
> `further fee'. Hence we must conclude that the 'further fee' is as
> prescribed under Section 7(1) and Section 7(5) of the Act." [emphasis
> supplied]
>
>
>
>
>
> How is this pertinent to Rule 7 of JKRTI Rules?
>
> J&K RTI Rules 2009 were notified by the J&K Government to give effect to the
> provisions of JKRTIA. Rule 7 in Chapter III of this document reads as
> follows:
>
>
>
> "Notwithstanding anything contained in these rules elsewhere the fee/cost
> /charges for providing information shall be reasonable. Further fee
> representing cost of providing information under section 7(3) shall be
> determined by the Chief Public Information Officer- where considered
> necessary- on the basis of estimate of cost which shall be realistically
> drawn up and intimate to the applicant together with estimate of fee under
> section 7(1) and section 7(5) of the Act."
> [To access the text of the JK RTI Rules click on: http://www.
> <http://www.humanrightsinitiative.org/programs/ai/rti/india/states/jk/jk_rti
> _rules_2009.pdf>
> humanrightsinitiative.org/programs/ai/rti/india/states/jk/jk_rti_rules_2009.
> pdf or copy paste this URL in the address box of your browser.]
>
>
>
> The JKRTI Rules were notified when the CIC was still seized of this case.
> Rule 7 takes the same regressive line that separate costs may be charged
> under section 7(3) of JKRTIA in addition to additional fees prescribed under
> section 7(1) and 7(5). The PIO has been given the discretion to charge any
> cost that he/she thinks is reasonable under section 7(3) in addition to
> photocopying or CD writing charges. So for information of 50 pages that
> should cost Rs. 500/- only (this itself is exorbitant at Rs. 10 per page
> unlike CRTIA where it is Rs. 2 per page) the PIO could add wages of officers
> involved in searching and compiling the information and bring the total up
> to say Rs. 5,000 or even Rs. 50,000. Para #1 of the CIC's order mentioned
> above shows how much excess cost Delhi Police demanded from an applicant. In
> one case Rs. 90,000 was demanded from the applicant. Thankfully the CIC's
> decision sets aside such demands because no such costs can be legitimately
> charged under section 7(3) of CRTIA.
>
>
>
> Now that it has been decided that section 7(3) of CRTIA is only a procedural
> provision Rule 7 becomes ultra vires of JKRTIA. The PIO does not have any
> discretion to charge fees over and above the application and additional
> fees.
>
>
> However the CIC's ruling does not automatically invalidate Rule 7. It must
> be challenged in the J&K High Court with a prayer to strike it down. A
> better option would be for CSO and media reps in J&K to write to the J&K
> Government to withdraw Rule 7 in light of the CIC's latest decision.
> Retaining it on the rule book will result in its misuse by PIOs.
> Unscrupulous PIOs are likely to impose high costs on applicants in order to
> discourage them from seeking information. As a result of this a huge burden
> is likely to fall on the proposed JK State Information Commission in the
> form of appeals and complaints against exorbitant costs. I hope RTI
> advocators will take up this issue with the J&K Government immediately.
>
> In order to access our previous email alerts please click on:
> <BLOCKED::blocked::BLOCKED::http://www.humanrightsinitiative.org/programs/ai
> /rti/india/national.htm>
> http://www.humanrightsinitiative.org/programs/ai/rti/india/national.htm You
> will find the links at the top of this web page. If you do not wish to
> receive email alerts please send an email to this address indicating your
> refusal to receive email alerts.
>
> Thanks
>
> Venkatesh Nayak
> Programme Coordinator
> Access to Information Programme
> Commonwealth Human Rights Initiative
> B-117, I Floor, Sarvodaya Enclave
> New Delhi- 110 017
> tel: 91-11- 2686 4678/ 2685 0523
> fax: 91-11- 2686 4688
> website: www.humanrightsinitiative.org
> alternate email: <mailto:nayak.venkatesh@gmail.com>
> nayak.venkatesh@gmail.com
>
>
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