APPLYING THE LAW

Handling Appeals: Making decisions

Throughout the country, appeals bodies usually have the power to overturn an earlier decision and to compel release of information. Under the Central Act, Information Commissions have even broader powers. Section 19(8) of the Central Act gives the Commissions' the power to:

(a) require the public authority to take any such steps as may be necessary to secure compliance with the provisions of this Act, including-

1. by providing access to information, if so requested, in a particular form;
2. by appointing a Central or State PIO;
3. by publishing certain information or categories of information;
4. by making necessary changes to its practices in relation to the maintenance, management and destruction of records;
5. by enhancing the provision of training on the right to information for its officials;
6. by providing it with an annual report;

(b) require the public authority to compensate the complainant for any loss/detriment suffered;

(c) impose any of the penalties provided under the Act; or

(d) reject the application.

Section 19(8) includes a catch all phrase which basically enables the Commission to "require the public authority to take any such steps as may be necessary to secure compliance with the provisions of this Act". When combined with s.19(7) of the Central Act which makes it explicit that the decisions of the Central and State Commissions are binding, it is clear that the Commissions have the statutory clout to be strong champions of openness and accountability, if they choose to exercise their decision-making powers keeping in view the objectives and spirit of the law.

Notice of decisions
Section 19(10) of the Central Act requires that Information Commissions give notice of their decisions, including any right of appeal, to the complainant and the public authority. This provision appears to presume some form of written notice of decision - which is in keeping with best practice. In keeping with the minimum requirements for decision notices in s.7(8) and s.10(2) of the Central Act, such written decisions should very clearly explain the reasons for the decision, including the exemption being relied upon and any finding on any material question of fact, referring to the material on which those findings were based.

Ensuring consistent appeals procedures and outcomes
In terms of ensuring consistency of decisions, it is important that Information Commissions capture precedents, for the benefit of Central Information Commissioners, State Information Commissions, Commission staff and officials applying the law. At a minimum, all decision notices need to be collected internally into a central database, even if they are simply issues in the form of a latter rather than a more formal judgement.

In many jurisdictions, written decisions are collected and circulated in hard copy via monthly updates circulars / newsletters / legal services. Alternatively, decisions - whether they are in letter form or comprise a formal Commission judgment following a hearing - are uploaded onto the Information Commissioners website. In the State of Queensland in Australia, there is a particularly good system for capturing decisions of the Queensland Information Commission as they upload on their website both letter decision notices and judgments and have even annotated each provision of their act to provide links to relevant judgments. The Canadian Act has also been well annotated (scroll down once you are directed to the relevant Canadian site).

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.