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APPLYING THE LAW

Handling Appeals: Information Commissions - Hearing powers

The first appeal by the Appellate Authority allows unhappy requesters to complain about an order not to release information. In the spirit of facilitating access to information, requesters are also allowed to approach the Appellate Authority even where NO order has been given.

The Central Act is very comprehensive though and gives the new Information Commissions an even broader appeals mandate, allowing them to consider appeals relating to any matter concerning requesting or obtaining access.

Section 18(1) of the Central Act sets out the appeal remit of the Information Commissions and has deliberately been written in the broadest terms. Specifically, it permits the Commissions to handle complaints where a person:

  • has been refused access to any information requested under the Central Act (presumably in cases where the person believes there has been a misapplication of an exemption under s.8(1) or the failure to properly consider the public interest override under s.8(2));
  • has been unable to submit a request or appeal to a Central or State Public Information Officer (PIO) or Assistant PIO;
  • has not been given a response to a request for information within the time limit specified under the Central Act;
  • has been required to pay an amount of fee which he/she considers unreasonable or is unhappy with the form of access granted;
  • believes that he/she has been given incomplete, misleading or false information under this Act.

Importantly, s.18(1) ends with a catch-all clause included at s.18(1)(f) which broadly gives the Information Commissions power to handle a complaint "in respect of any other matter relating to requesting or obtaining access to records under this Act". This clause basically means that the Commissions have the power to inquire into any matter at all, even if not specifically mentioned in s.18(1).

Notably, the appeal remit of the first Appellate Authority is much narrower than the Information Commissions' because it is limited to cases only where a person "does not receive a decision within the time specified…or is aggrieved by a decision". As such, the Information Commission may be required to handle complaints which have not been first handled by the relevant Appellate Authority.

Significantly, experience has shown that this is a major issue because under State RTI laws there was sometimes dispute between first and second appellate authorities as to when the second appellate authority could actually hear a case, with the result that complaints were rejected by the second appellate body summarily for lack of jurisdiction even where the first appellate body was not processing the complaint.

In keeping with their responsibility to provide effective oversight however, all appeals bodies should, as much as possible, seek to interpret their mandate broadly to ensure that a decision-maker cannot simply ignore a request and get away with it and/or that public can shirk their obligations under the new law.

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.