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o.
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Summary
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Section
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Modified Text (changed text in bold)
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1,2,3
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Chief Justice of High Court as 4th
member of selection committee; decisions to be made unanimously
Reason:
To prevent future Governments from riding “roughshod” over appointment
process. Unanimity and involvement of
Chief Justice shall ensure that only the most respected candidates will be
selected.
Provision for search
committee to recommend names to selection committee. Reason: The State Information Commission is
a pivotal body that has the potential to have a positive impact on governance
in the State. Accordingly, the Selection Committee should consult with the
public to draw up a list of potential candidates for the 3 positions on the
Information Commission.
Provision for
temporary appointment of “interim/acting” commissioners by Governor in case
of extended vacancy and inability to fill during period before elections,
Governor’s rule, etc. Reason: Vacancies in the State Information Commission
may occur at any time. A provision is therefore required to prevent the State
Information Commission from becoming defunct during the sometimes lengthy
periods when there is no Government & Legislature to form the members of
the Selection Committee.
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III.12.3
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(3) The
State Chief Information Commissioner and the State Information Commissioners
shall be appointed by the Governor on the unanimous recommendation of a selection committee consisting
of-
(a) the
Chief Minister, who shall be the Chairperson of the committee;
(b) the
Leader of Opposition in the Legislative Assembly; and
(c) a
Cabinet Minister to be nominated by the Chief Minister.
(d) the Chief Justice of the High
Court
Provided that the
selection committee shall make recommendations from a list of candidates
prepared by a 15-member search committee comprised of eminent citizens chosen
by the committee. The search committee
shall call for and receive nominations from the public, and shall make the
complete list of nominations publicly available at least 14 days before
making final recommendations, which shall also be made publicly available. The search committee shall operate under
the guidance and superintendence of the selection committee.
Provided that if the
post or posts of the Chief Information Commissioner or a State Information
Commissioner lies vacant for more than 90 days and the selection committee is
unable to make recommendations for the vacancy or vacancies, the Governor may
appoint interim Commissioner(s) until such a time that the selection
committee makes recommendations to the Governor.
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4
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“Disproportionately divert
resources” clause needs to be dropped to prevent abuse. This clause was well-intended but
has been widely abused in other states.
It is practically impossible to better define “disproportionately
divert resources” and therefore provision should be dropped.
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II.7.9
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(9) An
information shall ordinarily be provided in the form in which it is sought
unless it would disproportionately
divert the resources of the public authority or would be detrimental
to the safety or preservation of the record in question.
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5
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“Further access fee” provision
must be dropped. Reason: This clause was well-intended but
has also been widely abused in other states, where officials repeatedly “tack
on” additional fees to extend the RTI process by weeks and months.
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II.7.3
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(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.
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6
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Drop public authorities from
“third party” definition
Reason:
This provision has been abused in other states. The “third party” clauses are
intended to protect private citizens. The Government is the keeper and
provider of the information under the RTI. Therefore, it is not logical that
the Government can also be a third party appealing against its own
decision-making processes with respect to the RTI. Any bona fide reasons for
non-disclosure of information are already provided for in Section II.8.
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I.2.l
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(l)
"third party" means a person other than the citizen making a
request for information and
includes a public authority.
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7
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Clarifying “substantially
financed” provision on definition of “public authorities.
Reason: Without a clear definition, the meaning of “substantially
financed” is impossible to interpret and will simply cause confusion between
Government, public, SIC, and other parties unless it is clearly spelled out
and there is a procedure for settling unclear cases.
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I.2.f.iv
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(f)
"public authority" means any authority or body or institution of self-government established
or constituted-
(i) by or under the Constitution of India or the Constitution of Jammu and Kashmir,
(ii) by any other law made by Parliament,
(iii) by any other law made by the State Legislature,
(iv) by notification issued or order made by the Government,
and
includes any
(A) body owned, controlled or substantially financed,
(B) non-Government organization substantially financed,
directly
or indirectly by funds provided by the Government;
Explanation: For purposes of this
section, “substantially financed” shall mean having received greater than 5
lakhs from the Government in the form of any combination of payments,
contracts, investments or loans during the past 5 years.
Provided that in cases of doubt,
the determination that an entity is or is not a public authority shall be
made by the State Information Commission.
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8
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Explicitly include “file notings”
under definition of information. Reason: This is already official policy for Centre and
States following a decision of the Central Information Commission;
Accordingly, this should be codified in the Draft.
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I.2.d
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(d)
"information" means any material in any form including records,
documents, memos, e-mails, opinions, advices, file notings, press releases, circulars, orders, logbooks,
contracts, reports, papers, samples, models, data material held in any
electronic form and information relating to any private body which can be
accessed by a public authority under any other law for the time being in
force;
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9
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“Serious harm” to replace
“prejudicially affect” with respect to denial for risk to India. Reason: Meaning of “prejudicially
affect” is confusing. Requires clearer language.
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II.8.a
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8.
Exemption from disclosure of information. – (1) Notwithstanding anything
contained in the Act, there shall be no obligation to give any citizen,-
(a)
information, disclosure of which would prejudicially
affect seriously harm the sovereignty and integrity of India, the security,
strategic, scientific or economic interests of the State or lead to
incitement of an offence;
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10
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RTI is a right of all “persons”
not just “citizens”
Reasons: (1) There
are many foreign tourists, students, volunteers & investors who interact
with Government and deserve basic human rights as well (2)There are many NRIs
from J&K who have lost Indian citizenship due to local laws in their
country of residence; these people should not be denied their rights when
they visit or return home.
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II.3
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3. Right
to information. – Subject to the provisions of the Act, all citizens persons shall have the right to information.
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I.2.i
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(l)
"third party" means a person other than the citizen person making a request for information and
includes a public authority.
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II.8
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8.
Exemption from disclosure of information. – (1) Notwithstanding anything
contained in the Act, there shall be no obligation to give any citizen person,-
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11
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Eliminate initial application fee
altogether.
Reason:
It is a troublesome and trivial burden. A Parliamentary Subcommittee
recommended removal of this fee from Central RTI Act 2005. The calculated fee for providing
information should remain, however.
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II.6.1
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6.
Request for obtaining information. – (1) A person, who desires to obtain any
information under the Act, shall make a request in writing or through
electronic means in English, Urdu, or Hindi accompanying such fee as may be prescribed, to–
(a) the
Public Information Officer of the concerned public authority;
(b) the
Assistant Public Information Officer, specifying the particulars of the
information sought by him or her:
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II.7.5
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(5) Where
access to information is to be provided in the printed or in any electronic
format, the applicant shall, subject to the provisions of sub-section (6),
pay such fee as may be prescribed:
Provided
that the fee prescribed under
sub-section (1) of section 6 and sub-sections (1) and (5) of section
7 shall be reasonable and no such fee shall be charged from the persons who
are of below poverty line as may be determined by the Government.
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V.24.2.b
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24. Power
to make rules by Government. – (1) The Government may, by notification in the
Government Gazette, make rules to carry out the provisions of the Act.
(2) In
particular, and without prejudice to the generality of the foregoing power,
such rules may provide for all or any of the following matters, namely:-
(a) the
cost of the medium or print cost price of the materials to be disseminated
under sub-section (4) of section 4;
(b) the fee payable under
sub-section (1) of section 6;
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V.25.2.b
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25. Power
to make rules by competent authority. – (1) Subject to the provisions of
section 24, the competent authority may, by notification in the Government
Gazette, make rules to carry out the provisions of the Act.
(2) In
particular, and without prejudice to the generality of the foregoing power,
such rules may provide for all or any of the following matters, namely:-
(a) the
cost of the medium or print cost price of the materials to be disseminated
under sub-section (4) of section 4;
(b) the fee payable under sub-section (1) of
section 6;
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12
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Life & liberty clause to
explicitly state that any person could request info with request to any
endangered person;
Reason: Provision could be abused by officers to mean that only the
endangered person my file the RTI application. This interpretation would
defeat the point of provision since a truly endangered person, is, almost by
definition, unable to file an RTI application!
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II.7.1
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7.
Disposal of request. – (1) Subject to the proviso to sub-section (2) of
section 5 or the proviso to sub-section (3) of section 6, the Public
Information Officer on receipt of a request under section 6 shall, as
expeditiously as possible, and in any case within thirty days of the receipt
of the request, either provide the information on payment of such fee as may
be prescribed or reject the request for any of the reasons specified in
sections 8 and 9:
Provided
that where the information sought
for concerns any person seeks
information concerning the life or liberty of a any person, the
same shall be provided within forty-eight hours of the receipt of the
request.
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13
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Authority to waive fee under
Section 7(6) made explicit Reason: To prevent confusion, the persons with authority
to waive fee for timeline failure needs to be explicitly identified;
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II.7.6
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(6)
Notwithstanding anything contained in sub-section (5), the person making
request for the information shall be provided the information free of charge
where a public authority fails to comply with the time limits specified in
sub-section (1).
Explanation: For the purposes of
this sub-section, the fees may be waived by any officer providing information
under this Act, including the Public Information Officer and the appellate
officer under Section 16(1).
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14
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Provision to ensure the suo moto
disclosure provision is enforceable. Reason: The suo moto disclosure list is unenforceable; it
is simply a mandate that has been ignored in many states. Departments that
fail to comply with deadline should be liable under penalties in same manner
as denial of RTI application;
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After
IV.17.2
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(3) Where the State Information
Commission at the time of deciding any complaint, appeal or reference is of
the opinion that a Department or Public Authority, without any reasonable
cause and persistently, failed to publish its particulars under Section 4, it
may impose a penalty of two hundred and fifty rupees each day upon the
concerned officer till the information is published, so however, the total
amount of such penalty shall not exceed twenty-five thousand rupees:
Provided that the Department or
Public Authority shall be given a reasonable opportunity of being heard
before any penalty is imposed on him:
Provided further that the burden
of proving that he acted reasonably and diligently shall be on the Department
or Public Authority.
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15
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Content of the RTI guide should be
made in consultation with SIC; Each Department and Authority should ensure
distribution of the guide. Reason: To ensure the quality of the guide, and to ensure
that it is widely available to the public, and not just, for example, at the
Secretariat.
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V.23.2-4
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(2) The
Government, in consultation with the
State Information Commission, shall, within eighteen months from the
commencement of the Act, compile in the official language of the State a
guide containing such information, in an easily comprehensible form and
manner, as may reasonably be required by a person who wishes to exercise any
right specified in the Act.
(3) The
Government shall, if necessary, update and publish the guidelines referred to
in sub-section (2) at regular intervals which shall, in particular and
without prejudice to the generality of sub-section (2), include-
(a) the
objects of the Act;
……
(omitted)
……
(4) The
Government must, if necessary, update and publish the guidelines at regular
intervals. Further, it shall be the
responsibility of each Department and Public Authority to ensure that copies
of the guide and the guidelines are available to the public, free of cost, at
every office where there is a Public Information Officer or Assistant Public
Information Officer.
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16
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SIC should be explicitly empowered
to decide cases together or individually as decided by SIC. Reason: As a practical point, the
SIC must be able to delegate and divide work as it deems necessary. This has been challenged in the courts and
was a subject of a High Court ruling that has since been struck down.
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Insert
after IV.16.11
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(11) The Chief State Information
Commissioner and the State Information Commissioners shall have the freedom
to make decisions individually or collectively, in accordance with policies
and procedures to be determined by the State Information Commission.
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17
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Need for clarity on monitoring and
reporting procedure for Public Authorities that are not under any
Department. Reason:
Some public authorities do not fall under any Department
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V.22.2
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(2) Each
Department shall, in relation to the public authorities within their
jurisdiction, collect and provide such information to the State Information
Commission as is required to prepare the report under this section and comply
with the requirements concerning the furnishing of that information and keeping
of records for the purposes of this section.
Provided that public authorities
that are not within the domain of any Department shall provide such
information directly to the State Information Commission.
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18
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Ladakhi should be added as 4th
language for RTI applications and as language for RTI booklet Reason: The Draft already sensibly
permits English, Hindi and Urdu as languages for RTI applications.
Accordingly, since Ladakhi is the native language of Ladakh Division, Ladakhi
should be added as the 4th language.
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II.6.1
& V.23.2
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6.
Request for obtaining information. – (1) A person, who desires to obtain any
information under the Act, shall make a request in writing or through
electronic means in English, Urdu, Ladakhi or Hindi to–
(a) the
Public Information Officer of the concerned public authority;
(b) the
Assistant Public Information Officer, specifying the particulars of the
information sought by him or her:
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V.23
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(2) The
Government, shall, within eighteen months from the commencement of the Act,
compile in the official language of
the State English, Urdu, Ladakhi or Hindi a guide containing such
information, in an easily comprehensible form and manner, as may reasonably
be required by a person who wishes to exercise any right specified in the Act
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19
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Provision mandating public offices
in Srinagar, Jammu, and Leh. Reason: to ensure that the public in each division has
access to the State Information Commission.
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III.12.7
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(7) The
headquarters of the State Information Commission shall be at such place in
the State as the Government may, by notification in the Government Gazette, specify. The State Information Commission shall
also establish public offices in Srinagar, Jammu and Leh for the
purposes of receiving appeals and performing the other functions and duties
stipulated under this Act.
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