National RTI Awards

Response to Prof. Ansari’s Critique of the RTI Awards

Prof. Ansari has posted a comment in response to the recent RTI Awards.  The comment is included here in its entirety along with our responses.

A Critique of PCRF’s RTI Awards

M.M. Ansari

In spite of our detailed comments on the PCRF Report on RTI Awards, in which we pointed serious methodological and technical deficiencies and grossly erroneous conclusions in preparation of the Report and its flawed conclusions, the PCRF’s Jury has announced the award in favour of Arunachal Pradesh Information Commission (APIC).  The rationale for judging this Commission as the best, among all Commissions, requires an objective evaluation in the backdrop of the citation, which reads as under:

“Information Commissioner Category:

Winner: Arunachal Pradesh Information Commission

Award: Rs.2 lakhs, Trophy and Citation

Arunachal Pradesh received a very high Overall Public Satisfaction (OPS) of 85%.  This means that if 100 people approached Arunachal Pradesh Information Commission, 85 of them finally got the information they were seeking.  This is almost three times the national average of 26%.  The State is very high on getting its orders implemented.  In 91% of the orders passed by Arunachal Pradesh Commission, people got the information.  The Commission does not close a case till the appellant registers his/her satisfaction.  So, they follow the practice of “continuing mandamus”.

The Commissions is very strong on enforcement.  In 45 cases that it disposed, penalties were imposed on 25 officers in 2006-07.  In the calendar year 2008, they imposed penalties in 18% cases.

Most of the people that we spoke to were full of praise for their commission.  The  PIOs are scared of violating RTI provisions.  In the year 2009, the commission became the only commission to issue bail-able arrest warrants against an officer who did not comply with commission’s orders.  During 2008, the commission issued 43 orders, out of which 40 orders were passed in favour of disclosures.  On an average, it takes four months time between filing an appeal and getting information after all the hearings in this state.  The commission with just 43 cases, has four commissioners.  Certainly, the commission does not need so many commissioners.  However, the commissioners are appointed by the state government and the commission has little role in it.  The commissioners rarely pass orders as a single bench.  Most of the orders are passed by them collectively as one bench.  Therefore, they are being honoured collectively as a commission.

It may be argued that since they have such small number of cases, it is possible for them to monitor cases and ensure satisfaction.  However, the data does not support this.  There are more than 25 commissioners in the country who disposed less than one order per day.  However, their compliance and satisfaction ratios are pretty low.  The commission had zero pendency at the end of the year”

(http://www.rtiawards.org/)

Now, let us consider the following:

First, The APIC, comprising four ICs, disposed of a meagre 43 cases in a year, which comes to less than one decision per month per Commissioner.

Against this, the corresponding figure for the CIC and some other State Commissions is hundred times more, between 100 to 200 cases per month per Commissioner.  This fact has been deliberately ¾ rather designedly ¾ ignored by the evaluators, possibly because factoring in “sample sizes” would not have helped them support predetermined conclusions, and extol virtues of their favourites and denigrate others.  The laboured effort to underplay the deficiencies of the “winner”, is far too obvious to be ignored.

Surprisingly, the Jury has sailed along with these evaluators whose methods and approaches would fail the most elementary scrutiny.

Our response: Mere quantity is not a measure of quality. In other words, just because a commissioner has passed hundreds of orders it does not automatically make him a good commissioner. People approach information commissioners to get information, not orders. If the compliance of a commissioner is very low, but he passes hundreds of orders, it is of no benefit to the people. This exact same issue was discussed at length amongst our jury. To be more specific your argument is invalid for the following reasons:

• APIC’s pendency at the beginning and the end of the year was NIL. It is unfair to penalize them because they were receiving fewer appeals. It was not that these commissioners were not doing their jobs. It was just that they were receiving fewer appeals. Clearly, this can’t be held against them.
• As far as the number of commissioners was concerned, it can be argued that the commission does not need so many commissioners. However, the commission does not have any role in it. The state government appoints information commissioners.
• The argument that because they did so few cases, they were able to perform better is also invalid when you look at the data. There are more than 25 commissioners in the country who disposed less than one case per day, and even then, their compliance and public satisfaction ratios were very low.

Prof Ansari has alleged that we are trying to extol the virtues of our “favourites” and “underplay the deficiencies of the “winner”.  After the release of our interim report, Prof Ansari alleged that we were trying to favour Orissa commission. Now, he alleges that we are favouring Arunachal Information Commission. We find such allegations without evidence completely baseless. The fact of the matter is that our effort was an independent, unbiased attempt at studying the state of RTI in the country and recognizing those who have excelled. We have no vested interest whatsoever in favouring one commission over another.

Second, The APIC has to its credit 85% of affirmative decisions
(35 – 40 cases only), which form the basis for Overall Public Satisfaction (OPS).

Against this meagre figure of 35 – 40 or so, the CIC has over 2000 decisions in this category, as per PCRF’s own estimates.  Likewise, other Commissions like Maharashtra Information Commission have passed a large number of favourable decisions to ensure maximum disclosure of information.  But, the Jury chose not only to ignore such an important quantitative dimension, but also relied on subjective feed back about people’s satisfaction as provided by the PCRF’s staff.  More, surely, was expected of the Jury giving away what was described ¾ tongue in cheek ¾ as “national awards”.

Our response: We have gone by percentages. Prof Ansari is presenting numbers. Let us review the numbers in a different fashion. Arunachal Information Commission denied information in just 3 cases. Prof Ansari denied information in 430 cases. Can Prof Ansari’s performance be argued as being better just because he had more cases?

Third, The APIC imposed 25 penalties whereas CIC imposed over 100 penalties on PIOs as well as awarded compensation to a large number of appellants.  The CIC and many SICs indeed scrupulously enforced the RTI Act provisions, which has resulted in ensuring entitlements of the citizens.  Media reports have so much to say on this.

The PCRF’s Jury has again, conveniently, and in keeping with their eager endorsement of all they were fed by the so-called evaluators ¾ ignored these vital facts.

Our response: APIC imposed penalties on 25 officers in 45 cases. Prof Ansari imposed penalties on 3 cases out of 1726 cases disposed by him. The entire CIC imposed penalties in 92 cases out of 7626 case done by them. Is the CIC performance better? APIC issued an arrest warrant to get its orders implemented. As a result, more than 90% of its orders were implemented. CIC did not dare to issue even a single arrest warrant, when more than 70% of its orders were not complied with. 80% of Prof Ansari’s orders were not complied with and he did little to address this glaring record.

Fourth, No attempt has been made to assess the quality of decisions passed by APIC vis-à-vis other Commissions, including CIC, in terms of the impact of the Commissions’ decisions in promoting transparency, accountability and containing corruption, which are the major objectives of the Act. Why have these aspects been ignored and not factored in the evaluation process and criteria?  The evaluators who seem to have been driven by an insane urge to use statistics blindly, to prove and disprove, according to what they believed RTI Act comprised, scarcely realized that statistics can lie too.  A true test of the validity of the Commissioner’s decisions would be whether these were made within the four corners of law.  Many of these decisions of the Commissions, which were challenged in High Courts, were upheld testifying to their validity.

The manner in which the evaluators have gone about their job leads to an inference that the Commissioners would do well to allow an appeal even if the law would not permit it.  Are the evaluators trying to suggest that the role of the Commission was that of a bull in the China Shop?  If there are strictures from superior courts, it is the Commissioner who shall be the sufferer.  In any case, it is a chimera that those Commissioners who allow most appeals contribute to promotion of the RTI Act’s objectives and those who reject some or many such appeals even on valid grounds, do it a disservice.

We are surprised that the jury ¾ eminent persons as these are called ¾ turned a blind-eye to this important aspect and were led up the garden path by the authors of this flawed report.

Our response: Let us be very clear about the facts. No where have we questioned the decisions of commissioners as this is their quasi-judicial power. We have merely presented a comparative analysis. Prof Ansari is wrong when he says that High Courts have endorsed all decisions of the CIC. There are several decisions when the orders of CIC have been reversed. Recently, one order passed by Prof Ansari has been reversed by the Delhi High Court, where Prof Ansari was found to be protecting the privacy of a ghost employee of the Delhi Government!

Fifth, There are umpteen number of success stories, which indicate significant improvement in governance, owing to the various Commissions’ decisions.  The question is: In how many cases APIC’s decisions have been cited as landmark orders ¾ opening up information long held confidential ¾ compared to CIC’s and other SIC’s decisions?  The criterion of the “quality of the decisions” which contributed to evolution of the information regime has been grossly ignored and neglected, either because the authors lacked ability to accomplish the task they set-out for, their prejudices or because they were presenting misleading information for mala-fide reasons.  Who will explain this?

Our response: We do not dispute the fact that CIC has passed some very good orders. But these orders were passed in the cases which came before them. If no such case came before APIC, it simply can’t be held against them. The underlying purpose of the study was to get straight answers to fundamental questions — Can a common man seeking very ordinary information relating to his day to day get justice at an information commission? True, some commissioners have passed very good orders on issues which make national headlines, but the sum total of their records could signify that in several of their cases citizens were not delivered their due justice.

Sixth, Consider the cost of disposal of appeals and complaints.  While the monetary compensation paid to ICs, including other supporting facilities, are comparable, there is wide difference in the work burden shared by the Commissioners.  An IC of APIC, for instance, has disposed of less than one decision per month whereas an IC of the CIC and several SICs have disposed of hundred times more that many cases per month.

Has the PCRF Jury considered this point?  Is it not proper to take into consideration such aspects as cost-effectiveness of delivery of justice under the RTI Act?  The Jury owes an explanation to the country for disseminating false and un-scientific analysis and views to promote vested interests of those who are associated with the PCRF.

Our response: This specific issue that you have raised here was discussed extensively with several eminent jurists. One question that came up in these discussions was — If a High Court receives less number of cases, should we not have a High Court there? Should the performance of that High Court be considered inferior to any other High Court? While it is arguable whether APIC actually needs 5 commissioners, the fact of the matter remains that it is the prerogative of the state government to appoint commissioners. The commission has no role in it and should not be penalized in any form of shape when it comes to an analysis of the kind we have undertaken. We have chosen to go strictly by the data and in this case we strongly believe that it is unfair to penalize the APIC for something beyond their control.

Seventh, The PCRF Jury has patted the APIC for disposing of all the 43 cases in a year through full bench hearings, with zero pendency in the Commission.  Now consider the work load of other Commissions like CIC & Maharashtra Commission, which are receiving over 1500 appeals per month.  If all the Commissions dispose of cases in the same manner as APIC, as apparently, recommended by the Jury, the backlog of cases would be so huge as to make a mockery of RTI.  Has the Jury reflected on the sheer absurdity of their position?  Or their so-called eminence is sufficient ground for their off-loading of this grotesque banality of a report on the nation.

Our response: APIC passes all orders as combined benches. This fact has not contributed in any way to their winning the award. The claim here is that quantity affected quality of other commissions i.e., the performance of a certain commission was hampered because of the work load. It is a case of quantity over quality. If the argument here is that quality was compromised because of quantity, then we appreciate the organizational and operational challenges involved but it simply can’t be factored in as a favourable criteria for an award over another commission that has a superior record on the basis of quality.

Eighth, None of the PCRF Jury members have had any opportunity to, or cared to, interact with the major stakeholders – the information-seekers, the PIOs as information provider and the ICs, whose performance they were evaluating for these so-called “national” RTI awards.   The citation spoke about the satisfaction of the appellants.  What was the basis of their satisfaction, or for that reason, their being dissatisfied?  Was it to be concluded that if a legally defensible order denying information left an appellant dissatisfied, his dissatisfaction was sufficient reason to tar the Commissioner who made that order?  Or conversely, if appellant expressed satisfaction even if denied information wrongly under the Act, will that satisfaction be a ground for extolling the Commissioner?  What is this satisfaction all about?  Is it just a feeling, or is it something grounded in the reality of the Commissioner’s decision? How have the evaluators evaluated satisfaction?  What was their methodology?  Nothing is clear.  A phone-call to a person asking him, Are you satisfied? and his answering in ‘yes or no’ seems to have been the basis of this supercilious evaluation.  It is a pity that this jury ¾ claiming eminence ¾ has conveniently chosen not to ask any such questions.  Is it not an act of irresponsibility?  They owe an explanation.   They have hardly had any direct feel of the matter, which was the subject of their evaluation.

The Jury Members have hardly had any chance to make an independent analysis of what was presented before them by PCRF.  They have put their signatures on the dotted lines drawn for them by the organisers.  Can such a flawed award procedure even remotely be described as transparent, objective or scientific in its approach and analysis?  Is this the “TRANSPARENCY” their eminencies so glibly commend for everyone else and become so loudly judgemental about?

Our response: We wrote letters to 35000 people. We have written responses from 6000 people. We also interviewed several people on the phone. We wrote only to those appellants, in whose case the commissioner passed a positive order directing disclosure of information. We asked each appellant a simple question – Did you finally get information after the order. If Prof Ansari so desires, we can send him copies of all the responses received specifically in his case. We had offered to do this earlier but the fact remains that he did not respond.

Ninth, The PCRF has inappropriately called the awards as ‘National RTI Awards’ without any thought to the legality of an NGO describing the awards it unilaterally gives, as “National”.  Should not the jury members ¾ their grand eminencies ¾ queried PCRF regarding their use of the word “national” for these so-called awards?

On a general point, should not the NGO ¾ PCRF practice what it preaches ¾ i.e. transparency?  Why can’t PCRF voluntarily accede to RTI Act and accept all obligations thereto?  What does the country know about this NGO’s funding including its foreign funding?  Why should its affairs remain opaque when it demands transparency from all others?  The jury failed to ask this elementary question before allowing PCRF to use its (jury’s) members’ shoulders to fire its guns.  The episode has all trappings of an unholy alliance.

Our response: When you don’t like the message please don’t try and shoot the messenger. We do not claim that this study is the ultimate in its methodology. It is a process that we hope to evolve over time. We have been fair and balanced and let the data be the primary driver of these final decisions. We welcome criticisms because it helps us fine tune the study over time and we are deeply indebted to Prof. Ansari and his team for their repeated attempts to criticize the study. While we welcome criticism we deeply disagree with your attempt to discredit the study and cast aspersions on our motivations. We have embarked on this study with a genuine desire to assess the state of the landmark RTI Act after four years of its existence and help establish a long term framework for an environment of overall improved efficiency and to ensure that meritocracy does not go unrecognized. We do not receive any foreign funding. Some people did file RTI applications before us. We answered to all of them in the true spirit of RTI Act, though legally, the Act does not apply to us. In any case, we believe in practicing what we preach. We have written about our sources of funding on our site. We will also publish year end accounts on our website for anyone and everyone to view. We hope that in future exchanges you would stick to the facts and not question our integrity.