AN ANALYSIS OF THE REPORT OF PCRF
(AUTHORS OF RTI AWARDS) FLAWED LOGIC AND SPECIOUS CONCLUSIONS
Lately, the Media was flooded with stories about the functioning of Information Commissioners all over the country based upon analysis done by a group going by the name and style “Public Cause Research Foundation”. The chief protagonists of this group are Shri Arvind Kejriwal, Shri Manish Sisodia and Shri Abhinandan Sekhri. Media has lapped up these stories without pausing to critically assess whether these were worth reporting, or rather, whether these were at-all true. The following analysis would show that the Report presented by the above group as authentic and scientific analysis of the performance of the Commissioners was nothing more than ‘eye-wash’ for purposefully and deliberately promoting some at the cost of others. The Report is so flawed that it is not worth even the paper on which it was written and the following analysis would show how it was so:-
I. Wrong projection about success rate of RTI-petitions:
This Study gives an impression ¾ quite erroneously and perhaps, deliberately ¾ as if the appeals decided by the Central Information Commission and the State Information Commissions are all that is there to RTI disclosure. It notes ¾ rather hides ¾ that the Central Information Commission receives only 4-5% of all cases filed before the central public authorities. According to the statistics compiled by the Central Information Commission for 2007-2008, 2,63,261 RTI-petitions were filed before all CPIOs in the 1597 central public authorities. Out of these, only 11,261 were taken to second-appeal / complaint before the Central Information Commission. This constitutes only a minuscule 4.27% percent of all RTI-applications filed. In other words, it would be safe to assume, that in more than 95% of the applications filed, all requested information was disclosed to the applicants. Out of the balance 11,261 cases, which ended up being second-appeals or complaints, a very large number were decided in favour of the appellants / complainants and those in which appeals / complaints were rejected, grounds for rejection were clearly spelt-out. Several of these were challenged before High Courts and the decisions of the Central Information Commission and State Information Commissions were upheld in most cases. This shows that all the rejections by the Central Information Commission were within the four-corners-of-law. In fact, giving out information when the law clearly prohibited it, would have been illegal and would have invited strictures from superior courts.
The statistics projected by the Public Cause Research Foundation (organizers of RTI Awards) makes it appear as if disclosure of information was a ‘necessary good’, whereas non-disclosure was a ‘necessary evil’. This presumption is not only flawed, it is misleading and designed deliberately to present a wrong picture about the work of the Commissioners.
One would have understood, if on an examination of the orders of the Commissioners, the organization which conducted this Study would have faulted, or critiqued, it on grounds of the legal position expounded in those orders. They should have also examined whether those orders were in conformity with the decisions made by High Courts all over the country.
Far from it, they have chosen to malign and indict the Commissioners on the basis of false statistics, erroneous facts and fallacious conclusions. There appears to be a deep-seated design to make the institution appear to be a failed one.
II. Credentials of the organizers conducting the Study:
According to what has been put out on their website, it is seen that the authors of this widely-publicized Report are Shri Arvind Kejriwal, Shri Manish Sisodia and Shri Abhinandan Sekhri. It is unclear as to who these authors are, what their research background is, what methodology they have followed and what were the limitations of the Study they have conducted.
While their website leaves no one any wiser about the background and the credentials of the authors of the Report, most surprisingly and perhaps quite cunningly, these authors have not informed the public as to what were the limitations of their Study. For example, the ‘sample sizes’ which have been taken, either to commend or to denigrate the work of Commissioners, vary widely. In fairness, the authors ought to have acknowledged that if a larger sample size was taken for all Commissioners or more or less identical sample sizes were taken for each Commissioner, the conclusions would have been radically different.
It is important to note that this Report was driven by an urge to commend few and denigrate many.
III. Flawed methodology:
We have been informed that the Commissioners have been evaluated by the authors of the Report against four parameters, which were:-
A. Overall Public Satisfaction:
The authors of the Report claim that the Overall Public Satisfaction has been measured by examining and evaluating over 6000 responses from those who approached various Commissions including the Central Information Commission.
The above yardstick has also been used for measuring Effectiveness.
C. Deterrent Impact:
This has been measured on the basis of a study of the number of penalties imposed on officers of the public authority by various Commissioners.
D. Pro-disclosure Factor:
This has been measured on the basis of affirmative orders by the Commissioners in favour of appellants. In other words, pro-disclosure factor is high when a Commissioner allows a large number of appeals.
Now let us look at how they have gone about their task.
Take for instance the methodology for evaluating parameters A and B, viz. Overall Public Satisfaction and Effectiveness. According to the authors, these two traits have been measured on the basis of the public response received by them from 6000 persons whose cases came up before the various Commissions. It has been stated that 39% of these 6,000 addressees expressed satisfaction in favour of the Commissioners.
Now consider this: How these 6,000 cases were distributed Commissioner-wise for the 94 Commissioners across the country has neither been presented nor explained by the authors.
An aggregate figure of 6,000 cases cannot become the basis for deciding the performance against these two parameters of individual Commissioners. This is a grave methodological error which the authors have committed.
Second, in presenting the Commissioner-wise statistics of Overall Public Satisfaction and Effectiveness, these 6,000 cases have been conveniently forgotten. It doesn’t take much intelligence to see that the total number of cases which have been used for grading Effectiveness and Overall Public Satisfaction for each Commissioner is at variance with the 6,000 which the authors have used to elicit public response.
Third, authors have quite simplistically and, equally erroneously, gone by affirmative orders in favour of appellants as an index of a Commissioner’s effectiveness and public satisfaction in regard to his work.
It is quite obvious that the valuation of Commissioners against these two parameters has been done by adopting what can best be described as voodoo statistics and methods which will not stand scientific scrutiny even for a moment.
What emerges from it is as follows:-
A. By taking only 6,000 cases out of over 54,000 decided by CIC and the State Information Commissions, the sponsors and the authors of the Study have only taken about 10% of cases as their basis for commenting on public satisfaction and effectiveness of Commissioners. This number, i.e. 6000 is far too small a sample for the entire country ¾ one Central Information Commission and 27 State Information Commissions ¾ and for 94 Commissioners. Do the authors want us to believe that on the basis of 6,000 case studies, or rather telephonic responses received by them, they can draw any fair conclusion about the effectiveness of Commissioners?
The authors state that all these 6,000 cases were those who were authorized to receive information by the Commissions, but many of them did not receive it.
Two observations need to be made:-
(a) Once a Commissioner passes an order for disclosing an information and if that information remains undisclosed, the appellants usually approach the Commission in complaint for denial of information (or against non-compliance of Commission’s order) by public authority. The Commission makes a decision, thereafter, about whether the information was denied or it was disclosed based upon submissions from both sides. Quite frequently, and in fact in a majority of cases, it is the appellant who turned out to be the one who was presenting facts wrongly and not the CPIO or the public authority. If such petitioners tell the authors of the RTI Award that they were unhappy with the information disclosed, it was required of the authors to make a critical scrutiny about what these appellant had asked for and what they had received, rather than draw a facile conclusion that if somebody said that he has not received information, he was bound to be right.
(b) In our experience, the cases where information was not disclosed after an order of the Commissioner were far and few between and not as enormous as the authors of this Report (RTI Awards) have attempted to demonstrate.
B. It is too simplistic to say that effectiveness of the Commissioner is the function of how many appeals he allows in favour of appellants. In fact, true effectiveness of a Commissioner is to be evaluated on the basis of whether he has contributed to the opening-up of the public authority’s systems and ushering in transparency where there was none earlier.
C. In some cases, not giving information is more in harmony with the avowed objective of the RTI Act than giving out information. As per the Preamble of the RTI Act, it is the purpose of this legislation to combat corruption and to improve efficiency in governance. A large number of cases which come before the Central Information Commission as well as the State Commissions are brought by public employees facing disciplinary cases, vigilance enquiries, anti-corruption actions and criminal prosecutions. These use the RTI Act as a tool to delay or defeat the extant process which seeks to make them answerable for their acts of omission and commission. Central Information Commission and the State Commissions in most such cases favour denial of information than disclosure, principally under Section 8(1) of RTI Act.
It is for the informed public to ask itself whether by judging a Commissioner on the basis of bland statistic of how many cases he decides in favour of appellant and how many cases he decides against him, can be a fair evaluation of the functioning of the Commissioner.
The authors of this Report have been not only unfair, they have been downright cussed and negligent in performing the task they had set out for.
Further, the following also need some reflection and show how lopsided this Study has been.
According to the authors of the study, out of the total number of cases they evaluated, in as many as 70%, the decisions were in favour of complete disclosure of information. It follows from it that only in 30% of the cases the Commissions directed
non-disclosure. These latter cases also include decisions authorizing part-disclosure. It defies understanding as to how part-disclosure and non-disclosure can be one and the same. This is one glaring instance of the authors’ lopsided technique.
Again, according to the authors, all non-disclosures are such a bad thing that it must cast a stigma on the Commissioners. These authors should be asked the question if every single appeal were to be allowed by the Commissioners, then why have Commissions at-all. Further, they also need to be asked as to what is the meaning and implication of Section 8(1) and Section 9 of the RTI Act, which clearly spell-out the conditions under which an information can be denied to an applicant. Is it the case of the authors that even when a Commission decided that a certain information came within the scope of the exemption-Sections, the information should have been disclosed if for nothing else for elevating the merit of the Commissioner in the eyes of the flawed authors of this flawed report.
Another glaring instance of the authors’ inscrutable ways is the manner in which they have evaluated Commissioners to be ranked as best five or the worst five. One example would suffice.
Mr.V.V. Bhorge has disposed of 4593 second-appeals, out of which in 989 cases, he had issued affirmative orders in favour of the appellants. He had imposed 126 penalties on errant public officials. Mr.Bhorge has been ranked as one of the five worst Commissioners.
Now contrast this with the indulgence with which the authors have treated Mr.D.N. Padhi of Orissa. Mr.Padhi has decided 423 cases, out of which in 361 cases, he has decided the appeal in favour of the appellant. He has imposed 40 penalties. Mr.Padhi has been ranked as one of the best five Commissioners.
Now contrast Mr.Padhi’s performance with the performance of Mr.Bhorge and you will find how lopsided and erratic have been the self-appointed evaluators of the performance of the Commissioners. Mr.Bhorge has decided a much larger number of cases than Mr.Padhi. He has imposed a far larger number of penalties than Mr.Padhi and the number of cases in which he has decided in favour of the appellants are about as many as Mr.Padhi’s own. And yet in the estimation of the authors, Mr.Padhi is one of the five best Commissioners and Mr.Bhorge is one of the five worst under Pro-disclosure category and Overall Public Satisfaction category.
Mr.P.Faziluddin, Information Commissioner of Kerala has been rated as best among all Commissioners, and he has decided only 148 cases in the whole year ¾ which works out to roughly one case every two days. Did not the absurdity of this determination made by the authors strike them? There are Commissioners who have decided more than 1500 cases in a year and the total number of ‘yes’ factor of those cases far exceeds the total number of cases decided by Mr.Faziluddin, but the latter category figures nowhere in the appreciation of the authors.
Certain other relevant points about the absurd nature of the Report are as follows:-
1. Award has been given to RTI-applicants for creating avenues for significant disclosures and transparency. But no credit has been given to the Commissioner or Commissioners who authorized such disclosure. Example ¾ Subhash Agarwal is given a prize for active RTI-applicant citing examples of cases brought by him before the Commission but denying to the Commissioner or Commissioners the credit for having given those orders which made Shri Subhash Agarwal’s efforts prize-worthy.
2. No credit has been given to the Commissioners for awarding compensation under Section 19(8)(b) of the RTI Act. The deterrent effect of compensation is no less than that of penalties. Disproportionate onus has been put on penalties to evaluate effectiveness and deterrent effect of the Commissioners’ orders.
3. It is seen that under the category Pro-disclosure, the least pro-disclosure-oriented Commissioners figure at Sl.Nos.87 to 91. For the category Effectiveness, the least effective five Commissioners are listed at Sl.Nos.59 to 62. Considering the fact that the total number of Commissioners is 94, it is entirely unexplained as to how the least effective in one category shall be at Sl.Nos.87 to 91, while in another category they shall not go below Sl.No.62.
This shows that the authors have not adopted any uniform criterion but have picked and chosen those whom they wish to hurt the most. Their mala-fide is more than manifest.
4. The Goa Information Commissioner, Shri A. Venkatratnam, who disposed of only 40 cases in the entire year and imposed 2 penalties, was rated one of the Top 5 Commissioners under the ‘Deterrent’ category. There are a large number of Commissioners who imposed more than 2 penalties in the year under reference. Yet, they were nowhere in the ranking from any account.
5. Out of 6 Top Commissioners under the category Overall Public Satisfaction, at least 4 disposed of less than 500 cases. In contrast, there are at least 3 Commissioners out of 6 who are rated as Worst Performing Commissioners who disposed of more than 1000 cases in the year under reference.
The examples cited at Sl.Nos.4 and 5 above show how the authors have totally disregarded a key variant, i.e. the number of cases decided by Commissioners. For them, if a Commissioner decides 20 cases in a year and imposes 20 penalties, and gives 20 affirmative orders in favour of appellants, he shall be rated better than another Commissioner who decides 500 cases, imposes 100 penalties and gives 100 affirmative orders.
Sample-size, in authors’ convoluted logic, does not matter. Can anything be more absurd than this?
IV. About Remanding of cases:
The authors have, with characteristic carelessness, described remanding of cases by the Commissioners to the First Appellate Authorities as a negative point against the Commissioners. They could not have been more wrong and ill-informed about the procedures under the RTI Act and the quasi-judicial bodies which the Commissioners are.
Most of the remand orders were in cases where the petitioners either did not approach the First Appellate Authority, or approached the First Appellate Authority in first-appeal and simultaneously came before the Commission in complaint proceeding. To save multiple proceedings in the same matter at the same time and, to avoid contradictory orders being passed, cases were remanded to the First Appellate Authority with a direction that after the AA decided the matter, the appellant would be free to approach the Commission in second-appeal as well as complaint, if any. In fact, not remanding such cases would be blatantly illegal and would amount to virtually abolishing the very vital tier of RTI, viz. the First Appellate Authority.
Cases were also remanded with specific direction to the First Appellate Authority that he, being the officer closest to where the information is held, should study the records and make a determination about whether the information could be disclosed. Commissions had no other alternative, but to remit such cases to the First Appellate Authority to save time and effort, which otherwise would be involved in carrying voluminous records to the Commission’s office for it examine whether the information requested was extant / held.
Several remands were given on the appellants’ own requests. Since they would have filed similar first-appeals before the same First Appellate Authority, remanding of the instant case before the Commission to the First Appellate Authority would enable the latter to examine and take the matter (which may be germane to the multiple RTI-applications and first-appeals of the appellants) to its logical conclusion.
Now, for the authors, these reasons for remand did not matter. According to them, all remands were bad because that was what they thought and knew about remand. As in all their inferences, they are wrong here too and, one can dare say, that they are poorly informed about the nuances of the Act.
It can be said, on the basis of above, that the authors of RTI Awards were seeking nothing more than sensationalism. Their purpose was to extol few ¾ and that too wrongly ¾ and denigrate many. With full help from the Media, they appear to have succeeded. Now is the time that people should be made to know how they have been taken for a ride by this nefarious group in the name of RTI-activism.
Prof. M.M. Ansari, Ph.D.
Central Information Commissioner