M9, Second Appeal Defence, Before the CIC

Module 9 of 10. Reading time about 45 minutes. End-of-module quiz unlocks Module 10.

The second appeal is filed before the Central Information Commission or the State Information Commission. The Commission can direct disclosure, impose costs, and most consequentially for you, impose a section 20 penalty up to twenty-five thousand rupees personally. This module is about preparing for that hearing.

“A second appeal against the decision under sub-section (1) shall lie within ninety days from the date on which the decision should have been made or was actually received, with the Central Information Commission or the State Information Commission, provided that the Central Information Commission or the State Information Commission, as the case may be, may admit the appeal after the expiry of the period of ninety days if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time.”

“In any appeal proceedings, the onus to prove that a denial of a request was justified shall be on the Central Public Information Officer or State Public Information Officer, as the case may be, who denied the request.”

This is critical. The burden of proof is on the PIO, not the appellant.

“In its decision, the Central Information Commission or State Information Commission, as the case may be, has the power to require the public authority to take any such steps as may be necessary to secure compliance with the provisions of this Act, including, providing access to information in a particular form, appointing a PIO where none exists, publishing certain categories of information, making necessary changes to record management, enhancing training on the right to information, providing an annual section 4 report.”

“To require the public authority to compensate the complainant for any loss or other detriment suffered.”

“To impose any of the penalties provided under this Act.”

Section 20(1) lists five triggers for personal penalty up to twenty-five thousand rupees at the rate of two hundred and fifty rupees per day.

1. Refused to receive an application without reasonable cause.
2. Failed to furnish information within section 7(1) timeline.
3. Malafidely denied the request.
4. Knowingly gave incorrect, incomplete, or misleading information.
5. Destroyed information that was the subject of the request, or obstructed in any manner.

Section 20(2) allows the Commission to recommend disciplinary action under the service rules where the conduct was persistent.

The proviso to section 20(1) places the burden of proving reasonable and diligent conduct on the PIO. This reverses the usual rule.

The CIC will issue a notice with the appeal copy and a hearing date. From the date of notice, you have time (typically two to six weeks) to file a counter statement. Prepare immediately. Do not wait.

The counter statement is your formal written defence. It has the following structure.

1. Title, Counter Statement of the PIO in Second Appeal No. CIC / XXX / 20YY.
2. Particulars, the appeal details, the appellant, the public authority, the PIO's name and designation.
3. Brief facts, the application date, the reply date, the first appeal date, the FAA order date, the second appeal date.
4. Ground-by-ground response, each ground of appeal addressed with the statutory clause, the case law, and the file facts.
5. Compliance position, what additional information has been supplied since the first appeal, if any.
6. Prayer, requesting the CIC to dismiss the appeal with a finding that the PIO acted reasonably and diligently.

The CIC expects the following annexures.

1. The original RTI application with date stamp.
2. The inward register extract.
3. The section 11 notice and response, if any.
4. The section 7(3) intimation, if any.
5. The PIO's reply with Proof of Delivery.
6. The first appeal and the FAA order.
7. The supplementary disclosure, if any, after the first appeal.
8. Any case-law citations relied upon.

CIC hearings are increasingly held by video conference. As a PIO, attend personally. Even if your law officer attends, your physical or virtual presence shows good faith and allows you to answer factual queries directly. Speak only when asked. Refer to specific page numbers of the file. Do not argue beyond the record.

If the CIC orders additional disclosure, comply within the time set. If the CIC issues a show-cause notice under section 20, take it very seriously and respond with documented evidence of reasonable and diligent conduct.

This trigger is about the application stage. If your office returned the application as deficient, or asked for an unwarranted reason under section 6(2), or refused to accept the BPL waiver without a valid ground, this trigger fires. Defence is to show that the refusal had a reasonable cause (illegible application, no contact information, etc.) and was communicated to the applicant within a reasonable time with a chance to cure.

This trigger is about the thirty-day clock. Defence is to show that the dispatch was within thirty days from receipt at the public authority, with allowance for section 7(7) pause for section 11 and section 7(3) pause for additional fee.

Malafide is a higher mental-state requirement. The Commission must find that the denial was made with bad faith, not mere error. Defence is to show that even if the denial was wrong, it was made in good faith on a reading of the statute and case law.

The mental state is knowledge. Defence is to show that the reply was prepared on the basis of the file as it then stood, that the PIO did not have knowledge of contrary facts, and that any error was due to information not then on record.

The most serious triggers. Defence is to show that the records are intact, the destruction (if any) was as per the records retention schedule, and that there was no obstruction in furnishing the information.

Section 20 proviso 2 places the burden on the PIO to show that he or she acted reasonably and diligently. The CIC has accepted the following as evidence of reasonable and diligent conduct.

1. A complete file note in the format described in Module 8.
2. Documented section 11 procedure where applicable.
3. Documented search of records before any no information reply.
4. Documented internal correspondence under section 5(4) seeking inputs from other officers.
5. Time-stamped despatch with Proof of Delivery.
6. A reasoned reply containing an exemption analysis where exemptions were invoked.
7. Compliance with FAA orders within the prescribed time.

If your file shows all of these, the CIC has often refused to impose penalty even where the underlying reply was found to be partially incorrect.

1. Delaying the reply beyond thirty days without invoking section 7(7) or section 7(3) pauses formally on record.
2. Issuing a no information available reply without documented search.
3. Failing to issue a section 11 notice where a third party is named.
4. Bare invocation of section 8 without the exemption analysis paragraph.
5. Asking the applicant for reasons in writing in violation of section 6(2).
6. Missing the FAA contact in the reply.
7. Not appearing at the FAA hearing or the CIC hearing.
8. Persistent pattern of the same error across multiple files (this triggers section 20(2) disciplinary recommendation).

1. Attend on time. CIC hearings often have tight schedules.
2. Carry the original file. Even on video conference, have the digital scan ready.
3. Speak only when invited. Do not interrupt.
4. When asked, answer in plain language, no jargon.
5. Refer to the file by page number.
6. Acknowledge mistakes if any. The CIC respects candour.
7. Offer to supply additional information that severability now allows, even if the original reply did not.
8. Carry the despatch register and Proof of Delivery for timeline questions.
9. Carry the section 11 notice and response for third-party questions.
10. Take notes of the directions given.

A sketch of a counter statement.

“Counter Statement of the Public Information Officer Second Appeal No. CIC/XYZ/20YY Appellant, Shri / Smt. [Name] Respondent, [Public Authority] through Public Information Officer

1. The Public Information Officer respectfully submits the following counter statement for the kind consideration of the Hon'ble Central Information Commission.

2. Brief facts. The applicant filed an RTI application dated DD-MM-YYYY received at this office on DD-MM-YYYY (Annexure A). The application sought information on six items relating to [subject].

3. Processing. On receipt, the application was registered at inward number XYZ. On day 3, a section 11 notice was issued to [third party] (Annexure B). The third-party response was received on day 13 (Annexure C). The PIO passed a reasoned order under section 11 on day 17 (Annexure D). A section 7(3) additional fee intimation was issued on day 22 (Annexure E). The fee was deposited on day 27. The PIO's reply was dispatched on day 33 (Annexure F, Proof of Delivery at Annexure G).

4. First appeal. The applicant filed a first appeal on DD-MM-YYYY. The FAA, after hearing the parties, ordered partial additional disclosure under section 10. The undersigned complied on DD-MM-YYYY (Annexure H).

5. Second appeal. The present appeal lists the following grounds. The PIO responds to each ground below.

6. Ground 1, [the appellant's contention]. Response, [PIO's response with statute and case law].

7. Ground 2, …

8. Compliance. The PIO has supplied all information that the Act permits at this stage. No information has been withheld without a reasoned order. No information has been destroyed.

9. Prayer. The PIO respectfully prays that the Hon'ble Commission may be pleased to dismiss the appeal with a finding that the undersigned acted reasonably and diligently in compliance with the RTI Act 2005, and that no penalty under section 20 is warranted.

Date, Place, PIO Name, Designation, Public Authority, Contact.”

This module gave you the second-appeal defence framework. In Module 10, the final study module, we step back and discuss the PIO mindset that prevents you from ever reaching a section 20 hearing in the first place.

For the citizen's view, see How to file the second appeal and CIC hearing guide on RTI Wiki.

This module is part of the RTI Wiki PIO Certification Course. The course is a Learner Certificate programme. It is NOT accredited by any government or statutory body. The drafting exercises in Module 7 are evaluated by a Large Language Model trained on RTI Wiki content, not by human evaluators. Scores are indicative knowledge measures, not legal advice.

Now take the M9 quiz to proceed to M10.