Circular circumvents transparency mandate

The circular on October 13, 2021, a day after 16th anniversary of the Right to Information Act, issued by the Chief Secretary of Telangana, asks all Special Chief Secretaries, Principal Secretaries and Secretaries to the government (Telangana) to instruct Public Information Officers (PIO) appointed under the RTI Act to obtain their "orders" before furnishing the information to applicants concerned. The question is what was the reason for issuing this circular? Why is the executive or bureaucracy fearing the RTI?

It is called "certain instructions issued,' which in itself contained a paragraph explaining the reason: "It has come to the notice of the undersigned that the State public information officers designated/appointed under the Right to Information Act 2005 in certain administrative units or offices are furnishing information to the applicants in a routine manner without proper verification of records."

Baseless conclusion

Why this conclusion was drawn? Was there a survey? In fact, the RTI wanted that the application for information should be answered routinely by the PIOs. The government should be habituated to share the information with the people in general. It suggests that PIOs were giving information without proper verification of records. This statement also raises doubts: Whether PIOs gave wrong information which was not there in 'records'? The information has to be given only from records. What is to be verified and what is proper verification? It is indirectly mandating PIOs not to give information. That is the problem with this circular.

Statutory duties breached

There is a mandate imposed by the Parliament through Section 4(1)(a) of the Act, every public authority shall – (a) maintain all its records duly catalogued and indexed in a manner and the form which facilitates the right to information under this Act and ensure that all records that are appropriate to be computerised are, within a reasonable time and subject to availability of resources, computerised and connected through a network all over the country on different systems so that access to such records is facilitated; Though it is 'subject to availability of resources,' it is a mandate and the government cannot say that after 15 years it does not have enough resources to perform this duty. If the government cannot keep the records as suggested, it cannot shift the liability to PIOs. The Public Authorities breach this duty as a routine. They do not maintain the records properly. Ill maintenance of records and no measures to prevent disappearance of records is plaguing the public offices. This is the main obstacle to free flow of information from public authorities. Hence, they have no authority to blame PIOs about 'proper verification.'

Juniors as PIOs

The Information Commissioners generally face that PIOs are not efficient. Some authorities designated juniors, junior assistants, clerks, superintendents or inexperienced employees as PIOs, who cannot properly function. They are ill equipped to deal with RTI requests. The public authorities deliberately do not designate responsible officers as PIOs. Though the RTI Act made it a duty for the authorities to train PIOs properly, they abdicate this in routine. Section 26 of the Act listed out the duties to educate people, encourage public authorities to undertake RTI awareness programs, train PIOs and produce training modules, providing for the voluntary disclosure of categories of records in accordance with Section 4, etc.

Suo motu disclosures

The circular is also diametrically opposite to the duty of the government under Section 4(1)(b) of the Act, which made it an inescapable duty of every public authority to furnish 17 categories of information on their own, without anybody seeking it. The government should have instructed the public authorities to first perform this duty of suo motu disclosure. This would have removed the need to file many RTI requests.

The circular of CS has caused serious concerns and apprehensions among the RTI applicants and activists, whether any information sought would come out within 30 days. The PIO is, generally, a subordinate officer designated as PIO and the history indicates mostly that PIO acts only under the instructions of the officers. The first appellate authority, though a senior and mostly a gazetted officer, will not alter the order of PIO; simply endorses whatever the PIO writes; which means they do not want to share the information sought. The public authority and its PIO get 30 days maximum to respond, and the Act provided for seeking assistance from others to furnish information.

Before issuing such circular, the government should have given the reasons for this restricting instruction to public authorities. It is another mandate of the RTI Act under Section 4(1)(c), that was defied. This Section says: "publish all relevant facts while formulating important policies or announcing the decisions which affect public;"

The government did not publish any relevant facts regarding this new policy through this circular. When it is mandatory for the government to frame policy and the PIOs have duty to follow, how can the circular blame PIOs?

Make 'head' a PIO!

If the lawmakers had the same comprehension as the circular expressed, the Act would have not created a post called PIO at all. It would have made the heads, special or principal or Chief Secretaries as officers concerned directly responsible for receiving RTI applications like present PIOs and be liable if not acted as per Act. The parliament left it the to discretion of heads of public authorities to designate any officer as PIO and FAA (First Appellate Authorities).

If the government of Telangana has found any problem with ability and efficiency of the present officers who are designated as PIOs, your good self should have chosen to designate senior and responsible officers as PIOs for efficient RTI Act. As per the circular, the file-note should contain an endorsement for disclosing or preventing the information by higher officers. If the information, though not exempted, was denied by PIO under the 'instructions' of higher officers, that higher officer will become liable to pay penalty up to 25,000 and not the PIO. Doesn't the government want the higher officers penalised for wrongful denial?

If the government insists on implementation of this circular, it will be tying up the hands of PIOs and runs against the letter and spirit of RTI Act, 2005, which was the result of a great struggle of the civil society for decades. This author and another former Central Information Commissioner Shailesh Gandhi wrote with some recommendations:

1. It is the duty of the Government to see that each public authority makes suo motu disclosures as mandated by Section 4(1)(b) of RTI Act, which would have reduced the RTI requests substantially;

2. Senior, experienced and responsible officers should be designated as PIOs, so that they take independent decisions according to law;

3. There should be sufficient training of the PIOs and appellate authorities in state to enable them to furnish information according to RTI Act;

4. The records should be properly categorised and listed for easy disclosure;

5. The entire file and reasons for issuance of this circular should be brought into public domain as mandated by Section 4(1)(c);

6. The government cannot deny the information except under Section 8 and 9. But your circular imposed another restriction that no information could be given without permission of principal secretary. It is illegal;

7. This illegal circular needs to be withdrawn immediately, as it seriously undermines the transparency and access to information held by public authority.

The government should realise that the diversion or misappropriation of the money from welfare measures could be prevented by transparency and to facilitate proper utilisation of the enormous funds allocated by the government by reaching genuine beneficiaries, proper implementation of RTI Act is essential. Public scrutiny of public servant's actions and expenditure of public money is very important. The circulated 'instruction' will defeat the objective of Parliamentary enactment RTI Act, 2005.

(The author is Dean & Professor, School of Law, Mahindra University, Hyderabad, and former Central Information Commissioner)

(The opinions expressed in this column are those of the writer. The facts and opinions expressed here do not reflect the views of The Hans India)