Ambiguities impede Information Right

There is on the one hand, a great concern for probity in public life, concern for eliminating corruption, concern for eliminating inefficiencies and, at the same time, we have to ensure that the processes of the State function unhindered. However, the problem is that neither PIO nor people understood the meaning of ‘information’ as defined in Section 2(f) which offers a wide scope, second part is left ambiguous as to information held by private bodies accessible by a public authority under any law. Once ‘information’ held by private bodies is made accessible by laws other than RTI, is defined as ‘information’, that access can be enforced by the Information Commissions. NAC’s Bill on RTI in 2004 contained ‘file notings’ within the definition of ‘information,’ but the Bill approved by the PSC excluded it

After travelling 10 years with the Right to Information Act, we need to introspect whether we have established a real practical regime? The goal is to set “a practical regime to secure access to information under the control of public authorities.” The aim is “to promote transparency and objective is to achieve accountability in the working of public authority.”

The then Prime Minister Manmohan Singh said: “The Bill lays down architecture for assessing information, which is simple, easy, time-bound and inexpensive. It has stringent penalties for failing to provide information or affecting information flow in any way. In fact, it imposes obligations on agencies to disclose information suo motu, thus reducing the cost of access.”

Suresh Pachouri, the Minister of State for Personnel, Public Grievances and Pensions, while moving the Bill in Rajya Sabha on 12th May, 2005, stated that the preamble of the Bill was amended on the advice of legal luminaries. “We wanted this to be known emphatically, that the citizen of India was not only free to ask for information from the Government but also had a right to get it.”

The Minister said that RTI was a constitutional right under the Article 19 of the Constitution of India, not just a legally granted guarantee. He also quoted the judgment of Supreme Court in Judges Transfer Case in 1982, that “the disclosure of information in regard to the functioning of the Government must be the rule, and secrecy an exception justified only where the strictest requirement of public interest so demands.”

The Minister said that following the spirit of Supreme Court, the Bill contained exceptions to bare minimum, that too qualified by public interest. He stated that the Bill aims at radically transforming the lives of citizens of this country. (Page 266 Rajya Sabha Debates on RTI Bill 2005) MP Dr P C Alexander explained its significance in Rajya Sabha: “Citizenship is not complete unless we grant our citizens the right to get the information they wish to have.”

However, he reflected on the apprehensions of civil servants about the prospect of the right to information turning out to be an instrument for harassing them. The apprehension of MP Alexander is partly true as there is increasing misuse of this as instrument to harass the officers. Alexander stated that implementing Section 4(1) would be very difficult and even controversial.

It is impossible to place that information within 120 days. At the same time, Alexander questioned, “when so many organizations are exempted from the Act, what is the purpose of RTI Act, which is historic and epoch making?” In this context Prime Minister intervened and reiterated his views made in Lok Sabha. Agreeing with Dr Alexander, the Prime Minister said, “If it becomes an Act, is implemented.in next three or four years of the operation of this Act will be crucial.

We are sailing on to unchartered waters. There is on the one hand, a great concern for probity in public life, concern for eliminating corruption, concern for eliminating inefficiencies and, at the same time, we have to ensure that the processes of the State function unhindered.”

Ambiguity about ‘Information’:

The problem is that neither the PIO nor the people understood the meaning of ‘information’ as defined in Section 2(f) which offers a wide scope, second part is left ambiguous as to information held by private bodies accessible by a public authority under any law.

Once ‘information’ held by private bodies is made accessible by laws other than RTI, is defined as ‘information’, that access can be enforced by the Information Commissions. NAC’s Bill on RTI in 2004 contained ‘file notings’ within the definition of ‘information,’ but Bill approved by the PSC excluded it.

Following table shows how the definition was changed, Freedom of Information Act, 2002, NAC’s Bill and RTI Bill 2004 approved by PSC in 18th December 2004. The problem is that enforcement of access to information held by private bodies is being limited by the provisions of such laws which gave that right.

The Right to Information Act which gave overriding power should be preferred to the earlier legislations. Some judicial orders prevented the public authority from demanding the information from private bodies, saying IC cannot ask PIO of public authority to collect the required information, though not exempted under Section 8.

Form of information

Section 7(9) made it mandatory that information shall ordinarily be provided in the form in which it is sought. Only when giving information in that form would disproportionately divert the resources, information should be given as it is available with the public authority.

Though judicial orders and CIC stated that PIO does not have any obligation to collect, or compile or prepare afresh, the first part of Section 7(9) states that “it shall be ordinarily be provided in the form it is sought,” which means PIO has to collect and compile to some extent.

PIO can refuse only to the extent it diverts resources substantially. Otherwise it has to be given in the form sought by the appellant. The PIOs should know that Section 7(9) is not an exception to deny the information. They cannot even refuse to collect. People mostly ask “why I am not promoted, why there are adverse remarks in my ACR,” “why that fellow is given an increment” etc.

It is difficult for the PIOs because of lack of training or understanding to differentiate between a ‘question’ and ‘request for information’. Can PIO refuse to entertain RTI request because an alternative route of securing copies existed? No. The training for the PIO is very essential component, while it is equally necessary for civil society to teach people how to draft an information-request.

The FoI Act 2002

10. (d)”information” means any material in any form relating to the administration, operations or decisions of a public authority.

NAC’s RTI Bill 2004

(e) “information” means any material in any form, including records, documents, file notings memos, emails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and any information relating to a private body which can be accessed by a public authority under any law;

RTI Bill 2004

(d) “information” means any material in any form, including records, documents, memos, emails, opinions, advices, 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;