RIGHT TO INFORMATION: BACKGROUND – LAW AND PROCEDURE

TG Team 15 Jan 2009 348 Views 0 comment Print Corporate Law | Articles

Right to Information Act is based on the analogy that transparency leads to greater accountability and that in turn should lead to good governance.

As more and more citizens start demanding the information, a message goes to the public authorities and public institutions at large that their decisions, actions and inactions are subject to public scrutiny. . Such message will go a long way in avoiding or reducing irregularities, manipulations and corruption.

It does not require elaboration that every authority, every public institution, every public corporation and the likes of them where public stake is higher than the private one, the administration should be as transparent as possible and the underlying thought process should be to make fullest possible disclosure. Disclosure increases confidence and assures objectivity.

For the organizations which are made up of members and which have democratic set up, it is a cardinal requirement to keep its members informed to the fullest degree. No organization can claim to be democratic while keeping its own members uninformed.

Abuse of Power is not to be assumed but experience bellies the expectation that discretionary power is always exercised fairly and objectively.

All judicial, quasi judicial, executive and administrative powers are to be exercised by the authorities and public organizations in accordance with the provisions of the Constitution. Public institutions and public officers are not above the law. Doctrine of rule of law is embodied in Constitution.

The Rule of Law, as against the rule by persons, requires that the exercise of any power by the legislature or by the judiciary or by the government or by any other authority must be conditioned by the Constitution.

All rules, regulations, ordinances, byelaws, notifications, customs, usages, are ‘laws’ within the meaning of Article 13 of the Constitution and if they are inconsistent with or contrary to any of the provisions thereof they can be declared as ultra-vires by the courts.

The attitude of every public organization should be to set an example of the highest standards of transparency and propriety for the public corporations and the institutes.

Public institutions and public officers are subject to public accountability.

Right to information has been embedded in the right to express. Right to express has been guaranteed by the Constitution.

Even disregarding the Right to Information Act, the Hon’ble Courts had in the past interpreted that Article 19 of the Constitution which grants right to express is inclusive of right to information. A citizen cannot express fully if his right to be informed is denied or curtailed.

It is an accepted analogy that transparency leads to greater accountability and that in turn would lead to good governance. Claiming openness and transparency is one thing and implementing the same in a real sense is other. The later is the true test of a democratic administration.

In democratic set ups, there can be but few secrets. The people have a right to know every public act, everything that is done in a public way, by their public functionaries. They are entitled to know the particulars of every public transaction in all its bearing. The right to know, which is derived from the concept of freedom of speech, though not absolute, is a factor which should make one wary, when secrecy is claimed for transactions which can, at any rate, have no repercussion on public security. To cover with veil of secrecy, the common routine business is not in the interest of the public.

Principles of natural justice are applicable to the administrative acts also. Even if authority is not required by law the application of same is required.

A number of statutes confer powers on administrative authorities and officers to be exercised by them in their discretion. The power may be in permissive language such as “may”, “it shall be lawful”, “it may be permissible”, etc. The question is whether it is open to the authorities to exercise or not to exercise the power at their sweet wills. The question is whether the authority can delegate such powers completely without even caring to see whether the delegated agency is acting properly or not?

With the expansion in public activities and public interest becoming pervasive, larger is the need for public audit and judicial control. Scope of Judicial review is flexible and dependent upon facts of case. In recent times, judicial review of administrative action has become extensive and expansive.

In this era of right to information to the citizens, to the citizens who may be even unconcerned with the subject matter, the organizations acting for the benefit of their members and in public interest should be as transparent and forthcoming in providing necessary information to its members.

Such information is in public interest to give as what needs to be made transparent is that objective criteria are the basis of decision making and that such criteria have actually been applied in decision making.

For every important decision, reasons have to be recorded in writing. Sometimes such reasons may not be allowed to be disclosed due to overriding public interest, but that does not dispense with the need to record the reasons.

Considering that we are living in a society full of indifference and diffidence where very few people protest and act against the wrongs done by authorities, whenever some grievances and dissenting views are expressed, the same should lead to required introspection and as far as possible should be considered representative of the larger silent numbers.

The legitimate expectations of members flow not only from the rights but also from the regular practices and it is their right to expect that all members have been treated with equality and on merits. Only transparency can assure that these legitimate expectations are being fulfilled.

In an organization based on values and principles, a representative is not an author of those values but he is accountable for expressing them, making them clear and ensuring that such values and principles are lived upto the expectations of the members and the public at large. A true representative is expected to contribute towards participatory process in a manner that all the members become meaningful part of the decision making process.

When RTI Act came into force?

It came into force on the 12th October, 2005 (120th day of its enactment on 15th June, 2005). Some provisions have come into force with immediate effect viz. obligations of public authorities [S.4(1)], designation of Public Information Officers and Assistant Public Information Officers[S.5(1) and 5(2)], constitution of Central Information Commission (S.12 and 13), constitution of State Information Commission (S.15 and 16), non-applicability of the Act to Intelligence and Security Organizations (S.24) and power to make rules to carry out the provisions of the Act (S.27 and 28).

Who is covered?

The Act extends to the whole of India except the State of Jammu and Kashmir. [S.(12)]

What does information mean?

Information means any material in any form including records, documents, memos, e-mails, 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 but does not include “file notings” [S.2(f)].

What does Right to Information mean?

It includes the right to –

inspect works, documents, records.
take notes, extracts or certified copies of documents or records.
take certified samples of material.
obtain information in form of printouts, diskettes, floppies, tapes, video cassettes or in anyother electronic mode or through printouts.[S.2(j)]

What does a “public authority” mean?

It means any authority or body or institution of self-government established or constituted: [S.2(h)]

by or under the Constitution;
by any other law made by Parliament;
by any other law made by State Legislature;
by notification issued or order made by the appropriate Government and includes any-

a. body owned, controlled or substantially financed

b. Non-Government organization substantially financed directly or indirectly by the appropriate Government.

Who are Public Information Officers (PIOs)?

PIOs are officers designated by the public authorities in all administrative units or offices under it to provide information to the citizens requesting for information under the Act. Any officer, whose assistance has been sought by the PIO for the proper discharge of his or her duties, shall render all assistance and for the purpose of contraventions of the provisions of this Act, such other officer shall be treated as a PIO

What are the duties of a PIO?

PIO shall deal with requests from persons seeking information and where the request cannot be made in writing, to render reasonable assistance to the person to reduce the same in writing.

If the information requested for is held by or its subject matter is closely connected with the function of another public authority, the PIO shall transfer, within 5 days, the request to that other public authority and inform the applicant immediately.
PIO may seek the assistance of any other officer for the proper discharge of his/her duties.
PIO, on receipt of a request, shall as expeditiously as possible, and in any case within 30 days of the receipt of the request, either provide the information on payment of such fee as may be prescribed or reject the request for any of the reasons specified in S.8 or S.9.
Where the information requested for concerns the life or liberty of a person, the same shall be provided within forty-eight hours of the receipt of the request.
If the PIO fails to give decision on the request within the period specified, he shall be deemed to have refused the request.
Where a request has been rejected, the PIO shall communicate to the requester – (i) the reasons for such rejection, (ii) the period within which an appeal against such rejection may be preferred, and (iii) the particulars of the Appellate Authority.
PIO shall provide information in the form in which it is sought unless it would disproportionately divert the resources of the Public Authority or would be detrimental to the safety or preservation of the record in question.
If allowing partial access, the PIO shall give a notice to the applicant, informing:

a. that only part of the record requested, after severance of the record containing information which is exempt from disclosure, is being provided;

b. the reasons for the decision, including any findings on any material question of fact, referring to the material on which those findings were based;

c. the name and designation of the person giving the decision;

d. the details of the fees calculated by him or her and the amount of fee which the applicant is required to deposit; and

e. his or her rights with respect to review of the decision regarding non-disclosure of part of the information, the amount of fee charged or the form of access provided.

If information sought has been supplied by third party or is treated as confidential by that third party, the PIO shall give a written notice to the third party within 5 days from the receipt of the request and take its representation into consideration.

Third party must be given a chance to make a representation before the PIO within 10 days from the date of receipt of such notice.

1. What are the obligations of public authority?

It shall publish within one hundred and twenty days of the enactment:-

i. the particulars of its organization, functions and duties;

ii. the powers and duties of its officers and employees;

iii. the procedure followed in its decision making process, including channels of supervision and accountability;

iv. the norms set by it for the discharge of its functions;

v. the rules, regulations, instructions, manuals and records used by its employees for discharging its functions;

vi. a statement of the categories of the documents held by it or under its control;

vii. the particulars of any arrangement that exists for consultation with, or representation by the members of the public, in relation to the formulation of policy or implementation thereof;

viii. a statement of the boards, councils, committees and other bodies consisting of two or more persons constituted by it. Additionally, information as to whether the meetings of these are open to the public, or the minutes’ of such meetings are accessible to the public;

ix. a directory of its officers and employees;

x. the monthly remuneration received by each of its officers and employees, including the system of compensation as provided in its regulations;

xi. the budget allocated to each of its agency, indicating the particulars of all plans, proposed expenditures and reports on disbursements made;

xii. the manner of execution of subsidy programmes, including the amounts allocated and the details and beneficiaries of such programmes;

xiii. particulars of recipients of concessions, permits or authorizations granted by it;

xiv. details of the information available to, or held by it, reduced in an electronic form;

xv. the particulars of facilities available to citizens for obtaining information, including the working hours of a library or reading room, if maintained for public use;

the names, designations and other particulars of the Public Information Officers.[S.4(1)(b)]

What is the Application Procedure for requesting information?

Apply in writing or through electronic means in English or Hindi or in the official language of the area, to the PIO, specifying the particulars of the information sought for.
Reason for seeking information are not required to be given;

Pay fees as may be prescribed (if not belonging to the below poverty line category).

What is the time limit to get the information?

30 days from the date of application
48 hours for information concerning the life and liberty of a person
5 days shall be added to the above response time, in case the application for information is given to Assistant Public Information Officer.
If the interests of a third party are involved then time limit will be 40 days (maximum period + time given to the party to make representation).

Failure to provide information within the specified period is a deemed refusal.

What is the fee?

Application fees to be prescribed which must be reasonable.
If further fees are required, then the same must be intimated in writing with calculation details of how the figure was arrived at;
Applicant can seek review of the decision on fees charged by the PIO by applying to the appropriate Appellate Authority;
No fees will be charged from people living below the poverty line

Applicant must be provided information free of cost if the PIO fails to comply with the prescribed time limit.

What could be the ground for rejection?

If it is covered by exemption from disclosure. (S.8)

If it infringes copyright of any person other than the State. (S.9)

What is not open to disclosure?

The following is exempt from disclosure [S.8)]

i. information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign State or lead to incitement of an offence

ii. information which has been expressly forbidden to be published by any court of law or tribunal or the disclosure of which may constitute contempt of court;

iii. information, the disclosure of which would cause a breach of privilege of Parliament or the State Legislature;

iv. information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information;

v. information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information;

vi. information received in confidence from foreign Government;

vii. information, the disclosure of which would endanger the life or physical safety of any person or identify the source of information or assistance given in confidence for law enforcement or security purposes;

viii. information which would impede the process of investigation or apprehension or prosecution of offenders;

ix. cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers;

x. information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual;

xi. Notwithstanding any of the exemptions listed above, a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests.

Is partial disclosure allowed?

Only that part of the record which does not contain any information which is exempt from disclosure and which can reasonably be severed from any part that contains exempt information, may be provided. [S.10]

Who is excluded?

Central Intelligence and Security agencies specified in the Second Schedule like IB, R&AW, Directorate of Revenue Intelligence, Central Economic Intelligence Bureau, Directorate of Enforcement, Narcotics Control Bureau, Aviation Research Centre, Special Frontier Force, BSF, CRPF, ITBP, CISF, NSG, Assam Rifles, Special Service Bureau, Special Branch (CID), Andaman and Nicobar, The Crime Branch-CID-CB, Dadra and Nagar Haveli and Special Branch, Lakshadweep Police. Agencies specified by the State Governments through a Notification will also be excluded. The exclusion, however, is not absolute and these organizations have an obligation to provide information pertaining to allegations of corruption and human rights violations. Further, information relating to allegations of human rights valuations could be given but only with the approval of the Central or State Information Commission, as the case may be. [S.24)]

What are the powers and functions of Information Commissions?

a. The Central Information Commission/State Information Commission has a duty to receive complaints from any person –

b. who has not been able to submit an information request because a PIO has not been appointed ;

c. who has been refused information that was requested;

d. who thinks the fees charged are unreasonable ;

e. who thinks information given is incomplete or false or misleading ;and

f. any other matter relating to obtaining information under this law.

Power to order inquiry if there are reasonable grounds.

CIC/SCIC will have powers of Civil Court such as –

a. summoning and enforcing attendance of persons, compelling them to give oral or written evidence on oath and to produce documents or things;

b. requiring the discovery and inspection of documents;

c. receiving evidence on affidavit

d. requisitioning public records or copies from any court or office

e. issuing summons for examination of witnesses or documents

f. any other matter which may be prescribed.

All records covered by this law (including those covered by exemptions) must be given to CIC/SCIC during inquiry for examination.

5. Power to secure compliance of its decisions from the Public Authority includes-

a. providing access to information in a particular form;

b. directing the public authority to appoint a PIO/APIO where none exists;

c. publishing information or categories of information;

d. making necessary changes to the practices relating to management, maintenance and destruction of records ;

e. enhancing training provision for officials on RTI;

f. seeking an annual report from the public authority on compliance with this law;

g. require it to compensate for any loss or other detriment suffered by the applicant ;

h. impose penalties under this law; or

i. reject the application. (S.18 and S.19)

What is the time limit to get the information?

30 days from the date of application
48 hours for information concerning the life and liberty of a person
5 days shall be added to the above response time, in case the application for information is given to Assistant Public Information Officer.
If the interests of a third party are involved then time limit will be 40 days (maximum period + time given to the party to make representation).

Failure to provide information within the specified period is a deemed refusal.

What is the fee?

Application fees to be prescribed which must be reasonable.
If further fees are required, then the same must be intimated in writing with calculation details of how the figure was arrived at;
Applicant can seek review of the decision on fees charged by the PIO by applying to the appropriate Appellate Authority;
No fees will be charged from people living below the poverty line

Applicant must be provided information free of cost if the PIO fails to comply with the prescribed time limit.

What could be the ground for rejection?

If it is covered by exemption from disclosure. (S.8)

If it infringes copyright of any person other than the State. (S.9)

Who are the Appellate Authorities?

1. First Appeal: First appeal to the officer senior in rank to the PIO in the concerned Public Authority within 30 days from the expiry of the prescribed time limit or from the receipt of the decision (delay may be condoned by the Appellate Authority if sufficient cause is shown).

2. Second Appeal: Second appeal to the Central Information Commission or the State Information Commission as the case may be, within 90 days of the date on which the decision was given or should have been made by the First Appellate Authority. (delay may be condoned by the Commission if sufficient cause is shown).

3. Third Party appeal against PIO’s decision must be filed within 30 days before first Appellate Authority; and, within 90 days of the decision on the first appeal, before the appropriate Information Commission which is the second appellate authority.

4. Burden of proving that denial of Information was justified lies with the PIO.

First Appeal shall be disposed of within 30 days from the date of its receipt. Period extendable by 15 days if necessary. (S.19)

What are the penalty provisions?

Every PIO will be liable for fine of Rs. 250 per day, up to a maximum of Rs. 25,000/-, for –

i. not accepting an application;

ii. delaying information release without reasonable cause;

iii. malafidely denying information;

iv. knowingly giving incomplete, incorrect, misleading information;

v. destroying information that has been requested and

vi. obstructing furnishing of information in any manner.

The Information Commission (IC) at the Centre and the State levels will have the power to impose this penalty. The Information Commission can also recommend disciplinary action for violation of the law against an erring PIO. (S.20)

What are the powers and functions of Information Commissions?

1. The Central Information Commission/State Information Commission has a duty to receive complaints from any person –

j. who has not been able to submit an information request because a PIO has not been appointed ;

k. who has been refused information that was requested;

l. who has received no response to his/her information request within the specified time limits ;

m. who thinks the fees charged are unreasonable ;

n. who thinks information given is incomplete or false or misleading ;and

o. any other matter relating to obtaining information under this law.