“ Right to Information - as a tool for Empowerment ”

1. “Right to Information - as a tool for Empowerment” Ms Shobhalata. V. Udapudi M.Sc. LL.M. Principal B. V. Bellad Law College, Belgaum & Life Member & Joint Secretary, K.L.E. Society, Belgaum.

2. Synopsis • Introduction • International Scenario • International Right – to Know Day • International Conventions: • What are the benefits of the Act? • Evolution of the RTI Act • Right To Information and The Indian Constitution • The Power of The Right To Information

3. Synopsis contn….. • What are the salient features of the Act? • What information is exempted from disclosure by public authorities? • What information will be proactively disclosed by public authorities? • How much time does the authority have to reply? • What can I do if my request is rejected? • Frivolous or vexatious requests • Challenges to RTI Act • Controversy about notings: • Areas of concern

4. Introduction ‘No man is good enough to govern another man without that other’s consent.’ Abraham Lincoln on Government by consent, 1854

5. International Scenario • 240 years ago, Sweden passed the first freedom of information law in the law world, principally sponsored by a Finnish clergyman Ander Chydenius, who had been inspired by the humanist Confucian philosophy …

6. … and the fact that the Chinese emperors were expected to:admit their own imperfection as a proof for their love of the truth and in fear of ignorance and darkness.”

7. CHRONOLOGY OF FOI LAWS • Sweden 1766 • Colombia 1888 • Finland 1951 • U.S.A. 1966 • Denmark, Norway 1970 • France 1978 • Australia, New Zealand 1982 • Canada 1983 So far, 68 countries have passed FOI laws.

8. International Right – to Know DaySeptember 28th of each year

9. International Conventions:United Nations General Assembly, in its session in 1946, adopted Resolution 59(I), which states: “Freedom of information is a fundamental human right and … the touchstone of all the freedoms to which the UN is consecrated”.

10. Article 19 of the ‘Universal Declaration of Human Right’, a United Nations General Assembly Resolution 217 (III)A of 1948 recognises Freedom of Expression including Freedom of Information and Free Press – a fundamental human right. Freedom of Expression includes the right to seek, receive and impart information and right to access information held by public authorities.

11. Article 19(2) of the ‘International Covenant on Civil and Political Rights’ (ICCPR), a United Nations General Assembly Resolution 2200A (XXI) of 1966 states: “Every shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any media of his choice.”

12. Article 10 of the U.N. Convention against Corruption 2005 states: “…to combat corruption, each (member State) shall, in accordance with the fundamental principles of its domestic law, take such measures as may be necessary to enhance transparency in its public administration

13. The World Conference on Human Rights, held in Vienna in 1993 has declared that the Right to Development adopted by United Nations General Assembly 1986 is a universal and inalienable right and an integral part of fundamental human rights. Right to freedom of expression is regarded as closely linked to the right to development.

14. Benefits of the Act • There are long-term benefits: • In the political sphere, • In the Economic sphere, • In the sphere of public administration,

15. Evolution of the RTI ActThe Government of India, Department of Personnel, decided to set-up a ‘Working Group’ (on the ‘Right to Information and Promotion of Open and Transparent Government’) in January 1997 under the chairmanship of Mr. H.D. Shouri, which submitted its comprehensive and detailed report and the draft bill on Freedom of Information in May 1997.

16. The need to enact a law on right to information was recognised unanimously by the Chief Minister Conference on “Effective and Responsive Government”, held on 24th May, 1997 at New Delhi.

17. The Government of India introduced the Freedom of Information Bill, 2000 (Bill No.98 of 2000) in the Lok Sabha on 25th July, 2000. The Bill, which cast an obligation upon public authorities to furnish such information wherever asked for, was passed by the Parliament as the Freedom of Information Act 2002.

18. Later, however, the UPA Government decided to repeal the FOI Act, and enacted a new legislation, the Right to Information Act, 2005 (RTIA) to provide an effective framework for effectuating the right of information recognised under Article 19(1)(a) of the Constitution of India.

19. The Power of The Right To Information • Smt. Khasim Bee case • Mazdoor Kisan Shakti Sangathan (MKSS)

20. Salient features of the Act • Universal access to information held by the public authorities all citizens have access to information, pertaining to any period, in any form, in official language. • Right to information includes inspection of records, works and taking certified samples of material. • “Information” broadly defined-includes: records, e-mails, samples and models. • Covers all public authorities, NGOs, private bodies subject to provisions. • Public Information Officers (“P.I.O.”) to provide information.

21. Salient features of the Act cont….. • Only absolute exemption from disclosure of information. • All other exemptions are subject to public interest test. • Voluntary disclosure of maximum (17 categories of) information on National wide network. • No prescribed form. • Reasonable fees. • Allows partial disclosure. • P.I.O. has the duty to assists requesters. • No need to give reasons for requesting information.

22. Salient features of the Act cont….. • Information concerns the life and liberty to be provided within 48 hours • Information to be provide expeditiously, within 30 days of receipt of request. • Deemed to be refused if no response is given. • Internal First Appeals against PIO’s decisions on fees/form of access/ rejection/partial disclosures. • Independent Information Commissions at Central and State levels. • Citizens can directly make complaints and appeals to information Commissions.

23. Salient features of the Act cont….. • Presumption in favour of disclosure of information – Burden of proof on P.I.O. • Overriding effect on other secrecy laws. • Penalties on delinquent P.I.O.s. • A Guide, which includes the details of P.I.O.s of all public authorities. • Educational programmes to disadvantaged communities. • Annual reporting by the Information Commissions

24. The Act defines information as 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.

25. The Act specifies “Records” to include: • Any document, manuscript and file; • Any microfilm, microfiche and facsimile copy of a document; • Any reproduction of image or images embodies in such microfilm (whether enlarged or not); and • Any other material produced by a computer or any other device.

26. Information exempted from disclosure by public authorities • 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 of incitement of an offence; • Information which has been expressly forbidden to be published by any court of law or tribunal or the disclosure of which any constitute contempt of court; • Information, the disclosure of which would cause a breach of privilege of Parliament or the State Legislature

27. Information exempted from disclosure by public authorities cont…. • 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; • 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; • Information received in confidence from foreign Government;

28. Information exempted from disclosure by public authorities cont…. • 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; • Information which would impede the process of investigation or apprehension or prosecution of offenders;

29. Information exempted from disclosure by public authorities cont…. • Cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers Provided that the decisions of Council of Ministers, the reasons thereof, and the material on the basis of which the decisions were taken shall be made public after the decision has been taken, a the matter is complete, of over: Provided further that those matters which come under the exemptions specified in this section shall not be disclosed; • 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 unless the Public Information Officer is satisfied that the larger public justifies the disclosure of such information

30. Information will be proactively disclosed by public authorities Every public authority must publish in the local language the following information: • The particulars of its organisatin, functions and duties; • The powers and duties of its officers and employees; • The procudure followed in the decision making process, including channels of supervision and accountability; • The norms set by it for the discharge of its functions;

31. Information will be proactively disclosed by public authorities cont….. • The rules, regulations, instructions, manuals and records, held by it or under its control or used by its employees for discharging its functions; • A statement of the categories of documents that are held by it or under its control; • The particulars of any arrangement that exists for consultation with, or representation by, the members of the public in relation to the formulation of its policy or implementation thereof;

32. Information will be proactively disclosed by public authorities cont….. • A statement of the boards, councils, committees and other bodies consisting of two or more persons constituted as its part of for the prupose of its advice, and as to whether meetings of those boards, councils, committees and other bodies are open to the public, or the minutes of such meetings are accessible for • Public; • A directory of its officers and employees;

33. Information will be proactively disclosed by public authorities cont….. • The monthly remuneration received by each of its officers and employees, including the system of compensation as provided in its regulations; • The budget allocated to each of its agency, indicating the particulars of all plans, proposed expenditures and reports on disbursements made; • The manner of execution of subsidy programmes, including the amounts allocated and the details of beneficiaries of such programmes;

34. Information will be proactively disclosed by public authorities cont….. • Particulars of recipients of concessions, permits or authorizations grated by it; • Details in respect of the information, available to or held by it, reduced in an electronic form; • 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;

35. Information will be proactively disclosed by public authorities cont….. • The names, designations and other particulars of the Public Information Officers; • Such other information as may be prescribed; and thereafter update these publications every year;

36. How much time does the authority have to reply? Citizen Request Public Information Officer Information in 30 days OR Information in 40 days (Information related to 3rd party) (48 hours – if information concerns the life or liberty) (Add 5 days if the request is submitted to Assistant Public Information Officer)

37. What can I do if my request is rejected? Flow Chart of the Request for Information (If Rejected) 90 days Decision 2nd Appeal Ist Appeal Decision Request Decision Complaint Failure to provide information within the specified period is deemed as refusal.

38. Frivolous or vexatious requests • Individual requests as “vexatious” • The applicant makes clear his or her intention • The authority has independent knowledge of the intention of the applicant • The request clearly does not have any serious purpose or value • The effect of redaction would be a render information worthless • The request is for information which is clearly exempt • The request can fairly be characterized as obsessive or manifestly unreasonable

39. Challenges to RTI Act • Open for legal and administrative interpretations. • Open for easy amendments. • RTI Act should be considered as an intermediate step and we should aim at a constitutionally entrenched fundamental right to information beyond the pale of legislative and executive encroachment.

40. Challenges to RTI Act contd… • The real information stake holders-the deprived masses are engrossed in their basic fight for survival-how the benefits of RTI Act can be made to reach them. • Right to be informed component of the Act should be extensively worked than Right to information component. • Government should inform to such an extent that recourse to RTI Act should be of last resort.

41. Challenges to RTI Act contd… • Two pronged approach necessary to realise RTI Act • Civil society has to gear up in real earnest and must propagate the message that frivilous and unnecessary applications would defeat the intent and ultimate purpose of the Act • Concerted effort on the part of government. - Planned investment in ICT - Well defined information Strategy Planning (ISP)

42. Challenges to RTI Act contd… • Information strategy Planning be such as to provide on web site: - comprehensive and update details of government schemes, programmes, - their delivery system-up from sanctioning levels to the application level at gross root • Then information applications will be reduced to minimum substantive issue.

43. Controversy about notings: Sec. 2(i) “record” includes “file” File consists of a “note” portion and a “correspondence” portion. • “Note portion consists of chain of ‘notes and orders’ relating to papers under consideration. • “Correspondence” portion consists of papers under consideration serially filed.

44. Controversy about notings contd… • Uncalled for fear that exposing note portion would inhibit executive-both permanent and political from discharging their functions objectively. • Uncalled for because honest persons not being parties to wrong decisions will also come out. If not remains secret, honest officers also will take blame. • Requirement of disclosure would infuse objectively in discharge of functions.

45. Controversy about notings contd… • Note provides an information trail that connects the decision to its cause its disclosure is a must to fix accountability. • In Satyapal v. TCIL (ICOB/A1/2006), the Central Information Commission has held that “no file would be complete without note sheets having file notings. …. A citizen has the right of access to a file of which the file notings are an integral part.”

46. Areas of concern • Appointed of information commissioners-persons with impeccable integrity should be appointed. It is difficult for a bureaucrat who has guarded information till now to cope up with the new requirement overnight. • Attitudinal change on the part of all the authorities and personnel in public life convince that itj is a freedom for the honest and upright officer to speak.

47. Areas of concern contd…. • Right to inspect work and document coupled with non requirement of disclosure of purpose for seeking information – may lead to harassment. Effective mechanism to keep out busybodies be worked out. • Common man will face the problem of sifting the information voluntarily disclosed. Better if some assistance is provided to him in locating the information he wants.

48. Controversy about notings Sec. 2(i) “record” includes “file” File consists of a “note” portion and a “correspondence” portion. • “Note portion consists of chain of ‘notes and orders’ relating to papers under consideration. • “Correspondence” portion consists of papers under consideration serially filed. • Uncalled for fear that exposing note portion would inhibit executive-both permanent and political from discharging their functions objectively. • Uncalled for because honest persons not being parties to wrong decisions will also come out. If not remains secret, honest officers also will take blame.

49. Controversy about notings cont…. • Requirement of disclosure would infuse objectively in discharge of functions. • Note provides an information trail that connects the decision to its cause its disclosure is a must to fix accountability. • In Satyapal v. TCIL (ICOB/A1/2006), the Central Information Commission has held that “no file would be complete without note sheets having file notings. …. A citizen has the right of access to a file of which the file notings are an integral part.”

50. Areas of concern • Appointed of information commissioners-persons with impeccable integrity should be appointed. It is difficult for a bureaucrat who has guarded information till now to cope up with the new requirement overnight. • Attitudinal change on the part of all the authorities and personnel in public life convince that itj is a freedom for the honest and upright officer to speak.