Purview of 'Information'

Purview of ‘Information’

The Right To Information Act, 2005 has given much more power to its people than any other law. Its basic aim is to provide for setting out the practical regime of right to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority.

Our previous articles so far have dealt with what RTI really is, and the salient features of the RTI Act. To put in a nutshell what information really is – it 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 materials held in any electronic form and information relating to any authority under any other law for the time being in force.

However, we do not have absolute right to information in respect of each and every activity. There are some areas where the Government can withhold information and deny the same to people by giving cogent reasons. The golden principle is that, the information which cannot be denied to the Parliament or a State legislature shall not be denied to the people as well. There are some areas that have been kept out of the purview of this law in view of security and integrity of the country and other such important matters.

Several such disclosures are provided in Section 8 of the Right To Information Act, 2005. The same has been reproduced below along with some illustrative questions:

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

·        Can surveillance of telephone be treated as confidential?

 In a particular case, S. C. Sharma had asked for a copy of the order through which the Ministry of Home Affairs had authorized the CBI to intercept telephone calls under the Indian Telegraph Act, 1885. The commission examined the issue and held that the specific cases of interception and surveillance by the authorized agency have to be kept highly confidential because of the very nature of the surveillance operation. Its security implications are undisputed.

B)   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.

·        In a recent judgement the Ministry of Railways has been specifically directed by the High Court not to place the enquiry report of a Godhra investigation report prepared by the committee on their behalf, before the Parliament.

C)   Information, the disclosure of which would cause a breach of privilege of Parliament or the State Legislature.

D)   Information including commercial confidence, trade secrets or intellectual property the disclosure of which would ham the competitive position of a third party, unless the competent authority is satisfied  that larger public interest warrants the disclosure of such information

·         Can details of loans granted by banks be given?

No. The commission has held in the case of Jasvinder Singh Rana vs. Bank of Baroda that disclosure of such information would cause unwarranted invasion of privacy of individual / third party, as per Section 8(1) (j). In this case it was found by the commission that the exemption from disclosure of information under section 8(1) (d) and (j) had been correctly applied by the appellate authority.

E)    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

·         Can evaluated answer sheets be shown and is it covered under fiduciary relationship? No, the evaluated answer sheets cannot be shown as they are covered under fiduciary relationship. The commission has held the following in the case of Treesa Irsh vs. Kerala Postal Circle:  “we find that in case of evaluated answer papers the information available with the public authority is, in his fiduciary relationship, the disclosure of which is exempt u/s 8(1)(e). Therefore, we hold that the 66 CPIO was justified in rejecting the request of the appellant for a copy of the evaluated answer paper.”

·         Is conducting of examination treated as a confidential activity?

 Yes. The commission has held in the case of Neeraj Kumar Singhal vs. Northern Railways that conduct of examinations and for identifying and short-listing the candidates in terms of technical competence, right attitude etc is a highly confidential activity. Therefore, answer-sheets should not be disclosed. However, the award of marks need not be kept secret

F)    Information received in confidence from foreign Government

This has been done as per international protocol

G)   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.

H)   Information which would impede the process of investigation or apprehension or prosecution of offenders.

·         Does disclosure of information when court case is at advance stage amount to impeding the process of investigation?

 This issue has been examined in a number of cases by the commission. The judgements delivered reveal that the commission has evaluated each case on merits and the stage at which it was. It has observed that in cases, which are at advance stage of prosecution or where the disclosure of information can lead to blocking the progress of case or will amount to setting the clock back, the information need not be provided. One such decisions is as under

 In the case Ashok Kumar Aggarwal vs. Ministry of Finance it was found that when the Court had duly seized of the matter and prosecution had started in this case, the exemption from disclosure of information under Section 8(1)(h) of the Act had been correctly applied by the Appellate Authority of the Department of Revenue.

I)      Cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers are exempted.

·        However, 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, and the matter is complete, or over. Thus one can seek the material on the basis of which decisions have been taken by the cabinet. However, those matters, which come under the exemptions specified in this section, shall not be disclosed

J)      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

·        Annual immovable property returns cannot be given to third party. In the case of Mukesh Kumar vs. Ministry of Finance, the commission held that the information requested for (annual immovable property return of third person) is in the nature of personal information, the disclosure of which may cause unwarranted invasion of privacy of the individual officer and hence its denial by CPIO is correct.

·        The annual performance appraisal report can’t be given as they are exempted under section 8(1)(j). In case of Tapas Dutta vs. Indian Oil Corporation Ltd, it was held by the commission that the assessment reports by the superior officers were personal and confidential information and therefore exempted under Section 8(1) (j) of the RTI Act.

K)   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 interest

Salient features of RTI Act

Salient Features of RTI Act

Right to information provide for timely response by the government machinery to any query posted by the citizens. It is a powerful tool in the hands of the citizens to delve into the intricacies of government functioning.

The objective of right to information is empower citizens and improve transparency and accountability in the government. This also helps in reducing corruption and promotes a more direct interaction between people thereby facilitating democracy further. Also, a highly vigilant group of citizens can make informed democratic decisions.

Here are things you must know before filing an RTI query.

• A citizen has a right to seek information from a Public Authority which is held by the Public Authority or which is held under its control. 

• The right to seek information from a Public authority is not absolute. Section 8 and 9 enumerate the categories of information which are exempt from disclosure.

• Public authorities to designate Public Information Authorities and Assistant Public Information Officers within 100 days of the enactment. 

• Application for seeking information is to be made to an officer of the Public Authority who is State Public Information Officer. He is responsible to deal with requests of information/assist persons seeking information. 

• The Act makes it obligatory for every Public Authority to make suo-motu disclosure in respect of the particulars of its Organization, functions, duties etc. as provided in section 4 of the Act.

• A Citizen should make an application to the State Public Information Officer in writing in English or Hindi or in the official language of the area in which application is made.

• No prescribed form of application for seeking information. It can be made on plain paper with Name and complete postal address of the applicant.

• The information seeker is not required to give reasons for seeking information.

• Time limit-30 days/48 Hours/45 Days

• If an application is not supplied information within the prescribed time or not satisfied with the information provided, he may prefer an appeal to the first Appellate Authority who is an officer senior in rank to the Public Information Officer. There are no fees for making this appeal.

• There is a two tier appellate Forum: 1. Appeal to departmental officer senior to the PIO 2. To the Commission.

• If Appellant Authority fails to pass an order on the appeal with in the prescribed period, or if the appellant is not satisfied with the order of the First Appeal Authority, he may prefer a Second Appeal with the State Information Commission within 90 days from the date on which the decision should have been made by the First Appellant Authority or was actually received by the Appellant. 

• There is a provision of Complaint if the Public Information Officer fails to satisfy or it is a case of refusal access to any information requested under the Act or it is a case of overcharging etc. The complaint can be made to the State Information Commission.

• The Commission decides the appeals and conveys its decision to the Appellant/ Complainant and First Appellant Authority. 

History of RTI Act

History of Right to Information

"The Real 'Swaraj' will come not by the acquisition of authority by a few but by the acquisition of capacity by all to resist authority when abused."
-Mahatma Gandhi

The Right to Information Act was passed in May 2005 by the Parliament and got the President’s assent on 15th June, 2005. This statement may sound simple, but the journey of passing this law was not easy. Laws on transparency have always been resisted in India. The Lokpal Bill took 45 years to become a law, since its first draft in 1968. The RTI Act too has its share of history.

The stage for the RTI movement was set by two Supreme Court judgments. In 1982 the Supreme Court remarked that 'Disclosure of Information as regards the functioning of Government must be the rule and secrecy an exception'. In the famous case of Mr. Kulwal v/s Jaipur Municipal Corporation in 1986 the Supreme Court gave clear cut directive that Freedom of Speech and Expression provided under article 19 of the Constitution clearly implies Right to Information as without information the freedom of speech and expression cannot be fully used by the citizens.

The first politician to lay emphasis on RTI was then PM VP Singh. He tried to enact legislation in 1989-90. Due to the political instability at the time, the idea did not materialize and VP Singh was removed from office in 1990, as his National Front government lost the confidence vote in Lok Sabha.

In the meanwhile, several civil society groups were formed with the objective of getting legislation on RTI passed. The National Campaign for People’s Right to Information (NCPRI), founded in 1996, was one of them. It is the organization that took the matter to its logical end. Due to the growing demand for right to information, the Press Council of India under Justice JB Sawant drafted the Press Council- NIRD Freedom of Information Act, 1997. The Working Group, under HD Shourie, appointed by the United Front government, drafted the Freedom of Information Bill, 1997.
In 1998, when the NDA came to power, Prime Minister Vajpayee assured the nation of a bill to be soon introduced in parliament. This became reality in the year 2000. The bill was introduced in parliament as Freedom of Information and was referred to a Select Committee. After the select committee report in early 2002, the bill was passed in December, 2002. This was a watered down version of the bill proposed by NCPRI and other organizations.

The elections of 2004 brought the UPA to power. The government was headed by Dr Manmohan Singh. The National Advisory Council (NAC) was formed under Mrs. Sonia Gandhi. The main objective of the Council was to monitor implementation of government schemes. It was also known as the shadow government. After meetings with the civil society, the NAC made minor changes in the Freedom of Information Act, 2002. This was sent to the government. There was reluctance among politicians and bureaucrats in adopting these changes. There was an attempt made to re notify the earlier Act. This move faced widespread protests by citizens and civil society.

The government finally relented and a bill was introduced in December 2004. This was applicable only to the Union government. The civil society was not happy with this. Most of the information required by the common man was from state governments. The bill did not serve the purpose of the common man. Some members of the NAC too were unhappy with this. After heavy lobbying by NCPRI and other organizations the Right to Information Act,2005 was passed with 150 amendments.

Progressive States

There were many state governments of various parties which understood the need of the hour and enacted legislations before the Union government.

In 1997, the governments of Tamil Nadu and Goa were the first to enact this law.

The Government of Rajasthan enacted a law in 2000, after a lot of efforts by the Mazdoor Kisan Shakti Sangathan. The organization formed in 1994, strived to get information on the development works in rural areas.

A similar law came into effect in Karnataka in 2002, followed by Maharashtra in the same year. Madhya Pradesh passed the pending bill of 1998 again in 2003.

This is the brief history of the Right to Information in India.