JANUARY 11, 2016

By M G Kodandaram

The response

RECENTLY I wrote on the need for voluntary self-restraint to be exercised by the citizen to prevent the abuse of provisions of Right to Information Act (RTI Act for short), which received quite a number of responses by mail. Readers expressed their surprise as the article stopped short of recommending amendments to the existing RTI Act, so as to indicate a remedy for halting the misuse or abuse of the practice of obtaining information, by some persons with sole purpose of mongering popularity. They insisted that I suggest a solution to put an end to the menace. They put forward the following remedies for enabling prevention of misuse / abuse of the RTI Act:

 i. Amendment of the Act to impose limitations in the form of number of applications a citizen may file to seek information, say two to four applications per year per person. Some even suggested one application per year for each person in respect each Public Authority (hereinafter 'PA' for brevity), and so on.

 ii. To incorporate a new provision prescribing the need for disclosure of an exact reason or purpose for which the information is required as a pre-condition.

 iii. The citizen who is associated with the mandated transactions / services by a particular PA should alone be empowered to seek information from such authority.

 iv. The reasons declared for seeking information must be evaluated before providing the information.

v. The involvement of 'public interest' in seeking the information must be disclosed in the application made and the PA should provide information only if satisfied with the disclosure made.

I thought of responding to the queries raised by the readers through this article.

In search of solution

I don't find any need to amend the Act on this count as I am of the firm opinion that the existing Act is weak and any attempt to amend the law as recommended by the readers, the RTI Act becomes an ineffectual instrument. The existing Act already contains enough obstacles to the seekers of information and any addition to this will make the rights assured under article 19 redundant. One of the main reasons for the increase in the number of applications/ litigations are due to shortcomings by the PAs in making proper proactive disclosures as prescribed in the Act and also the PAs taking undue shelter using the exemption in the Act, by way of extraneous interpretations.The suggestions made by the readers will only provide the PA some more openings to take shelter and reject information rightfully sought. As the terms such as 'proper reasons', 'public interest', 'right purpose', 'limitation', etc', are ambiguous and difficult to define, any attempt to amend on these lines, as against providing timely solutions, fuel unwanted litigations.Also any attempt to incorporate unreasonable limitations/ restrictions etc., will be against the very principles of democracy.

The Central Information Commission in decision No. CIC/SM/A/2010/001486 dated 16th November 2011 on a similar situation held, "We completely disagree with the response of the CPIO. He must know that under the provisions of Section 6(2) of the RTI Act, the information seeker is not required to give any reason for seeking particular information. Thereafter, the information should have been disclosed without raising such irrelevant objection". No application can be rejected on the ground of not providing the reasons for seeking the information, which is positive aspect that helps the seeker of information. Therefore I find that the RTI Act should not be amended to incorporate any vague grounds that will provide another ground to the PA for denial of information sought by the citizen.

As against this I expected the citizen to exhibit self-restraint so that there will be no need to amend the Act that will make the law further vulnerable. According to me the Act is holistic and has remedy inbuilt in the Act itself. The PAs have failed to implement the aspirations so enacted. I take this as an opportunity to bring out the relevant provisions of the Act so that the readers will make their own judgment on the issue.

Duty of Proactive Disclosure

The 'Right to Information' has two key inherent elements - One is the provision of information on demand and another disclosure of information suo-moto by all PAs at regular intervals on public platforms. Needless to add, the latter is much important than the former. There are certain obligations cast in the RTI Act on the PAs to inform the public periodically. All the information available with them has to be systematically disclosed on a proactive basis, that is, without waiting for an application, so that the necessity for the citizen to seek information is minimized. As per section 4 of the Act, a PA shall maintain all its records duly catalogued and indexed in a manner and in the form which facilitates the right to information under this Act. It is further stipulated that the PA shall ensure that all such records are computerised in a reasonable time and enable easy access to such records by a citizen.

RTI Act not only requires the governments to provide information upon request, but also imposes a duty on PAs to actively disclose, disseminate and publish information, as widely as possible. The RTI Act also requires all PAs covered under the law to publish suo motu or proactively a wide range of information on their own, even if no one has specifically requested it. Section 4 of the RTI Act requires all PAs to routinely publish 17 categories of information. This provision clearly specifies that all PAs must make constant efforts to provide as much information as possible to the public at regular intervals through various means including the internet so that the public have minimum need for obtaining information.

It is further mandated that the PA shall publish all relevant facts while formulating important policies and / or announcing the decisions which affect the public, provide reasons for its administrative or quasi-judicial decisions to the affected. Another important point to note is that it is not sufficient to publish the above information once, but the PA is obliged to update such information whenever the change occurs. The Guide on RTI issued vide NO. 1/412009-1R dated 05.10.2009, advises, "as far as possible, the information should be updated as and when any development takes place, particularly in case of publication on the internet, the information should be kept updated all the time". The principal objective of this provision is to reduce the number applications seeking information, which has been expressed in sub-section 2 and 3 of section 4 of the Act. It is further stipulated that all materials shall be disseminated taking into consideration the cost effectiveness, local language and the most effective method of communication in that local area. The information should be easily accessible and freely available.

The ground reality

Assessment of the websites maintained by various PAs, to check as to whether they have complied with the requirements as stipulated under section 4, disappoints everyone. Even after ten years of the law coming into existence, I could not find even one PA raising upto the expectations and requirements of the above dictum.Poor and ineffective efforts made to implement the aspirations of section 4 by such PAs clearly expose the shortcomings in their approach.

The proof

To cite one simple example: Applications are filed normally seeking details about the tenders floated and awarded. Now the Government has made it mandatory to publish such tenders electronically through certain designated web sites. But such websites will not provide details such as, to whom the tender have been granted etc. The bidders have a right to know what decision has been taken as well as reasons for such decisions. Also one will be interested in knowing when the contract offered has been completed, whether completed on time, any penalty has been imposed in case of delay and all such related information. Therefore such websites should update the decisions made against each of such announcement of such tenders, so that transparency is maintained at all levels. When such information is not made available on proactive basis, the aggrieved will naturally seek such information resorting to RTI way. In the guide it is prescribed that, "The PAs take various administrative and quasi-judicial decisions which affect the interests of certain persons. It is mandatory for the concerned PA to provide reasons for such decisions to the affected persons. It may be done by using appropriate mode of communication." If the authorities disclose all such information at proper place, time and convenient method, there is little scope to seek information through RTI. This positive pro-active approach should be adopted by the PAso that the citizen does not have to resort to RTI way, wasting time and cost for both.

Similarly general information required by any citizen to know about the current tasks carried out by the PAs are not disclosed providing scope for making an application under the Act. It is the experience of everyone that nothing is updated or reviewed periodically by the PAs as the outdated data/ information remains intact in their disclosures.

The precedent

In the case of Canara Bank vs CIC (AIR 2007 Ker 225) the Kerala High Court has held that the information detailed in Section 4 has to be compulsorily published by the PA on its own without any request from anybody. In that case the bank sought to deny furnishing of certain information to the respondent on the ground that under the RTI Act only those information mentioned in Section 4 of the Act alone need be furnished; only those information enumerated in Section 4(b) is required to be published and therefore, no other information is compulsorily required to be furnished by any PA. For this the High Court held, "From a reading of those three sections together, (i.e., Section 3,4 & 2(f)), I have no doubt in my mind that the, information mentioned in Section 3 is not circumscribed by Section 4 at all. Section 4 only lays down certain obligations the PAs are required to perform in addition to the duty to furnish information to citizen when requested for. These obligations are to be compulsorily performed apart from the other liability on the part of the PA to supply information available with them as defined under the Act subject to, of course to the exceptions laid down in the Act. The information detailed in Section 4 has to be compulsorily published by the PA on its own without any request from anybody. Further, there is no indication anywhere in the Act to the effect that the 'information' as defined in Section 2(f) is confined to those mentioned in Section 4 of the Act. Therefore, I am unable to hold that only information mentioned in Section 4 need be supplied to citizens on request. Hence, I do not find any merit in the contentions of the petitioner in this regard."

The CIC decisions

In the case of Mr.Saurabh Sharma vs. Ministry Of External Affairs, vide decision No. CIC/SG/C/2011/001123/15649 dated 14 November, 2011 the CIC held as under:

"PAs were not only under an obligation to publish these manuals within 120 days of the enactment of the Act but also to update these manuals at regular intervals or at least once a year. It is pertinent to mention here that the respondent had failed to fulfil either of its obligations under the Act even after 5 years of its coming into effect, thereby expressing its refusal to abide by the law so enacted. Obligations under section 4 were to be fulfilled by 12th October 2005".

Other important duties of PAs under Section 4 include cataloguing, indexing and computerisation of records, publishing certain basic information pertaining to each organisation within a specified timeframe, publishing all relevant facts while making important policy decisions and ensuring that every information is disseminated widely in an easily accessible manner for the public which has not been complied by majority of the PAs.

In Seema Bhattacharya vs. Deputy Commissioner, Shahdara, MCD in Appeal No.CIC/WB/A/2006/00377, dated 20/11/2006, the applicant had applied to the PA for sanctioned posts of engineers and other related information. This information was in any case required to be compulsorily declared under Section 4 of RTI Act, 2005, as pro-active disclosure information. The CIC held, "the information sought is simple and straightforward. We fail to understand why the application was not responded to, even though fees stand accepted. The information qualifies in fact for suo motu disclosure under section 4 (1)(b). This information will now be supplied free of charge, as required under section7(6) within ten days from the date of issue of this decision notice under intimation to us. Any fee already charged will be refunded to appellant." After providing due opportunity, the CIC imposed a penalty of Rs.25, 000/- to be recovered from the salary of the Public servant.

From the above it is clear that the Right to Information Act envisions that all citizens shall receive information primarily by suo motu disclosures by various PAs as prescribed by section 4 of the Act. It further envisages that citizens would be required to specifically ask for information under section6 only in a few cases. When PAs do not fulfil their obligations under section 4, the citizens have no other way but to seek information under section6, which in turn becomes a cost to the citizens as well as to the Government. Therefore disclosures in accordance with Section4 of the RTI Act are crucial to ensure transparency and accountability in providing public service by PAs. This would reduce the load of RTI applications being filed with each PA as information would be freely available to citizens and they would not have to apply for it.

The present situation

In view of poor implementation of Section 4, the full bench of CIC, through a directive in 2010, mandated that all PAs to appoint a "transparency officer" in their offices. This directive was challenged by the government in the Delhi High Court and the case is still pending. In the meanwhile, the Department of Personnel & Training (DoPT for brevity) issued an office memorandum No.1/6/2011-IR dated 15th April, 2013, emphasising the need for setting up a "compliance mechanism" to ensure that requirements under section 4 of the RTI Act are met.It was directed that "each central ministry/ PA should appoint a senior officer not below the rank of a Joint Secretary and not below rank of Additional HOD in case of attached offices for ensuring compliance with the proactive disclosure guidelines". The functions and responsibilities of the "nodal officer" created by DoPT are more or less similar to those of a "transparency officer" envisioned by the CIC. But majority of the PAs have not implemented the above guidelines.

Another significant direction in the DoPT memorandum was that each PA should get its proactive disclosure package audited annually by a third party like consultants etc., and there is no compliance of this order by PAs. Citing non-compliance of its earlier memorandum dated 15 April, 2013, the DoPT issued another reminder vide  NO 1/6/2011-IR dated 22 nd September, 2014 exhorting that all PAs to get their proactive disclosure package audited by a third party. Timely inspections and audits of the information so published have to be carried out by the appropriate policy makers and ministries, so that there will be little scope for the public to seek information and the transparency in decision making will set in. There is immediate need to groom the mindset of the PAs so that the prescribed legislation is followed in letter and spirit. Therefore, there should be a provision for imposition of monetary penalty on PAs by the Commission in all cases where there is deliberate refusal to publish information under Section 4 or where there is mala fide attempt to hide obvious information from public domain.

Open Government Data

In this regard the efforts to start the 'Open Government Data (OGD) platform' for supporting Open Data initiative of Government of India (data.gov.in) needs to be mentioned and appreciated. The portal is intended to be used by GOI Ministries/ Departments to publish datasets, documents, services, tools and applications collected by them for public use. It intends to increase transparency in the functioning of Government and also open avenues for many more innovative uses of Government Data to give different perspective. The primary aim and objective of National Data Sharing and Accessibility Policy (NDSAP) is to provide an enabling provision and platform for proactive and open access to the data generated by various PAs based on principles of openness, flexibility, transparency, quality, security and machine-readable. This should inspire all PAs to prepare proper mechanisms to disclose all decisions and data, on a proper way and at regular intervals, in the digital platforms maintained by such authorities.

Further under section 26 of RTI Act, it is stipulated that appropriate Government should develop and organise educational programmes to advance the understanding of the public, in particular of disadvantaged communities as to how to exercise the rights contemplated, to encourage PAs to participate in the development and organisation to undertake such programmes themselves and to promote timely and effective dissemination of accurate information by PAs about their activities etc., which are aimed at bringing down the need for applying and seeking information by the public. If the PAs understand the needs of the citizens and provide necessary information as generally required regularly there is little scope to resort to RTI way to obtain such information.

The way forward

From the above facts and narrations it is clear that the PAs have to re-invent themselves so that all the information required by the public are made available on time as prescribed under law, failing which the objects set out in RTI Act as well as in the Article 19 of our constitution gets defeated and the 'Idea of well informed citizen' will remain a dream forever. Further as we move from the era of individual's "Right to Information" into an era of "Open Government Data", there is a pressing need for amending the transparency legislation to make it more robust in the light of lessons learnt in the last decade.

(The author is a Faculty at National Academy of Customs Excise and Narcotics(NACEN), Bengaluru.)