Increasing openness and transparency in governance: role of Right to Information Act, 2005

Presentation by

Dr. S.K. Sarkar Joint secretary, Govt. of India, Dept. of Personnel and TrainingJanuary 25, 2008

Why access to information “ Information gathered by public officials at

public expense is owned by public…The information produced, gathered and procured by public official is the intellectual property, no less than a patentable innovation would be. To use that intellectual property for private is just as an offence against public as any other appropriations of public property for private purposes”

Joseph E Stiglitz (1999)

Information access: international experiences Invention of printing press in 1430 by

Gutenberg, change from single manuscript to multiple printed copies

This was opposed in France through “Law of Silence” in 1764

Pioneering legislation in Sweden in 1766 called “Freedom of Press Act”

1966: Freedom of Information Act in US Till 1980s, not much progress in other countries By now, about 70 countries have legislation on

freedom of information

RTI: responses from different states 1996: Tamil Nadu 1997: Goa 2000/02: Karnataka 2000: Maharashtra, Rajasthan 2001: Delhi & Assam 2002: MP 2004: J&K

RTI: evolution at central level 1997: working Group on RTI &

Transparency chaired by SDShourie 1997: Freedom of Information Bill January 2003: Freedom of Information

Act received President’s assent, but could not be made operational

NCMP of UPA Government mandated RTI Act enactment

RTI Act 2005 effective from October 12, 2005

RTI Act 2005: Extract of Parliament debate “ I believe that the passage of this Bill will see the

dawn of a new era in our process of governance, an era of performance and efficiency, an era which will ensure that benefits of growth flow to other sections of people, an era which will eliminate the scourge of corruption, an era which will bring the common man’s concern to the heart of process of governance, an era which will truly fulfill the hope of the Founding Father of our Republic”

Dr Manmohan Singh, Prime Minister of India (2005)

Objectives To set out a practical regime of right to

information for citizens To secure access to information under the

control of public authorities To promote transparency and

accountability in the working of every public authority

To contain corruption To increase citizens’ awareness and ability

to exercise their other rights To equip them to participate meaningfully

in the development process

CoverageCovers all PUBLIC AUTHORITIES which

means:

Any body constituted under the Constitution or a law made by Parliament or State Legislatures.

Any body constituted by a notification or order issued by the Central and State Governments.

Any body owned, controlled or substantially financed by the Central Government or the State Government.

Exclusions

Intelligence and security organisations established by the Central or State Governments as notified from time to time. However, information relating to alleged corruption or human rights violations is not exempted from disclosure.

Scope of the Right to Information

Right to information includes the right to:   inspection of work, documents, records; 

taking notes, extracts or certified copies thereof;   taking certified samples of material;   obtaining information in the form of diskettes, floppies,

tapes, video cassettes or in any other electronic mode or through printouts where such information is stored in a computer or in any other device;

Exemptions Information which would prejudicially affect

sovereignty and integrity of India;security/strategic/scientific/economic interests of the State;relation with foreign State

Information which might incite an offence Information which

is forbidden by a court; that causes a breach of privilege of the Legislature;would harm the competitive position of a third party;

Exemptionsis held in fiduciary relationship, unless larger public interest warrants disclosure; received in confidence from foreign Government;

would endanger the life of any person;

would impede the process of investigation;

would involve an infringement of copy right.

Personal information which has no relationship to any public activity or interest

Cabinet papers including records of deliberations of the Council of Ministers, Secretaries and officers; 

Overriding effect[Sec.22]

The provisions of the Act have an The provisions of the Act have an overriding effect over anything overriding effect over anything inconsistent contained in the inconsistent contained in the Official Secrets Act, 1923 or any Official Secrets Act, 1923 or any other law or instrumentother law or instrument

Obligations of Appropriate Government Constitution of Information Commission

(S/12,15) Constitution of Central or State Information

Commission by the appropriate Government

Framing Rules (Section 27) Appropriate Government to make rules to

carry out the provisions of this Act

Review of existing Acts/Rules Act has over-riding effect on any other

Act/Rule/Order (Sec 22) Necessary to review all Acts/Rules etc. to

remove points of conflict with this Act

Obligations of Appropriate Government Spread Awareness

develop and organise educational programmes to advance the understanding of the public, in particular of disadvantaged communities regarding the exercise of the right.

- encourage public authorities to participate in the development and organisation of such programmes and to undertake such programmes themselves.

Obligations of Appropriate Government

Training

- train Central Public Information Officers or State Public Information Officers, as the case

may be, of public authorities and produce relevant training materials for use by the public authorities themselves.

Action taken by the Central Government• CIC constituted

• Rules of procedure, fee etc. notified

• Conduct rules for public servants brought in line with the Act

• A Guide for the information seekers published

• Training institutes requested to include the Act in their training modules. Some of its training institutes, notably ISTM, YASHADA, CGG are conducting training on pilot basis

Obligations of Public Authorities

Proactive disclosure (Sec 4)• Particulars of the organisation, its functions and

duties;

• Procedure followed in its decision making process

• Norms set out for the discharge of its functions;

• Rules, regulations, instructions, manuals and

records used by its employees for the discharge of

its functions,

• Arrangement for consultation with or representation

by the public, in policy formulation/implementation;

Obligations of Public Authorities

Proactive disclosure (Sec 4)• Advice given by the boards, councils, committees

etc.

• Directory of its officers and employees

• Budget allocated

• Details of the implementation of subsidy

programmes

• Particulars of recipients of concessions, permits etc.

• Such information as may be prescribed

Obligations of Public Authorities

Designation of PIOs etc.

Designate Public Information Officer to provide information to applicants

Also to designate APIOs at sub-divisional/district level

No bar on the number of such PIOs/APIOs Designate appellate authority for the first

appeal within the public authority

Obligations of Public Authorities

Publication of all relevant facts relating to important policies and decisions

Provide reasons for administrative or quasi-judicial decisions to affected persons

Procedure for seeking information[Sec. 6]

Application can be made in writing including

through electronic mediums in English or Hindi

or local official language of the area.

Where request is not in writing, PIO to provide

assistance to reduce it to writing.

Reasons for seeking information need not be

given.

Fees: Section 7 Prescribed Fees to be paid along with the application.

No fee for persons below the poverty line. Application

fees, to be prescribed in the rules, shall be

reasonable.

Further fees, towards cost of providing information, to

be intimated by the PIO.

Applicant can seek a review of the fees through an

appeal to the prescribed Appellate Authority.

Applicant to be provided information free of cost in

case of failure to comply with the response time-limit.

Fees: Section 7Fees prescribed by the Central

Government:

For supply of information       Application fee: Rs.10.

Cost of stationery: Rs. 2/each page of the information in A4/A3 size of

paper and actual cost in case of larger size of paper.

Cost per floppy/CD: Rs. 50.       

For inspection of records         No fee for first hour.Rs.5 for each subsequent hour and fraction

thereof.

Response Time : Section 7

30 days from the date of application.

48 hours if involves the life or liberty of a

person.

40 days if involves the interests of a third

party.

No response on application within the time

limit is deemed refusal.

Appeals[ Section 19]:Internal First appeal to the officer immediately senior to

Public Information Officer within 30 days of decision.

Appeal to be disposed of within a period of 30 days extendable upto a total of 45 days.

External Second appeal to CIC/SIC within 90 days of decision

of Appellate Authority.

In both the appeals onus to justify denial of request shall be on the PIO. Decision of the CIC/SIC is final and binding.

Penalty Provisions[Sec. 20]:PIO liable to a fine of Rs. 250 per day up to a

maximum of Rs. 25,000/- for not accepting an application; delaying information release without reasonable cause; malafidely denying information; knowingly giving incomplete, incorrect or misleading

information; destroying information that has been requested; and obstructing furnishing of information in any manner.

CIC/SIC empowered to impose penalty on PIO. They can also recommend disciplinary action against an erring PIO.

CIC/SIC-Functions [Sec.18] Besides appeals, CIC/SIC also

authorised to enquire into complaints regarding-Inability to submit an request for information

because a PIO has not been appointed;

Refusal/deemed refusal of information.

Allegation that the fees charged are

unreasonable.

Allegedly incomplete or false or misleading

information.

CIC/SIC-Powers [Sec.18]

CIC/SIC granted powers of Civil Court such as –

summoning and enforcing attendance of

witnesses, compelling evidence on oath and

production of documents

requisitioning public records from any court

or office

Any other matter which may be prescribed

CIC/SIC-Powers [Sec.19] contd.

CIC/SIC can require Public Authorities to interalia take the following steps

Appoint a PIO.

Publish certain information or categories of information

Make necessary changes to the records management,

maintenance and destruction procedures.

Enhance the training provision for officials on RTI.

Seek an annual report from the Public Authority.

Compensate for any loss or other detriment suffered by

the requestor.

Removal of difficulties

Central Government empowered to issue orders to remove difficulties in the implementation of the Act.(Sec. 30)

Thank You

What is Information

Information is any material in any form.It includes records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form. It also includes information relating to any private body which can be accessed by the public authority under any law for the time being in force.

What Right a citizen has under the Act

A citizen has right to information at par with the Members of Parliament. A citizen has a right to seek information from a public authority which

already exists and is held by the public authority. The CPIO is not supposed to:

create information; to interpret information; to solve the problems raised by the applicants; to furnish replies to hypothetical questions.

The right includes: inspection of work, documents and records; taking notes, extracts or certified copies of documents or records; and taking certified samples of material.

Format For InformationThe information shall ordinarily be provided in the form in which it is sought. Supply of information in a particular form may be denied:

if it results into disproportionate diversion of the resources; if it may cause harm to the safety or preservation of the records.

Information may be had in the form of: Diskettes; Floppies; Tapes; Video cassettes; Any other electronic mode. Through print-outs

Information in the form of diskettes etc. may be denied if it is not stored in a computer or in any other device.

Rendering Assistance to Applicants

The Central Public Information Officer shall render reasonable

assistance to the applicants. Such assistance would include:

Help in writing application; Help to sensorily disabled persons.

Assistance Available to CPIO

Central Public Information Officer may seek the assistance of any other officer.

The officer, whose assistance is so sought shall be deemed to be a Central Public Information Officer.

Such officer would be liable for contravention of any provisions of the Act like a Central Public Information Officer.

Fee for Seeking Information Application fee Rs. 10/- Additional fee

A4 or A3 size paper Rs. 2/- each page Larger size paper Actual cost involved. Samples or models Actual cost involved. Diskettes or floppy Rs.50/- Publications As price fixed for it. Inspection of records Free for one hour

Rs. 5/- for subsequent hour

No fee for BPL families. Mode of payment of fee:

Cash Demand draft Banker’s cheque Indian Postal Order

Scrutiny of Application CPIO should check:

Whether application if accompanied by fee; Whether application is accompanied by BPL

certificate; Whether the subject matter concerns other

Public Authority; Whether the application involves third party; Whether application relates to exempted

information.

Supply of Information If the information sought is exempt from disclosure, request may be

rejected; Information which is not exempted should be provided; If the request is rejected, the applicant should be informed :

  (i) the reasons for such rejection; (ii)   the period within which an appeal may be preferred; and (iii)  the particulars of the appellate authority. If additional fee is required to be paid, the applicant should be

informed:

(i)    the details of further fees; (ii)   the calculations made to arrive at the amount of fees; (iii)  about the right to appeal against the demand; (iv) the particulars of the appellate authority; and (v) the time limit within which the appeal can be made.

Time Period for Supply of Information Supply of information in normal course 30 days Supply of information concerning the life or liberty 48 hours Supply of information if request received through CAPIO plus 5 days

Supply of information on transferred applications:

In normal course 30 days+ If the information concerns the life or the liberty 48 hours+

Supply of information by exempted organizations If information relates to allegation of violation of human rights 45 days In case information relates to allegations of corruption 30 days

Supply of information if it relates to third party As per prescribed

procedure

Supply of information if additional fee is involved Exclude the period

intervening between

information about fee and receipt of

fee.

Exclusions

Intelligence and security organisations established by the Central or State Governments as notified from time to time. However, information relating to alleged corruption or human rights violations is not exempted from disclosure.

Exemptions Information which would prejudicially affect

sovereignty and integrity of India;

security/strategic/scientific/economic interests of the State;

relation with foreign State

Information which might incite an offence

Information which

is forbidden by a court;

that causes a breach of privilege of the Legislature;

would harm the competitive position of a third party;

Exemptions

is held in fiduciary relationship, unless larger public interest warrants disclosure; received in confidence from foreign Government;would endanger the life of any person;would impede the process of investigation;would involve an infringement of copy right.

Personal information which has no relationship to any public activity or interest

Cabinet papers including records of deliberations of the Council of Ministers, Secretaries and officers; 

Overriding effect[Sec.22]

The provisions of the Act have an The provisions of the Act have an overriding effect over anything overriding effect over anything inconsistent contained in the Official inconsistent contained in the Official Secrets Act, 1923 or any other law or Secrets Act, 1923 or any other law or instrumentinstrument

Penalty Provisions[Sec. 20]:

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

not accepting an application; delaying information release without reasonable cause; malafidely denying information; knowingly giving incomplete, incorrect or misleading information; destroying information that has been requested; and obstructing furnishing of information in any manner.

CIC/SIC empowered to impose penalty on PIO. They can also recommend disciplinary action against an erring PIO.