Right to Information Act 2005 an overview

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Right to Information Act, 2005 Provides a legal framework of citizens democratic right to access to information under the control of public authorities; To promote transparency and accountability in the functioning of every public authority

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COVERAGE Came into effect from 12 October, 2005.

Covers central, state and local governments, all bodies owned, controlled or substantially financed by government;

Non-government organization substantially financed, directly or indirectly by funds provided by the appropriate Govt.

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COVERAGE(continued) Covers the executive, judiciary and legislature

Includes information relating to any private body which can be accessed by a public authority under any other law for the time being in force.4

INFORMATION Means any material in any form, including records, documents, memos, e-mails, opinions, advice, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form.

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RECORDRecord includes 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.

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Change in Scenario

Records Management- In earlier times, it was Storage Driven. - In new environment, now it is Retrieval Driven

Flow of Information- Earlier flow of communication was inward (to Superiors only). - Now it is Outward (to all the Citizens)

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Change in Scenario

Regime- Earlier for information, there was a Restrictive Regime. - Now it is time for suo motu disclosures.

Arbitrariness- Earlier, there was greater scope for arbitrariness in decision making. - RTI Act, is intended to bring about more transparent and ethical decisions making.8

So RTI will lead to: Improve Records Management Computerization Put more information suo motu in the Public Domain Facilitating easy and relatively safe access for public Awareness about the utility of whistle blowers9

So RTI will lead to: Improve Decision Making process

Critically examine the existing operating procedures including channels of supervision and accountability

Develop standards of performance/norms

Review operating Manuals

Set up Documentation/Learning Resource Centers 10

Exemptions (for easy reference) Section 8(1)(a) National Security (b) Contempt of Court (c) Parliamentary Privilege (d) Trade Secrecy (e) Fiduciary relationship (f) Foreign government (g) Safety of informer in law enforcement (h) Investigation (i) Cabinet papers (j) Privacy Section 9 Copy right 11

Communicating Rejection PIO may reject a request for information where such a request for providing access would involve an infringement of copyright subsisting in a person other than the State. Section.9

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Communicating Rejection Where a request has been rejected, the PIO shall communicate to the requester The reason for such rejection; The period within which an appeal against such rejection may be preferred; and The particulars of the appellate authority.

Section.7(8)13

Scoping: Adjustment of the Form An information shall be ordinarily provided 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. Sec.7(9)

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Severability (Partial Disclosure) Access may be provided to a part of the record which does not contain any information which does not contain any information which is exempt from disclosure under this Act and which can reasonably be severed from any part that contains exempt information. Sec.10(1)15

Severability (Partial Disclosure) .partial disclosure The PIO shall give a notice to the applicant informing reasons for partial disclosure, fees, appellate authority details. sec.10(2) 16

Third Party Information Where the PIO intends to disclose any information, which relates to or has been supplied by a third party and has been treated as confidential by that third party sec.11 17

Third Party Information the PIO shall, within five days from the receipt of the request give a written notice to such third party and invite the third party to make a submission in writing or orally, and such submission shall be kept in view while taking a decision. sec.1118

Exemptions Except in the case of trade or commercial secrets protected by law, disclosure may be allowed if the public interest in disclosure outweighs in importance any possible harm or injury to the interests of such third party. Proviso to s.11(1)19

Third Party The third party shall, within ten days from the date of receipt of such notice, be given the opportunity to make representation against the proposed disclosure. sec.11(2)

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Third Party The PIO shall, within 40 days after receipt of the request, make a decision and give in writing the notice of his decision to the third party. The third party to whom the notice is given is entitled to prefer an appeal. s.11(3) & (4) 21

Who has the burden of proof?q Under Sec.6(2) of the RTI Act citizen need not give reason for seeking Information q q Under Sec. 19(5) of the RTI Act onus of justifying denial of access is on the PIO So PIO may make a decision after considering all public interest involved. It helps if citizen shows the public interest in disclosure no bar on citizen volunteering arguments based on public interest. PIO should give these arguments due consideration..22

Fiduciary relationshipq It is a special kind of unequal relationship based on trust where one party is legally empowered to look after the best interests of another party. Examples Board of a company and its shareholders Investors in mutual fund companies and fund managers Attorney and client/doctor and patient Banker and customer. Trustees and beneficiaries of a trust Legal guardians an their wards 23

Fiduciary relationship Fiduciary is obliged to act in the best interests of the beneficiary Information obtained in fiduciary relationship is confidential privileged communication But All confidential information/privileged communication is not obtained in fiduciary capacity The strongest and most obvious fiduciary relationship in society exists between Government and citizens 24

DOCUMENTS OF GENERAL PUBLIC INTEREST DOCUMENTS RELATING TO THE GOVERNEMENTS PROCUREMENT OF GOODS AND SERVICES GOVERNMENT LOANS, GRANTS AND AWARDS EXPENSES OF GOVERNMENT OFFICIALS EXPENDITURE ON WORKS AND SERVICES INTERNAL GUIDELINES, POLICIES AND PRACTICES FUNCTIONS, TARGETS, ACHIEVEMENTS AUDIT REPORTS DOCUMENTS RELATING TO PERSONAL MATTERS

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APPEALS First appeal with senior in the Department.

Second appeal with Information Commission.

Envisages an independent Information Commission at the central and state level to be an appellate authority and to oversee the functioning of the act. Has various powers under the act.

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PENALTIES Penalties imposable by Information Commission on PIO or officer asked to assist PIO

-for illegitimate refusal to accept application, malafide denial, knowingly providing false information, etc fine up to Rs. 25,000; -recommendation for departmental action for persistent or serious violations.

Immunity for actions done in good faith.27

CASE LAW DISCLOSABLE INFORMATIONCRITERIA, NORMS AND GUIDELINES FOR

PROMOTION- Arun Kumar case decision dt.20.4.06 THRESHOLD MARKS FIXED BY THE BOARD FOR PROMOTION-Akhila Anand case decsion dt.24.04.06 MARKS AWARDED BY COMMITTEE MEMBERS-Vijender Singh case decision dt.4.4.07 PROPERTY RETURNS ACRS ASSESSMENT REPORTS/ACRs DPC PROCEEDINGS

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(Contd.) CASE LAW DISCLOSABLE INFORMATIONLEAVE ACCOUNT RECOMMENDATION OF SEARCH

COMMITTEE FOR APPOINTMENT(U.C. Lavania case decision dt.17.5.06)

FILE NOTING [Satyapal case decision dt.31.1.06] PROCEEDINGS OF THE SUGGESTION

COMMITTEE AND INCENTIVES CALCULATIONS THEREUNDER[K.B. Singh case dt.2.5.06]29

(Contd.) CASE LAW DISCLOSABLE INFORMATION GROUNDS OF RE-EMPLOYMENTS AND GUIDELINES FOR RE-EMPLOYMENT- VijayGoswami case decision dt.2.5.06

INVESTIGATION REPORT AFTER ACTION IS COMPLETE IN EVERY RESPECT-P.S.Pattabiraman case decision dt.2.11.06

PROCEEDINGS OF THE GRIEVANCE REDRESSED AND SETTLEMENT OF DISPUTES COMMITTEE

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CASE LAW (Contd.) DISCLOSABLE INFORMATION COPY OF THE PRELIMINARY (FACT FINDING) ENQUIRY REPORT AFTER APPLYING SEVERABLITY REQUIRED TOUR PORGRAMME AND TRAVEL EXPENSESDinesh Berry case decision dt.6.3.06

LTC CLAIM DETAILS EXCEPT PERSONAL DETAILS INFO RELATING TO DONATIONS ETC.-Kishur J. Agarwalcase decision dt.7.4.06

DETAILS OF EXPENDITURE ON TRANSPORT KishurJ. Agarwal case decision dt.7.4.06 decision dt.7.4.06

SALARY DRAWN BY EMPLOYEESKishur J. Agarwal case INCOME TAX ASSESSMENT ORDERS-Farida Hoosenally casedecision dt.30.3.06

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CASE LAW (Contd.) DISCLOSABLE INFORMATIONCABINET NOTE FOR ACC AFTER THE

MATTER IS COMPLETE- Anil Kumar case decision dt.3.7.06 CBI REPORTS/CVC REPORTS ON COMPLETION / FILING OF CHARGE SHEET-S. Malik case decision dt.4.7.06 DETAILS OF POSTINGS / COMPLAINTS RECEIVED/VIGILANCE ENQUIRY SET UP/ DEs AND FINDINGS THEREOF/ STRICTURES BY COURTS IN RESPECT OF SPECIFIC OFFICERS- Raj Kumar case decision dt.10.7.0632

CASE LAW (Contd.) DISCLOSABLE INFORMATIONEMPANELMENT/PICKING UP FOR

APPOINTMENTS- R.K. Potdar case decision dt.19.2.07 DETAILS OF CARS USED AND OTHER FACILITIES H.J. Mahatre case decision dt.14.7.06 ALLOTMENTS/ LICENCES MERIT LISTS STATUS OF CLAIMS WORK ORDERS, SCHEDULED OF WORKS, MEASUREMENT BOOKS, ETC. 33

CASE LAW NOT DISCLOSABLE INFORMATION (EXEMPTED)PERSONAL DETAILS, INCOME, PAN,

SOURCES OF FUNDS, PARTNERSHIP DETAILS-Dhiraj Manilal Thakkar case decision dt.25.1.07 MARKS AWARDED BY INDIVIDUAL PANEL EXPERTS UNDER DIFFERENT PARAMETERS- Manish Dnyaneshwar Thool case decision dt.20.4.06

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CASE LAW NOT DISCLOSABLE INFORMATION (EXEMPTED)DETAILS OF THE BANK ACCOUNTS ANSWER SHEETS- Treesa Irish case decision dt.6.2.06 INFORMATION RELATING TO PENSIONERS- R.K. Jain

case decision dt. 10.5.06 DPC PROCEEDINGS- Ranju Prasad case decision dt.9.10.06 LEGAL ADVISE FAMILY DETAILS, GPF/CGEISNOMINATIONS MEDICAL REPORT- Bhagwan Chand Saxena case decision dt. 3.4.06 35

CASE LAW NOT DISCLOSABLE INFORMATION (EXEMPTED)(Contd.)

Frivolous queries that are prefixed with wholly unsubstantiated adjective such as fake. Queries asking for an explanation from the Authority 36

MISCELLANEOUSQUESTIONS/QUERRIES ABOUT THE

NATURE AND QUALITY OF ACTIONS WHY, WHAT, WHEN AND WHETHER If the answer to why is available on file, then it is subject of RTI CONTESTING ACTIONS OF THE DEPARTMENT FUTURE COURSE OF ACTION PRESCRIBING REMEDY FOR THE GRIEVANCE37

MISCELLANEOUS(Contd.) INFORMATION FOR PERSONAL INTEREST-BARRED CIC in its decision dated 14.6.07 in case of Dr. K.C.Vijaykumaran Nair has clarified the position that under the R.T.I. the employees are not expected to question the decisions of the superior officers in the garb of seeking information.38

IMPORTANT CICs OBSERVATIONCIC in one of the case of ICAR dt. 22.1.2008 has noted that wherever a public authority attempts to discipline an employee, such employee promptly files multiple RTIapplications aimed at extracting personal information of those charged with taking decision in such disciplinary matters. Since the replies under the RTI Act are to be made in a timebound manner, quite frequently such enquiries create wholly unnecessary and avoidable pressures on offices of the public authority. There should be nothing surprising if such actions distract that authority from its ordained functions. The Commission will take strict note of the proclivities of employees of public authorities whole attempt to use RTI Act to settle personal scores39

MISCELLANEOUS

(Contd.)

MISCELLANEOUS

(Contd.)

SECTION 6(3) NOT APPLICABLE FOR

DIFFERENT DEPARTMENTS IN THE SAME PUBLIC AUTHORITY APPEAL BY CPIO AGAINST OWN APPELLATE AUTHORITY NOT TENABLE INFORMATION TO BE SUPPLIED FREE OF CHARGE AFTER THE EXPIRY OF THE STIPULATED TIME DEEMED CPIO LIABLE FOR CONSEQU ENCES section 5 (5)40

MISCELLANEOUS (Contd.)One RTI application may contain a question

with several clarificatory or supporting questions- Rajendra Singh vs CBI case dt. 19.06.2009INFORMATION DESTROYED AS PER RETENTION

SCHEDULES IS NON-EXISTENT REASONS FOR DECISIONS TO BE SPECIFICALLY RECORDED FRESH ISSUES NOT ADMISSIBLE AT APPELLATE LEVEL CPIO HAS TO PROVIDE INFORMATION NOT OPINION

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MISCELLANEOUS

(Contd.)

COST OF WAGES OF MANPOWER NOT TO

BE COMPUTED FOR REMITTANCE BY APPLICANT ALL INFORMATIONS MORE THAN 20 YEARS DISCLOSABLE EXCEPT UNDER CLAUSES a, c & i OF SUB-SECTION 8(1) PROVISIONS OF THIRD PARTY AND EXEMPTIONS OF PERSONAL INFORMATION MAY BE WAIVED ON ACCOUNT OF PUBLIC INTEREST

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MISCELLANEOUS

(Contd.)

CPIOs TO SIGN REPLY- M.L. Meena case decision dt.3.7.06 APPELLATE AUTHROITY DECISIONS TO

BEAR HIS SIGNATURES M.L. Meena case decision dt.3.7.06 UNTRACEABILITY OF INFORMATION IS ACCEPTABLE WHERE DILIGENT SEARCH TO TRACE IS EVIDENT INFORMATION TO BE COLLECTED FROM MANY SOURCES/ KEEP THE APPLICANT INFORMED AND BUILT AIR OF CONFIDENCE ABOUT DELAY 43

MISCELLANEOUS

(Contd.)

PERIOD OF DEFAULT FOR PENALTY NOT

DETERMINED MECHANICALLY INFORMATIONS SOUGHT SHOULD BE RELATED TO FUNCTIONING OF PUBLIC AUTHORITY- Gaurav Kisan case decision dt.10.7.06 RESPONSES TO REQUEST SHOULD BE FORMULATED ON EACH SPECIFIC QUERRY CASE BEING SUB-JUDICE IS NOT SPECIFIED GROUND FOR EXEMPTIONKeshav Kumar Bhardwaj case decision dt.14.7.06

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Partial disclosure of information Section 10 of the RTI Act provides where a request for access to information is rejected on the ground that it is in relation to information which is exempt from disclosure, then, notwithstanding anything contained in this Act, Access may be provided to that part of the record which does not contain any information which is exempt from disclosure under this Act and which can reasonably be severed from any part that contains exempt information.45

Jurisdiction of Courts As per Section 23 of the RTI Act, no court shall entertain any suit, application or other proceeding in respect of any order made under this Act and no such order shall be called in question otherwise than by way of an appeal under this Act. However, as per the Constitution of India, the Supreme Court and the High Courts have the writ jurisdiction to look into the matters relating to the fundamental rights of the citizens.46

THANKS

Sanjay Gupta

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