Sunday, July 14, 2013

Right to Information (RTI) Act, 2005: Frequently Asked Question

MSA WEB TEAM | 9:16 AM |
Right to Information (RTI) Act, 2005
Frequently Asked Question

1. When did the Right to Information Act, 2005 come into force?

The Right to Information Act came into force fully on the 12th October, 2005 (120th day of its enactment i.e., 15th June, 2005). Some provisions came into force with immediate effect viz. obligations of public authorities [Section 4(1)], designation of Public Information Officers and Assistant Public Information Officers [Sections 5(1) and  5(2)], constitution of Central Information Commission [Sections12 and 13], constitution of State Information Commission [Sections 15 and 16], non-applicability of the Act to Intelligence and Security Organizations [Section 24] and power to make rules to carry out the provisions of the Act [Sections 27 and 28].

2. Who is covered under the Right to Information Act, 2005?

The Act extends to the whole of India except the State of Jammu and Kashmir [Section 1].

3.Are "file notings' included in the definition of Information?

Section 2 (f) of the RTI Act defines 'information’ which includes ‘record'. Section 2(i)(a) states that a 'record' includes any document, manuscript and file. The operative definition of a 'file' is given in the Manual of Office Procedure prepared by the Central Secretariat, Government of India. The definition of 'file' in the Manual includes 'notes' and 'appendices to notes'.
In CIC Decision No. ICPB/A-1/CIC/2006 dt.31.01.2006, the CIC held that “file notings are not, as a matter of law, exempt from disclosure”. Thus, file notings can be disclosed under the Act.

4. If the law under which a Public Sector Unit (PSU) has been constituted does not allow access to information to the people such as agendas of board meetings etc., will such information have to be given under the RTI Act?

PSUs fall within the category of public authorities. Even if the law constituting a PSU does not allow disclosure of certain categories of information, the RTI Act, 2005 overrides any such law in existence. Hence the designated PIO for the organisation under question has to provide the information.
However, if an applicant seeks information, that includes commercial confidence, trade secrets or Intellectual Property Rights (IPRs) etc. the disclosure of which will affect the competitive position of that PSU, such information may not be given unless there is a larger public interest involved.

5.Government offices have been providing information to people on the basis of their oral requests in the past. Does the RTI Act require such informal practices to end?

No, there is no need to discontinue the conventional and informal practice of giving information upon oral request. The RTI Act does not put an end to such practices. If information can be given without delay upon oral request it is better to give such information to the requester rather than require him/her to put in a formal application. This helps reduce paper work for the public authority.

6.Can Government officers get access to Annual Confidential Reports (ACRs) under the RTI Act?

As per decision No.18/IC(A)/2006 dt.28.03.2006, the CIC held that “the assessment reports by the superior officers are personal and confidential information and therefore exempted under Section 8 (1)(j) of the RTI Act”.
In the case stated above, the Central Information Commission upheld the public authority’s (Indian Oil Corporation’s) decision that ‘Annual Performance Appraisal Reports’ cannot be shared as they are confidential in nature.

7. Can students ask for copies or inspection of their answer scripts if they are unhappy with the marks awarded by the examiner in public examinations?

The present position is that the Central Information Commission has ruled, on an appeal submitted to it, that students cannot have access to answer scripts / supplements [CIC Decision No. 22/ICPB/2006 dt. 18.05.2006]

8. Every department performs different kinds of functions at different levels of operation from the Secretariat to the Taluka/Village level. Will disclosure under Section 4 (1) (b) have to be made for every one of these levels separately?

Yes. In several states more than one public authority are notified within every department from the secretariat level to the district and sub-district levels. Every such public authority will have to develop its own proactive disclosure  documents or Information Handbooks unique to its powers, functions, area of operation etc.
Section 4 (1)(b) is designed to ensure that public authorities disclose certain information which are important to the public voluntarily at every level of operation.  It is to be noted that, if implemented properly, Section 4(1) (b) will reduce the workload of officials and public authorities with regard to the requirement of providing information on request. This is because the information which is regularly needed by the public can be accessed by them without the need of going through a process of making specific request.

9. Will not the publication of the 17 manuals mentioned under Section 4(1)(b) be very difficult and burdensome?

The requirement to publish 'manuals' reflects the objectives of Section 4 (1)(b) for proactive disclosure on the part of every public authority, which is simply to publish and disseminate key information routinely in a manner and form which is easily accessible and understood by the public [Sections 4(3) and 4(4) of the RTI Act which specifically require this].

The 17 subsections of Section 4(1)(b) are 17 categories of information that a public authority is required to prepare and disseminate proactively through handbooks, notice boards, print and electronic media etc.

Most of the information required to be published proactively under this section may already be available within the public authority albeit in a scattered manner. These will need to be collected and collated to fulfil the requirement of Section 4(1)(b). Several officials are pleased with Section 4(1)(b) as it will help them streamline their own recordkeeping, monitoring and reporting procedures. Once the information is compiled and published it in a suitable format it will be easy to update it.

Furthermore, not every public authority may be required to collate information under all categories of Section 4(1)(b). For example, the Finance Department in a State may not be issuing any permits or concessions. As it does not perform such functions the Finance Department will not be held at fault for not including this category of information in its Public Information Directory.

The CIC has, in one of its letters (dt. 10.05.2006) to all Ministries / Departments, stated that “it is in the interest of the public authorities to make available all the 17 manuals to the citizens, which is likely to reduce the volume of requests for information under the RTI Act”.

If appropriate management information systems are developed and maintained by departments using information and communication technologies, the preparation of the information to be published at different levels annually can be a simple affair

10. Is it enough to disseminate information under Section 4 (1)(b) on the Internet?

Information under Section 4 (1) (b) shall be disseminated through notice boards, news papers, public announcements, media broadcasts, the Internet or any other means.

11. Is it enough to publish information under Section 4 (1)(b) only once at the time of the commencement of the RTI Act?

No. The Act requires that every public authority has to update its publications under Section 4(1)(b) every year. The Central/State Government/ Departments will have to come out with general instructions for time-bound updating of all categories of information, including formats for publication. Every public authority may in turn publish updated information that is specific to its functions following the guidelines.

12.What will be the penalty if a public authority/department is not able to meet the deadline for proactive disclosure (120 days)?

It is advisable to publish as much information as possible under Section 4(1)(b) within the deadline and give it wide media publicity so that people know that the public authority/department is earnest about implementing the law. Any person can make complaint to the relevant Information Commission under Section 18 (1)(f) of the Act and the Commission may even require the public authority to compensate the complainant for any loss or other detriment suffered.

It must be noted that the Information Commission has the power under Section 19(8)(a)(vi) to receive from a public authority an annual compliance report in relation to Section 4 (1)(b). This reporting mechanism will technically make the public authority answerable to the Information Commission for all acts of commission and omission in relation to proactive disclosure.

13.Can a request be denied if it is too big? If not, how can we handle such requests best? How much information can a citizen request in one application? If he/she asks 20-30 kinds of information in one application should it be given? Or should the citizen be asked to put in fresh applications for each point of information requested and also be asked to pay application fees every time?

The Act does not permit rejection of an application simply because it relates to a large number of documents. Under Section 7 (9), information shall be provided in the form in which it is sought unless it would ‘disproportionately’ divert the resources of the public authority.  A PIO can request the applicant to visit his/her office personally and inspect the required documents or files. However, the PIO shall communicate the date and time to the applicant for such inspection. The PIO has to determine and justify what constitutes ‘disproportionately divert resources’.

An applicant can ask for 20 to 30 different kinds of information in the same application and cannot be asked to apply afresh.

If the information published under Section 4 (1) (b) of the Act is comprehensive and proper information systems are maintained to enable such publication, even if an applicant requests for many pieces of information, the same can be provided to the applicant without much difficulty. Appropriate record management systems need also to be instituted.

14.If in a single application the applicant requests information that relates to a public authority and also other public authority/authorities, is the PIO responsible for giving all that information himself/herself?
The RTI Act makes it clear that the PIO has the power to transfer an application or parts of it if the same relates to information held by another public authority [Section 6 (3)]. The application shall be transferred to the PIO concerned immediately - within 5 days - and the applicant has to be informed about the transfer in writing.

15. Is it possible that some elements may misuse this law and use the information to blackmail/threaten officers?
The fact that the Act requires making as much information as possible available with the public authorities in the public domain may actually prevent blackmail to honest and sincere officers. If information is divided into two types, namely ‘open to disclosure’ and ‘not open to disclosure’, that which is not disclosed must be based only on the exemptions stipulated under the Act. Thus, the question of blackmail or threatening may not arise. As far as possible, information must be made public so as to reduce any possibility of blackmail. An honest and sincere officer need not fear blackmail at all. The strict adherence to the law would facilitate smooth functioning of such officers as they will be protected by law.

17.If there is a flood of applications for inspection of records how will the PIO provide access to all applicants and also do justice to his/her other designated duties? What if one such applicant mutilates or destroys a record during inspection?

Under the Act, every public authority will need to designate as many PIOs as may be required to deal with requests for information from citizens. The PIOs may fix one or two particular days in a week for inspection of records. The Competent Authority needs to make rules and guidelines for public authorities regarding the procedure to be followed for allowing inspection of records [The Public Records Rules (1997), Rule No. 11(2) prepared by the Government of India may be adopted as a model].
It is important that the PIO takes adequate precautions for the safety of records being inspected. If, however, it is found that a person examining a record or document has mutilated or tampered with the document or attempted to do so it will be appropriate for the PIO/public authority to lodge a criminal complaint immediately.

18.If the same kind of information is sought by more than one person should it be made available to all such requesters?

Yes, it has to be made available. However it is advisable that such records be digitised as far as possible and uploaded on the Internet to facilitate easy access.

19.If the information requested by a citizen has already been proactively disclosed can a PIO refuse to accept the request?

There is nothing in the RTI Act that states that information disclosed proactively should not be provided to a citizen on request. If such information is requested the same can be provided in the available formats upon payment of fees/charges at rates prescribed by the Government.

20.Is the Assistant Public Information Officer (APIO) an assistant to the Public Information Officer (PIO)?
No, the APIO is not an assistant to the PIO. A Central / State APIO (as the case may be) may be designated at the sub-district or sub-divisional level where a public authority may not have an office or administrative unit [Section 5(2)].

Designation of APIOs is particularly useful for Departments of the Government of India which rarely have offices below the district level. However, it has been decided that the CAPIOs of Department of Posts will also act as CAPIOs for other Central Government Public Authorities, which do not have an office / or an administrative unit operative at the sub-district / sub-divisional level.

These CAPIOs (of the Department of Posts) will receive requests on behalf of the Central Government public authorities and forward them to the CPIOs concerned.

21.If the information requested by the applicant is in the possession of the APIO should he/she not give that information to the applicant?

Under the RTI Act, the APIO’s obligation is confined to forwarding the request to the PIO concerned forthwith – within five days.

22.If a PIO has touring duties as well, then he will not be physically present to receive application in the office. Will his absence amount to refusal to accept information request?

The best solution for such situations is for the public authority concerned to designate another official within the same public authority (to act as PIO) and to receive applications. The duty of this PIO in maintaining the PIO’s register will be the same. This will ensure that citizens' applications are always received to suit their convenience and prompt action is taken on the same.

Incidentally, a particular public authority may appoint multiple numbers of PIOs such that each PIO is designated for a specific area of the organisation’s functioning. Yet, if an applicant approaches any PIO, he/she cannot refuse to accept the application on the ground that it does not belong to his/her jurisdiction.
Accepting the application, the PIO has to seek the requested information from the officer/s in control of the requested information (who may be another PIO, but for the purpose of dealing with this application, he/she becomes an ‘Other Officer’ – in control of the requested information). He / she cannot direct the applicant to take his / her application to the other PIO.

23.Will Panchayats/Municipalities (or any local authority) have to appoint PIOs irrespective of the size of their office / administrative unit?

Yes. Every public authority shall have to appoint a PIO, irrespective of the size of its office / administrative unit.

24.Should   BPL   applicants   be   charged   the further fees for providing information requested?

Persons belonging to the ‘Below Poverty Line’ category cannot be charged any fees / charges at all. The form of access can be decided by the PIO concerned subject to the provision of the Act that information shall be provided in the form in which it is sought unless it would ‘disproportionately’ divert the resources of the public authority.

25.If the applicant does not pay the additional fees towards cost of providing information within the 30 days deadline will the PIO be penalised for failing to provide information to the applicant?
No. The PIO will not invite any penalty in such cases. The 30-day clock stops ticking from the date of dispatching the intimation for further fees issued by the PIO and restarts on the date on which the applicant pays the additional fee [Sections 7(3)(a) & 7(3)(b)].
For example, if the PIO dispatches the intimation letter on the 5th day from the date of receipt of the complete application only 5 days would have elapsed from the 30 days limit. The clock will restart on the date on which the applicant pays the ‘further fees’. The PIO will have to provide the information within 25 days from the date of payment of such further fees. If the applicant chooses to seek a review of the additional fee from the appellate authority or the SIC/CIC the period taken for giving a decision on this matter (if it is decided that no further payment is needed) or for actual payment of further fees (if it is decided that further fees would need to be paid), will not be included in the 30 day limit.

26.If the applicant does not respond to the intimation letter of the PIO requesting payment of further fee will the PIO be duty-bound to provide information to the applicant? Will the PIO be duty-bound to provide information within 30 days even in such cases?

No. The PIO is not duty bound to provide information to the applicant in such cases. The RTI Act states very clearly that the PIO will provide access to information only upon payment of further fee as may be determined [Section 7(1)] by him/her (for non-BPL cases).

27.Are officials required to give information about themselves and their families under the law? Can the public request this kind of information? Should it be given?
Officials are not required to provide private or personal information which is exempted under Section 8(1)(j) of the Act. Again, this must be decided on a case by case basis (as has indeed been the case with the decisions of the CIC). If public interest is served by disclosing such information then it must be given.

28. Can any citizen ask any information that is more than 20 years old even if it does fall within the category of exemptions? Will the PIO be penalised if he/she is unable to provide such information?
Yes, any citizen can ask any information more than 20 years old held by or under the control of a public authority, irrespective of whether the information requested for falls within the category of exempted information or not. Nothing in the Act bars a citizen to ask for such information. The PIO concerned has to provide information ‘held’ under the control of the public authorities subject to the provisions of the Act relating to exemptions stipulated under the Act.

29.In cases where building plans and designs of bridges or other important public structures have been requested and if the PIO has reasonable suspicion that the applicant will use those plans for commercial purposes and make a profit out of it, should such information be given?

If disclosure of building plans and designs would prejudicially affect the economic or security interests of the State or if they relate to commercial confidence, or trade secrets or intellectual property rights, the disclosure of which would harm the competitive position of a third party, then such information would attract exemption under the Act. However, if the concerned authority is satisfied that larger public interest warrants the disclosure of such information, the same can be disclosed.

30.What if existing departmental manuals prevent disclosure of information to the people?

All such manuals were drawn up before the RTI Act came into force. These manuals will have to be reviewed in the light of the new law and all procedures for denying access to information will have to be done away with unless they relate to the exempt categories of information. Even in the case of exempt information the manuals should be so designed as to facilitate complete or partial access in the public interest. All new departmental manuals likely to be drawn up in future must conform to the new regime of transparency set up under the RTI Act, 2005.

31.Periodic weeding of files results in destruction of many documents which are not important enough to maintain for as long as 20 years or more. So it will not be possible to give such information after they have been destroyed. Will the PIO be penalised for this?

If a record has been destroyed legally the question of penalisation does not arise. But the RTI Act clearly requires a review of all weeding practices in existence to ensure that information which could be requested under the Act is not destroyed. More generally, it is necessary to consider a review of current records management processes.

32.What is the process for taking a decision on granting partial access to a record? Who is the authority to make this decision within a public authority?

Section 10(2)(b) of the RTI Act makes it clear that the PIO is the deciding authority for granting partial access to records that may contain exempted information. However, when partial information is disclosed the PIO needs to provide valid reasons for the decision. He also needs to mention his name and designation as the decision maker and the applicant’s right with respect to the review of the decision, including the particulars of the AO, time limit, process etc.

Only that part of the record which does not contain any information which is exempt from disclosure and which can reasonably be severed from any part that contains exempt information, may be provided.

33.Will the APIO be punished for giving wrong or misleading information just as a PIO can be penalised under this Act?

Given that, under the RTI Act, the APIO’s obligation is confined to forwarding the request to the PIO concerned forthwith - within five days, the question of punishment for an APIO for giving wrong or misleading information does not arise.

In one of its decisions, the CIC has stated that the APIO has a limited role of transmitting applications and appeals to their proper destination… and that the APIO’s responsibilities are not co-extensive with the PIO.

34.Will a PIO be penalised if the suiperior officer orders him not to release information to the requester?

It needs to be mentioned here that the PIO must note that it is not necessary on his / her part to seek the permission / approval of a superior officer of the public authority concerned for providing information under his / her control. The Act is clear about the fact that the PIO is an independent authority under the law and no approval is required from any superior official to release the requested information.

If a PIO acts upon any order of his/her superior and malafidely rejects requests fully / partially, he/she is liable to be penalised under the Act.

In case the information sought for is not available with a PIO, he/she can take the assistance of any other officer including asking for information under that officer’s control and such officer will be treated as a PIO for the purpose of the Act and its penal provisions.

In the event a PIO seeks information from another official for providing information, his/her communication and receipt of information (to and from the other official) should be put down in writing and a proper record of the same should be maintained. This will be helpful, in the defense of the PIO concerned, should the information, turn out to be misleading or wrong, and an appeal is made against the PIO.

35.If the information given by the PIO in response to a request turns out to be wrong, false or misleading but the PIO was not responsible for the creation of that record or such information will he/she be penalised by the ICs?

The RTI Act provides protection to the PIO for ‘action taken in good faith’. If the requested record has not been prepared by the PIO but by some other officer or if the data compiled by the PIO was received from some other officer and the PIO merely passed on that information to the applicant without having prior knowledge that such information was wrong or false or misleading he/she is not guilty of an offence under the RTI Act. The Information Commission will penalise PIO only in such cases where it may find him/her guilty of giving wrong, false or misleading information in a malafide manner.

36.The PIO continues to be under the purview of the Official Secrets Act (OSA) of 1923. How will he reconcile his duties under the RTI Act with the secrecy required to be maintained under the OSA? What happens to the oath of secrecy every officer is required to take while joining service?

It must be noted that the provisions of the RTI Act, 2005 shall be effective notwithstanding anything that may be inconsistent with its provisions in the Official Secrets Act, or any other Act of the Union or the State Governments (see RTI Act, 2005, Chapter VI, Scetion21).

The ‘Oath of Secrecy’ taken by Government employees therefore only applies to the information that has been exempted from the ambit of the provisions of the said Act. Broadly, this exempted information pertains to matters / issues related to national security, defence, and integrity of the country.  The Oath  will not be adequate and the test of public interest is the overriding consideration.

38.What is “Public Interest”?

In the Indian context, and especially in the context of the RTI Act, 2005, a significant judgment of the Supreme Court of India can be taken note of in understanding the term “public interest”.

In ‘S. P. Gupta v President of India’, AIR 1982 SC 149, Justice Bhagwati, in referring to ‘public interest’, maintained:

“Redressing public injury, enforcing public duty, protecting social, collective, ‘diffused’ rights and interests vindicate public interest… [in the enforcement of which] the public or a class of the community have pecuniary interest or some interest by which their legal rights or liabilities are affected.”

In State of Gujarat v Mirzapur Moti Kureshi Kasab Jamat & others AIR 2006 Supreme Court 212, the Apex Court held “the interest of general public (public interest) is of a wide import covering public order, public health, public security, morals, economic welfare of the community, and the objects mentioned in Part IV of the Constitution [i.e. Directive Principles of State Policy]”.

One of the decisions of the Central Information Commission also throws some light on this term. Public interest includes “disclosure of information that leads towards greater transparency and accountability” [in the working of a public authority] (Decision No. CIC/OK/A/2006/00046, dt. 02.05.2006).

39. Who are the Appellate Authorities and what are the key provisions for appeal under the Act?

First Appeal: First appeal to the officer senior in rank to the PIO in the concerned Public Authority within 30 days from the expiry of the prescribed time limit or from the receipt of the decision (delay may be condoned by the Appellate Authority if sufficient cause is shown).

Second Appeal: Second appeal to the Central Information Commission or the State Information Commission as the case may be, within 90 days of the date on which the decision was given or should have been made by the First Appellate Authority (delay may be condoned by the Commission if sufficient cause is shown).

Third Party appeal against PIO's decision must be filed within 30 days before first Appellate Authority; and, within 90 days of the decision on the first appeal, before the appropriate Information Commission which is the second appellate authority.

Burden of proving that denial of Information was justified lies with the PIO.

First Appeal shall be disposed of within 30 days from the date of its receipt. Period extendable by 15 days for reasons to be recorded in writing. [Section19 (6)]

There is no time limit prescribed under the Act for deciding second appeals
40. What is the jurisdiction of courts?

Lower Courts are barred from entertaining suits, applications or other proceeding against any order made under this Act [Section 23]. However, the writ jurisdiction of the Supreme Court and High Courts under Articles 32 and 226 of the Constitution respectively remains unaffected.


1 comment:

  1. Can a public servant ask his own office any information which is of no concern and interest to him under RTI