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The proposed amendments to this Act were or are:
All file notings to be exempted except for social and development projects.
No cabinet paper to be disclosed even after a decision has been taken.
Aren't these both amendments fatal to the spirit of the main Right to Information Act of 2005?
The government's intent in confining it only to social and development projects is a very worrisome limitation. Any file note may end up being considered as not pertaining to social or development project, just to deny access.
In defence of the right to know
SOWMYA KERBART SIVAKUMAR
Public pressure has prevented the government from implementing retrogressive amendments to the Right to Information Act.
THE public outrage over the recent attempts of the government to tamper with the national Right to Information (RTI) Act may have subsided for the moment but the storm has left some indelible marks on the history of Indian democracy. In a never-before alignment that rose above caste, class, gender, economic, political, professional and what-have-you considerations, the government's move paved the way for a neat two-way split centred around one guiding principle: do we want to progress towards a clean and true democracy or not?
Those in favour were not just a bunch of self-righteous die-hard RTI loyalists. They came from every conceivable walk of life: bureaucrats former and present, politicians of all hues, upholders of justice, business honchos, mediapersons, students, citizens drawn from multifarious backgrounds, slum-dwellers, artists, retired members of the Army. This was not merely a debate about whether or not "file notings" should be thrown open to public gaze, as it was made out to be. For people tiring of the endless farce, it boiled down to a vote for or against democracy.
It would be naive to believe that the powers that be acceded to gifting the people a stick to beat them with. While the United Progressive Alliance (UPA) government deserves credit for seeing through one of the most powerful pieces of legislation in the world, the resistance to disclosing bureaucratic decision-making processes was amply demonstrated time and again from the instance a right to information law was contemplated. The Shourie Committee draft (1997), the precursor to the Freedom of Information Act passed in Parliament in 2002, explicitly included in the categories of exempted information (Section 9) "information in the nature of internal working papers such as inter-departmental/intradepartmental notes and correspondence, papers containing advice, opinions, recommendations or minutes for the purposes of deliberative processes in a public authority" (excepting opinions of scientific or technical experts). It also clearly exempted "information in the nature of Cabinet papers".
The Freedom of Information Act, 2002, incorporated these recommendations under Sections 8 (1) (d) and (e). It exempted "Cabinet papers including deliberations of the Council of Ministers, Secretaries and other officers" as well as "minutes or records of advice including legal advice, opinions or recommendations made by any officer of a public authority during the decision-making process prior to the executive decision or policy formulation."
In 2004, when amendments to the Freedom of Information Act were being deliberated, the National Advisory Council (NAC) forwarded its recommendations to the Central government, based largely on the draft prepared by the National Campaign for People's Right to Information (NCPRI).
These recommendations differed from the Freedom of Information Act in three crucial aspects. First, the NAC explicitly included the term "file notings" in the definition of information under Section 2 (d). Second, it removed any reference to file notings from the list of exemptions under Section 8. And third, it qualified the exemption enjoyed by Cabinet papers under Section 8 (i) as: "Cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers, provided that 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 (emphasis added), and the matter is complete, or over; provided further that those matters which come under the exemptions listed in Section 8 shall not be disclosed."
When the RTI Act was finally passed on May 12, 2005, the term "file notings" was conspicuously absent in the definition of information (Section 2(f)). However the other two recommendations of the NAC draft, as spelt out in the preceding paragraph, were retained.
The National RTI Act received assent from President A.P.J. Abdul Kalam on June 15, 2005, with one condition. A leading English television channel reported that the President sent a communication to the Prime Minister expressing that "notes government officials make on files should remain classified. Or else bureaucrats will feel too many obstacles in taking crucial decisions." Beyond this, it was reported that he had sought continuance of presidential immunity with respect to the Act and that any communication between the Council of Ministers, the Prime Minister and Rashtrapati Bhavan should be exempted from disclosure.
Subsequently, a major English daily newspaper cited a note prepared by the Department of Personnel and Training (DoPT) in response to the President's observations. The article revealed two very significant opinions of the Centre: "...in a note prepared by the Department of Personnel and Training, after consultation with the Law Ministry, the Centre has said that the claim of immunity and privilege has to be based on public interest." It was responding to Kalam's reminder of the Constitutional provision that guarantees privilege of such communication under Article 74(2). The article then went on to quote the Centre's rather ambivalent stance on the President's concern over disclosure of file notings: "On Kalam's observation that the definition of information in the Act is such that even notings on files, containing advice, can be insisted upon, the Centre has said that whether the definition should be narrowed down or not is a matter of policy."
A PROTEST AGAINST weakening the Right to Information Act in New Delhi on August 7.
Last December, the Centre's mind seemed made up. In an endeavour to slip in exemptions to file notings, the Prime Minister's Office instructed the DoPT to make changes to the rules of the RTI Act, in consultation with the Ministry of Justice such that "substantive file notings on plans, schemes, programmes and projects of the government that relate to development and social issues may be disclosed except those protected by the exemption clauses u/s 8(1) (a) to (j) of the Act. However, the Principal Information Officer appointed under Right to Information Act may withhold the individual identity of the functionary who has made the notings."
A Press Information Bureau release on December 1, 2005, stated: "It has been decided, however, that file notings relating to identifiable individuals, group of individuals, organisations, appointments, matters relating to inquiries and departmental proceedings, shall not be disclosed."
The controversy this sparked off came to rest, albeit temporarily, with the January 31 decision of the Central Information Commission (CIC) (No.ICPB/A-1/CIC/2006, Satyapal vs. TCIL), which unequivocally concluded that "we are of the firm view, that, in terms of the existing provisions of the RTI Act, a citizen has the right to seek information contained in "file notings" unless the same relates to matters covered under Section 8 of the Act."
The DoPT however, refused to remove the line from their website stating that file notings need not be disclosed under the RTI Act. The DoPT's flagrant stance led the CIC to give vent to its ire; After singing itself hoarse in appeal after appeal that citizens had the right to access file notings under the Act, one of its Commissioners served a strongly worded `ultimatum' to the DoPT in July to remove the controversial part from its website.
In the meantime the Cabinet approved amendments to the RTI Act. A reading of the draft Right to Information (Amendment) Bill, 2006, set against the foregoing account and the views put forth by many eminent and learned persons since the proposals were made public, shows that not a single justification of the amendments in the PMO's "clarification" (dated July 26, 2006) passes muster.
The proposed amendments have evoked mass indignation not only because the government was attempting to water down the RTI Act, but it was doing so while maintaining that it was making it more progressive, in addition to acting without any public consultation whatsoever. In fact, well into the Parliament session, no one, not even Members of Parliament, had even seen the official text of the Amendments Bill.
Why exactly were the proposed amendments and the PMO's standpoint untenable?
The UPA government claimed in its Common Minimum Programme that it would make the RTI Act "more progressive, participatory and meaningful". The PMO's "clarification" of July 26 states, "The disclosure of file notings on the most important and vast bulk of government activities has now become possible for the first time. This was not possible before. It is thus not a case of retrogression. This is a positive step forward."
In reality, however, the proposed amendments are regressive. The language of the amendments leaves little room for doubt that the December 2005 attempt to exempt file notings (with some minor exceptions) has worked its way back into the proposed amendments to the Act. Furthermore, the new Sub-section 8(m) reads almost identical to Section 8 (e) of the old Freedom of Information Act, which the government had pledged to improve upon. Worse, it now lengthens the list of exemptions by excluding "information pertaining to any process of any examination conducted by any public authority or assessment or evaluation made by it for judging the suitability of any person to appointment or promotions." In every sense, these amendments violate the fundamental principle of minimum exclusion that would make for a progressive Act.
The government's claim of "greater transperency... by the disclosure of file notings... for the first time" is highly problematic. Additional Solicitor-General Gopal Subramanium is said to have stated in his legal advice to the DoPT that it was never the intention of the government to bring file notings within the purview of the Act. This is why the phrase was deleted from the definition of information as it stood under Section 2(f). Responding to this, noted civil liberties lawyer and NCPRI working committee member Prashant Bhushan said: "The interpretation of the Act cannot depend on the intentions of the Cabinet. It has to be discerned from a simple reading of the Act itself, or at times, with the help of open debate. In this case, the meaning is very clear, as file notings are nothing but documentary evidence of opinions and advice which are included in the definition." The Central Information Commission has also repeatedly asserted that file notings undoubtedly come within the Act's purview, its rationale clearly set out in the January 31 appeal decision: "A combined reading of Sections 2(f), (i) & (j) would indicate that a citizen has the right of access to a file of which the file notings are an integral part. If the legislature had intended that "file notings" are to be exempted from disclosure, while defining a "record" or "file" it could have specifically provided so."
In a forceful statement, former Chief Justice of India J.S. Verma, Justice V.R. Krishna Iyer and Justice P.B. Sawant argued that the only reasonable restrictions on Article 19(1)(a) of the Constitution were imposed by legislation under Article 19(2). As the right to information was implicit under Article 19(1)(a), any restriction imposed on the people's right to information must fall within the ambit of Article 19(2), which was amply covered by Section 8 of the RTI Act. Pointing to infirmities in the proposal to exclude file notings, they observed:
"Mere information of the decision without disclosure of the reasons for it and the decision-making process is not enough to permit scrutiny of the decision made, which even otherwise may become known. The very purpose of the right to information would be frustrated without the knowledge of the reasons for the decision, emerging from the file notings. Except for information that can, or needs to be withheld in the interests of the specified heads under Article 19(2), there is no reason or authority to permit exclusion of the remaining information in the form of file notings or otherwise."
The main concern voiced by the PMO in defence of excluding file notings is that it would deter officers from making frank expressions of their views. Commenting on a press statement issued by the PMO in August, former Prime Minister V.P. Singh remarked, "The argument that public access to file notings would impede frank expression of views by officers is a seriously flawed one...the truth is that officers are pressured to record notings contrary to their convictions or opinions, or those not in keeping with public interest or the law, NOT by the public but their bureaucratic and political bosses...these bosses already have access to file notings and do not need the RTI Act to access them. On the contrary, the disclosure of file notings would help ensure that officers are not pressured into recording notes that are not in public interest. This would strengthen the hands of the honest and conscientious officers and expose the dishonest and self-serving ones."
In a letter to the President , former Home Secretary Madhav Godbole wrote: "The decision of Government of India to amend the RTI Act is highly retrograde and would totally defeat the very purpose of the Act. In fact, making the notings on the file open to people can be the single most effective check on the rampant corruption both at the administrative and political levels. It can also strengthen the hands of officers of honesty and integrity."
Attacking the PMO's weak line of reasoning for excluding file notings, renowned social activist Aruna Roy said at a recent press conference in Delhi: "A government officer is paid money to write on the file. If he doesn't want to show what is written, there must be enough political strength to oppose this and let him sit at home."
Moroever, the government has been unable to provide any evidence of misuse of file notings in the hands of the public. On the contrary, many examples of the use of file notings to expose corruption and arbitrary decision-making have come to light. The most dramatic of these was the much-quoted case of the Delhi government's subjective selection of consultants for the water privatisation game plan of the World Bank-Delhi Jal Board combine, which was eventually scrapped.
Finally, the PMO's clarification talks of commitment to greater transperency "in spite of a view expressed against such disclosure by various experts and officials." This hides the fact that the government's own Second Administrative Reforms Commission has acknowledged that file notings are to be disclosed under the RTI Act, and will therefore amend the Manual of Office Procedure accordingly. According to its report (Para 3.2.2), "The Manual of Office Procedure was prepared when the RTI Act was not in existence. These provisions are totally violative of the Act and hence need to be brought in conformity with the Act. The Act also defines `information' to mean any material in any form, including records, documents, memos, e-mails, opinions, advices... Thus notings and files per se will not become confidential and inaccessible unless they are classified as such and are declared to be covered under exemption provisions of Section 8(1) of the Act."
FORMER PRIME MINISTER V.P. Singh and Left party leaders D. Raja, Prakash Karat, A.B. Baradan and Abani Roy, at a rally demanding the rollback of the proposed amendments to the Act in New Delhi on August 14.
Although public pressure has successfully warded off the government's attempt to amend the Act for now, serious issues with respect to the powers of the CIC are yet to be settled. Not only does the DoPT obstinately refuse to remove the fiction it has created on its website, the Additional Solicitor-General's legal opinion questions the power of the CIC to sit in benches. Prashant Bhushan points out that Section 12(4) of the Act gives the CIC powers to manage its affairs with full autonomy, including the power to constitute benches.
"The DoPT's legal opinion is in a particular case, it is not a directive. Any party is free to present its legal view. The full Commission will sit on it shortly and come to a decision whether or not to accept that view," said Wajahat Habibullah, Central Chief Information Commissioner.
An even more worrisome challenge to the CIC's powers, and indeed the credibility of the Act, is the recent stay obtained by the DoPT over the CIC inspection of correspondence between President K.R. Narayanan and Prime Minister Atal Bihari Vajpayee during the 2002 Gujarat riots.
"We will be contesting it [the stay]. They have taken the plea that Article 74(2) of the Constitution applies, and not the RTI Act. We are saying it is otherwise," the Chief Information Commissioner said. One might recall that it was the DoPT that opined in view of the President's reservations in June last year that "the claim of immunity and privilege has to be based on public interest."
The categories of information that groups with vested interest seek to purge from the the Act - file notings, deliberations of Ministers, identities of officers behind decisions, and processes of examination conducted by public authorities - speak of their vulnerabilities. The Act in its present form drills a deep hole into the well of patronage, arbitrariness, nepotism and give-and-take through which a vast section of the bureaucracy sustains itself. The attack on the CIC's powers is an effort to preserve the status quo.
Added to all this, a whole lot of public authorities have sought immunity from the Act, with the PMO and the judiciary leading the pack. Much confusion still reigns over the definition of "public authority". Thanks to the ambiguity of the term "substantially financed directly or indirectly by funds provided by the appropriate government," many companies and institutions with government stakes are running to the courts to get themselves out of the ambit of the Act, linking up to another very real danger of the trend towards privatisation.
This, among many other equally important issues, remains drowned in the hue and cry about the latest amendments. Experiences of common citizens using the RTI Act since it was passed point to extensive ground-level problems in the implementation of the Act. But neither the government nor the media seem inclined to pay attention to these seemingly mundane problems, which could prove debilitating in the long run.
Nearly a year since the Act came into effect, the status of suo motu disclosures by public authorities across the country is woefully unclear. The procedure for accepting application forms and fees is yet to be streamlined, even in large public offices such as Collectorates. Although in theory the Act provides for redress through a two-step appeal procedure, the working of State Information Commissions - the second and final public authority at the State government level - in many States puts the entire Act's credibility under a cloud.
While public pressure is easier to mobilise against blatant attempts to hold democracy hostage, such as the latest amendments, it is in the apparently insignificant details that the government could succeed in breaking down the patience of common citizens who are putting their new-found tool to test. This is a danger that RTI activists, the media and the public should anticipate and guard against.
The writer is with Research for People, Jaipur.
File notings under RTI after debate with section of society: Wajahat Habibullah
Chief Information Commissioner Wajahat Habibullah said if the government decides to bring the bill to keep file notings outside the purview of the Right To Information (RTI) Act in the winter session, it will only be after debate with all sections of the society.
"The civil society and the government are the decision makers on the Act. The Central Information Commission job is only to implement the Act, ' Habibullah said speaking at an interactive session on Right to Information Amendment Bill, 2006 organised by the NGO CUTS International.
He said that all government departments have been directed to make a comprehensive compliance report of Section 4 of the Act dealing with maintaining data and information catalogue of information related to the department and submit it to CIC. The report will be submitted to the Parliament in the forthcoming winter session.
Arvind Kejriwal, CEO of Parivartan and 2006 Magsaysay Award winner, said that the amendments do not pertain to file notings only as has been projected in the media. "If the amendments come through, the government will be able to keep the entire country out of the decision-making process. This is because the amendments provide that the departments will not give information on any issue till such time the matter is completed," Kejriwal said.
Another important lacuna, he said, was that even after the decision was made, the entire information would not be provided and only file notings related to social and development work will be available. "So, if a citizen wants to know the status of his ration card or passport he would not get any information because this did not pertain to any social or developmental work," Kejriwal said.
Also, all matters related to personnel will be out of the purview of RTI.
Any information related to examinations process will also not be shown, he said.
Pradeep S Mehta, secretary general of CUTS International, urged CIC to take up the role of advocacy given the extremely low public awareness on the usage of the act. [sourse: Business Standerd Aricle published dated 15th Sept 2006]
News I read from The
Cronicle Herald.ca about Nosa Scotia Province Freedom of Information implimentation.
Better, but far from perfect
Province has gotten better, but N.S. charges highest fees for public info
By DARCE FARDY
Or as Alasdair Roberts, an expert in Canadian freedom of information legislation, and professor at Syracuse University, puts it: "Politicians and bureaucrats are not going to give up power easily. Given the opportunity they will try to reclaim it."
Outgoing federal information commissioner John Reid was upset by a decision of the new Conservative government to stall on an election promise to introduce a much stronger Access to Information Act. He wonders whether the governmentâ€™s plans were "simply hijacked by bureaucrats who saw their culture of secrecy threatened for the first time in decades."
I have concluded, after 11 years as Nova Scotiaâ€™s independent review officer under the Freedom of Information and Protection of Privacy Act, and after nine months as the president of the Right to Know Coalition of Nova Scotia, that things will not change as long as citizens give no indication they care. The evidence is that they donâ€™t, at least not in significant numbers.
Let me make it clear this is not a partisan issue. Information commissioners across the country do not expect, nor do they see, any improvement in access when a government changes, even when members of the new government, while in opposition, stood four-square in support of access to information legislation and often criticized the party in power for its lack of transparency.
I also want to say that the situation in this province does not match the one faced by the federal information commissioner.
Nova Scotia has one of the best freedom of information acts in the country. It is the only legislation that requires governments and other public bodies to be "fully accountable" to the public; the act covers all government departments and agencies with rare exception; cabinet records are subject to requests and the records are made available to the review officer in their entirety during a review of a government decision; all municipalities, universities, colleges, school boards and hospitals in the province are subject to freedom of information legislation.
Recently a provincial cabinet minister appeared at a public forum to discuss transparency and accountability in government and to face a critical public. Mark Parent, minister of the Environment and Labour, accepted my invitation to join a panel with other politicians. He answered questions, replied to criticism and stayed until the forum was over. I suspect there was no lineup of ministers wanting to appear in his stead.
For some years now, the deputy minister of Justice, whose department is responsible to the legislature for the Freedom of Information Act, has appeared publicly to explain and defend the legislation. To my knowledge, no other minister has done what Mr. Parent did and no senior bureaucrat has followed deputy minister Doug Keefeâ€™s example.
Many of the employees who handle applications under the act for government departments have improved their approach significantly. I said in public recently that some of them are now "advocates of access to information" though I suspect many of them would like more support from their bosses.
A recent audit by the Canadian Newspaper Association placed Nova Scotia fourth among the 10 provinces for its willingness to provide information on selected applications. Nova Scotia scored 89 per cent. Eight out of nine applications to different public bodies were met. The provinces ahead of Nova Scotia scored 100 per cent compliance. In a similar audit last year, Nova Scotia placed last in the country.
Applicants for information from public bodies can now look for support in some 28 Nova Scotia court rulings brought down since the existing legislation was passed in 1995. All but one came down firmly on the side of providing the information or most of the information requested.
So much for the good news. Nova Scotia has the highest freedom of information "user fees" in the country, inhibiting access to information from public bodies. I heard no good explanation for the substantial increase in fees five years ago from $5 for an application and no charge for a request for review by the Review Officer, to $25 for each step.
I did not buy into the reason made public: that it would stop frivolous applications. In my experience frivolous requests were rare, and these fees do stop genuine applications.
Revenue gathered from these fees is negligible. The government estimates that the act costs $1 million a year but this is likely a rough estimate.
However, we canâ€™t expect that this important program, like any other, can be done at no cost. It is money well spent.
Whatever the true cost of administering this act, the government has been slow to give its administrators the resources to allow them to get out among the public to explain to people how and why they should take advantage of their fundamental rights to information from public bodies.
As far as I know no government in Canada has claimed, as Sweden has, that its freedom of information legislation has made government more efficient. Freedom-of-information legislation no doubt has promoted efficiency because public bodies would require proper records-keeping in order to meet their obligations under the act.
The establishment of the Review Office reveals that the government at the time appeared to have no idea what resources would be required. Hence no budget was provided. The government believed that a "part-time" review officer working a few days a month could handle "rare" appeals from the public.
In my first year in the job I received 54 appeals, increasing in significant numbers each year until the fees were increased. Working alone at the time I found myself coming to the office six and sometimes seven days a week.
It took government several years to admit that the job required a full-time review officer and changed the legislation to confirm this. Only then was a budget applied to allow me to hire two staffers.
Nova Scotiaâ€™s Review Office had a staff of three before I retired. The freedom of information review office in Manitoba, a province of comparable population, had a staff of 15.
While the budget for the Review Office was increased over the years, this increase was hardly commensurate with the amount of work required by the office and left precious little to allow for public education.
The governmentâ€™s lack of attention to the Review Office is further reflected in its failure to appoint a new review officer. An acting review officer has been filling in for 10 months.
As far as other public bodies are concerned, many municipalities have not yet embraced their obligation to be open and transparent in their decision making. Some are unfamiliar with the legislation.
Few feel obliged to share their deliberations with the people who put them in office.
Apparently these municipal councils believe they work more efficiently if they donâ€™t involve the public. It no doubt hasnâ€™t occurred to them that citizens might have some good ideas worth considering.
Nova Scotiaâ€™s school boards have refused the Atlantic Institute for Market Studies student information that was provided by the other three Atlantic Provinces. The Halifax Regional School Board has warranted public scrutiny several times recently and, one would hope, would be anxious to demonstrate its openness and accountability. School boardsâ€™ decisions, after all, have a tremendous impact on children, parents and, probably, grandparents. We need to know more about the reasons behind information supporting the decisions made by these boards.
The committee organizing the Commonwealth Games may be losing public support by its reluctance or inability to provide enough information to assuage the concerns of those who fear the Games are going to lay too heavy a financial burden on the taxpayer. Even though Iâ€™m a supporter of the Games, I believe the organizers may have been receiving poor advice.
In too many municipalities, universities, hospitals and school boards, the culture of secrecy still prevails.
Let me return to a point I made earlier: politicians and governments are unlikely to improve the legislation, including reducing user fees, if the public demonstrates no interest. A campaigning politician once told me that not a single constituent he met on hundreds of doorsteps ever mentioned freedom of information, transparency or accountability.
Thereâ€™s evidence that thousands of Nova Scotians are unaware of their rights under the Freedom of Information Act and few of those who are aware take the time to exercise these rights. Although the annual audit by the Canadian Newspaper Association is welcome to all advocates of "open government," journalists themselves, at least in this province, are not frequent users of the act.
In some cases their editors and producers do not give journalists who are inclined to use it the time to do so. The public deserves better from the media. The rewards for an enterprising reporter can be significant and the results useful to all of us. Reporter Jeffrey Simpsonâ€™s recent articles on restaurant inspections in The Chronicle Herald attest to this.
Enter the Right to Know Coalition of Nova Scotia. Our mission as a non-profit agency is to educate the public about their rights to information and to advocate transparency in public bodies. The deplorable voter turnouts in recent elections make it clear that not enough Nova Scotians are engaged in the political process. This canâ€™t be in anyoneâ€™s best interest. The coalition believes the Freedom of Information Act is an important avenue to take to create a better informed electorate.
The members of the board of the coalition were encouraged by the turnout and vigorous debate at a recent forum at Kingâ€™s College. We intend to continue our efforts and expand on them when we acquire the necessary funding.
02/21/2018 03:26 AM