CENTRAL INFORMATION COMMISSION
Right to Information Act â€“ Sections 6/18
Name of Appellant : Satyapal
Name of Public Authority : CPIO, TCIL
Decisions appealed against :
The CPIO, TCIL has declined to supply a copy of a document on the ground that the same forms part of â€œfile Notingâ€ which, according to CPIO is exempt under the RTI Act. Appellate authority also has confirmed the decision of the CPIO. The appellant contents that he has the right to seek information contained in the â€œFile Notingsâ€.
Shri Satyapal â€“ appellant, a resident of Delhi, applied to the CPIO, TCIL seeking for copies of certain documents by a letter dated 17th October, 2005. By a letter dated 14th November, 2005, CPIO, TCIL furnished copies of certain documents, however, stating that a particular document sought for was a file noting in the Department of Telecom and as such it was exempt from disclosure. By a letter dated 17th Nov. 2005, Shri Satyapal again wrote to the CPIO, TCIL pointing out that the information sought for by him did not fall within the ambit of Section 8 of the RTI Act and as such the same should be supplied. He also brought to the notice of CPIO, TCIL that in respect of information already furnished, a copy of a bill in respect of advertisement relating to independence day 1996 had not been supplied. By a letter dated 28th Nov. 2005, the CPIO, TCIL while furnishing a copy of the bill, once again reiterated that file notings are exempt from disclosure in terms of the clarification given by the Department of Personnel in their website. Aggrieved by this decision, Shri Satyapaul preferred an appeal to the appellate authority by a letter dated 14th Dec. 2005 stating that file notings are not exempt from disclosure in terms of Section 8 of the RTI Act. He followed up the same by letters dated 14th Dec., 31st Dec. 2005 and 5th January, 2006. The appellate authority by a letter dated 5.1.2006 rejected the appeal stating â€œThe information sought by you pertains to the file notings of the Department of Telecommunication as also that of TCIL. I am of the view that TCIL is exempted from disclosing the information sought by you under Section 8(1)(d)&(e) of the RTI Act. UO No.7-17/95-PP dated 4.10.1995 is a part of file notings. You have mentioned in your appeal that the information has been denied misconstruing it as â€œfile notingsâ€ by CPIO, TCIL. I confirm that these are notings in the fileâ€. Aggrieved with the decision of the appellate authority, Shri Satyapal has filed this appeal before this Commission. According to Shri Satyapal, there is no specific exemption from disclosure as far as file notings are concerned in Section 8 of RTI Act.
Commissionâ€™s Decision :
It is seen that while the CPIO declined to furnish the information sought for on the ground that file notings are exempt from disclosure, the appellate authority, without confirming or rejecting the stand of CPIO that file notings are exempt from disclosure, has relied on Section 8(1)(d) and (e) of the RTI Act to deny the information.
As is evident from the Preamble to the RTI Act, the Act has been enacted to vest with the citizens, the right of access to information under the control of public authorities in order to promote transparency and accountability in the working of any public authority. Conscious of the fact that access to certain information may not be in the public interest, the Act also provides certain exemptions from disclosure. Whether file notings fall within the exempted class is the issue for consideration.
Section 2(f) defines information as â€œAny material in any form, including records, documents, memos, e-mails, opinion, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law or the time being in forceâ€.
Section 2(j) reads : â€œRight to information means the right to information accessible under this Act which is held by or under the control of any public authority and includes the right to (i) inspection of work, documents, records; (ii) taking notes, extracts or certified copies of document or records; (iii) â€¦â€¦ (iv) â€¦. â€œ. In terms of Section 2(i) â€œRecordâ€ includes (a) any documents, manuscript and file;
In the system of functioning of public authorities, a file is opened for every subject/matter dealt with by the public authority. While the main file would contain all the materials connected with the subject/matter, generally, each file also has what is known as note sheets, separate from but attached with the main file. Most of the discussions on the subject/matter are recorded in the note sheets and decisions are mostly based on the recording in the note sheets and even the decisions are recorded on the note sheets. These recordings are generally known as â€œfile notingsâ€. Therefore, no file would be complete without note sheets having â€œfile notingsâ€. In other words, note sheets containing â€œfile notingsâ€ are an integral part of a file. Some times, notings are made on the main file also, which obviously would be a part of the file itself. In terms of Section 2(i), a record includes a file and in terms of Section 2(j) right to information extends to accessibility to a record. Thus, 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 â€œfile notingsâ€ are to be exempted from disclosure, while defining a â€œrecordâ€ or â€œfileâ€ it could have specifically provided so. Therefore, 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 â€œfile notingsâ€ unless the same relates to matters covered under Section 8 of the Act. Thus, the reliance of the CPIO, TCILO on the web site clarification of the Department of Personnel to deny the information on the basis that â€˜file notingsâ€™ are exempted, is misplaced.
However, it is seen from the decision of the appellate authority that he was of the view that TCIL was exempted from disclosing the information sought, under Section 8(1)(d)&(e) of RTI Act. In terms of Section 8, there shall be no obligation to give any citizen information relating to matters covered under subsections (a) to (j) of that Section. Section 8(d) exempts information including commercial confidence, trade secrets or intellectual property and Sub section (e) exempts information available to a person in his fiduciary relationship. Even then, at the discretion of the competent authority even these information could be disclosed if he is of the opinion that public interest so warrants. From the decision of the appellate authority of TCIL, which is not a speaking one, it is not clear whether the file notings, a copy of which was denied to the appellant, relate to commercial confidence or trade secret or intellectual property or is available to TCIL in its fiduciary relationship.
Since we have held that file notings are not, as a matter of law, exempt from disclosure, the CPIO, TCIL is directed to furnish the information contained in the file notings, on or before 15.2.2006 to the appellant. However, if the CPIO, TCIL is still of the opinion that the said file notings are exempt under Section 8(d) & (e), he is at liberty to place the file notings before the Commission on 13.2.2006 at 11 AM to determine whether the same is exempt under these sections and even if so, whether disclosure of the same would be in the public interest or not.
Let a copy of this decision be sent to CPIO, TCIL and the appellant.
Chief Information Commissioner
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.