RIGHT TO INFORMATION ACT, 2005

[Mr. M. GOVINDARAJAN]

Introduction:

Since independence there is no doubt that India has grown, economy has boomed, people have benefited. At the same time, the Government functioning also needed change to keep pace with changing times and fulfill the aspirations of people, empowering them to drive the government machinery in their best interest. It is a well accepted fact that how strong is the red tapism in our country, officials exploiting ignorance of citizens often taking shied of provisions of various acts, regulations such as Official Secret Act, Indian Evidence Act etc., Information is power and if this is denied to the people, real swaraj cannot come. In view of the above the Right to Information Act, 2005 was enacted win the following objectives to make government machinery, to promote transparency in official dealings and enable the citizens to obtain information from Government machinery in a time bound manner. The Act overrides all the provisions of the existing laws.

Information:

Sec. 2(f) of the Act defines the term 'information' as any material in any form including records, documents, memos, e-mails, opinions, 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 for the time being in force and includes 'file notings'.

Right to Information:

Sec. 2(j) defines the terms 'Right to Information' which includes the right to-

inspect works, documents, records;

take notes, extracts or certified copies of documents or records;

take certified samples of material;

obtain information in form of printouts, diskettes, floppies, tapes, video cassettes or in any other electronic mode or through printouts.

Applicability of the Act:

The Act extends to the whole of India except the State of Jammu and Kashmir. All bodies, which are constituted under the Constitution or under any law or under any Government notification or all bodies, including NGOs, which are owned, controlled or substantially financed by the Government are covered. All such units, which are covered will be called Public Authority.

Obligations of Public Authority:

The public authority shall publish-

* the particulars of its organization, functions and duties;

* the powers and duties of its officers and employees;

* the procedure followed in its decision making process, including channels of supervision and accountability;

* the norms set by it for the discharge of its functions;

* the rules, regulations, instructions, manuals and records used by its employees for discharging its functions;

* a statement of categories of the documents held by it or under its control;

* the particulars of any arrangement that exists for consultation with, or representation by the members of the public, in relation to the formulation of policy or implementation thereof;

* a statement of the boards, councils, committees and other bodies consisting of two or more persons constituted by it. Additionally, information as to whether the meetings of these are open to the public, or the minutes of such meetings are accessible to the public;

* a directory of its officers and employees;

* the monthly remuneration received bye ach of its officers and employees, including the system of compensation as provided in its regulations;

* the budget allocated to each of its agency, indicating the particulars of all plans, proposed expenditures and reports on disbursements made;

* the manner of execution of subsidy programmes, including the amounts allocated and the details and beneficiaries of such programmes;

* particulars of recipients, concessions, permits or authorizations granted by it;

details of the information available to, or held by it, reduced in an electronic form;

* the particulars of facilities available to citizens for obtaining information including the working hours of a library or reading room, if maintained for public use;

* the names, designations and other particulars of the Public Information Officers.

Exemptions from Disclosure:

Sec. 8 gives the details which are exempt from disclosure:

* information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign State, relation to incitement of an offence;

* information which has been expressly forbidden to be published by any court of law or tribunal or the disclosure of which may constitute contempt of court;

* information, the disclosure of which would cause a breach of privilege of Parliament or the State Legislature;

* information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information;

* information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information;

* information received in confidence from foreign Government;

* information, the disclosure of which would endanger the life or physical safety of any person or identify the source of information or assistance given in confidence for law enforcement or security purposes;

* information which would impede the process of investigation or apprehension or prosecution of offenders;

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

* information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual;

Notwithstanding any of the exemptions listed above, a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests.

Sec.10 provides that 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.

Exemptions from the Act:

Sec. 24 provides that the Act is not applicable to the following:

* Intelligence Bureau;

* Research Analysis Wing of the Cabinet Secretaries;

* Directorate of Revenue Intelligence;

* Central Economic Intelligence Bureau;

* Directorate of Enforcement;

* Narcotics Control Bureau;

* Aviation Research Centre;

* Special Frontier Force;

* Border Security Force;

* Central Reserve Police Force;

* Indo-Tibetan Border Police;

* Central Industrial Security Force;

* National Security Guards;

* Assam Rifles;

* Sashatra Seema Bal;

* Directorate General of Income Tax (investigation);

* National Technical Research Organization;

* Financial Intelligence Unit, India;

* Special Protection Group;

* Defence Research and Development Organization;

Border Road Development Board.

Third Parties:

A third party means a person other than the citizen making a request for information and includes a public authority. Third parties have a right to be heard in respect of applications and appeals dealing with information submitted by them to the Government in confidence.

Public Information Officer:

Public Information Officers are officers designated by the public authorities in all administrative units or offices under it to provide information to the citizens requesting for information under the Act. Any Officer, whose assistance has been sought by the PIO for the proper discharge of his or her duties, shall render all assistance and for the purpose of contraventions of the provisions of this Act, such officer shall be treated as a PIO.

The following are the duties of PIO:

* PIO shall deal with requests from persons seeking information and where the request cannot be made in writing, to render reasonable assistance to the person to reduce the same in writing;

* If the information requested for is held by or its subject matter is closely connected with the function of another public authority, the PIO shall transfer, within 5 days, the request to that other public authority and inform the applicant immediately;

* PIO may seek the assistance of any other officer for the proper discharge of his/her duties;

* PIO, on receipt of a request, shall as expeditiously as possible, and in any case within 30 days of the receipt of the request, either provide the information on payment of such fee as may be prescribed or reject the request for any of the reasons specified in Sec. 8 or Section 9;

* Where the information requested for concerns the life or liberty of a person, the same shall be provided within forty eight hours of the receipt of the request;

* If the PIO fails to give decision on the request within the period specified, he shall be deemed to have refused the request;

* Where a request has been rejected, the PIO shall communicate to the requester-

* The reasons for such rejection;

* The period within which an appeal against such rejection may be preferred;

* The particulars of the Appellate Authority.

PIO shall provide information 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;

If information sought has been supplied by third party or is treated as confidential by that third party, the PIO shall give a written notice to the third party within 5 days from the receipt of the request and take its representation into consideration.

Third party must be given a chance to make a representation before the PIO within 10 days from the date of receipt of such notice.

Asst. Public Information Officers:

The Act requires every Public Authority to designate an officer, at each sub divisional level or other sub district level, as Assistant Public Information Officer to receive the applications for information or appeals under this Act for forwarding the same to Public Information Officer within 5 days or the concerned Appellate Authority, as per the case.

Procedure in getting information:

* Apply in writing or through electronic means in English or Hindi or in the Official language of the area to the PIO, specifying the particulars of the information sought for;

* Reasons for seeking information are not required to be given;

* Pay fees as may be prescribed if not belonging to the below poverty line category. The fee for Central Government Department is Rs.10/-; Different states have prescribed different fee;

* There is no fee for first hour of inspection, but after that, one has to pay Rs.5/- for every subsequent hour or fraction thereof;

* Applicant can seek review of the decision on fees charged by the PIO by applying the appropriate Appellate Authority;

* Applicant must be provided information free of cost if the PIO fails to comply with the prescribed time limit;

* The time limit to get the information is-

* 30 days from the date of application;

* 48 hours for information concerning the life and liberty of a person;

* 5 days shall be added to the above response time, in case the application for information is given to Asst. Public Information Officer;

* if the interests of the third party are involved then time limit will be 40 days (maximum period + time given to the party to make representation);

Appeal:

First appeal to the Officer senior in rank to the PIO in the concerned public authority is 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. First appeal shall be disposed of within 30 days from the date of its receipt. This may be extended by 15 days if necessary.

Second appeal is lying 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 of the first appeal, before the appropriate Information Commission which is the second Appellate Authority.

Penal Provisions:

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

* not accepting an application;

* delaying information release without reasonable cause;

* malafidely denying information;

* knowingly giving incomplete, incorrect, misleading information;

* destroying information that has been requested; and

* obstructing furnishing of information in any manner.

The Information Commission can also recommend disciplinary action for violation of the law against an erring PIO.