Information Impediments

newsyaps.com/inf ormation-impediments/105677/
Kajal Basu
It has become the buzzword of good governance, but transparency both of governance and in
governance is, as a general postulate, a very recent phenomenon. In f act, only one country can
claim to have an actual history of legislated openness in governance: Sweden, which passed its
Freedom of the Press Act in 1766.
It would be almost two centuries bef ore another country got round to enact its own right to
inf ormation (RTI) law. Finland adopted it in 1951, and Norway across the border f rom Sweden
in 1970. The US passed its Freedom of Inf ormation (FOI) Act in 1966 (or President Lyndon B.
Johnson did, with considerable misgivings, but desperately needing to halt his plummeting
credibility as a Democrat).
The constitutions of about 60 countries today give protected cognisance to the so-known right
of access to official inf ormation. (italics mine) At least 53 mandate an absolute right to
inf ormation or documents, and oblige government to provide unhindered access to
inf ormation. The of f icial bit, however, is an escape route, an always on-call dodge under the
unwritten law of justif ied deniability.
India came late to the party. Its RTI Act was both passed in Parliament and implemented more than
two-and-a-quarter centuries af ter Swedens Tryckfrihetlagen. Even though the Right to Freedom
of Speech and Expression was enshrined in the Constitution as one of six unoptional,
unamendable Fundamental Rights, and the toothless Freedom of Inf ormation Act was passed in
2002, the right to inf ormation, which technically allows and eases the real-lif e civic monitoring of
the implementation of the Fundamental Rights, arrived at its current essentialist level only in
2005, af ter it had been through a sort of agnparksh in nine states: Karnataka (2000), Goa
(1997), Rajasthan (2000), Tamil Nadu (2001), Delhi (2001), Maharashtra (2002), Assam (2002),
Madhya Pradesh (2003), Jammu and Kashmir (2004), and Haryana (2005). To be f air, theref ore,
while transparency in governance in India is a philosophically ancient and much-debated idea, it is
an inf ant in terms of actionable f ederal legislation.
Not that government has been wanting in its stated desire to be an exemplar of Open
Government Data (OGD). In the 10th Five Year Plan (20022007), the government burbled happily
on about becoming a SMART (Simple, Moral, Accountable, Responsible and Transparent) state.
This led to a sheaf of e-governance initiatives. But paper promises of transparency are usually
not meant f or the job done Outbox, especially if the government making the promises has a
history of not acting in good f aith (or, more to the point, not acting at all): From the outset,
almost all these initiatives have databases locked behind a need-to-know f irewall with need-to-
know def ined by government alone (as it is in most nations, democracies or otherwise). This
unilateral chokehold on what is supposed to be a citizen-institution interactive dynamics is mostly
unquestioned by the judiciary, the only body both empowered and entitled to reorientate
legislated rules that wander of f their mandated path.
Comparisons between the US and Indian FOI/RTI f all easily to hand. Although the Watergate
scandal of 1974 led to the strengthening of the USs FOI by Gerald Ford despite strenuous
ef f orts to scuttle it by two Bush-years ideologues of the Weltzerstrer blitzkrieg against Iraq,
then chief of staf f Donald Rumsf eld and his deputy, Dick Cheney the original FOI Act was
thereaf ter diluted by the steady marchpast of emendations enabling government to regain lost
ground: the 1976 Government in the Sunshine Act, the 1982 Executive Order and the 2001
Executive Order limiting the FOIA (the latter of which was revoked by President Obama in 2009),
the Intelligence Authorization Act of 2002 amending the FOI Act, and the 2010 repeal of FOIA
amendments in the 2010 Dodd-Frank Wall Street Ref orm and Consumer Protection Act.
Indias RTI Act remains substantially unchanged: For one, its too young f or paranoid
parliamentarians to have a go at it; f or another, the Central Inf ormation Commission (CIC), the
body behind the RTI Act, has been hovering over it like a protective mother hen. In 2006, the CIC
held that privatised public utility companies continue to be within the ambit of the RTI Act. In 2013,
it ruled the same with regard to political parties.
President Barack Obama seems, f or all purposes, to be f urthering the cause of inf ormation f ree-
access. But f ew US presidents have had more chimerical tenures than he. In 2009, he issued an
Executive Order which, to this day, allows the government to retroactively classif y certain
inf ormation that the government deems and in f uture might do so again imperative f or
national security. What is and is not a matter of national security is, of course, decided as and
when by the US governments securitisation agencies f ar f rom the scrutiny of the major
stakeholders in and electors of the national democratic process. Ironically, in the hands of the
Yes, We Can! president, of ten ref erred to as Doctor Utopia by his administration staf f , the US
governments blackout of the methodology and logistics of its day-to-day f unctioning has
become nearly total.
So has it in India under the stewardship of his intellectual soulmate and f riend, Prime Minister
Manmohan Singh, whose speech at the Annual Convention of Inf ormation Commissioners on 12
October 2012, which marked seven years of the RTI Act, also marked his conf usion about how
much unf ettered inf ormation, of which kind, and f or what purpose could be good f or the polity.
While the popular mood seems in f avour of a f ull-body inf ormation-access policy, Singh pointedly
mentioned, among other things, f rivolous and vexatious use of the Act, disclosures which
cannot possibly serve any public purpose, costs associated with providing access to
inf ormation, reciprocal obligations, and criticizing, ridiculing, and running down public
authorities. It was an adresse mobiliser, in that it led within days to not less governmental data-
guarding but considerably more.
Subtle alterations have crept in with regard to access to, and f reedom of access to, inf ormation.
They included: plausibly deniable restrictions on data that would prejudicially (sic) af f ect national
sovereignty, integrity, security, strategic, scientif ic or economic interests, relations with f oreign
states; inciting of of f ences; access to inf ormation f orbidden by law even by the minor law of
contemptu curie or a tribunal; inf ormation that causes a breach of parliamentary or state
legislature privilege; commercial conf idential and trade secrets, and intellectual property (with the
decision lef t to a competent authority, even if the inf ormation demanded concerns that very
authority); inf ormation on the f iduciary relationship/s of individuals; conf idential inf ormation f rom
f oreign governments; inf ormation that would endanger securitised identities; prosecutorial
inf ormation; Cabinet papers; and records of the meetings of the Council of Ministers and other
of f icials. Inf ormation access also does not, under any and all circumstances, extend to trade or
commercial secrets protected by law.
Basically, what the Indian governments is saying is that the inf ormation we get is the inf ormation
the government wants us to have, not the inf ormation we want. The f ormer CIC chief , Shailesh
Gandhi, once said that the judiciary was the RTIs second-biggest threat, the f irst and the third
being, respectively, the inf ormation commissions and the bureaucracy.
Inside half -a-decade of the RTI being f ormulated and f ormalised, Open Government Data
experiment in India is on lif e-support.

Freedom of Inf ormation is everywhere under siege. But it is tough f or governments in Europe to
completely toss it into the bin because almost all Europeans concerned about transparent
governance are aware of the paragon in the neighbourhood: that world-model known as
Scandinavia.
While f reedom of the right to not speak (or to not incriminate oneself ) is a signal right in the US,
in the rest of the West, a roiling history of upheavals, minor and major, gave hef t and validation
to radical attitudes towards f undamental rights. France and the Netherlands established FOI laws
in 1978, Australia and New Zealand in 1982, Canada in 1983, Denmark in 1985, Greece in 1986,
Austria in 1987, and Italy in 1990. By 1990, 14 countries worldwide had passed RTI/FOI laws. From
1992-2006, 25 countries in Central and Eastern Europe and the f ormer Soviet Union passed RTI
laws. From then to the present, in the rest of the world, at least 51 countries have enacted similar
laws. By September 2013, a total of 95 countries had RTI laws in place including China, India
and Russia (three giants where the laws are also in jeopardy), most of Europe and Central Asia,
more than half of Latin America, more than a dozen in Asia and the Pacif ic, 11 in Af rica, and three
in West Asia. So pervasive are the FOI/RTI laws which is not to say that they are alive and well
on the ground that by May 2012, more than 5.5 billion people on Planet Earth were bathed in the
warm glow of inf ormation access.
The kicker and not a good one is that the populations of China and India, at about 2.63 billion
combined, make up almost half the above f igure. In 2007, China implemented nationwide
regulations Zhengfu xinxi gongkai tiaoli (open government inf ormation regulations) that were
applicable to all government levels. But getting inf ormation out of the Chinese government is like
wading through molasses: exhausting because its a hard slog, and f rustrating because the paltry
data at the end of ten makes it not worth the odyssey.
By this time, RTI in India, barely two years old, was f inding out exactly how tightly government can
circle its wagons against RTI activists and nosey lay citizens alike. Russia guarantees the right to
f reely receive inf ormation; what it does not explicitly mention is the right to receive inf ormation
f rom public bodies. If we f actor in Russias population, we get 4.09 billion which leaves just 1.41
billion, of the 5.5 billion covered by FOI/RTI, basking in the warmth of the power of inf ormation
access and, technically, project oversight.
While this might look like a meagre f igure, the most notable aspect of the Act is its ripple ef f ect
(which might not come to much in the short-term but is valued f or the mark it leaves on people).
There is today no denying that FOI/RTI has become a planet-wide bushf ire. Indonesia adopted a
nationwide law in 2008 and sparked of f movements through the Maghreb and the Mashriq. As
things stand, the f ervour translated into inf ormation access laws in only Jordan, Yemen and
Israel. Jordans 2007 RTI law, though, attracts some derision f rom its citizens, it is that
inef f ectual. Moreover, it was the brainchild of the countrys Cabinet, over which King Abdullah II
has such near-omnipotent sway that he dismissed his government in February 2012. Abdullah has
veto power over what inf ormation, how much, and when goes out to the public.
Going by its credits, government here should by rights be inside a glass house, with
all its machinations visible to the naked eye. Instead, while India is arguably better
placed than, or at par with, half the open-access countries, it is also opaque, a top-
ranking impeder of information outflow, freer with muzzling than with data.
Notwithstanding West Asias disappointing FOI perf ormance, the highest courts of at least f ive
countries have interpreted their constitutions to guard the right to inf ormation: Canada, France,
Israel, South Korea and India. The highest courts in at least nine countries have ruled that
constitutional right is legally enf orceable even in the absence of a specif ic law, including Chile,
Costa Rica, Paraguay, the Philippines, South Af rica, South Korea, Uganda, Uruguay and India.
(RTI laws have no presence in Costa Rica, Paraguay and the Philippines, but their constitutions
make them legally unnecessary at least, on paper.)
Common to these sets of empowering countries is India. Going by its credits, government here
should by rights be inside a glass house, with all its machinations visible to the naked eye.
Instead, while India is arguably better placed than, or at par with, half the open-access countries,
it is also opaque, a top-ranking impeder of inf ormation outf low, f reer with muzzling than with
data. Here, obdurate transparency activists are of ten just wiped of f the map, not merely stymied
or jailed or immobilised f orever with red tape.
Indian government, as most other governments, coddles its corporates, leaving the dif f icult task
of surveilling them f or inf ractions to a rack of nongovernmental organisations and, increasingly,
to the lay public. The constitutions of only f ive countries, in f act Kenya, Panama, Poland, Serbia
and South Af rica make a point of including in the inf ormation ambit both state-owned
enterprises and private entities tasked with public f unctions. In f act, the Kenyan constitution
guarantees right of access f or the exercise or protection of any right or f undamental f reedom;
and that of South Af rica makes available any inf ormation that is held by another person and that
is required f or the exercise or protection of any rights.
It is doubtless the case that when the Indian Constitution saw the light of day, those who
contributed to its existence had no inkling of the tyrannical role that something as innocuous as
inf ormation would come to play. So, they lef t what are today key vectors of governance open to
interpretation. This includes the small matter of precisely who should be permitted to access
inf ormation on governance. It isnt such a big thing in a great many countries. Of the 60
constitutions that guarantee the right to inf ormation, this right extends to everyone in 24: six in
the Americas, 14 in Europe, and f our others: New Zealand, Mozambique, Seychelles and Uganda.
Some constitutions limit access to their citizens alone. In India, beset by xnophobie
fondamentaliste, inf ormation zealotry is a big thing. But, f or reasons unknown, India is among
those countries that insist on maintaining a po-f aced ambiguity on the matter.
But where India trumps the other countries is in the absolute primacy of inf ormation f low. Indias
Supreme Court concluded in 1981 (S.P. Gupta v. Union of India) that what it ref erred to as the
right to know has its roots not only in the Right to Freedom of Expression but also in the Right
to Lif e and Liberty.
Also, belying the explicit grumble f rom Manmohan Singh on 12 October 2012 about the cost of
inf ormation, Indias RTI Act (Section 2 [f ]) mandates that if inf ormation f rom a
designated/obligated private body has not been collected and maintained, citizens can ask f or
such inf ormation. The authorities are compelled to collect that inf ormation and deliver it to the
petitioner.
Of course, not even a khta paiss worth works out as well as the RTI Act says it should. The
cost f actor has of ten been iterated to justif y slowpoke inf ormation retrieval and even complete
f ailure. In many cases, applications have disappeared. They have been drawn up, again, and
vanished without trace, again.
It ought by rights to hurt Indian governments sentiments that Pakistan has, even if on paper, a
more unshakeable inf ormation access law than India does. In 2002, f ormer president Pervez
Musharraf promulgated the Freedom of Inf ormation Ordinance, which allowed any citizen total
access to public records held by any public body of the f ederal government, including ministries,
departments, boards, councils, courts and tribunals. Despite that it nimbly skirted government-
owned corporations and provincial governments, it was a stunning promulgation.
Then, Pakistan went one better: Using the 18th Amendment of 2010, the government shoehorned
Article 19A into the constitution, elevating the right to access inf ormation to the status of a
constitutionally-guaranteed f undamental right. India has nothing remotely comparable.
Article 19A of Pakistans RTI Act now reads: Every citizen shall have the right to have access to
inf ormation in all matters of public importance subject to regulation and reasonable restrictions
imposed by law.
As matters stand, this is a splendid sentiment turned to ash-and-f af f by the socio-political
ground reality in Pakistan. But when the day comes f or a reenergised polity to interact with
government, Pakistans RTI Act will be ready to do stalwart service. It is that good.

It is still in considerable debate whether India is a documents-based regime or an inf ormation-
based regime. Or, if it is in transition f rom the f ormer to the latter. Or, if it has the inclination and
the will to become an inf ormation-based, data-heavy regime, which some developed nations are
proud to be and many developing nations are desperate to join the pride. An inf ormation-based
regime holds f or India an attraction similar that of the G7 club, comprised of the megaeconomic
Illuminati.
The approaches of the two regimes to inf ormation access are poles apart. An inf ormation-based
regime has the ability and capacity to f lood RTI / FOI petitioners with a deluge of data. Online,
such a ploy would be called a DOS attack.
In stark contrast, a documents-based regime needs to produce only existing documents
(documents that have, somehow, survived times tyranny) with inf ormation redacted or rendered
plain illegible. The more a paper trail meanders through several departments and of f ices (as it
of ten does), the more the unlikelihood of accessing meaningf ul data f rom it, or f iguring out
continuity and decision-f low, which are mostly what motivated the RTI request, in the f irst place.
In India, by and large, access to inf ormation means access to documents.
Inf ormation activists here routinely protest embargoes on or even longterm sanctions against
dataf low f rom government to governed. What they mean is blocked documentation signed
letters, notes, marginalia, f iles, dossiers. The obstacle the dif f erence between databases and
documentation poses f or ingress to inf ormation in any shape or f orm is daunting because
access to documents is both a subjacent right to access to databases, and also f ar less
comprehensive.
Precisely in order to bridge this gap between two banks of inf ormation, 23 member states of the
Council of Europe have ruled that FOI / RTI means right of access to both databases and
documents. While they do make distinctions between the two, they deliver the whole shebang.
Turkey, on the other hand, doesnt dif f erentiate between the two: Documents subject to the Bilgi
Edinme Hakk Kanunu (Right of Access to Inf ormation Act) are def ined as all inf ormation bir
kurumun kaytlarda yer (included in the records of an institution) and may be in any f ormat i.e.,
hard or sof t copy, photographs, video, sound recordings, etc. It is an approach that India could
learn f rom Turkey (but, even as I write this, the odds are that it wont even consider the prospect).
Inf ormation f ree-f low activists suspect that with regard to some extremely sensitive and/or
securitised issues, in India as well as some of the deeply-securitised countries of the developed
world, governance inf ormation is contained in or distributed between documents and databases.
This, certainly, is the road that the US administration is taking f ollowing the devastating Snowden
revelations. Documents are being designed f or selective access (and even, if it comes to the
crunch, total exposure). But the most vital inf ormation is locked into databases whose keys are
under lock-and-key themselves.
In India, though, this may or may not be the case; there may or may not be paranoia (either
of f icialdoms or the citizenrys or both). But, as the saying goes, Just because someone is
paranoid doesnt mean that theyre wrong.