Académique Documents
Professionnel Documents
Culture Documents
Assignment on topic
Assignment submitted by
K. MONICA
16/PCMA/527
The
Holder
and
Presidential
FREEDOM
OF
INFORMATION
ACT
administration's
pronounced
public
commitment
to
FREEDOM
OF
INFORMATION
ACT
professionals
identified
as
key
FREEDOM
OF
INFORMATION ACT implementation obstacles both the lack of staff and shortage of
funding for FREEDOM OF INFORMATION ACT activities and agency staff awareness
and training.
B A CK G R OU N D
The right to information has been recognized by the Indian Supreme Court for
decades as a constitutionally protected fundamental right. Since 1997, State Governments
have been taking the lead in enacting legislation setting out the framework for
implementing the right in practice. Nine State Governments have now enacted legislation,
but it remains a fact that people in the other 20 states of India are still reliant only on their
constitutional right if they want to access information. People should not be expected to
undertake litigation in the High Court and/or Supreme Court every time they require a
simple piece of information from their government.
The Central Government passed the Freedom of Information Act in December
2002. Although Presidential Assent was provided soon after, more than 18 months later
the Act has still not come into force. This is disappointing. In any case, the current Act is
deficient in many respects, including its limited scope (specifically, the exclusion of
private bodies from coverage), the breadth of its exemptions, the failure to include a
public interest override of exemptions, the absence of an effective independent appeals
mechanism and the failure to include public education and monitoring provisions. These
shortcomings need to be remedied as a priority if the Act is to effectively serve its
purpose.
It is encouraging that the newly elected United Progressive Alliance has stated its
commitment to taking practical measures to reform the current Act. The Congress Party
stated in its election manifesto that: "All government agencies but particularly those that
deal with citizens on a day-to- day basis must operate in a responsive and accountable
manner. The Right to Information Act at the center will be made more progressive,
meaningful and useful to the public. The monitoring and implementation of the Act will
he made more participatory and the penalty clauses regarding delays, illegal denials and
other inadequacies relating to the supply of information to the public will be
operationalized soon. Protection will be extended to all "whistleblowers" through
statutory means, if necessary." More recently, in a speech to the joint session of
Parliament on 7 June 2004, President APJ Abdul Kalam reiterated that: The Right to
Information Act will be made more progressive, participatory and meaningful.
In this reform context, this paper attempts to provide an analysis of the current
Freedom of Information Act and to suggest changes that should be made to the Act to
bring it into line with international best practice. It is generally well-accepted that there
are basic minimum standards which all RTI legislation should meet. Chapter 2 of CHRIs
2003 Report, Open Sesame: Looking for the Right to Information in the Commonwealth,
provides more detailed discussion of these standards. The critique below draws on this
work.2 CHRI has suggested possible amendments drawing on international best practice,
areas for improvement and issues for further consideration.
Notably, any process to amend the law should be undertaken in a participatory
fashion. Experience has shown that a participatory law-making process can be a major
factor in laying a strong foundation for an effective right to information regime.
Implementation is strengthened if right to information laws are owned by both the
government and the public. Best practice requires that law-makers proactively encourage
the involvement of civil society groups and the public in the legislative process. This can
still be done in a variety of ways, for example, by: setting up a committee of stakeholders
(including officials and public representatives) to consider and provide recommendations
on a draft Bill; inviting submissions from the public before Parliament votes on the Bill;
convening public meetings to discuss the proposed law; and strategically and consistently
using the media to raise awareness and keep the public up to date on progress. There is
already considerable good practice and lessons learned that can be drawn from State-level
experiences with right to information legislation particularly Delhi, Karnataka and
Maharashtra which have seen an active civil society utilize access laws and demonstrate
their strengths and weaknesses.
C O NS T IT U T IO NA L IS S U ES
Before coming to an analysis of the Act, it is important to first consider the issue
of the scope of any Central law on the right to information. To date, there has been
considerable confusion and disagreement over the extent of the Central Governments
law-making competence. This issue needs to be clarified as a priority, to reduce confusion
during implementation.
The NDA Government responsible for enacting the current Act maintained that it
had the legislative competence to enact a law on the right to information for the entire
country, covering both Central and state public authorities. It was argued that the Centre
had sole power to legislate because right to information is not specifically mentioned in
any of the legislative entries in the Lists in the Seventh Schedule of the Constitution.
Therefore, under the residual law-making power conferred on the Central Government by
entry 97 of the Union List, the Central Government has competence to enact a law. On
this interpretation, the Central Act, once in force, would override all State Acts. In any
case, the Government called on all States with laws to repeal them. It is not clear what the
position of the new Central Government will be.
Alternatively, it is arguable that both the States and the Centre have powers to
legislate on the right to information. It is a well-established legal principle that the Lists
in the Constitution which set out the State and Centres law-making powers refer not just
to those matters that are explicitly listed, but also to those matters that are incidental, or
ancillary, to them3. It can be argued that ensuring the provision of access to information
relating to subject matter explicitly mentioned in a List is a matter ancillary to that
subject. For example, if a legislature is competent to legislate on railways transport, it is
also competent to legislate to provide information relating to railways transport. On the
basis of this argument, it follows that: (i) Parliament is exclusively competent to legislate
on access to information relating to matters in the Union List; and (ii) State legislatures
are exclusively competent to do the same with respect to matters in the State List, such
that current state right to information legislation is valid; (iii) both Parliament and the
States can enact freedom of information laws in relation to matters in the Concurrent List.
If the analysis in paragraph 8 is correct, in practice the situation regarding
competence in relation to subject matter under the State and Union Lists is clear. In
relation to subject matter falling in the Concurrent List however, there may still be
confusion. Constitutional law principles are clear that where there is conflict between a
central and state law, the central law will prevail. However, in practice, bureaucrats
working on subject matter falling under the Concurrent List cannot be expected to have to
consider for themselves whether there is a conflict of laws and if so, which parts of which
law will apply to their work. To avoid confusion, the Centre will need to draft a law
which covers the field and operates as the sole law in relation to access to information
for Concurrent List subjects.
The issue of State versus Centre competence is not unique to India. Australia,
Canada and the United States are all federations and each has had right to information
legislation for decades. Although their central governments have passed access laws, the
States/Provinces/Territories have also passed their own right to information legislation.
The interaction between the center and state acts is well-illustrated by a comparison of the
scope provisions in the Australian Federal Freedom of Information Act 1982 and the State
of Victorias Freedom of Information Act 1982
A N A LYS IS OF FR E ED O M O F IN F O RM ATIO N AC T 2 00 2
The law should be renamed the Right to Information Act. The Supreme Court
has repeatedly recognized that access to information as a fundamental RIGHT. This
should be reflected in any legislation on the matter to ensure that implementing bodies are
clear that access to information is not a discretionary gift granted to the people by a
benevolent government. It is a constitutionally mandated obligation on the government to
implement the corresponding right.
In the same vein, the Preamble should be drafted in stronger terms. This is
particularly important because courts will often look to the preamble of legislation when
interpreting the law. The current Preamble is problematically worded and reflects a
number of defects in the law. It:
1. Provides the right to access information only to citizens not to all people (see
paragraph 15);
2. Refers only to public authorities, without also covering private bodies (see
paragraph 16-17);
3. Is targeted at improving administration, rather than more broadly improving
governance, a term which covers the political as well as the bureaucratic aspects
of government.
Section 1(3) requires the date of enactment of the Act to be specifically notified.
As recent history has demonstrated, such a formulation has allowed the law to sit on the
books for 18 months despite receiving Presidential assent. Although it is understandable
that the Government may wish to allow for time to prepare for implementation, best
practice has shown that the Act itself should specify a maximum time limit for
implementation, to ensure there is no room for the provision to be abused and
EX EM P T IO NS
requirement that disclosure prejudicially affect the protected interest. Legally, this
constitutes very broad wording. Alternative formulations require that disclosure would
cause serious harm or substantial prejudice. Such wording ensures sufficient
protection for sensitive information without setting the bar so low that even the slightest
negative consequence of disclosure can be used to justify withholding information.
Section 8(1)(a) legitimately attempts to protect information that is sensitive to
national security, international relations and Indias strategic scientific and economic
interests. However, consideration should be given to deleting the protection given to
information related to the sovereignty and integrity of India. Experience has shown that
such broad concepts have been notoriously misused by Government MPs who too often
hide their partisan misdeeds under the banner of national sovereignty. In any case, the
exemption for security of the State already covers the relevant information, but is a
tighter term and therefore less open to abuse.
Section 8(1)(b) attempts to provide legitimate protection against the disclosure of
information that would undermine law enforcement activities and/or the judicial process.
However, the exemption is currently too broad; it should not justify withholding
information to protect public safety and order. Notably, this phrase is used in Article
19(2) of the Constitution as a general exemption. However, more guidance needs to be
provided on its practical content to prevent abuse. The phrase has too often been
interpreted by governments to stifle opposition on the grounds that said opposition would
threaten public order. There is a real danger that the exemption in this form could be
used to undermine the Act. One can imagine public officials arguing that that the release
of documents proving corruption by top level politicians could prejudicially affect public
order because it might encourage people to legitimately agitate against the
Government.
Section 8(1)(c) is a common provision in federations. The need to protect sensitive
inter- governmental information is understandable. However, the current wording of the
exemption to allow protection for information exchanged in confidence between
governments could be abused by officials to unjustifiably keep information secret by
simply putting a heading of in confidence on documents.
Section 9(a) allows public bodies not to process requests where to do so would
unreasonably divert their resources. Such provisions are quite common. However,
considering the poor state of records management in many bodies currently, this provision
begs the question if records management were more efficient, would a request falling
under this provision have actually diverted a large amount of resources? There is no need
for the additional clause in the provision allowing requests to be rejected if they
adversely interfere with the functioning of such authority. This phrase is very broad and
could be interpreted by recalcitrant officials to deny legitimate requests. PIOs should also
be required to offer assistance to amend requests before they are rejected under this
section. Otherwise, a requestor will have to incur additional costs by reformulating their
application and then submitting it as a new request.
Section 9(d), which deals with non-disclosure to protect personal privacy, should
be moved to sit with the other exemptions provisions. It is legitimate that a certain level
of protection be accorded to the privacy rights of third parties. Notably though, privacy
rights often need to be balanced against the publics right to know, particularly in
instances where it is public officials that are asserting the right to privacy to protect
against disclosure on their own behalves. Section 24 of the draft Access to Information
Bill 2004 recently prepared by Government of Uganda provides a useful model to draw
on when formulating an provision to protect third parties privacy rights:
It is positive that the Act allows for severability and disclosure of non-exempt
information. Accordingly, s.10(2) should be amended to require the relevant notice to the
requestor advising of partial disclosure to also include advice regarding the opportunity
and process for appealing that decision. This should be worded along the lines of s.7(3)
which deals with rejection notices, taking account of the analysis and suggestions in
paragraph 30 above.
Paragraph 2 of s.11(1) should be deleted because, as discussed in paragraphs 3334 above, a public interest override should be applicable to all the exemptions contained
in the Act. There is no reason why the Act should provide for a public interest override
only in respect of third party information.
They are unnecessarily long. Considering that requests not involving third parties
are required to be disposed of within 30 days at the most, but as expeditiously as
possible, it is difficult to justify doubling this time limit where a third party is involved.
At the very least, consideration should be given to amending these clauses to require that
such requests are still disposed of as expeditiously as possible. More appropriately,
initial notifications to third parties should be made within 5 days; this is a reasonable time
for an initial determination to be made regarding whether a third party needs to be
consulted. Third parties should then be given 15 days to respond and should be able to
respond orally (e.g. by telephone) or in writing/electronically. A maximum of 10 days
could then be allowed for a final decision. Many laws require all decisions whether
involving third parties or not to be made within the basic time limit of 30 days. In some
jurisdictions, the time limits for processing requests are as little as 5 days.
C O MP L A IN T AND AP PE A L S
Best practice international standards require that an effective access to information
law include an appeals mechanism which is independent of government, as well as cheap,
quick and procedurally simple. The failure of the Act to include such an appeals process
is one its most serious deficiencies. In fact, even the basic internal appeals process
currently included in the Act is poorly drafted.
Currently, the Act appears to allow for two internal appeals: s.12(1) allows for an
initial internal appeal but leaves the details of that process to be determined at a later date
and prescribed in regulations; and s.12(2) allows for a second appeal to the Central
Government, State Government or Competent Authority. It is appropriate that the law
allows for one internal appeal, as this is a cost-effective way of allowing the government
to verify its own decisions. In practice, a middle level official will make the initial
decision and it will be cross-checked on appeal by a senior official. There is no
justification for two internal appeals however. This would simply increase the
administrative burden on the bureaucracy and costs. are slow, costly and uncertain. The
fear of independent scrutiny ensures that exemption clauses are interpreted responsibly
and citizens requests are not unnecessarily obstructed. While the courts satisfy the first
criteria of independence, they are notoriously slow and can be difficult to access for the
has
been
appointed,
However,
Commission
with
multiple
H OW F RE E D O M OF IN FO R M ATIO N AC T WO RK S
FREEDOM OF INFORMATION ACT's public disclosure provisions are codified
at 5 U.S.C. 552(a); these rules require the proactive disclosure of records such as final
opinions, policy statements, and staff manuals. The provisions also require public access
to certain frequently requested records, publication of regulations in the Federal Register,
and prompt disclosure of records upon request (subject to certain exemptions).
FREEDOM OF INFORMATION ACT applies to all records in the control or
possession of a federal agency subject to nine exemptions and certain exclusions.
Records within an agency's possession and control include those stored in databases as
well as those that have been archived. Records include papers, videos, e-mails, audio
recordings, maps, and computer documents. However, physical objects, such as old
computers or tape recorders, are not considered records.
An agency for FREEDOM OF INFORMATION ACT purposes includes any
executive department, military department, government corporation, governmentcontrolled corporation, or other establishment in the executive branch of the government
(including the Executive Office of the President), or any independent regulatory agency.
FREEDOM OF INFORMATION ACT's definition of agency has been subject to
litigation and debate but clearly does not encompass Congress; the federal courts; private
individuals and corporations; and local, state, and foreign governments.
Likewise,
FREEDOM
OF
INFORMATION
ACT
does
not
apply
to
subject to disclosure. The agency will then respond to the request, denying the request in
entirety or in part, releasing responsive records (with portions redacted if the agency has
determined exemptions should apply), or stating that records will be released upon
payment of an applicable fee. FREEDOM OF INFORMATION ACT fees may be charged
for both searching/locating responsive documents and for copying/duplicating documents.
Fees are detailed in each agency's FREEDOM OF INFORMATION ACT policy.
FREEDOM OF INFORMATION ACT provides that agencies should respond to
FREEDOM OF INFORMATION ACT requests within 20 working days, but in practice
most requests are not processed in this time frame. An agency's partial or complete denial
of a request or its application of a particular exemption to all or part of a particular record
may be appealed within the agency and litigated in court.
F RE E D OM OF IN FO R M ATIO N AC T EX E MP T IO N S
In reviewing a record, agency FREEDOM OF INFORMATION ACT staff will
determine whether one of nine exemptions applies. These exemptions include:
1. Records that are formally classified pursuant to an Executive Order (e.g.,
classified information)
2. Records related solely to the internal personnel rules and practices of an agency
3. Records exempted from disclosure by statute
4. Trade secrets and commercial or financial information obtained from a person
and privileged or confidential
5. Inter-agency or intra-agency memorandums or letters which would not be
available by law to a party other than an agency in litigation with the agency
6. Personnel and medical files and similar files the disclosure of which would
constitute a clearly unwarranted invasion of personal privacy
purpose
of
promoting
government
transparency
and
accountability. For instance, the deliberative process privilege (Exemption 5) allows predecisional government documents (e.g., draft agency memorandums and reports) to
remain exempt from disclosure. Some commentators have questioned agency application
of this privilege
Exemptions 3 and 4 also play an important role in the public health context.
Commercial confidential or trade-secret information may include information about
pesticide, food, drug, or cosmetic ingredients and drug safety information. In some cases,
statutes such as the Federal Insecticide, Pesticide and Rodenticide Act and the Census Act
expressly prohibit agency disclosure of certain information. Information about public
health regulatory agency enforcement matters or enforcement techniques may be exempt
from disclosure under Exemption 7.
O T HE R RE L ATE D IN FO R M ATIO N AN D D IS C LO S U RE
L AWS
T H E C O NV E RS IO N O F FR E ED O M TO INF O R M ATIO N
A C T 2 00 0 TO R IG HT S TO INF O R M ATIO N AC T 2 00 5
(RTI) is an Act of the Parliament of India "to provide for setting out the practical
regime of right to information for citizens" and replaces the erstwhile Freedom of
information Act, 2002. Under the provisions of the Act, any citizen of India may request
information from a "public authority" (a body of Government or "instrumentality of
State") which is required to reply expeditiously or within thirty days. The Act also
requires every public authority to computerize their records for wide dissemination and to
proactively certain categories of information so that the citizens need minimum recourse
to request for information formally.
This law was passed by Parliament on 15 June 2005 and came fully into force on
12 October 2005. The first application was given to a Pune police station. Information
disclosure in India was restricted by the Official Secrets Act 1923 and various other
special laws, which the new RTI Act relaxes. It codifies a fundamental right of citizens.
Scope The Act covers the whole of India except Jammu and Kashmir, where J&K
Right to Information act is in force. It covers all constitutional authorities, including the
executive, legislature and judiciary; any institution or body established or constituted by
an act of Parliament or a state legislature. It is also defined in the Act that bodies or
authorities established or constituted by order or notification of appropriate government
including bodies "owned, controlled or substantially financed" by government, or nonGovernment organizations "substantially financed, directly or indirectly by funds"
provided by the government are also covered in the Act.
A D VAN TAG ES
Empowerment of the common man:
The entire range of common man in the nation has been empowered by such an
initiative in which they have got the full rights to be informed about anything that affects
their life directly or indirectly and the responsible bodies have to answer them positively.
Easy mode of spreading information rightfully:
The RTI has incubated a very concrete and easy mode of spreading information of
all kind in all form where apt information will be received by only the person concerned
and this will in turn result in easy accessibility to information on one hand and time
conservation of all.
Protection of Information:
Since, the selected people with selected queries will be entertained and informed
rightfully and aptly, so this will lead to protection of information thereby protecting
everyone from being wrongly or inappropriately informed or misinformed.
Corruption will decrease gradually:
If a person being asks for information on certain products and services and the
answer has to be delivered by a competent and responsible authority, then the chances of
corruption will certainly minimize. People will not have to bother about being cheated or
victims of frauds and scams.
D I S A D VAN TAG E S
Now, if we talk about the disadvantages or drawbacks of RTI there are some major
issues associated with it. They are:
Unnecessary chaos all over:
There is a big drawback that sustains in our nation, and that is a fact that in this
immensely populated nation and that is the habit to create unnecessary disturbance and
chaos over a newly incorporated plan just to create nuisance. Cases have been filed
against fetching wrong information and asking for abrupt information from different
officials at various levels and this creates nothing but an overall chaos.
An extra burden to the Authorities:
Since the authorized persons are already having loads of works and tasks to be
delivered at their end and after this new act passed they have additional burden to be done
and delivered.
Multiple Public Information Officers (PIO):
The government has appointed multiple PIOs. This results in running of citizens
from office to office in search of correct PIO who can yield correct information.
Peoples accessibility is hectic and time consuming:
There are many offices of PIO where the access of common man is very
prolonged and it becomes very hectic to carry out the process. The subsystems created
beneath the system is basically problematic.
In nut-shell, the RTI has fallen in a horizon of such a territory where its
implications and applications have experienced multiple shades. Advantages and
disadvantages are a part and partial of such enactments but the bottom line remains in the
fact that the execution must be according to the expected proposal and commitment.
WHAT
DOES
THIS
MEAN
FOR
PUBLIC
SECTOR
EMPLOYERS?
The public sector employer is to a large extent caught between a rock and a hard
place. Whilst the aim of the Acts is to increase openness in the public sector and
disclosing information about decisions and activities of employees may promote this, it is
recognized that employees also have legitimate concerns over privacy and rights to have
those concerns respected. Private bodies
The Central Information Commission (CIC), consisting of Satyanand Mishra,
M.L. Sharma and Annapurna Dixit, has held that the political parties are public
authorities and are answerable to citizens under the RTI Act. The CIC, a quasi-judicial
body,
has
said
that
six
national
parties
- Congress, BJP, NCP, CPI(M), CPI and BSP and BJD - have been substantially funded
indirectly by the Central Government and have the character of public authorities under
the RTI Act as they perform public functions In August 2013 the government introduced a
Right To Information (Amendment) Bill which would remove political parties from the
scope of the law. In September 2013 the Bill was deferred to the Winter Session of
Parliament. In December 2013 the Standing Committee on Law and Personnel said in its
report tabled in Parliament
"The committee considers the proposed amendment is a right step to address the
issue once and for all. The committee, therefore, recommends for passing of the Bill."
With this delicate balancing act, how should the employer prepare for requests made by
third parties about their employees? They could consider the following factors:
I M P L EM E N T P OL IC IE S
The employer should draw up a policy setting out how it intends to deal with
requests for employee information to provide a clear view of how information will be
dealt with under the Acts. This policy should be made available to all employees and
ideally published on the publication scheme (required under the Acts for all public
authorities) for all to see. Policies could cover what types of information and in what
circumstances information will or will not generally be disclosed and also what issues
will be considered in determining whether to disclose employee information. Issuing this
policy will help the authority to meet its DPA obligations to employees.
Know your information
Records management is important. Try to know what personal data you have. This
will also be useful in dealing with subject access requests under the DPA and consider
separating or flagging information at the point of collection or creation to information
which is not exempt from third party requests and other information.
Raise awareness
One potential factor to consider when determining whether information should be
disclosed is what the employee was told when the information was collected. With this in
mind, the authority could consider alerting new employees to the potential for disclosure
of employee information under the Acts by including a notice on induction. Including
FOI as part of new employees' training would provide them with a greater understanding
of the authority's obligations under the Acts and also the relevant exemptions.
Consideration should also be given to alerting employees of their right to object to the
processing of personal information (which includes making disclosures) if there is a
likelihood of them suffering substantial damage or damage and distress under section 10
of the DPA.
Give notice of, or consult the employee about, any proposed disclosure and
certainly where there is any doubt as to whether the information should be disclosed.
C O NC L US IO N
By understanding FREEDOM OF INFORMATION ACT's purpose and key
provisions, public health workers, journalists, and researchers can make use of this
powerful tool to obtain information about important public health issues. With other
relevant laws such as the FACA, FREEDOM OF INFORMATION ACT can help ensure
that important information is disclosed to the public and help advocates of all
backgrounds and ideologies participate in government decision-making. Public health
workers in government agencies who understand the purpose of FREEDOM OF
INFORMATION ACT and similar state laws can help promote transparency and
accountability in government by being responsive to FREEDOM OF INFORMATION
ACT requests when received and by properly understanding the relevant exemptions, and
when and how they should apply. FREEDOM OF INFORMATION ACT's effectiveness
ultimately depends upon both the attitude and commitment with which it is approached
by government agencies and their staff members and the public's insistence that the
statute be implemented in a way that fulfills its vital purpose.
It is clear that both the public and private sector have been significantly affected
by obligations imposed by the Acts, albeit in different ways. It is essential for both sectors
to implement policies, training and raise awareness within their organizations as to how
the Acts should be dealt with within their individual business.