Wednesday, Sep 27, 2023

FAQ: Exempting File Notings From RTI

FAQ: Exempting File Notings From RTI

The activists are understandably angry and raging against the government move to exempt file notings from the Right to Information Act. Backgrounder.

What is the proposed controversial 'amendment' to the Right to Information Act which has angered all the activists?

Under the Right to Information (RTI) Act 2005, an Indian citizen can obtain 'information'- in any available format- relating to any government decision or policy or activity -except what has been kept outside the purview by the Act itself. Under it, every public authority has the obligation to provide information and maintain records about its operations.

On July 20, 2006, the Union Cabinet approved an Amendments Bill to the Right to Information Act, 2005 that would exclude notings made by officials on files related to all areas except social and development sector projects.

What are 'file notings'?

Under the normal bureaucratic practice, the files/ records/ documents relating any government activity move from one individual government officer to another- both vertically and horizontally in the bureaucratic hierarchy- before a decision is reached or a policy is made. The government officers involved in any normal process can range from Lower Division Clerks to Secretary of a ministry to the Union Minister. Normally, each time a file or document changes hands within the bureaucratic system and hierarchy, the bureaucrat handling that file makes his written remarks/ observations / recommendations and gives his opinion. The final outcome of any government decision is based on and is decided by these observations/ recommendations /opinions or the 'file notings' by various government officer/s.

What is the status of the 'file notings' in the Right to Information Act?

Chapter 1 Section 2 para. (f) of the Right to Information Act defines '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". Though the Act makes no express provision on 'file notings', the RTI regulator, the Central Information Commission, ruled in January 2006 that, "a citizen has the right to seek information contained in file notings and no file (or information) would be complete without note-sheets having file notings" In short, 'file notings' are considered integral part of 'information' and, as the CIC stated, "file notings are not, as a matter of law, exempt from disclosure".

What will be the impact on Right to Information Act if 'file notings' are exempted from disclosure?

If the 'file noting' are kept out of the reach of the citizens, then people will still be able to seek information about the government decisions, but will not be able to know how that decision was reached. It will mean that the information provided to the citizens by the government will be heavily 'censored' and will not contain the details of the various remarks/ opinions and logic or rationale or lack thereof employed by government officers and the process that was followed while taking a decision.

What is the reaction to this proposed amendment?

This is what people who have been closely associated with the campaign to enact and implement this law have to say:

Anna Hazare: People have the right to know about the decisions the government is taking, and every citizen has the right to know, just as any student has the right to know what marks he has scored ... we are living in a democracy and people have every right to know what the bureaucrats and politicians are doing with our money .... RTI has had a good effect in controlling corruption and by exempting file notings, there would be a disastrous effect on information on cabinet decisions ...the Central government will damage the very soul of the right to information act if the proposal to change it gets the sanction... if the government does not take back its decision on file notings I will return my Padma Bushan. I expressed my wish to this effect to the President APJ Kalam but he has persuaded me not to do so for the time being. I am sending a memorandum to the prime minister and if there is no progress, I will return my award on Aug 9 near Rajghat.

Aruna Roy: Though a bit late, unfortunately they (the government) have understood the importance of the law and the way a common man can use it to get information and that is the reason they want to amend it. The government is so opaque that in spite of our appeals we have not been told about the exact decision taken by the cabinet last week. We are entitled to know the deliberations taking place before any decision is taken. Many a times, as a former civil servant, I have observed lack of logic while arriving at a particular decision.

The government has not furnished any reason on why they want to amend the RTI Act. It looks like a deliberate attempt to take away the teeth from its provisions. People have the right know why these amendments have been passed. The RTI Act is a widely used law. The government has understood what the RTI law means, and is frightened that all that happens behind the scenes will now be revealed. During the ongoing monsoon session of Parliament, we are going to stage a number of protests,  dharnas, cyber campaigns and our signature campaign has already started in several states across the country. People have to lead the campaign.

Wajahat Habibullah, Chief Information Commissioner: "It is not our job to decide whether a law is good or not, our job is to implement the law. It is the job of Parliament to decide the merits of the law. Yes, in our deliberations, we had come to the conclusion that file notings should not be exempt".

OP Kejriwal, Central Information Commissioner: "Removing file notings will take the life out of the law. I hope that the
government steps in or Sonia Gandhi steps in to stop such a move"

What reasons has the government given for amending the RTI Act?

According to the Parliamentary Affairs Minister Priyaranjan Dasmunsi , the Union Cabinet has decided to amend the RTI Act to correct "certain ambiguities" and it is based of the objections raised by some government organisations such as UPSC who had objected that while decisions taken could be conveyed, the details and the process as to how the decisions were arrived at could not be: "Decisions can be conveyed, not in terms of details about what the Under Secretary or Joint Secretary wrote or what the Secretary disapproved." The minister had also claimed that such exemptions also exist in the systems followed by the US, UK and Australia as well.

Incidentally, while giving his approval to the RTI Act in June 2005, President APJ Abdul Kalam, had emphasised that notings by bureaucrats on files should be privileged, otherwise it could affect the decision-making process. The logic being that the senior bureaucrats would be more interested in covering their backs rather than being forthright. In a communication to the Prime Minister, he had also suggested that the Act should not have a purview over communications between the Head of State and the Head of Government and that the documents emanating from the President's secretariat were not not brought within the ambit of the Act. Accordingly, in December 2005 (only a month after the RTI Act came into force), Prime Minister Manmohan Singh instructed the Department of Personnel and Training (DoPT) that 'file notings' relating to identifiable individuals, group of individuals, organizations, appointments, matters relating to inquiries and departmental proceedings, should not be disclosed. The current controversy does not cover any of these notings already exempt for reasons of national security and defence etc.

The critics of the proposed amendment have accused the government for not furnishing any satisfactory reason as to why they want to amend the RTI Act - and they rightly demand the information under the Act itself! Coming under fire, the Prime Minister's Office has come up with its own spin on the controversy (vide their release dated July 26, 2006 - please see The PMO Spin)

Do other countries really follow the systems as the minister had claimed?

In a word, no. Under the US information law, there is an exemption for internal government communications from being disclosed, but the exemption is only for the period while decisions are in the process. Once a decision has been taken, all communications (equivalent to 'file notings') are available for public scrutiny as to the how and why of it. Likewise, in the UK, the Freedom of Information Act contains exemptions to the right of access in order to protect " legitimate interests and sensitivities". But not all of these exemptions are absolute, as some of them are 'qualified' in so far as they are subject to determination whether or not the said disclosure would be in public interest. In Australia, the abridgement to the right to information is allowed only when it can be established that non-disclosure is necessary for protection of essential public interest and private and business affairs of a person about whom information is sought. It should be noted that those exemptions are already covered in the Act itself and are not the subject of the current amendment.

What about the government's specific claim: "This is related to subjects that are already exempted under sub-Section (1) of Section 8 of the Act and to personnel-related matters like examination, assessment and evaluation for recruitment, disciplinary proceedings, etc."?

There are numerous cases hanging on in courts, Central Administrative Tribunal (CAT) where bureaucrats and army officers are asking why there services were terminated or why they were transferred or why they were denied promotions. Proper information about such matters would be helpful not only for the public at large, but also those who are serving the government and possibly make the government machinery more transparent.

What about the government's claim that "these amendments include : a) powers to the Commissions to take all necessary measures to promote the use of electronic record keeping and to facilitate effective disclosure of information as well as information management"?

Much of the government work is still done through files on paper rather email communication between bureaucrats. Normally, 'file notings' are handwritten and are part of the related documents or records. Usually, the photocopies of original documents are provided to the person requesting them. So, even if there is a thrust to make the Information Commissions more IT savvy, how can absence of documents without copies of handwritten 'file notings' assure more transparency?

What are the other problems with the government spin?

(a) It acknowledges that the government has bowed to the pressure from businessmen-bureaucrat-ministers nexus lobby.

(b) Congress party spokesperson Jayanti Natarajan has tried arguing in the government's defence that since notings related to 'development and social issues' are the predominat issues that concern the citizens and since these have not been exempted, there should not be any criticism as the aam-aadmi is not affected. Observers point out that (i) 'development and social issues' is an amorphous and vague term liable to be misused and more importantly (ii) all issues, for example, of corruption in defence deals concern the aam-aadmi because it is after all the tax-payer's money that is at stake.

(c) Congress party spokespersons also quote from the release to say that since "only a small portion of file notings now remain exempted from disclosure. This is related to subjects that are already exempted under sub-Section (1) of Section 8 of the Act and to personnel-related matters like examination, assessment and evaluation for recruitment, disciplinary proceedings" there should not be any need for any hue and cry. Critics point out that the common person should have the right to know on what grounds people are promoted or not promoted and whether the assessments and evaluations are mala fide or not.

(d) Observers point out that it was only by using the information available from 'file notings' that the controversy relating to privatisation of water in Delhi had come to light. By denying such notings from being available, the government is clearly trying to protect vested interests.

When was the Right to Information implemented? What are its objectives?

The Right to Information was promised in the Common Minimum Programme of the UPA government and much of the related work was done the National Advisory Council (NAC), which was headed by Congress president Sonia Gandhi till March 2006. The Right to Information Act, 2005 was passed by the Parliament on 15 June 2006 and was given Presidential assent ten days later. The Act came into force on 12th October, 2005, except in the state of Jammu and Kashmir and some provisions like designation of Public Information Officers, constitution of Central and State Information Commissions, non-applicability of the Act to Intelligence and Security Organizations and power to make rules to carry out the provisions of the Act came into force with immediate effect .

The objectives of the Act is to set out a practical regime for the citizens to secure access to information under the control of public authorities and promote openness, transparency and accountability in the working of the government.


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