FIELD ASSESSMENT OF KARNATAKA RIGHT TO INFORMATION ACT-A
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RF_L_5_PART_1_SUDHA
Look at
I The Freedom ofInformation Bill2000
Commonwealth Human Rights Initiative
Originally
Conceived & Written by
Abha Singhal Joshi
Layout & Printing
Matrix
Reprint
2001
© Commonwealth Human Rights Initiative
2000
Material from this publication maybe reproduced giving due acknowledgement to the source.
For private circulation only
he Freedom of Information Bill, 2000 was
introduced in the Parliament in July 2000.
It was referred to the Parliamentary Standing
Committee on Home Affairs for consideration. The
Standing Committee submitted its report to the
Parliament in 2001.
T
We know from the struggles of various grassroots
groups and movements that the right to information,
if guaranteed and implemented in the right spirit
can empower communities to take charge of their
Olives by participating in the decision making and
by challenging corrupt and arbitrary actions at all
levels.
The Bill in its present form is severely lacking in
many important respects and will, if made into a
law, fail to give effect to a people’s right to
information. It will only facilitate and legitimize
information flow for those who already have access
from various sources. Even the changes suggested
by the Standing Committee do not constitute any
substantial improvement to the weak standards of
the Bill.
There is an urgent need to step up the campaign
for getting a strong law on the right to information
and press upon the legislators to pay heed to the
basic and undeniable features of the law, without
which the law itself would be a dead letter.
Please read the Bill carefully, discuss and send
you comments and recommendations to your
MPs, so as to raise a debate in the Parliament
and influence the making of the law.
Some points of the Bill which need attention
• Correct nomenclature and accurate formulation of the objects
and reasons:
The nomenclature must be changed from ‘Freedom of
Information’ to ‘Right to Information’ as this is a fundamental
right inherent in persons and not a privilege being conferred
by the state.
The objects and reasons of the Bill must state that it is intended
to give effect to the people’s fundamental right to information,
which emanates from the right to life, (Article 21 of the Constitution),
right to freedom of speech and expression (Article 19 of the
Constitution) and the right to equality (Article 14 of the
Constitution).
j
(Introduction and Section 3)
• The exemption clauses must be clear, specific and minimal:
The Bill contains standard, wide ranging class exemptions
which could allow whole categories of information to be
withheld from the public domain. The clearest statement of
this right should be, that all the information which cannot
be denied to the members of the legislatures cannot be denied
to the public.
The Bill also contains omnibus clauses under which
information that is published can be refused to the public.
(Sections 8 and 9)
• Systems for provision of information must be mandatorily
upgraded:
The Bill does not provide for a strict mandate to upgrade record,
keeping and systems that facilitate information giving. The law’
must specify that within a certain time limit all departments must
have certain kinds of information on notice boards, in booklets,
duly simplified and computerized etc. This should be made in
departments in order of priority, such as, food, education, health,
environment, etc.
(Section 4)
• Time limits for supply of information should be reasonable
and specific:
The Bill does not distinguish between ordinary information
and that which should be given on an urgent basis, such as
information relating to the life and liberty of a person, or that
information which would be rendered useless and infructuous if
provided according to the standard time limit which ha's been laid
down as 30 days in all cases. The time for refusing requests is
also 30 days and the period for sending notice to a third party
or asking for additional fee is not included in this time limit.
(Section 7)
The Bill also does not mention the time limit or date for suo motu
supply of certain types of information by agencies.
o Provisions for accountability and penalties must be provided
for in this law:
r
The Bill does not have any provisions for enforcement of the
right to information. A law for giving information without
fixing the specific accountability on a particular person or
without holding persons liable in some way for delay or
wrongful refusal will be of no use.
© Stronger provisions for proactive disclosure must be made
in the law:
The Bill does not contain strong enough provisions for proactive
disclosure of information, which is really the crux for a population
which is primarily illiterate and poor and does not have the time,
resources or self-confidence to approach the government for
information. Proactive disclosure must not stop at disclosing the
structure of departments and detailing works at the initial stages,
but must extend to casting a duty to give information on certain
matters like health and environment on a regular basis.
(Section 4)
k
9
Where a citizen suffers some damage because of the neglect or
delay in proactive disclosure, the authority should be made liable
for the damage suffered.
• Provision for independent appeal mechanism:
The Bill does not provide for an independent forum of appeal
for refusal of requests but only provides for two appeals, both
within government. An institution like a Commissioner for Right
to Information or an Ombudsman must be established which works
outside the influence of government for deciding disputed cases
of refusal.
(Section 12)
• The Bill specifically excludes the jurisdiction of the courts:
This is in contravention of all norms, as jurisdiction of the Courts
is excluded only where another mechanism equivalent to a judicial
one, is made available, such as Tribunals for Labour disputes, motor
accidents, service cases, etc.
(Section 15)
• Simplification of language with emphasis on effective
communication methods, language, etc.:
Sincp most of our population does not have access to reading
skills' or even electronic media, the law must provide for
effective communication of information, such as by traditional
methods.
• Inclusion of private bodies:
The law must be made applicable to disclosure of information
by certain private companies, international agencies and non
governmental organisations who undertake activities that affect
the public in any way.
(
• Inclusion of local bodies:
The Bill makes no mention of local bodies as Competent
Authorities for the implementation of the right to information.
Considering that most of the people’s concerns relate to
interactions with local bodies, this is a serious lacuna. The
law must contain detailed provisions for public audit of local
bodies by the local electorate.
•
Publicity and training:
The Bill makes no provision for publicity of its contents as
well as training for its implementation. Being an important
measure for reform of governance, it is necessary to provide
for its sufficient publicity and for training and orientation of
government personnel in the culture of information sharing.
The Bill must be put to wide public debate at different levels
in order to bring into it the requirements of different people
who would be using it.
THE FREEDOM OF INFORMATION BILL, 2000
A
Bill
to provide for freedom to every citizen to secure access to informa
tion under the control of public authorities, consistent with publie
interest in order to promote openness, transparency and accountabil
ity in administration and in relation to matters connected therewith
or incidental thereto.
BE it enacted by Parliament in the Fiftieth Year of the Republic of India as
follows:
ft
CHAPTER I
PRELIMINARY
Short title, extent and commencement
1.
(1)
(2)
(3)
This Act may be called the Freedom of Information Act, 2000
It extends to the whole of India except the state of Jammu and
Kashmir.
It shall come into force on such date as the Central Govern
ment may, by notification in the Official Gazette, appoint.
Definitions
2.
W
In this Act, unless the context otherwise requires,(a)
“appropriate Government” means in relation to a public authority
established, constituted, owned, substantially financed by funds
provided directly or indirectly or controlled(i)
by the Central Government, the Central Government;
(ii) by the State Government, the State Government;
(b)
“competent authority” means (i)
the Speaker in the case of the House of the people or the
Legislative Assembly and the Chairman in the case of
the Council of States or the Legislative Council;
(ii) the Chief Justice of India in the case of the Supreme Court;
(Hi) the Chief Justice of the High Court in the case of a High
Court
(iv) the President or the Governor as the case may be in case
of other authorities created by or under the Constitution
(c)
“freedom of information” means the right to obtain information
from any public authority by means of(i)
inspection, taking of extracts and notes;
(ii) certified copies of any records of sub public authority;
(Hi) diskettes, floppies or in any other electronic mode or
through print-outs where such information is stored in a
computer or in any other device.
(d)
“Information” means any material relating to the administration,
operations or decisions of a public authority.
(e)
“prescribed” means prescribed by rules under this Act by the
appropriate Government or the competent authority, as the
case may be;
(f)
“public authority” means any authority or body established or
constituted(i) by or under the Constitution;
(ii) by any law made by the appropriate Government ancfl
includes any other body owned, controlled or substantially
financed by funds provided directly or indirectly by the
appropriate Government.
(g)
“Public Information Officer” means the Public Information
Officer appointed under sub-section (1) of section 5;
(h)
“record” includes(z) any document, manuscript and file
(ii) any microfilm, microfiche and facsimile copy of a
document
(Hi) any reproduction of image or images embodied in such
microfilm (whether enlarged or not) and
(iv) any other material produced by a computer or by any
other device;
(i)
“Third Party” means a person other than the person making a
request for information and includes a public authority.
g
CHAPTER II
FREEDOM OF INFORMATION AND
OBLIGATIONS OF PUBLIC AUTHORITIES
Freedom of Information
3. Subject to the provisions of this Act, all citizens shall have freedom
of information.
Obligations on public authorities
4.
'
Every public authority shall
{a) maintain all its records, in such a manner and form as is
consistent with its operational requirements duly cataloged and
indexed;
(b)
publish at such intervals as may be prescribed by the
appropriate Government or competent authority(z) the particulars of its organisation, functions and duties;
(ii) the powers and duties of its officers and employees and
the procedure followed by them in the decision making
process;
{Hi) the norms set by the public authority for the discharge of
its functions;
(iv) rules, regulations, instructions, manuals and other
categories of records under its control used by its
employees for discharging its functions;
the details of facilities available to citizens for obtaining
information; and
{vi) the name, designation and other particulars of the Public
Information Officer.
publish all relevant facts concerning important decisions and
policies that affect the public while announcing such decisions
and polices;
give reasons for its decisions, whether administrative or quasi
judicial to those affected by such decisions;
before initiating any project publish or communicate to the
public generally or to the persons affected or likely to be affected
by the project in particular, the facts available to it or to which
it has reasonable access which in its opinion should be known
to them in the best interests of maintenance of democratic
principles.
(v)
{c)
{d)
(e)
i
Appointment of Public Information Officers
5.
(7)
(2)
(3)
{4)
Every public authority shall for the purposes of this Act, appoint
one or more officers as Public Information Officers.
Every Public Information Officer shall deal with requests for
information and shall render reasonable assistance to any person
seeking such information.
The Public Information Officer may seek the assistance of any
other officer as he considers necessary for the proper discharge
of his duties.
Any officer whose assistance has been sought under sub-
section (3), shall render all assistance to the Public Information
Officer seeking his assistance.
Requests for obtaining information
6.
A person desirous of obtaining information shall make a request in
writing, or through electronic means, to the concerned Public
Infonnation Officer specifying the particulars of the information sought
by him.
Provided that where such request cannot be made in writing, the
Public Information Officer shall, render all reasonable assistance to
the person making the request orally to reduce it in writing.
Disposal of requests
7.
(J)
On receipt of a request under section 6, the Public Information^
(2)
Officer shall, as expeditiously as possible, and in any case within
thirty working days of the receipt of the request, either provide
the information requested on payment of such fees as may be
prescribed or reject the request for any of the reasons specified
in section 8 and 9:
Provided that where it is decided to provide the information
on payment of any further fee representing the cost of providing
the information, he shall send an intimation to the person making
the request, giving details of the fees determined by him,
requesting him to deposit the fees and the period intervening
between the despatch of the said intimation and payment of
fees shall be excluded for the purpose of calculating the period
of thirty days referred to above.
Before taking any decision under section (1), the Public
Information Officer shall take into consideration thc^j
representation made by a third party under section 11.
Where a request is rejected under sub-section (2), the Public
Information Officer shall communicate to the person making
the request, (i) the reasons for such rejection;
(ii) the period within which the appeal against such rejection
may be preferred;
(Hi) the particulars of the appellate authority.
Information shall ordinarily be provided in the form in which it
is sought unless it would disproportionately divert the resources
of a public authority or would be detrimental to the safety or
preservation of the record in question.
(3)
(4)
Exemption from disclosure of information
8.
(1) Notwithstanding anything hereinbefore contained, the following
F
(2)
information not being information relating to any matter referred
to in sub-section (2), shall be exempted from disclosure,
namely:(a)
information, the disclosure of which would prejudicially
affect the sovereignty and integrity of India, security of
the State, strategic scientific or economic interest of India
or conduct of international relations.
(b)
information, the disclosure of which would prejudicially
affect public safety and order, detection and investigation
of an offence or which may lead to an incitement to
commit an offence or prejudicially affect fair trial or
adjudication of a pending case.
(c) information, the disclosure ofwhich would prejudicially
affect the conduct of Centre-State relations, including
information exchanged in confidence between the Central
and State Governments or any of their authorities or
agencies.
(d) Cabinet papers including records of the deliberations of
the Council of Ministers, Secretaries and other officers.
(e) minutes or records of advice including legal advice,
opinions or recommendations made by an officer of a
public authority during the decision making process prior
to the executive decision or policy formulation
(f)
trade or commercial secrets protected by law or
information, the disclosure of which would prejudicially
affect the legitimate economic and commercial interests
or the competitive position of a public authority; or would
cause unfair gain or loss to any person.
(g)
information, the disclosure of which may result in the
breach of privileges of Parliament or the Legislature of a
State, contravention of a lawful order of a court.
Any information relating to any occurrence, event or matter
which has taken place occurred or happened twenty-five years
before the date on which any request is made under section 6
shall be provided to any person making a request under that
section:
Provided that where any question arises as to the date from
which the said period of twenty-five years has to be computed,
the decision of the Central Government shall be final.
Grounds for refusal of access in certain cases
9. Without prejudice to the provisions of section 8, a Public Information
Officer may reject a request for information also where such request
er} is too general in nature or is of such a nature that, having regard
to the volume of information required to be retrieved or
processed would involve disproportionate diversion of the
resources of a pubic authority or would adversely interfere
with the functioning of such authority;
(b)
(c)
(J)
Provided that where such request is rejected on the ground
that the request is too general, it would be the duty of the Public
Information officer to render help as far as possible to the person
making request to reframe his request in such a manner as may
facilitate compliance with it;
relates to information that is required by law, rules, regulations’
or orders to be published at a particular time and such
information is likely to be so published within thirty days of the
receipt of such request; or
relates to information that is contained in published material
available to public
relates to information which would cause unwarranted invasion
of the privacy of any person.
Severability
10. If a request for access to information is rejected on the ground that it
is in relation to information which is exempted from disclosure, then
notwithstanding anything contained in this Act, access may be given
to that part of the record which does not contain any information that
is exempted from disclosure under this Act and which can reasonably
be severed from any part that contains exempted information.
Third party information
11. Where a public authority intends to disclose information on a request
made by a party which relates to, or has been supplied by a third
party and has been treated as confidential by that third party, the
Public Information Officer shall by notice to such third party invite
representation against the proposed disclosure if any within fifty days
from the date of receipt of such notice:
Provided that except in the case of trade or commercial secrets
protected’by law, disclosure may be allowed if the public interest in
disclosure outweighs in importance any possible harm or injury to
the interest of such third party.
Appeals
12. (1)
(2)
*
(5)
(4)
Any person aggrieved by a decision of the Public Information
Officer may, within thirty days of receipt of such decision, prefer
an appeal to such authority as may be prescribed:
Provided that such authority may entertain the appeal after the
expiry of the said period of thirty days if it is satisfied that the
appellant was prevented by sufficient cause from filing the appeal
in time.
A second appeal against the decision under sub-section (1)
shall lie with in thirty days of such decision, to the Central
Government or the State Government or the competent
authority, as the case may be.
Provided that the Central Government or the State Government
or the competent authority as the case may be may entertain
the appeal after the expiry of the said period or thirty days if it
is satisfied that the appellant was prevented by sufficient cause
from filing the appeal in time.
The appeals referred to in sub-section (1) and (2) shall be
disposed of within thirty days of the receipt of such appeals or
within such extended period as the case may be for reasons to
be recorded in writing.
If the decision of the Public Information Officer against which
the appeal is preferred under sub-section (1) or (2) also relates
to information of third party, the appellate authority shall give a
reasonable opportunity of being heard to that third party.
CHAPTER III
MISCELLANEOUS
Protection of action taken in good faith
13. No suit, prosecution or other legal proceeding shall lie against any
person for anything which is in good faith done or intended to be
done under this Act or any rule made thereunder.
Act to have an overriding effect
14. The Official Secrets Act, 1923 and every other Act in force shall
cease to be operative to the extent to which they are inconsistent
with the provisions of this Act.
Bar of jurisdiction of Courts
15. No Court shall entertain any suit, application or other proceeding in
respect of any order made under this Act and no such order shall be
called in question otherwise than by way of an appeal under this Act.
Act not to apply to certain organisations
16. (7) Nothing contained in this Act,shall apply to the intelligence and security organisations,
specified in the Schedule being organisations established
by the Central or a State Government or any information
furnished by such organisations to the respective
Governments;
(b)
shall until Part B of the Schedule is amended under sub
section (2) apply to the intelligence and security
organisations by whatever name called discharging their
functions as such under the State governments.
The Central Government may, by notification in the Officia"
(a)
(2)
(3)
Gazette, amend the Schedule by including therein any other
intelligence or security organisation established by the Central
or a State Government or omitting therefrom any organisation
already specified therein and on the publication of such
notification, such organisations shall be deemed to be included
in or, as the case may be, omitted from the Schedule.
Every notification issued under sub-section (2) shall be laid
before each House of Parliament.
Power to make rules by Central Government
17. (7) The Central Government may, by notification in the Official
(2)
Gazette, make rules to carry out the provisions of this Act.
In particular and without prejudice to the generality of the
foregoing power, such rules may provide for all or any of the
following matters, namely,:|
(a) intervals at which the matters referred to in the sub-clauses’
(i)
to (vi) of clause (b) of section 4 shall be published;
(b) the fee payable under sub-section (1) of section 7;
(c)
the other authority before whom an appeal may be
preferred under sub-section (1) of section 12;
(d)
any other matter which is required to be, or maybe
prescribed.
Power to make rules by State Government
18. (7) The State government may, by notification in the Official
(2)
Gazette, make rules to carry out the provisions of this Act.
In particular, and without prejudice to the generality of the
foregoing power, such rules may provide for all or any of the
following matters, namely:(a) the fee payable under sub-section (1) of section 7;
(b) the other authority before whom an appeal may be
preferred under sub-section (1) of Section 12;
(c)
any other matter which is required to be, or maybe,
prescribed;
Provided that initially the rules made shall be made by the
Central Government by notification in the Official Gazette.
Rule making power by competent authority
19. (7) The competent authority may by notification in the Official
(2)
I
Gazette, make rules to carry out the provisions of this Act.
In particular, and without prejudice to the generality of the
foregoing powers, such rules may provide for all or any of the
following matters, namely:(a) the fee payable under sub-section (1) of section 7;
(b) the other authority before whom the appeal maybe
preferred under subsection (1) of section 12;
(c)
any other matter which is required to be, or maybe,
prescribed.
Laying of rules
20.
(/)
I
(2)
Every rule under this Act by the Central Government shall be
laid, as soon as may be after it is made, before each House of
Parliament, while it is in session, for a total period of thirty
days which may be comprised in one session or in two or
more successive sessions and if, before the session or the
successive sessions aforesaid, both Houses agree in making
any modifications in the rule, or both Houses agree that the
rule should not be made, the rule shall thereafter have effect
only in such modified form or be of no effect, as the case maybe;
so, however, that any such modification or annulment shall be
without prejudice to the validity of anything previously done
under that rule.
Every rule made under this Act by a State Government shall
be laid, as soon as maybe after it is notified, before the State
Legislature.
Power to remove difficulties
21. (7) If any difficulty arises in giving effect to the provisions of this
Act, the Central Government may, by order published in the
(2)
Official Gazette, make such provisions not inconsistent with
the provisions of this Act as appears to it to be necessary or
expedient for removal of the difficulty:
Provided that no such order shall be made after the expiry of a
period of two years from the date of the commencement of
this Act.
Every order made under this section shall, as soon as maybe
after it is made, be laid before the Houses of the Parliament.
THE SCHEDULE
(See Section 16)
PART A
Intelligence and security organisations established by the Centra^
Government
1.
2.
3.
4.
5.
6.
Intelligence Bureau
Research and Analysis Wing of the Cabinet Secretariat
Directorate of Revenue Intelligence
Central Economic Intelligence Bureau
Directorate of Enforcement
Narcotics Control Bureau
PARTB
Intelligence and security organizations established by the State
Government
Name of the Organization
1.
2.
3.
Name of the State
f
Addresses and Contact Details of the Members of Standing
Committee on Home Affairs
Pranab Mukherjee
(i) S-22
Greater Kailash Part-2,
New Delhi
(ii) 13, Talkatora Road,
New Delhi
Ph-3737623
(iii) 2-A, First Floor,
60/2/7, Kavi Bharti Sarani,
Lake Road Calcutta
Ph-7667878
(^hri Hansraj Bhardwaj
14,TughlakRoad
New Delhi-110011
Ph-3015046,3011192
E-mail: hansrajb@sansad.nic.in
Shri Hiphei
C-l/2, Pandara Park,
New Delhi-110003
Ph-3782136
E-mail: hiphei@sansad.nic.in
Shri Sangh Priya Gautam
AB-5, Pandara Road
New Delhi
Ph-3360996,3368003
£)r. L.M.Singhvi
(i) 18, Willington Crescent,
New Delhi
Shri K.M. Saifullah
18, Meena Bagh
New Delhi-110011
Ph-3794687
E-mail: srz#@sansad.nic.in
Shri C.M. Ibrahim
22, Akbar Road
New Delhi-110011
Ph-3018748,3018751
E-mail: Ibrahim@sansad.nic.in
Shri Raj Mohinder Singh
C-502, Swama Jayanti Sadan,
Dr. B.D.Marg
New Delhi-110001
Ph-3385431-35,3782102
Shri C.P. Thirunavukkarasu
C-402, Swama Jayanti Sadan,
Dr. B.D. Marg
New Delhi-110001
Ph-3354813
Shri Drupad Borgohain
141, South Avenue
New Delhi-110011
Ph-3792964
E-mail: drupad@sansad.nic.in
Shri Kuldip Nayyar
(i) D-7/2, Vasant Vihar
New Delhi
(ii) 4F, White House,
10, Bhagwan Das Road,
New Delhi-110001
Ph.3012121,3792424
E-mail: lsinghvi@sansad.nic.in
(ii) 33, Lodhi estate
New Delhi
Ph-6'143949,6142328,
46365350,6143949 (Fax)
E-mail: kuldip@sansad.nic.in
Shri S. Ramachandran Pillai
198, North Avenue
New Delhi-110001
Ph-3714590
E-mail: pillair@sansad.nic.in
Shri Manabendra Shah
5, Bhagwan Das Road
New Delhi-110001
Ph-3782818,3782815 (Fax)
Shri Lal Bihari Tiwari
12-A, Windsor Place
New Delhi-110001
Ph-3782225,3782145,
3782145 (Fax)
Shri Raj Kumar Wangcha
A-7, M.S. Flats
B.K.S. Marg
New Delhi-110001
Ph-3714778
Shri Vinay Katiyar
78, Lodhi Estate
New Delhi-110001
Ph-3792491
Shri Iqbal Ahmed Saradgi
92, South Avenue
New Delhi-110001
Ph-3793985
Shri Prakash Mani Tripathi
15. Canning Road,
New Delhi-110001
Ph-3782773
Smt. Nisha Chaudhary
20, South Avenue
New Delhi-110011
Ph-3792046
Shri Anadicharan Sahu
142. South Avenue
New Delhi-110001
Ph-3793486
Shri Jitendra Prasada
11 -A, Teen Murti Marg
New Delhi-110011
Ph-3792978,3793536
Maj. Gen B.C. Khanduri
1, Dr. B.D. Marg
New Delhi-110001
Ph-3352255
Shri Dayabhai V. Patel
44, Meena Bagh
New Delhi-110011
Ph-3793729
Shri Ram Nagina Mishra
6. Dr. Rajendra Prasad Road,
New Delhi-110001
Ph-3711564
Shri M.O.H. Farook
10, Pt. Pant Marg
New Delhi-110001
Ph-3357009, Mobile-9868041990
Smt. Jayashree Banerjee
13E, Ferozshah Road
New Delhi-110001
Ph-3782812
Shri Samar Choudhury
168-170, North Avenue
New Delhi-110001
Ph-3794902,3794982
Shri Rajen Gohain
185, South Avenue
New Delhi-110011
Ph-3794472
Shri Subodh Roy
20, Dr. Rajendra Prasad Road
New Delhi-110001
Ph-3782564
Shri N. Janardhana Reddy
2, Jantar Mantar Road
New Delhi-110001
Ph-3358666
Dr. S. Venugopalachari
11, Race Course Road
New Delhi-110011
Ph-3792837
Shri Beni Prasad Verma
34, Prithviraj Road
New Delhi-110003
Ph-3792660
Shri Shriniwas Patil
86, South Avenue
New Delhi-110011
Ph-3018333
Shri Raghuraj Singh Shakya
160, North Avenue
New Delhi-110001
Ph-3793830
Dr. Raghuvansh Prasad Singh
8, Ashoka Road
New Delhi-110001
Ph-3386093
Shri Arun Kumar
171-172, South Avenue
New Delhi-110011
Ph-3793439
Shri Jayanta Rongpi
20, Windsor Place
Janpath Road
New Delhi-110001
Ph-3710899
Shri Suresh Ramrao Jadhav
34, Meena Bagh
New Delhi-110011
Ph-3793501
Shri P.H. Pandian
307, Tamil Nadu House
New Delhi-110021
Ph-3014652,3794217
Shri S.K. Bwiswmuthiary
7, Ferozshah Road
New Delhi-110001
Ph-3782979
The Commonwealth Human Rights Initiative
(CHRI) is an international, independent
nonprofit organisation headquartered in India.
Its objectives are to promote the practical
realisation of human rights in the Common
wealth. It educates on human rights issues and
advocates for greater adherence to human
rights standards.
CHRI has been working on the Right to
Information as part of its commitment to the
values of democracy and good governance.
Our work includes.
• collecting and disseminating information
and material on the issue;
• educating people about the issue;
• networking with different groups consisting
of NGOs, lawyers, youth groups,
bureaucrats, media persons, rural and
urban elected representatives like panchs
and officials from public bodies;
• promoting debates and discussions on the
issue; and
• carrying this feedback to policy makers.
We are grateful to Friedrich Naumann
Stiftung (FNSt) and the Canadian
International Development Agency (CIDA)
for supporting our programme.
COMMONWEALTH HUMAN RIGHTS INITIATIVE
N-8, Second Floor, Green Park Main,
New Delhi-110 016, INDIA
Tel.: 91 -11 -686 4678, 685 0523 Fax: 91-11 -686 4688
Email: chriall@nda.vsnl.net.in
Website: www.humanrightsinitiative.org
Submissions
to
Legislators
on a
Right to Information Law
(Freedom of Information Bill 2000)
Commonwealth Human Rights Initiative
2001
Written & Designed by
ABHA SINGHAL JOSHI
© Commonwealth Human Rights Initiative
2001
Material from this publication may be reproduced giving due acknowledgement to the source.
For private circulation only
About Us
The Commonwealth Human Rights Initiative (CHRI) is an international,
independent nonprofit organisation headquartered in India. Its objectives
are to promote the practical realisation of human rights in the
Commonwealth. It educates on human rights issues and advocates for
greater adherence to human rights standards.
CHRI has been working on the Right to Information as part of its
commitment to the values of democracy and good governance. Our work
includes:
•
collecting and disseminating information and material on the issue;
•
educating people about the issue;
networking with different groups consisting of NGOs, lawyers, youth
groups, bureaucrats, media persons, rural and urban elected
representatives like panchs and officials from public bodies,
•
promoting debates and discussions on the issue; and
•
carrying this feedback to policy makers.
About the Issue
The Right to Information is an issue which has gained considerable
importance in recent years. More and more people are beginning to feel
the need for more access to information which has till now been in the
exclusive possession of the government even though it relates to the well
being of the individual or the public at large.
Growth of democratic values have led to the feeling that government must
be made more transparent and accountable in order to make democracy
meaningful.
To break away from the feudal system in which even now government is
viewed as the lord and master of the common man, people’s participation
is most important for good governance.
The Right to Information is also being viewed as a possibly potent
instrument for minimising corruption and inefficiency in government.
“
a consensus has evolved among the political parties
on the need to legislate the right to freedom of information.
.. . The courts too have, in a series ofjudgements, declared
that the right to know is a facet of the fundamental right
to freedom of speech and expression ... In the bureaucracy
also there has been an increasing awareness of the
importance of openness and transparency. A consensus
emerged in the Conference of Chief Secretaries, held in
November 1996, on the need for an early enactment of a
law on a Right to Information. ”
- Report of the Working Group on Right to Information and Promotion
of Open and Transparent Government, Government of India, 1997.
e
The Issue in Context
By and large, our elected representatives in Parliament have been
supportive of the issue and have made statements from time to time to the
effect that a Right to Information Law is the need of the hour. Since a law
on this subject is imminent, we take this opportunity to put before the
members of Parliament some core issues which need to be examined before
and during the passage of the law. We hope for an informed debate to
ensure passage of a truly sound legislation on the issue.
Our interactions with various groups all over the country have brought us
invaluable feedback on the issue, which we would like to share with our
representatives :
©
p
The Right to Information is no longer an elite or middle-class concern
related to the right of the few to know, or the right of the media to have
information. This right is directly related to survival of thernost
disadvantaged sections from urban slum dwellers to tribals in far flung
and remote areas. Inspite of huge governmental efforts towards
alleviating poverty, people are not able to avail of basic needs like food,
water and health for sheer lack of information about the implementation.
©
People all over the country are keenly interested in having a specific law
on the Right to Information. Whether in urban or rural areas, literate or
illiterate, there is a strong feeling that a break must be made from the
past culture and government must be made more open and accountable.
®
Panchayati institutions have helped people in realising the potential of
people’s power and the Right to Information can be used for
mobilising this power in a constructive way such as through public
audit using the medium of Gram Sabhas.
@
Although the issue has reached the stage of a central legislation being
in the offing, people feel the need for it to be widely discussed at all
levels in order to have a law which caters to their needs at different
levels and addresses their problems effectively.
F
Commitment of Commonwealth Law Ministers
The Communique issued by the Meeting of Commonwealth Law
Ministers at the Port of Spain, Trinidad and Tobago in May 1999,
formulated and adopted the following principles on Freedom of Information:
■ Member countries should be encouraged to regard freedom of
information as a legal and enforceable right.
■ There should be a presumption in favour of disclosure and Governments
should promote a culture of openness.
■ The right of access to information may be subject to limited exceptions
but these should be narrowly drawn.
■ Governments should maintain and preserve records.
" In principle, decisions to refuse access to records and information should
be subject to independent review.
What is Right to Information
A Right to Information in the context of India means two things:
•
A right to have access to information held by the government relating
to a legal right of any person. This information could be in the form
of records, files, registers, maps, data, drawings, etc.
•
A right to be told something which could affect a person’s rights. This
means that the government has a positive duty to give certain types
of information without waiting to be asked for it. This would include
information on issues concerning projects which directly affect the
people or the environment, information on health, agriculture, weather
conditions etc.
“In a government of responsibility like ours where the
agents of the public must be responsible for their conduct
there can be but few secrets. The people of this country
have a right to know every public act, everything that is
done in a public way by their public functionaries. They are
entitled to know the particulars of every public transaction
in all its bearings. The right to know which is derived from
the concept offreedom of speech, though not absolute, is
a factor which should make one wary when secrecy is
claimed for transactions which can at any rate have no
repercussion on public security ”
- State of U.P. vs. Raj Narain (AIR 1975 SCC 865)
Why it is important to have a
Right to Information
Principle of accountability
Ours is a democratic system of governance in which the government is run
for the benefit of the public at large and not for the benefit of one person
or a few persons. Governance from the village to the central level therefore
has to be accountable to the people. People have a right to know what the
government is doing. Just as the elected representatives like the MPs and
the MLAs have a right to get information regarding governance on behalf
of their electorate, the people themselves have the right to ask about things
and get information. A Right to Information will ensure that people can
hold public bodies accountable on a regular basis, without having to lay
entire burden on their elected representatives who are themselves often
unable to get the information sought inspite of all the resources at their
command.
Principle of participation
Since most governmental works are earned out for the people, they must
be involved in the planning process and must know exactly how things are
being done. To participate in planning processes and judgement of whether
certain plans and schemes are useful for them or not, people must have
sufficient information about the nature of the projects and programmes. This
will enable them to give their opinion well in time for required changes or
modifications. This will reduce project costs, and will increase project
outputs, manifold.
Principle of transparency
JThere is a presumption that everything that is done by the government is
"one for the public good-which means, it is done to further the objective
of public well-being, is done honestly with optimum benefits from the funds
used. However, as we all know, in recent times, this presumption has been
eroded to a great extent by misuse, misappropriation and also careless use
of public funds. To counter this, it is essential that there should be complete
transparency in all public dealings. This is bound to bring about a more
careful utilisation and application of funds. Transparency in government
functioning will also help to hold people accountable for their mishandling
of public time and money.
Most people also feel that the misdeeds of a few are reflected in the image
of the entire system. Transparency would go a long way in helping to
expose the corrupt and allow the honest to do their jobs without fear or
favour.
The Legal Basis for this Right
The Constitution of India
A Right to Information is a Fundamental Right under the Constitution of
India. This right is an inherent part of:
The Right to Equality
Article 14 : “The state shall not deny to any person equality before the law
or the equal protection of the laws within the territory of India.”
The Right to Equality includes lack of arbitrariness. The right to information
is essential for transparency and lack of arbitrariness in government action.
The Right to Freedom of Speech and Expression
Article 19(l)(a): “All citizens shall have the right to freedom of speech
and expression”
Although Article 19 does not specifically mention the Right to Information
the Supreme Court has held on several occasions that the Right to Know
is a part of the Right to Speech and Expression, because
®
To speak and express freely, we must have information on any subject
•
In a democracy, we must know what the government is doing in order
to express opinions on it. Expressing opinions includes the right to
dissent, i.e., expressing an opinion different from the popular one or
that given by the government.
•
The Supreme Court has held in several cases that Freedom of
Information not only means freedom of the media but also access to
government-held information.
The Right to Life and Personal Liberty
Article21: “No person shall be deprived of his life or personal liberty
except according to procedure established by law”
The right to life and personal liberty has received wide definition in sever^|
Supreme Court rulings. The Right to Life covers the right to basic needs
such as food, education, health, and personal liberty covers freedom from
illegal and unnecessary restraint. Denial of information relating to these
aspects is often a denial of the right itself.
The Universal Declaration of Human Rights
Article 19: “Everyone has a right to freedom of opinion and expression;
This right includes freedom to hold opinions without interference and to
seek, receive and impart information and ideas through any media and
regardless of frontiers”
Why we need a Central Law on the
Right to Information
A law is needed on the subject for :
Uniformity
Some states like Tamil Nadu, Goa, Rajasthan, Maharashtra, Karnataka,
Madhya Pradesh* and Delhi (National Capital Territory) have passed their
own laws on access to information. Some have passed piecemeal
executive orders for giving access to information such as Madhya Pradesh,
Rajasthan, Uttar Pradesh, Orissa, Kerala and Karnataka. This puts citizens
at a disadvantage, as they do not have the same rights in different parts of
the country. One Central law will remove this anomaly.
clarity
Although a Right to Information is a Fundamental Right, most of us cannot
access it, due to lack of clarity on the issue. As with everything else, this
right also has to function within reasonable limits. Since those limits are not
defined anywhere, there is a needless culture of secrecy arrising in part
from confusion generally resulting in blanket refusals to give information for
fear of violating the law. We need a law to clearly define what information
can be refused.
Without a law on the subject, each time we want to enforce our right, we
will have to move the Supreme Court or the High Courts to get it. This is
not possible for most of the people who need access to information.
Easy access
There are no set procedures or systems for getting information. So we need
law which lays down procedures which enable both the government
functionaries to discharge their duty to give information easily and smoothly,
as well as enable the citizens to get information without running from pillar
to post in every situation.
The Right to Information in India is severely restricted by two things:
•
A colonial culture of secrecy under which public bodies are still run
as though they are masters and people are subjects. Although our
country became free of colonial rule more than five decades ago we
continue to use their colonial and feudal structures of governance of
which secrecy is a part and parcel. These structures must be replaced
with truly democratic ones if we want to revive our polity in every way.
•
Outdated laws like the Official Secrets Act and certain provisions in
other enactments such as the Indian Evidence Act, The Central Civil
Servants Code of Conduct Rules, etc.
‘not notified
What a Right to Information Law
Should Contain
On the basis of empirical experience of accessing information some
universal norms for a right to information/ffeedom of information/access to
information law emerge. These are
Minimal exceptions
The Right to Information is a Fundamental Right and can be subjected only to
the restrictions allowed by the Constitution. In drafting the law, care must be
taken to keep the exceptions within the limits prescribed by the Constitution.
The right of access to official/govemment-held information should be a wide
right. The exceptions to the rule of giving information must be limited an£i>
specific. The law must not contain a long list of exceptions couched in terms
general enough to ensure that all kinds of information can be refused taking
the help of the law. This has happened in the case of the Tamil Nadu Right
to Information Act as well as the Maharashtra Law which contain long list
of exceptions and additional provisions for refusing information.
Accountability
A Right to Information law must lay down clearly the principle of
accountability. That is, it must state specifically as to who is responsible for
providing the information. Penalties should be imposed on officials, who
delay, without any just cause, the giving of information or refuse on
unwarranted grounds.
Duty to inform
The law must cast a positive duty on public bodies to inform the public in
case of certain projects and activities which relate to the public. Thi^
envisages giving information without being asked for it. It must be made
mandatory and regular to give out certain kinds of information on a
mandatory basis. This kind of information would include rules, information
on proposed projects and schemes, and other relevant information which
needs to be given out and updated routinely.
Independent forum for appeals
The law should contain a simple and independent procedure for appeals
from refusals to give information. The appellate forum should be an
independent person or institution such as an Ombudsman.
Upgradation of systems
The law should contain provisions for setting up specific systems for storing
and disseminating information and upgrading the existing systems for
enabling easy access. There must be specific provisions for priority-wise
computerisation etc. of government offices.
Reasonable fee structure
The law, if it provides for a levy of a fee for getting information must ensure
that the fee is reasonable and does not act as a deterrent for asking
information and does not end up debarring information from the
disadvantaged groups who cannot afford the fees. The law must provide
for waiver of fees in certain circumstances and for certain classes of people
such as those living below the poverty line.
Methods of communication
The law must contain a specific directive for simplification of official language.
Information-giving should be in a form which can be easily understood by
people. There must be a focus on traditional means of giving information. As
of now, most information is contained in official gazettes and publications which
are usually unavailable and are of no use to the lay citizens, given the low
literacy levels. The law should ensure proper use of the electronic and print
media as well as use of conventional methods of communication as per the
^target group.
Time limit
The law must contain a provision for timely imparting of information. The
concerned public officials should face a penalty in case the information is
not given in time. The time limit should be reasonable and should not
jeopardise a person’s rights. Time limits should be set in order of urgency
and accessibility. Information regarding a person’s life and liberty should
be made available forthwith or within the shortest possible time, say within
48 hours. Information which is available at hand should also be given in a
shorter time. The Shourie Bill provided for a period of 30 days with a
further period of 30 days for giving information. This period seems
unreasonable for all kinds of information.
Application to private bodies
Although, strictly speaking, the Right to Information is for government-held
^information, the law must make it binding on private bodies to disclose
certain kinds of information which could affect the public health, etc. This
is especially in view of increasing globalisation and incidents like the Bhopal
Gas Leak which claimed many lives and put to irreparable harm even future
generations.
Protection of privacy
The law must take into account the protection of an individual's privacy.
Personal information held by the government must be exempt from
disclosure. However, if disclosure in the public interest greatly outweighs
the preservation of individual privacy, then disclosure should be allowed.
Protection of whistleblowers
The law should give protection to public officials who give certain exempted
information where it is necessary to do so in overwhelming public interest
or to disclose some serious corrupt practice, etc.
Publicity and Training
The law must contain a mandatory procedure for publicising its contents.
Often, laws are passed without the knowledge of the people and
consequently do not percolate down with sufficient speed or impact and
therefore fail to bring about the desired change in the systems.
The Right to Information law must also contain a strong aspect of training
and orientation of public servants at all levels, in order to bring about an
effective change in the culture.
Allocation of funds
The law must contain a specific allocation of funds for the purpose of
operationalising the Right to Information. Without this, the law will be a dead
letter and will have no effect.
e>
Several groups consisting mainly of jurists, media persons, civil society
members have been advocating the issue strongly over the last few years
and there have been suggested drafts from different quarters.
• The Press Council of India, under the guidance of the Chairman^
Mr. P.B.Sawant drafted a law which was later updated and changed
at a workshop and renamed ‘The Press Council-NIRD Freedom of
Information Act, 1997’.
•
The Consumer Education and Research Council (CERC),
Ahmedabad, under the guidance of Prof. Manubhai Shah drafted a
law on the Right to Information.
The Working Group appointed by the United Front Government,
under the Chairmanship of Mr. H.D.Shourie drafted a law called the
Freedom of Information Bill 1997.
The Freedom of
Information Bill 2000
General Comments
•
The Bill is too sketchy and sacrifices to brevity many important details
which would be imperative at the point of implementation. While it can
be argued that details can be left to Rules framed under the Act, certain
important substantive matters cannot be delegated to the rule-making
authority.
©
The generality of the provisions leaves much room for confusion.
Likewise it leaves too much room for administrative discretion, defying
its very purpose.
®
The Bill is not designed to address the specific needs of the Indian
masses, as it completely ignores important aspects of voluntary and
mandatory disclosures by public authorities. Moreover, it ignores the
need for simplification of rules, procedures and official language and
does not stress on effective communication of information to common.
people.
©
Likewise, it ignores the growing trend of privatization and its impact
on the common person. It is lacking in provisions for disclosure from
private parties either on their own or through governmental channels.
®
The Bill is completely lacking in the aspect of fixing accountability for
giving information. Unless public personnel and bodies are held
responsible for delaying or refusing information, it will not effect any
change in the existing culture of routinely refusing information. While
the Bill gives a time consuming and tiring process for requesting
information and appealing its refusal, there is no system for holding
anyone responsible for unreasonable delays or unwarranted refusals.
This puts the entire burden on the person seeking information with no
consequences on the person whose dereliction causes delay and
possible resultant damage.
•
The Bill does not mention allocation of costs for setting up systems
for enforcing the Right to Information. Without this important aspect.^
©
The Bill does not initiate systems for easy information retrieval or for
simplification of procedures and official language, which are the main
hurdles between information and the public.
•
The Bill does not provide for correction of personal or private
information in public records.
The Bill by its nature of being loosely worded is likely to put the
common man to unnecessary hardship in terms of running from pillar
to post for accessing simple information.
The Bill does not have a provision for a regulatory body, which will
oversee the working of the Act and ensure its compliance. Experience
shows that the objects of the law will be met only by enforcing a change
in the culture of sharing information. This can be done only by constant
monitoring of the application and implementation of the law, and effecting
systems where necessary. Some of the states have a Council for right
to information, which will over see the working of the Act.
giving a right in a vacuum will be meaningless.
•
•
Section wise Analysis of the Bill
THE FREEDOM OF INFORMATION BILL, 2000
A
Bill
to provide for freedom to every citizen to secure access to
information under the control of public authorities, consistent with
public interest in order to promote openness, transparency and
accountability in administration and in relation to matters connected
therewith or incidental thereto.
BE it enacted by Parliament in the Fiftieth Year of the Republic of
^ndia as follows:
COMMENT
The title of the Bill, in using the words ‘to provide for freedom'
suggests that this law is creating a right in favour of citizens. In fact,
the right to information has already been recognised as a fundamental
right by the Supreme Court of India in several decisions and has been
seen to be the obverse side of the Freedom of Speech and Expression
guaranteed under Article 19(1) (a) of the Constitution of India.
Moreover, it is also inherent in the guarantees of the Right to Life and
Personal Liberty and the Right to Equal Protection of the Law
contained in the Constitution of India. This law only seeks to establish
systems for enforcing these fundamental rights. The right to
information is a basic fundamental right and cannot be diluted and
given the colour of a privilege or that of a mere administrative reform.
f^The Bill, moreover, casts the burden on the citizen to ‘secure access to
information’, leaving out the most important element of the duty of
the state to effect proactive disclosure of information.
The introductory statement also hedges in the right by the words
‘consistent with public interest ’. This term is too loose and gives
unlimited discretion to public authorities and administration. What is
the public interest that is sought to be protected? Who is to decide
whether a certain request for information is consistent with public
interest or not?
The statement further suggests that the 'freedom ’ to access is being
given in the interest of administrative reform — ‘in order to promote
openness, transparency and accountability in administration and in
relation to matters connected therewith or incidental thereto'.
Administrative reform is incidental to and a part of the right to
information. The right to information is a fundamental and inherent
right which enhances the quality of a person's life and enables each
person to access other basic rights. Administrative reform should
primarily be the state’s concern for creating favourable and enabling
conditions for such empowerment of the people.
RECOMMENDATION
©
•
•
The Bill must be titled The Right to Information Bill 2000’.
The introduction to the Bill must read as "A BILL to enforce the
fundamental right to information’’.
The Bill must contain a detailed statement of objects and reasons, with
recitals as to the nature of the problem the law seeks to address, the
importance of the of the right in terms of shifting the equation between
the state and citizen through transparency, participation and
accountability and a clear directive to the state and all its agencies to
be proactive in all its actions in providing information to people.
Promotion Of Access to Information Act, South Africa
Section 9
( 1/
The objects of this Act are—
(a)
to give effect to the constitutional right of access to—
(i)
any information held by the State; and
(ii)
any information that is held by another person and that is
required for the exercise or protection of any rights;
(b)
to give effect to that right—
(i)
subjected to justifiable limitations, including, but not limited
to, limitations aimed at the reasonable protection of privacy,
commercial confidentiality and effective, efficient and good
governance; and
(ii)
in a manner which balances that right with any other rights,
including the rights in the Bill of Rights in Chapter 2 of the
Constitution;
(c)
to give effect to the constitutional obligations of the State of
promoting a human rights culture and social justice, by including
public bodies in the definition of "requester", allowing them"*
amongst others, to access information from private bodies upon
compliance with the four requirements in this Act, including an
additional obligation for certain public bodies in certain instances
to act in the public interest;
(d)
to establish voluntary and mandatory mechanisms or procedures
to give effect to that right in a manner which enables persons to
obtain access to records of public and private bodies as swiftly,
inexpensively and effortlessly as reasonably possible; and
(e)
generally, to promote transparency, accountability and effective
governance of all public and private bodies by, including, but not
limited to, empowering and educating everyone—
(i)
to understand their rights in terms of this Act in order to exercise
their rights in relation to public and private bodies;
(ii)
to understand the functions and operation of public bodies; and
(iii)
to effectively scrutinise, and participate in, decision-making by
public bodies that affects their rights.
CHAPTER I
Preliminary
Short title, extent and commencement
1.
(1)
(2)
(3)
This Act may be called the Freedom of Information Act, 2000
It extends to the whole of India except the state of Jammu
and Kashmir.
It shall come into force on such date as the Central Government
may, by notification in the Official Gazette, appoint.
COMMENT
As noted in the earlier section, the title of the Act should be changed
to “Right to Information Act 2000”.
Secondly, the legislature, having made up its mind to enforce the right
Jo information, ought to make suitable provision for its time bound
implementation. The date for coming into effect should not be entirely
left to the discretion of the government. The legislation itself should
contain at least a time bar within which the law must be notified.
Laws in the past have remained dead letters for this very reason.
RECOMMENDATION
®
The legislature should lay down the period after which the law will
come into force. Section 1(3) may be reworded to read as under:
‘It shall come into force on such date as the Central
Government may notify, which date shall not be later than six
months from the date of the passage of the law. Provided that
the Act shall automatically come into force at the expiry of the
said six months. ’
^Definitions
2.
In this Act, unless the context otherwise requires,
(a)
(b)
“appropriate Government” means in relation to a public
authority established, constituted, owned, substantially
financed by funds provided directly or indirectly or controlled(i)
by the Central Government, the Central Government;
(ii)
by the State Government, the State Government;
“competent authority” means -
(i)
(ii)
the Speaker in the case of the House of the people or
the Legislative Assembly and the Chairman in the case
of the Council of States or the Legislative Council:
the Chief Justice of India in the case of the Supreme
Court;
(iii)
the Chief Justice of the High Court in the case of a
High Court
(iv)
(c)
the President or the Governor as the case may be in
case of other authorities created by or under the
Constitution
“freedom of information” means the right to obtain
information from any public authority by means of-
(i)
inspection, taking of extracts and notes;
(ii)
certified copies of any records of such public authority;
(iii)
diskettes, floppies or in any other electronic mode or
through printouts where such information is stored in
a computer or in any other device.
(d)
“Information” means any material relating to the
administration, operations or decisions of a public authority.
(e)
“prescribed” means prescribed by rules under this Act by
the appropriate Government or the competent authority, as
the case may be;
(f)
“public authority” means any authority or body established^
or constituted-
(i)
by or under the Constitution;
(ii)
by any law made by the appropriate Government and
includes any other body owned, controlled or
substantially financed by funds provided directly or
indirectly by the appropriate Government.
(g)
“Public Information Officer” means the Public Information
Officer appointed under sub-section (1) of section 5;
(h)
“record” includes(i)
any document, manuscript and file
(ii)
any microfilm, microfiche and facsimile copy of a
document
(iii)
any reproduction of image or images embodied in such
microfilm (whether enlarged or not) and
(
any other material produced by a computer or by any
other device;
“Third Party” means a person other than the person making
a request for information and includes a public authority.
(iv)
(i)
COMMENT
Section 2 (a) and (b)
The scheme of the definitions, in particular that of the ‘Appropriate
Government’ and ‘Competent Authority' do not take into account any
aspect of local bodies. All power to implement the right to information or
freedom of information stop at the state level. This not only creates definite
practical problems in implementation but also goes against the very spirit
of openness and decentralisation of authority that the law must seek to
create.This will result in the law failing to address the needs of large masses
ofpeople whose day to day concerns are with local and village level bodies.
RECOMMENDATION
Competent Authority and Appropriate Government must include municipal
and local bodies like Corporations and Panchayats.
COMMENT
Section 2(c)
‘Freedom of Information ’ is narrowly defined and restricts the right to the
mere right of access to documents etc. This definition is missing the
dynamism of the right which must include the right of the citizen to demand
all information pertaining to any of the state’s actions, and the right to
participate in and question decisions etc. It does not include the right of the
citizen to demand proactive, suo motu and mandatory disclosure from
government and its agencies and others under its control and supervision.
RECOMMENDATION
The term ‘freedom of information should be substituted with the ’right to
'information’ and should be defined in all its nuances including the right to
transparent proceedings, the right of access to decision making processes,
the right to audit public accounts, the right to have access to processes,
documents and all other things which would help a person to be aware of
and participate in civic, economic, social and political processes effectively.
COMMENT
Section 2 (c), (d) and (f)
The definitions are restricted to public bodies in the strict sense of
'governmental bodies’. The definition of public bodies for the purpose
of this law should include those semi governmental and private bodies
which are carrying on activities that affect the public or large sections
of it, such as factories and such industrial corporations, banks and
other financial institutions, non-governmental institutions, etc. The
law should make it mandatory for all such bodies to disclose such
’information as would affect the public. This is increasingly becoming
a major area of concern for people who are bearing the brunt of
economic liberalisation and industrialisation without having any
information as to the harmful effects to their environment, economy,
health, etc. This aspect has been pointed out not only in many forums
in India but also in other countries in South Asia and in Africa which
share the commonalties of poverty and illiteracy with India.
Incidents like the Bhopal Gas Leak have made people acutely
conscious of the havoc that lack of information of their immediate
surroundings can wreak on human lives. It is an appropriate moment
for the state to create responsibilities on the corporate as well as
other non-governmental sectors to keep the public in the know of
their activities.
CHAPTER II
Freedom of Information and Obligations of
Public Authorities
Freedom of Information
3.
Subject to the provisions of this Act, all citizens shall have
freedom of information.
Obligations on public authorities
4.
Every public authority shall
(a)
maintain all its records, in such a manner and form as is
consistent with its operational requirements duly cataloged
and indexed;
(b)
publish at such intervals as may be prescribed by the
appropriate Government or competent authority(i)
the particulars of its organisation, functions and duties;
the powers and duties of its officers and employees
and the procedure followed by them in the decision
making process;
(iii)
the norms set by the public authority for the discharge
of its functions;
(ii)
(iv)
rules, regulations, instructions, manuals and other
categories of records under its control used by its
employees for discharging its functions;
(v)
the details of facilities available to citizens for
obtaining information; and
(vi)
the name, designation and other particulars of the
Public Information Officer.
(c)
publish all relevant facts concerning important decisions ,
and policies that affect the public while announcing such
decisions and policies;
(d)
give reasons for its decisions, whether administrative or
quasi-judicial to those affected by such decisions;
(e)
before initiating any project publish or communicate to the
public generally or to the persons affected or likely to be
affected by the project in particular, the facts available to
it or to which it has reasonable access which in its opinion
should be known to them in the best interests of
maintenance of democratic principles.
COMMENT
Section 3
This section appears to be redundant inasmuch as the Freedom of
Information or the Right to Know has been enunciated several times by
the judiciary as part of the Fundamental Right to speech and expression
under Article 19(l)(a) of the Constitution of India. Infact, it is also an
integral part of the Right to Equality under Article 14 as well as the
Right to Life and Personal Liberty. This, therefore, is not a freedom
■ which will come into force after the commencement of the Act.
This provision appears to lay the onus of 'seeking ’ information upon
the public, as opposed to casting a positive duty upon government and
others to proactively disclose and disseminate information.
RECOMMENDATION
Since the Act is primarily intended to lay down facilitative provisions for
enforcing a Fundamental Right, it ought to read as under:
Section 3: Every public authority shall be under a duty to provide
access to information to citizens in accordance with this Act.
COMMENT
Section 4
This section restricts itself to suo motu disclosure only of such information
is either structural or is to be given ‘before initiating any project’.
RECOMMENDATION
The provision of suo motu disclosure should include regular disclosure of
substantive information pertaining to working of the concerned authority
as well as other notifications, orders, etc which either come to that body
or are passed by it.
The word ‘publish’ needs to be defined clearly, as most government
agencies feel that publication in the gazette or the annual reports of the
department is sufficient publication. This would defeat the very purpose of
the provision. The section should therefore be divided into sub clauses I
and II. Sub clause II could read as under:
“II) For the purposes of this section, the term ‘publish ’ shall mean
appropriately making known to the public by means of notice
) boards, newspapers, public announcements, media broadcasts and
other such means, the information to be communicated. Further,
such methods shall at all times be employed which keep in mind the
local language and methods of communication.”
Appointment of Public Information Officers
5.
Every public authority shall for the purposes of this Act,
appoint one or more officers as Public Information
Officers.
(2) Every Public Information Officer shall deal with requests
for information and shall render reasonable assistance to
any person seeking such information.
(3) The Public Information Officer may seek the assistance of
any other officer, as he considers necessary for the proper
discharge of his duties.
(4) Any officer whose assistance has been sought under sub
section (3), shall render all assistance to the Public
Information Officer seeking his assistance.
(1)
COMMENT
Section 5 does not mention the level in the administrative ladder at
which the information officer should be appointed. Should each
department decide individually who should be its Public Information
Officer? Will the Public Information Officer be someone at the clerical
level or class two-level or class one level? Will the Public Information
Officer take the decision to give or withhold information unilaterally
or will there be some internal system for taking the decision?
There is also some doubt about the working of a system in which
information is to be sought from one Information Officer only. It is
likely to cause unnecessary hardship to people to be asked to go to the
Information Officer for the smallest information which is available
with the person concerned and could cause unnecessary hardship in
cases where a public information officer is not appointed or is not
available. Besides, there is no need for all requests for information to
be routed through a cumbersome process. Much of the information^
required by people is often available at hand with the person dealing
with a particular area of work. This would result in needlessly
burdening both the public as well as the administration.
RECOMMENDATION
The law should specifically state that the provision of an Information Officer
is in addition to the rule that every public officer is under a duty to give
information held by him. The Public Information officer could process the
requests received and screen them under the provisions of the Act. The
Section also needs to be titled “Appointment and Functions of Public
Information Officers”.
Requests for obtaining information
6.
A person desirous of obtaining information shall make a request
in writing, or through electronic means, to the concerned Public
Information Officer specifying the particulars of the information
sought by him.
Provided that where such request cannot be made in writing, the
Public Information Officer shall, render all reasonable assistance
to the person making the request orally to reduce it in writing.
COMMENT
The provision for oral requests is an excellent one and is conducive
to assisting illiterate persons to requesting information. The section,
however, does not include any provision for recording or
acknowledging the requests, whether written or oral.
RECOMMENDATION
The section should include a provision for giving a receipt with the date of
receiving the request and the fee charged. The section could be reframed
as under:
6.
A person desirous of obtaining information shall make an
application to the concerned Public Information officer in
writing in the prescribed form and upon payment of the
prescribed fee, shall obtain a receipt for the same specifying the
nature of the request and the date of receiving the same.
Provided that where a person is unable to make a written request,
the competent authority shall either assist the requester to reduce
it in writing or shall receive an oral request and reduce it in writing
and give a receipt for the same.
Disposal of requests
7.
(1)
"
On receipt of a request under section 6, the Public
Information Officer shall, as expeditiously as possible, and
in any case within thirty working days of the receipt of the
request, either provide the information requested on
payment of such fees as may be prescribed or reject the
request for any of the reasons specified in section 8 and 9:
Provided that where it is decided to provide the
information on payment of any further fee representing the
cost of providing the information, he shall send an
intimation to the person making the request, giving details
of the fees determined by him, requesting him to deposit
the fees and the period intervening between the despatch
of the said intimation and payment of fees shall be
excluded for the purpose of calculating the period of thirty
days referred to above.
(2)
Before taking any decision under section (1), the Public
Information Officer shall take into consideration the
representation made by a third party under section II.
(3)
Where a request is rejected under sub-section (2), the
Public Information Officer shall communicate to the person
making the request, (i)
the reasons for such rejection;
(ii) the period within which the appeal against such
rejection may be preferred;
(iii) the particulars of the appellate authority.
(4)
Information shall ordinarily be provided in the form in
which it is sought unless it would disproportionately divert
the resources of a public authority or would be detrimental
to the safety or preservation of the record in question.
’
COMMENT
The time period of 30 days for all kinds of information is
unreasonable. The refusal of information ought to be made within 15
days of receiving the request. Certain kinds of urgent information
should be supplied forthwith. This section must contain a provision for
urgent supply of information in cases relating to the life and liberty
of persons.
There is no provision for cases where the requester does not receive
a reply at all to the request.
The fee to be charged should be of a nominal nature as is prevalent in
accessing land records. It should not be of a prohibitive nature, as
would deter a person from making a request for information. There
should also be a provision for waiver offees where the information is
requested by a person who is unable to pay the fee, or the information
is requested in the public interest.
RECOMMENDATION
The section could be reframed as under:
(I) On receipt of an application requesting for information the
Public Information Officer shall consider it and pass orders for
supply thereon as soon as practicable, and in any case within
30 working days of receiving the request.
(a)
where the request is of such nature that it relates to the^
life or personal liberty of a person, information shall be
made available forthwith, and in any case not later than
48 hours from the time of making the request.
(b)
where the request cannot be complied with for reasons
falling under Sections 8 and 9 of this Act, the Public
Information Officer shall, within 15 days of receiving the
request, reject the request and communicate to the party
concerned,
(i) the reasons for such rejection;
(ii)
the
(iii)
(c)
(2)
the period within which the appeal against such
rejection may be preferred; and
particulars of the appellate authority.
where the requester does not receive any of the above
communications within 30 days, it shall be deemed to be
a refusal and the requester may pursue the remedy o*
appeal.
The fee to be charged shall in no case exceed the actual cost of
copying the information, such as making photocopies or taking
printouts.
Provided that the fee may be waived where the information is
sought by a person unable to pay the fees or where the
information is sought in the public interest and such waiver may
be recorded on the form
Exemption from disclosure of information
8.
(1)
Notwithstanding anything hereinbefore contained, the
following information not being information relating to any
matter referred to in sub-section (2), shall be exempted
from disclosure, namely: (a)
information, the disclosure of which would prejudicially
affect the sovereignty and integrity of India, security
of the State, strategic scientific or economic interest
of India or conduct of international relations.
(b)
information, the disclosure of which would prejudicially
affect public safety and order, detection and
investigation of an offence or which may lead to an
incitement to commit an offence or prejudicially affect
fair trial or adjudication of a pending case.
(c)
information, the disclosure of which would prejudicially
affect the conduct of Centre-State relations, including
information exchanged in confidence between the
Central and State Governments or any of their
authorities or agencies.
(d)
Cabinet papers including records of the deliberations
of the Council of Ministers, Secretaries and other
officers.
(e)
minutes or records of advice including legal advice,
opinions or recommendations made by an officer of
a public authority during the decision making
process prior to the executive decision or policy
formulation
(f)
trade or commercial secrets protected by law or
information, the disclosure of which would prejudicially
affect the legitimate economic and commercial interests
or the competitive position of a public authority; or
would cause unfair gain or loss to any person.
(g)
information, the disclosure of which may result in
the breach of privileges of Parliament or the
Legislature of a State, contravention of a lawful order of
a court.
F
"
(2)
Any information relating to any occurrence, event or matter
which has taken place occurred or happened twenty-five
years before the date on which any request is made under
section 6 shall be provided to any person making a request
under that section:
Provided that where any question arises as to the date from
which the said period of twenty-five years has to be
computed, the decision of the Central Government shall be
final.
Grounds for refusal of access in certain cases
9.
Without prejudice to the provisions of section 8, a Public
Information Officer may reject a request for information also
where such request(a)
is too general in nature or is of such a nature that, having
regard to the volume of information required to be
retrieved or processed would involve disproportionate
diversion of the resources of a pubic authority or would
adversely interfere with the functioning of such authority;
Provided that where such request is rejected on the ground
that the request is too general, it would be the duty of the
Public Information officer to render help as far as possible
to the person making request to reframe his request in
such a manner as may facilitate compliance with it;
(b)
relates to information that is required by law, rules,
regulations or orders to be published at a particular time
and such information is likely to be so published withir^
thirty days of the receipt of such request; or
(c)
relates to information that is contained in published
material available to public
(d)
relates to information which would cause unwarranted
invasion of the privacy of any person.
COMMENT
Sections 8and 9 cumulatively leave out a large area on which
information can be denied to people. While some of these are
acceptable and necessary, wide ranging class exemptions can defeat
the whole purpose of the Act.
The Memorandum to the Bill acknowledges that the source of the
Freedom of Information Bill is Article 19( 1) (a) of the Constitution.
This means that it is a Fundamental Right and can be curtailed onlyQj
in terms of the restrictions contained in Article 19(2) of the
Constitution, which says that the Right to Freedom of Speech and
Expression can be restricted by "imposing reasonable restrictions in
the interests of the sovereignty and integrity of India, the security of
the State, friendly relations with foreign States, public order, decency
or morality, or in relation to contempt of court, defamation or
incitement of an offence. ” The exemptions on access to information
go far beyond the limits prescribed by the Constitution and take in
factors which are extraneous to the reasonable restrictions envisaged
by the Constitution.
The scheme of sections 8 and 9 make the operation of the Act
completely dependent on executive discretion. It is difficult to
understand the rationale, for instance, of clause 8 (c) which allows
refusing information exchanged between the Centre and the States.
These governments do nothing but take decisions on matters affecting
the public. Under this clause, for instance, the government could refuse
to divulge information on interstate trade, or the sharing of waters,
etc., which are vital matters relating to the public. There is no reason
why such things should be withheld from the public. The wide import
of the words ‘prejudicially affect' would always be construed to mean
‘being uncomfortable for the government’.
The latter part of the section which makes all information received ‘in
confidence’ exempt from disclosure is entirely unreasonable. Likewise
section 8 (d) is too wide and includes all the deliberations of
‘secretaries and other officers ’.
Section 8 (e) is also unreasonable as it takes away from the public gaze
the entire decision making process. The deliberations, opinions etc.
should be available to the public after the decision is made. While we
are certainly not in favour of ‘governance in the market place’ we feel
that this is an unnecessary protection to the working of public
^authorities and goes against the principle of openness.
Likewise, Section 9 could give rise to several problems. Under Section
9 (b) and (c) a wide range of information could be refused by saying
that the information sought is contained in the annual reports of the
department, or in the gazette. However, it is not practical to expect
persons with minimal or no literacy to search for information in these
gazettes and reports which are often unavailable and also unintelligible
to the common person. Clause (c) is particularly fraught with many
dangers. There could easily emerge a class of mercenaries who would
privately publish and sell information obtained from various sources.
Such instances are even now not uncommon.
Various forms required by departments are routinely sold for a high
price by touts. Moreover, who would be accountable for the veracity
of information contained in privately published material?
Apart from this, it is not always physically and financially possible for
people to buy publications.
RECOMMENDATION
The exemptions in section 8 (c) (d) and (e) should be made subject to the
test of Section 8 (a), (b) and (f).
Under Section 9, if some kinds of information can be routinely put in a
publication, the law should clearly put the onus on the public authorities to
publish and make available the same in sufficient quantities within a specified
period of time and, if necessary, to price them reasonably so that they may
be within reach of the common person.
Severability
10.
If a request for access to information is rejected on the ground that it
is in relation to information which is exempted from disclosure, then
notwithstanding anything contained in this Act, access may be given
to that part of the record which does not contain any information that
is exempted from disclosure under this Act and which can reasonably
be severed from any part that contains exempted information.
COMMENT
The provision for severability is an excellent one and is universally
followed. However, the decision to severe must also be subject to
appeal and the document should be made available after blacking out
the severable portions.
RECOMMENDATION
Section 10 can be reworded as under:
‘If a request for access to information is rejected on the ground that^j
it is in relation to information which is exempted from disclosure,
then notwithstanding anything contained in this Act, access may
be given to that part of the record which does not contain any
information that is exempted from disclosure under this Act and
which can reasonably be severed from any part that contains
exempted information.
Provided that the information shall be made available in original,
after deleting or blacking out the severed portions. ’
Third party information
11.
Where a public authority intends to disclose information on a
request made by a party which relates to, or has been supplied
by a third party and has been treated as confidential by that third
party, the Public Information Officer shall by notice to such third
party invite representation against the proposed disclosure if any^
within fifty days from the date of receipt of such notice:
Provided that except in the case of trade or commercial secrets
protected by law, disclosure may be allowed if the public interest
in disclosure outweighs in importance any possible harm or
injury to the interest of such third party.
COMMENT
This is a standard provision which is universally accepted. However
the law should specify within how much time the notice must be issued.
The period of 50 days for inviting representation from third party is
too long and will be detrimental to the interest of the requester.
RECOMMENDATION
The section should include a maximum period offifteen days for
issuing notice to third party and fifteen days for reply.
Appeals
12.
(I)
Any person aggrieved by a decision of the Public
Information Officer may, within thirty days of receipt of
such decision, prefer an appeal to such authority as may be
prescribed:
Provided that such authority may entertain the appeal
after the expiry of the said period of thirty days if it is
satisfied that the appellant was prevented by sufficient
cause from filing the appeal in time.
(2)
A second appeal against the decision under sub-section (1)
shall lie with in thirty days of such decision, to the Central
Government or the State Government or the competent
authority, as the case may be.
Provided that the Central Government or the State
Government or the competent authority as the case may
be may entertain the appeal after the expiry of the said
period or thirty days if it is satisfied that the appellant was
prevented by sufficient cause from filing the appeal in time.
'
(3)
The appeals referred to in sub-section (1) and (2) shall be
disposed of within thirty days of the receipt of such
appeals or within such extended period as the case may be
for reasons to be recorded in writing.
(4)
If the decision of the Public Information Officer against
which the appeal is preferred under sub-section (1) or (2)
also relates to information of third party, the appellate
authority shall give a reasonable opportunity of being
heard to that third party.
COMMENT
Section 12 contains the provision for internal appeal and is the weakest
part of the Act. Unless it is strengthened, the law will be a non-starter.
The law does not provide for an independent forum of appeal, which
is the hallmark of FOI legislation the world over and ensures its
effectiveness. Unless a forum for appeal is created outside the
administrative ladder, the appeal mechanism under the control of the
government cannot by its very nature, ensure fairness in decisions.
RECOMMENDATION
An independent forum for appealing the decisions of the government under
the Act must be created. It could either be in the form of a Commissioner
for Freedom of Information or an independent Tribunal having the powers
of a civil court.
CHAPTER III
Miscellaneous
Protection of action taken in good faith
13.
No suit, prosecution or other legal proceeding shall lie against
any person for anything which is in good faith done or intended
to be done under this Act or any rule made thereunder
COMMENT
This provision reflects an over protective attitude towards public
servants and is redundant in the absence of provisions for
accountability and penalties. The protection would be meaningful only
if extended to disclosures by officials in the public interest, even if the
information was barred by the Act.
RECOMMENDATION
This section can be substituted by a provision for protection of whistleW*
blowers and could read as under :
No suit, prosecution or other legal proceeding shall be against any
person for disclosure in good faith of information contemplated in
Section 8 & 9 if the disclosure would reveal evidence of a
substantial contravention or failure to comply with the law or an
imminent and serious public safety or environmental risk and the
public interest in the disclosure of the second clearly outweighs the
harm contemplated in the provision in question.
Act to have an overriding effect
14.
The Official Secrets Act, 1923 and every other Act in force shall
cease to be operative to the extent to which they are
inconsistent with the provisions of this Act.
COMMENT
The import of this provision is not clear and needs to be debated
throughly before being made applicable. While in some cases this would
expand the area of information made available, in others it may
restrict a pre-existing right.
Bar of Jurisdiction of Courts
15.
No Court shall entertain any suit, application or other
proceeding in respect of any order made under this Act and no
such order shall be called in question otherwise than by way of
an appeal under this Act.
COMMENT
In the absence of an alternative judicial, independent forum, this
provision is totally untenable and ultra vires the Constitution.
RECOMMENDATION
This section should be deleted.
Act not to apply to certain organisations
16.
(1) Nothing contained in this Act,(a) shall apply to the intelligence and security organisations,
specified in the Schedule being organisations established
by the Central or a State Government or any information
furnished by such organisations to the respective
Governments;
(b) shall until Part B of the Schedule is amended under
sub-section (2) apply to the intelligence and security
organisations by whatever name called discharging
their functions as such under the State governments.
(2) The Central Government may, by notification in the Official
Gazette, amend the Schedule by including therein any other
intelligence or security organisation established by the Central
or a State Government or omitting therefrom any organisation
already specified therein and on the publication of such
notification, such organisations shall be deemed to be included
in or, as the case may be, omitted from the Schedule.
(1) Every notification issued under sub-section (2) shall be
laid before each House of Parliament.
COMMENT
The blanket exemptions given to organisations under this section read
with the schedules have no rationale. There is no reason to exempt the
administrative wings of these organisations from disclosing information.
Likewise, the power of the government to add more organisations to the
list of exempted organisations is too wide. The parameters for exemption
should be spelt out strictly and should be applied from case to case and
not to whole classes of information or organisations. The power in
Sec. 16(2) to increase the list of exempted organizations is completely
arbitrary, being without any guidelines whatsoever for its excercise.
RECOMMENDATION
he section should be reworded to apply specific tests for non-disclosure in
ie organisations mentioned.
i
Power to make rules by Central Government
17.
(1)
(2)
The Central Government may, by notification in the Official
Gazette, make rules to carry out the provisions of this Act.
In particular, and without prejudice to the generality of the
foregoing power, such rules may provide for all or any of the
following matters namely:(a)
intervals at which the matters referred to in the sub-clauses
(i) to (vi) of clause (b) of section 4 shall be published;
(b)
the fee payable under sub-section (1) of section 7;
(c)
the other authority before whom an appeal may be preferred
under sub-section (1) of section 12;
(d)
any other matter which is required to be, or may be prescribed.
Power to make rules by State Government
18.
(1)
The State government may, by notification in the Official
Gazette, make rules to carry out the provisions of this Act.
(2)
In particular, and without prejudice to the generality of the
foregoing power, such rules may provide for all or any of the
following matters, namely:(a) the fee payable under sub-section (1) of section 7;
(b) the other authority before whom an appeal may be
preferred under sub-section (1) of Section 12;
(c) any other matters which is required to be, or maybe,
prescribed;
Provided that initially the rules made shall be made by the Central
Government by notification in the Official Gazette.
Rule making power by competent authority
19.
(1)
(2)
The competent authority may by notification in the Official
Gazette, make rules to carry out the provisions of this Act.
In particular, and without prejudice to the generality of the
foregoing powers, such rules may provide for all or any of
the following matters, namely:(a) the fee payable under sub-section (1) of section 7; ™
(b) the other authority before whom the appeal maybe
preferred under subsection (1) of section 12;
(c) any other matters which is required to be, or maybe,
prescribed.
Laying of rules
20.
(1)
(2)
Every rule under this Act by the Central Government shall
be laid, as soon as may be after it is made, before each
House of Parliament, while it is in session, for a total period
of thirty days which may be comprised in one session or in two
or more successive sessions and if, before the session or the
successive sessions aforesaid, both Houses agree in making
any modifications in the rule, or both Houses agree that the
rule should not be made, the rule shall thereafter have effect
only in such modified form or be of no effect, as the case
maybe; so, however, that any such modification or annulment
shall be without prejudice to the validity of anything
previously done under that rule.
Every rule made under this Act by a State Government shall
be laid, as soon as maybe after it is notified, before the State
Legislature.
Power to remove difficulties
21.
(1)
If any difficulty arises in giving effect to the provisions of this
Act, the Central Government may, by order published in the
Official Gazette, make such provisions not inconsistent with
the provisions of this Act as appears to it to be necessary or
expedient for removal of the difficulty:
Provided that no such order shall be made after the expiry of a
period of two years from the date of the commencement of this
Act
(2)
Every order made under this section shall, as soon as maybe
after it is made, be laid before the Houses of the Parliament.
THE SCHEDULE
(See Section 16)
PART A
Intelligence and security organisations established by the Central
Government
1.
2.
3.
4.
5.
6.
Intelligence Bureau
Research and Analysis Wing of the Cabinet Secretariat
Directorate of Revenue Intelligence
Central Economic Intelligence Bureau
Directorate of Enforcement
Narcotics Control Bureau
PART B
intelligence and security organizations established by the State
Government
Name of the Organization
1.
2.
3.
Name of the State
CHRI an independent international
organization headquartered in India.
Its objectives are to promote practical
realization of human rights in the
Commonwealth.
Our Right to Information progamme
is part of our commitment to values of
democracy and good governance.
We
are
grateful
to
Friedrich
Naumann Stiftung for supporting our
programme.
COMMONWEALTH HUMAN RIGHTS INITIATIVE
N-8, Second Floor, Green Park Main,
New Delhi-110 016, INDIA
' Tel.: 91 -11 -686 4678,685 0523 Fax: 91-11 -686 4688
Email: chriall@nda.vsnl.net.in
Website: www.humanrightsinitiative.org
Conceived & Written by
Abha Singhal Joshi
&
Ananya DasGupta
Illustrations by
Suresh Kumar
First Published
1997
Reprinted
1998, 1999, 2001
Material from this book may be reproduced in any form, acknowledging the source
YOUR RIGHT TO INFORMATION
The Health Board had carried out a scheme for immunising children in Gauri’s
district. Gauri and others of her district heard about the scheme on the radio.
However, no children were immunised in the district. When they asked the
health officers for details about the scheme, such as how many children had
been immunised, how much medicine had been brought to the district and how
much was given to children, they were refused the details s.
the health board was under no duty to tell anybody anything.
A journalist saw a news item which said that in a
^lage several children had died of diahorrea. She went to the
village to investigate the matter in order to bring out a detailed
report. When she visited the homes of the
children who had died she came to know that the
children had died of starvation. When she asked
the health authorities to give the details of the
deaths and the disease of which the children had
died, they refused to give her the details saying
that this was a confidential matter.
The people of a locality had been going to the
local ration shop for two weeks to get their shar
of the sugar and rice. Every time they were told that the rice had not come and
sugar had been distributed. After several such responses, the people asked
to see the register of the supply and distribution of the rations. The person at
the shop got furious and starting abusing the people. He said he was under no
obligation to maintain or show them any register.
Shabbir and Sunil had give their names in
the employment exchange five years ago.
Every time they asked the officers about
their position, they were not given any
clear reply. Then they came to know that
Shankar, who had the same qualifications
but had registered after them had been
given a job. They demanded that they
should be shown the rolls. The
employment exchange refused, saying that
this was official information and could not
be shown to anybody.
Many senior government officers and politicians
had been staying in government houses long
after their terms were over. Some were not even
paying the rent. A Parliamentary Committee was
formed to look into the matter. When some
journalists asked for the list of names of persons
in illegal occupation of the houses, the
Committee replied "this is confidential information,
no-one is supposed to know this. ”
Govt Recoups Of ;;ce
Ramlibai inherited some property from her
father. She wanted to transfer it to her name
in the land records. Someone disputed her
claim and the tehsildar asked her to get the old
records of the land. She applied to the office
of the land records but the records were in
such a bad condition that
she could not get them.
The officials said that
they could do nothing
about it.
These responses are not new to any of us no matter
where we are. It happens in the village, in towns, in
cities and even in the capital of the country.
Whenever we ask for any information from any
12 public body, we are generally refused saying
I
that it is a part of secret records, or that it is
confidential or that it just cannot be given.
Most people continue to believe this and accept this as correct.
However, what most people do not know is, that we have a right
to know most of the things about the functioning of government
and other public bodies. We have a right to know what work is
being undertaken by these bodies and how, how much money is
being spent and on what. This is called the Right to Information.
The villagers of Rampur had heard that a new bridge was being built across the
river passing through their village. Three years passed by but no bridge could be
seen. One day, some of the villagers decided to ask the panchayat about the bridge.
The panchayat refused to give them any information on the subject.
The people of Ramput have a right to know
the following things:
How much money has been allocated for
making the bridge
In how much time the bridge is to be
completed
How many people are being employed
for the construction of the bridge, how
much they are being paid.
What is theexar/ location of the bridge,
If after construction the bridge collapses
whose responsibility it is and what action
is taken against that person.
Why is it important for people to know all these things?
In a democracy, the government is formed by us for us, through our elected
representatives. All governmental and pubic work is carried out for us, with our
money. For the work to be done in accordance with our needs we must be able
to take part in the decision making. For this we need to know details of the
work. For instance, the people of Rampur have a right to know how the decision
(b make the bridge was taken and how much money has been allocated for it.
This is called participation.
Government takes many decisions which affect our lives in many ways. We have
the right to know about the things which affect us. If the details and the expenditure
of any project or work are openly known to everybody, the chances of corruption
are minimized. This is called transparency of government.
Government is for the people and is not above the law. If things are not done
properly, then the Government can be held responsible. If the bridge made in
Rampur collapses',' people have a right to know who was responsible for it and
what action is taken against that person.This is called accountability.
To know decisions, be informed on issues, ask for accounts, know details
of various things and hold people responsible for their acts, we need
information.
What is information?
Procedure
Information can be in the form of records
. of proceedings and meetings, copies of
decisions, orders
and notifications,
copies of entries
in government registers, copies
of accounts, copies of notices,
copies of procedures and rules,
maps, drawings of work sites,
etc..The right to have these
things is called the Right to Information.
e
Who has given us this right?
This right is given to us by the basic law of our country which is called the
Constitution. The Constitution says that the people have some basic rights and
the government is bound to protect those rights.T/zeje rights are called Fundamental
Rights. Of these rights there are two important rights which give us the right to
information.
The right to freedom of speech and expression. This means the right to talk
about things freely, the right to express oneself freely whether by writing, speaking,
drawing, painting, broadcasting, singing, etc.. This right also includes the right to
express an opinion on anything. The right to free speech and expression include^)
the right to know, because unless we know about something we cannot express
anything about it or protest against it.
A canal was going to be dug in a certain village in Orissa. On discussion amongst
themselves, the people found that it would not be useful to have the canal at that
location. In order to make a representation to the government, they asked the irrigation
authorities for details of the proposed canal. The authorities said that the details of
the project could not be given as it was official information.
People have a right to the information about the canal so that they can express
their views about it.
The right to life and liberty. This means that one has a right to all those things
by which one’s life is protected and one can live a life of dignity. This also includes
the right to know about things which affect our lives closely.
A scientific institute run by the government published a report saying that some
packaged foods like turmeric powder and infant milk food contained pesticides
which could cause cancer. An organisation working on health issues asked for a
copy of the report so that they could inform people about the hazards of using
those foods. The Institute refused to give a copy of the report saying that it was
‘not available’.
People have a right to know what the report contains so that they can protect their
lives and health.
If the government is under a duty to give information, why is
information always refused?
Information is most often refused because
•
The government machinery has become too complicated, powerful and corrupt.
So it wants to protect itself under the cloak of secrecy.
•
The information askedfor is difficult to find because the system offiling and
keeping records is outdated.
•
People do not know that they are entitled to get the information. So if they
are refused, they do not insist on their right. Under the present set-up, in order
to enforce their right they have to go to the courts which is a lengthy and tedious
process.
p
There are some laws under which certain types of information can be withheld.
Some of the laws which restrict giving
information are :
The Official Secrets Act, 1923
The Evidence Act, 1872
The Conduct of Civil Servants Rules
Some of these are laws in force from the
time of the British. At that time they were
used for suppressing information and for
curbing the freedoms of Indians. These laws
go against the democratic system of
government established by our Constitution
and must be changed or removed altogether.
Then how can we get our right?
We can get the right by:
•
the government giving orders to various departments to give the information
to the people
or
•
by making changes in various laws so that information can be given
through them (so that they do not restrict free flow of information)
or
•
by having one law which enables us to get the information systematically
Government Orders have been passed in some states such as Madhya Pradesh.
In Bilaspur division, the Commissioner passed orders saying that people must be
given information in certain areas. Orders have also been passed for the whole
state for several departments. The heads of each department have asked their
departments to provide information to the people. For example, the departments
of mining, public transport, social welfare, tribal welfare and panchayat and rural
development are now supposed to give information to people when they ask for
it. In Uttar Pradesh too orders have been passed for the Panchayats to give information.
.Orders like these are operative only in the department and in the state where they
are passed. So we have no uniformity in getting information. If we want information
in a state where the departmental orders have not been passed, we cannot get it.
If the government changes its policy or if there is a new government these orders
can be taken back. If there is a law, this right cannot be taken away so easily.
Changes in certain laws have been made in order to given information. The Rajasthan
government has brought out changes in the Panchayat Act rules to say that people
may inspect or have copies of certain documents. This still leaves a large area where
information cannot be reached. Changing all laws to say that information must be
given is a long and complicated process.
Laics on the right to Information have been passed by a few states such as
Goa, Tamil Nadu, Maharashtra, Rajasthan and Karnataka. However these laws are
not satisfactory as they keep a large area of information away from the purview
of the public. They also apply only to the states in which they are made.
That is why there is a demand that the Central Government must
make a law which applies uniformly to the whole country and sets
out a clear procedure for getting information.
We need a law
which enables people to get
information which is important to them.
J)*
which lays down clearly that the
government and public bodies are under a duty to
give informations anyone who asks for it.
which says clearly that giving information is the rule and refusal
which says clearly what the exceptions are
which provides for an easy system of storing information
such as computers etc.
Information Officer
which provides for an easy system of getting information
photocopiers
which provides for information to be given in a simple
form'vpnicix can be easily understood by people.
which lays down a system saying w h cwill give the information
which lay down how the information will be givento people—
whether written, orally or by display on boards, the p /^rewhere
the information will be given, etc.
which puts a positive duty on various government departments
to inform people without being askedin certain key areas
affecting the rights of life and liberty of the people, such as
rights on arrest and custody, vital information regarding health,
information regarding projects which are likely to affect their
livelihood and environment, etc.
which lays down methods in which information can reach people
easily such as making information of certain types available al
accessible on/Zi'/rlike post offices, panchayats, collectorates, ration
shops, etc.
which lays down simple avenue for redressin case of refusal
of information
How can we ask for a law to be made?
There is already a demand for a law by many groups and individuals who have
been struggling for this right. The Government has drafted a law and it has been
introduced as a Bill called the Freedom of Information Bill, 2000. Currently, the
Parliamentary Standing Committee on Home Affairs is reviewing the Bill. Once
the Bill is passed by the Parliament and receives the President’s assent it will
become a LAW. It is very important that before the law is made, we must see to
it that a good law is made which gives us an effective right.
If all this has already happened, how can we influence the kind of law
that will be made?
You can influence the kind of law being made by doing any of the following things:
Keep track of the zrrz/fthrough newspapers, radio
and television.
Keep watch on the proceedings of the parliament
to know when the Bill is re-introduced
Find out the text of the Bill'll is generally brough
out and publicised in the newspapers.
Make representationabout this to your MP and MLA.
Study and discuss the bilko see whether it meets
with the your expectations.
Be in touch with the peop/ewho are working
on this issue.
Discuss the issuan various groups such as
students’ gathering, mahila mandals, club meetings, panchayats, formal
and informal discussion groups.
It7rite about the issuan your local newspapers, magazines
or other local publications.
Insist on your right to knowin every situation
where you need information.
Express your ideas in every way you can. Every idea is valuable.
Lifting the veil the Rajasthan way
The right to information is not something which concerns the literate or the
urban. The story of Rajasthan’s Mazdoor Kisaan Shakti Sangathan says so
too.
The MKSS is an organisation working with villagers for more than a decade.
The villagers of Rajsamand district had been working on various issues such
as minimum wages, establishment of co-operative stores, and corruption.
In the course of their work, they heard that various development schemes
were being implemented in the villages. One look at the villages, however,
revealed that no development work had taken place there. The question
suggested itself: where had the money gone? It took little further thinking
for the horrific revelation that the total of development funds siphoned off
by government officials from the top down would put some of the major scams
to shame. Moreover, this was money meant for the poorest of the poor. The
villagers realised that corruption was not a distant issue-/? was an issue
which was to do with them and theirs. This started the campaign for the
right to information: the people of Rajasthan wanted to know: If people were
given employment, could they see the muster rolls, please? If roads were
said to have been built they wanted to be shown the exact location. How
much money was received for the work executed, how much was spent ?
An important revelation was that as in matters relating to land, if people
had copies of the information sought, they could use the information to
confront government with the obvious fact of corruption.
The struggle of the MKSS picked up and the government was forced to
concede the right to the people to have information on various development
schemes. The government brought out a notification under the Panchayat
Act saying that people could have photocopies of documents relating to
development work.
The people of Rajasthan spoke up. Government had to listen.
You can share your experiences and views with
COMMONWEALTH HUMAN RIGHTS INITIATIVE
N-8, llnd Floor, Green Park Main
New Delhi-110016 INDIA
Tel: +91-11-686 4678, 685 0523
Fax:+91-11-686 4688
E-mail: chriall@nda.vsnl.net.in
http://www.humanrightsinitiative.org
The Commonwealth Human Rights Initiative (CHRI) is an
independent international NGO mandated to ensure the practical
realisation of human rights in the countries of the Commonwealth.
CHRI's present work in the area of police, prisons & human rights;
Freedom of Expression & the Right to Information seeks to
strengthen democracy & good governance through ensuring greater
accountability, citizen participation & the incorporation of human
rights standards into government functioning.
Our Right to Information programme entails publications,
dissemination of information on the issue, networking with other
groups interested in the issue, workshops at rural, state, national
& international levels and feeding back our experiences to policy
makers.
We are grateful to the Friedrich Naumann Stiftung
(FNSl) and the Canadian International Development Agency
(CIDA) for supporting our work on Right to Information.
COMMONWEALTH HUMAN RIGHTS INITIATIVE
N-8. Ilnd Floor, Green Park Main
New Delhi-110016 INDIA
Tel: +91 -11 -686 4678, 685 0523
Fax: +91-11-686 4688
E-mail: chriall@nda.vsnl.net.in
http://www.humanrightsinitiative.org
Legislating
Freedom of Information:
India in Comparative Perspective
Dr. Vikram Khub Chand
Commonwealth Human Rights Initiative
Legislating
Freedom of Information:
India in Comparative Perspective
Dr. Vikram Khub Chand
3
Commonwealth Human Rights Initiative
1999
Reprinted 2000 and 2001
WHY FREEDOM OF INFORMATION?
The last twenty five years or so have seen the passage of freedom of information legislation
in several countries beginning with the United States in 1966, Denmark and Norway in 1970,
Australia, and New Zealand in 1982, Canada in 1983, Greece in 1986, and Ireland in 1998.
South Africa, the United Kingdom, and India are now seriously considering access legislation
of their own. There are several major reasons why the development of freedom of information
(FOI) legislation is a welcome trend. First, FOI legislation breaks with the often entrenched
tradition of secrecy in several countries and, in doing so, helps empower the citizen vis-a-vis
the state, thus deepening democracy and enhancing citizen control of political processes. Second,
more information helps citizens make better and more reasoned choices about important public
policy and electoral issues, and participate in the political process more fully. Third, the capacity
to demand information from governments is a powerful deterrent against governmental corruption
and graft or plain inefficiency. In this sense, FOI legislation can be a powerful aid to the process
of economic development, not just democracy.
This paper seeks to accomplish three objectives: First, it briefly reviews the growth of
a freedom of information movement in India in recent years and examines the current draft FOI
legislation proposed by a government-sponsored working group in 1997 and two other bills
sponsored by the Consumer Education Research Council (CERC) and the Press Council
respectively. Second, it examines proposed or existing FOIA legislation in several other countries,
particularly the US, UK, Ireland, South Africa, Canada, and Australia to draw lessons for the
development of FOI legislation in India. Finally, it concludes with a section on recommendations
for the drafting of an FOI bill for India.
THE MOVEMENT FOR FREEDOM OF
INFORMATION IN INDIA
The movement for freedom of information in India has strong legal and constitutional
underpinnings. India is a signatory of the Universal Declaration of Human Rights, which,
in its celebrated Article 19, defines freedom of expression and opinion as including the
right to “seek, receive, and impart information” and the International Covenant on Civil
and Political Rights, which also protects the right to information. The Indian constitution’s
Article 19 (1) (a) guarantees that “all citizens shall have the right to freedom of speech
and expression”. The Supreme Court of India has, in several landmark decisions, interpreted
this broad guarantee of free speech to include the right to information as well. In Bennet
Coleman & Co vs. Union of India, a leading newspaper publisher challenged the government’s
policy of restricting the availability of newsprint. In its decision, favouring the petitioner,
the Supreme Court declared that “freedom of speech includes within its compass the right
of all citizens to read and be informed”. A dissenting opinion in the same case noted
that “the fundamental principle involved here is the people’s right to know”.1 In State of
UP vs. Raj Narain, a case in which the respondent had demanded information relating to
the security expenses of the then Prime Minister, Indira Gandhi, the Court emphasised
the importance of the public’s right to know as a deterrent to oppression and corruption.*
2
The legal basis of the right to information was strengthened further during the 1980’s by
a series of new cases. In S.P. Gupta vs. Union of India, the Court declared that “disclosures
of information in regard to the functioning of Government must be the rule, and secrecy
an exception justified only where the strictest requirement of public interests so demands.”3
In 1989 in a writ petition involving Manubhai Shah, a noted consumer activist, and the
Life Insurance Corporation of India, the court ruled that no official medium of information
could transmit one set of views without also providing for the expression of alternative
views, thus widening the range of opinions presented to the public. These and other similar
cases effectively widened the scope of judicial protection for the right to information in
India, and contributed to a greater interest in FOI legislation in India. Meanwhile, the
Bofors scandal of the late 1980’s, which involved the alleged bribing of senior government
officials by international arms dealers, led to a greater interest in information rights by
opposition politicians. In 1989, the V.P. Singh government, which had made the Bofors
scandal a central plank of its campaign strategy, came to power promising a more open
government based on the right to information.4
Yet, there was also an important popular impetus to establish a formal right to
information. In several states in the 1990’s, movements developed to monitor government
development projects in order to root out corruption and promote transparency. In Rajasthan,
for example' the Mazdoor Kisan Shakti Sangathan (MKSS) emerged as a powerful force
AIR 1973 SC 783 quoted in “The Movement for Right to Information in India: People's Power for the Control.,of Corruption”, Harsh Mander and Abha Singhal Joshi, Unpublished Paper, n/d. p. 31.
AIR 1975 SC 865 in Ibid, p.33.
Quoted in Robert Martin and Estelle Feldman, Access to Information in Developing Countries. (Transparency
International, 1998), p. 75.
On this, see Report of the Workshop on Freedom of Information and Official Secrecy. Vol 1, (New Delhi:
Centre for Policy Research, 1990), foreword.
Q
Q)
in checking bureaucratic corruption in the critical area of development projects.5 Demanding
access to muster rolls, vouchers, and records of bill payments, the MKSS succeeded in exposing
official corruption in government projects by panchayat or village authorities in several districts
and placing pressure on officials to take corrective action through highly innovative tactics,
particularly public hearings in which evidence of wrong-doing was presented to the community
at large. The MKSS has also pressured the government to disclose crucial information about
the effects of massive development projects on the surrounding population, such as the Bisalpur
dam. As a result of the efforts of the MKSS, the Rajasthan government agreed to make all
documents relating to development works at the panchayat level public, allow citizens to make
photocopies of them, and investigate and punish those responsible for corruption. The Government
of Rajasthan is now considering introducing a Bill on right to information in the state assembly
and has sought the involvement of the MKSS and the National Campaign on the People’s Right
to Information in the formulation of the provisions of the Bill. In Madhya Pradesh’s Surguja
district, an enterprising Indian Administrative Service (IAS) officer was able to check rampant
corruption and theft in the Public Distribution System (PDS) by making copies of key documents,
such as the stock, sale, and ration card registers in each PDS outlet publicly available for only
a nominal fee.6 Sadly, these changes were reversed after his superiors transferred the officer
out of the district. The movement for the right to information has spread to several other states;
in Bihar, for example, representatives of about forty NGO’s assembled in April, 1999 for a
workshop on the subject as a prelude to a full-fledged campaign for information rights in the
state. In response, some states have passed their own freedom of information legislation, such
as Goa and Tamil Nadu, but this legislation is often quite flawed: the Tamil Nadu Act, for example,
contains 22 exemptions that render the right to information tenuous and lacks a clear provision
for an independent appeals process.
On the MKSS, see Mazdoor Kisan Shakti Sangathan, The Right to Know, the Right to Live (MKSS: July,
1996) and Mander and Joshi, “The Movement for Right to Information in India".
Pravin Krishna, “Right to Information in Public Distribution System: The Surguja Experience . n/d.
COUNTERING SOME STANDARD
OBSTACLES
One obstacle to the development of an effective freedom of information regime in India
is the entrenched culture of bureaucratic secrecy underpinned by a draconian Official Secrets
Act (OSA) and the government’s conduct rules. Initially promulgated by the British colonial
administration in 1923, the OSA has survived virtually intact to the present. Article 5 of the
OSA makes it a crime for an official to communicate any information, which, among other things,
was “entrusted in confidence to him by any person holding office under government or which
he has obtained or to which he had access owing to his position as a person who holds or has
held office under government.”7* In addition, the conduct rules of the Government of India
also contain a provision similar to Article 5 prohibiting government servants from “communicating
directly or indirectly any official document or part thereof to any government servant or to any
other person to whom he is not authorised to communicate such document or information.”
(Rule 11 ).s The conduct rules also prohibit government servants from criticising the government
publicly insofar as such criticism applies to recent policy decisions, or embarrasses the government
in its dealings with state governments or foreign governments (Rule 7). In addition, government
classification procedures have tended to be overly strict resulting in the over-classification of
materials by relatively junior officials that could well be released to the public after their initial
sensitivity has died down. Rigid classification norms, combined with the OSA and Conduct
Rules, have together had a highly negative effect on the release of information by government
servants who have been conditioned to be overly cautious in divulging even innocuous information
for fear of facing penalties later on.
Another significant obstacle to an effective FOI regime in India is the state of the country’s
records. Computerisation has been gradually introduced in some ministries, but the pace will
have to be accelerated. Indexes of existing material in government files will have to be compiled
and made available to the public. Deteriorating paper files will have be preserved and organised
in an easily accessible fashion. These problems are probably more serious in India than in the
more developed countries for financial reasons. The culture of secrecy has resulted in a low
premium being place on ensuring access to information as a purely technical matter, and the
lack of state-of-the-art record keeping technology. But again, the relatively outmoded procedures
for storing, retrieving, and disseminating information do not constitute an argument against FOI
legislation. In fact, FOI legislation could provide a powerful incentive for the government to
improve its record-keeping techniques and train officials to provide information in an expeditious
fashion. In addition, a new Indian FOI bill could contain a “grace-period” allowing for access
to records only up to a certain point in the past, say five years prior to the enactment of the
law, as was the case with the Australian FOI bill passed in 1982 that covered records only
until 1977.9 This in turn created an ‘access gap’ for documents that were too old to be covered
by the new FOI legislation, but not old enough to be declared public under Australia’s 30 year
7
Government of India, “The Official Secrets Act. 1923" in Centre for Policy Research, Report of the Workshop
on Freedom of Information and Official Secrecy. Vol II. (New Delhi: Centre for Policy Research, 1990), pp. 821.
*
Government of India, “The All India Services (Conduct) Rules, 1968 and Amendment in 1969” in Ibid, pp. 7679.
*
On the access gap issue in Australian FOI law, see Australian Law Reform Commission. Open Government: A
Review of the Freedom of Information Act 1982 (Commonwealth of Australia. 1995), p. 50. The Australian
Act is fully retrospective as far as personal information (“subject access") is concerned.
disclosure rule under which most records are sent to the government’s Archives. Such limited
retrospectivity would provide for greater access to records under a new FOI regime than before,
but also allow for time to improve record-keeping and dissemination procedures. As the state
of records improves, the Act could be amended to cover records further in the past or one
could wait for the ‘access gap’ that would arise in this case to close with the passage of time
(in our hypothetical Indian example, this would amount to 25 years, assuming a limited
retrospectivity of five years and the statutory norm of transferring at least some material to the
National Archives after 30 years for public consumption).
Opponents of freedom of information legislation in India cite the country’s poverty and
widespread illiteracy as obstacles.10* There are no clear estimates on how much an effective
freedom of information regime would cost in India, but the costs of financing such a regime
would have to be measured against the unquantifiable — but probably substantial — monetary
benefits that would accrue from its dampening effect on corruption and mismanagement at all
levels of the system. Cost calculations are also likely to vary significantly according to the
methodology employed. The Canadian Information Commissioner, for example, disputes his
country’s Treasury Department’s estimate of $75 million to administer Canada’s FOI law between
1983 and 1995 on the grounds of faulty methodology." Estimates regarding the cost of
administering the US FOI law range from $60 to 100 million. At least initially, one would not
expect per-capita usage of any FOI law in India to approximate current request levels in Canada
or the United States, which should translate into lower costs on a relative basis for India.
While illiteracy can undermine the effective exercise of democratic rights including the
right to information, it is not clear that the illiterate would necessarily be better off without an
effective FOI regime. In fact, the poor and illiterate stand to benefit from FOI legislation that
enforces accountability and checks corruption, and improves the administration of government
programs that affect them. The illiterate could also turn to NGO’s, social and political activists,
and even bureaucrats themselves for assistance in demanding information, as the example of
the MKSS in Rajasthan demonstrates. Also, India is a vast and diverse country with figures
on male literacy ranging all the way from 94% in Kerala to 75% in Himachal Pradesh to 56%
in Uttar Pradesh.12 The impact of illiteracy on the efficacy on any new FOI regime is thus
likely to vary significantly across states; national literacy figures therefore do not constitute a
convincing argument against the enactment of FOI legislation in India. It is clear, however,
that any Indian legislation on FOI would have to contain provisions allowing for oral requests
for information that could later be transformed into writing by the agency concerned if necessary.
See, for example, Vasudha Dhagainwar, “Right to Work and to Information” Indian Express. Thursday. March
20, 1990.
John W. Grace, Information Commissioner of Canada. “Notes for an Address to the Canadian Access and
Privacy Association” Ottawa, November 7, 1996, p. 6.
Figures are taken from Jean Dreze and Amartya Sen, India: Economic Development and Social Opportunity
(Delhi: Oxford University Press, p. 47.
PROPOSED LEGISLATION FOR AN FOI
BILL IN INDIA
In 1997, the United Front Government released a proposed freedom of information
bill drafted by a Working Group under the chairmanship of H.D. Shourie.13 The BJP
government, which came to office in March, 1998 has also prepared a freedom of information
bill, which has not been released, but its provisions are understood to be very similar to
the Shourie bill.14
The Shourie bill requires government agencies to maintain an index of records and
to publish information regularly relating to their functions, procedures, and performance.
In addition, agencies are expected to clearly circulate the name of their public information
officers and the location where documents can be viewed by requesters. The Bill requires
agencies to provide access to requested information within 30 days of application and an
extension of another 30 days is permissible for reasons to be clearly spelled out to the
requester. Requests can be made in writing or orally if necessary. The Bill contains 11
exemptions: Of these nine are subject to a test and two (cabinet documents and documents
relating to internal deliberative processes of government) are considered exempt as a class,
requiring no analysis of the contents of individual documents to determine their status.
Information that would “prejudicially affect” the sovereignty and integrity of India, law
enforcement, the government’s ability to manage the economy, the conduct of centre-state
relations, the management of government services and operations, the commercial value
of a trade secret and/or the competitive position of third parties is also considered exempt.
The Bill also exempts information “the disclosure of which would not serve any public
interests” (Section 9, Part IX) and information that might cause the “unwarranted invasion”
of individual privacy. There is a ‘severability’ provision allowing documents to be released
in part with any exempt information deleted beforehand, thus making it impossible to deny
access to a document that might contain a line or so of confidential information.
The Bill leaves open the question of how to set fees for information stating that
fees may be based on an application fee and “such additional fees that may represent the
cost of providing access”. There is a provision to waive fees if the request is in the public
interest. Third parties may appeal against the disclosure of information that they consider
prejudicial to their interests within 14 days of receiving a notice of disclosure of information
previously considered confidential. Requesters who have been refused information may
file for an internal review of their case within 30 days of notification and the agency is
required to complete its internal review also within 30 days. An internal review is a
pre-requisite for an external review to be heard by India’s consumer courts. The Bill also
establishes state and national councils for information to review the operation of the Bill,
review the management of information, advise the government on information policy, and
promote freedom of information generally. The Bill leaves the composition of the councils
unclear and prescribes only one annual meeting for them.
For the full text of the Shourie bill and proposed amendments to the OSA and Conduct Rules, see Government
of India, Ministry of Personnel. Public Grievances, and Pensions, Report of the Working Group on Right to
Information and Promotion of Open and Transparent Government (New Delhi: Government of India, May
1997).
Commonwealth Human Rights Initiative. Submissions to Legislators on a Right to Information Law (New
Delhi: CHRI, 1998).
The Working Group also proposed significant amendments to the Official Secrets Act
and the Conduct Rules. Section 5 of the OSA was to remain, but the definition of an ‘official
secret’ was to be spelled out in narrower terms to include “any information the disclosure of
which is likely to prejudicially affect the sovereignty and integrity of India, the security of the
state, friendly relations with foreign states, {and} economic, commercial, scientific, and technological
matters relating to national security”.15 The option of repealing the OSA was not suggested
by the Working Group, but that may ultimately be the right way to proceed, with structured
FOI exemptions being employed to protect national security and other sensitive information
rather than the OSA. The Group also proposed that Rule 11 of the Conduct Rules be amended
to require officials to “provide full and accurate information to a member of the public or any
organisation, while performing his duties in good faith, except classified information, information
which is in the nature of commercial secrets, or information the disclosure of which will infringe
on the individual’s privacy”.16 After passage of FOI legislation, Rule 11 was to be further
amended to read simply as follows: “Every Government servant shall, in performance of his
duties in good faith, communicate information to a member of the public or any organisation in
accordance with the Freedom of Information Act.”17 The Working Group also proposed useful
changes to the procedures for classifying government information, suggesting that materials be
classified only if they would qualify for an exemption under FOI legislation, recommending that
classification decisions be made by higher level officials, and removing “embarrassment to the
Government” as a reason for classifying documents as “Secret” or “Confidential”.18 The Working
Group was, however, criticised for recommending, among other categories, that information
relating to negotiations and contracts be subject to classification if necessary: Such an exemption
would in effect exclude government tenders from public scrutiny and generate opportunities
for corruption.19
The Shourie Bill has been attacked on several grounds. Critics of the Bill point out
that of its 10 members, eight were government officials giving the Bill a distinctly official cast.
Some of the key criticisms of the Bill are:
1.
The Bill fails to provide for the speedy release of information in cases relating to life
and liberty.
2.
It contains too many exemptions, which are not narrowly defined. The catch-all provision
in Section 9, Part IX, which allows the government to halt the disclosure of any information
that would not serve the public interest, is a wide restriction on the free flow of information
from the government to the citizenry that leaves too much control in the hands of the
government.
3.
It fails to specify what proportion of the cost of providing information would be passed
on to the citizen. It leaves this critical issue to the discretion of the authorities.
Government of India, Ministry of Personnel, Public Grievances, and Pensions, Report of the Working Groun
on Right to Information and Promotion of Open and Transparent Government, p. 24.
Ibid, p. 27.
Ibid, p. 28
Ibid, pp. 29-32.
Other areas where the Government may continue to classify information include information relating to military
plans and weapons, military systems, projects, or vulnerabilities, intelligence activities, sources, and methods,
foreign relations or foreign activities of India, scientific, technological, or economic matters with a bearing
on national security, and nuclear programs as well as information that might prejudicially affect law enforcement
economic management, and the legitimate economic interests of a public authority. Ibid. pp. 30-31.
4.
It does not contain any penalties for information officers or government servants who
wilfully obstruct the flow of information.
5.
It fails to provide protection for whistle-blowers who reveal corruption or mismanagement
in government.
6.
It places no obligation on private actors including corporations to reveal information
about their products or activities that might have a prejudicial effect on public safety
or the environment, although it does allow for the release of confidential commercial
information held by the government in the public interest.
7.
It provides for an appeal to India over-burdened consumer Courts rather than an
independent Information Commission or Tribunal. It trivialises the issue of
information access by not providing for a specialised court to deal with such cases.
8.
The national and state councils, which are to oversee the operation of the bill, meet
too infrequently to conduct their task. By leaving open the composition of the
councils, the bill also leaves open the critical issue of their independence from
government.
The Press Council of India Bill (1997) is an improvement on the Shourie bill in
several respects.20 Like the Shourie bill, it also requires agencies to publish information
relating to the records held in their possession, their procedures, functioning, and
performance, and the particulars of their Public Information Officers. Unlike the Shourie
Bill, the Press Council bill contains a provision under which information relating to the
life and liberty of an individual must be supplied within 48 hours of its request, and 30
days for all other information requests. An unusual provision appoints visitor committees
for custodial establishments, such as jails, mental asylums, women’s homes, consisting of
independent citizens who are to have full access to inmates and their records. All agencies
have the right to charge fees to process requests, but fees are not to exceed the cost of
making or supplying documents. The costs involved in supplying a record, however, is
not clearly defined; if charges are made for the time taken to locate a document (search
time) and/or review its suitability for release (review time), then costs might escalate. The
Bill also contains fewer exemptions relating to information that might prejudicially affect
the sovereignty and integrity of India, national security, public order, friendly relations
with foreign states, and the investigation of an offence; personal information that might
be considered an “unwarranted invasion” of privacy; and trade and commercial secrets.
The Bill contains no exemptions for such categories as cabinet documents, documents
relating to the deliberative processes of government, or records relating to centre-state
relations, all common features of FOI legislation in several countries around the world.
Any information that would be provided to Parliament or state legislatures is also considered
public by definition. There is no catch-all provision similar to Section 9, Part IX of the
Shourie bill allowing for exemption of any material that might be deemed injurious to the
public interest.
. The Press Council Bill defines the term ‘public authority’ in such a way as to include
companies and corporations, whether controlled by the government or not: It therefore.
brings private corporations under the full ambit of the legislation. Unlike the Shourie
bill, it provides for fines to be imposed on officials who fail to furnish information on
20
For the text of the Press Council bill, see Commonwealth Human Rights Initiative, Submissions to Legislators
on a Right to Information Law (New Delhi: CHRI, 1998), Annexure 3.
time or supply false information. Company officials are also liable for offences committed under
the Press Council bill. The Press Council Bill contains no whistle-blower protection. Appeals
against the refusal of officials to provide information are to be lodged with the District Judge
or Principal Civil Judge of the city civil court, who will issue a ruling within 30 days of receiving
the appeal. Such appeals would be regarded as final. The Press Council Bill also provides
for the setting up of a National Council for Freedom of Information and parallel State Councils,
with broadly similar functions to those of the Shourie Bill, but the Councils are required to
meet more frequently (at least one meeting every four months) and there is explicit provision
for the participation of non-officials in their deliberations, although the balance of official and
non-official participants is not specified. The Councils in the Press Council Bill are also expected
to play a special role in training officials to promote “a culture of openness and transparency”.
Final responsibility to monitor the implementation of any FOI law is to rest with a Parliamentary
Committee on the Right to Information, a provision not contained in the Shourie Bill, which
leaves the Councils as the final custodians of FOI legislation.
By far the most detailed proposed FOI Bill for India is the one drafted by the Consumer
Education Research Council (CERC). Unlike the Shourie and Press Council Bills, which limits
the rights enjoyed under FOI legislation to “citizens”, the CERC bill, following most international
practice, extends those rights to any person, except “alien enemies” on the valid assumption
that there is nothing to prevent citizens from sharing information with non-citizens.21 The Bill
requires public agencies at the central and state levels to maintain their records in good order,
provide a directory of all records under its control, promote the computerisation of records in
inter-connected networks, and publish all laws, regulations, guidelines, and circulars related to
or issued by government departments, and any other information concerning welfare schemes.
Unlike the Shourie and Press Council bills, the CERC Bill does not make provision for oral
requests for access to records. The CERC Bill requires government authorities to respond to
any request for information within 10 days, similar to US FOI Act until 1996 when the time to
respond to requests was lengthened to 20 days, and 15 days if notice has to be given to third
parties about the potential disclosure of information relevant to them. Unlike the Press Council
bill, the CERC Bill has no provision for 48-hour access to records in cases involving life and
liberty. Requestors are liable only for the cost of supplying copies of records, with fees being
waived for journalists, newspaper organisations, and public interest groups. The CERC contains
a class exemption for cabinet documents, but other documents relating to security, defence,
international relations, and economic and commercial affairs are subject to a “grave and significant
damage” test. There are other exemptions for personal information in the interests of privacy,
and the research activities of voluntary organisations if disclosure would undermine the functioning
or cause of the organisation or result in “grave and significant damage” to another person. Records
relating to internal deliberative processes of government, the cabinet excepted, and centre-state
relations are not considered exempt under the CERC bill. The Bill also provides for the outright
repeal of the OSA, unlike the other drafts, but contains no whistle-blower protection.
In terms virtually identical to South Africa’s Open Democracy Bill of 1997 (ODB), the
CERC bill contains clauses that prevent public bodies and third parties from claiming an exemption
under the category of privileged economic and commercial information if “it [the record] relates
to the quality, suitability, or safety of the goods and services supplied the public body [or third
The US, Australian, and Irish FOI Acts extend the right to information to all persons as do the proposed
Open Democracy Bill of South Africa (1997) and the UK's Draft Freedom of Information Bill (1999). Only
the Canadian Access to Information Act (1982) limits the right to Canadian citizens or permanent residents.
parties] and the damage referred to in Subsection (1) (c) would be likely to result from the
exercise of [a] more informed choice by persons seeking to acquire those goods and services”.22
Alternatively, the government has the right to release the results of any investigations or information
relating to public safety hazards posed by public bodies and third parties. In addition, the
CERC Bill contains a novel section requiring companies to inform the government of any toxic
substances being produced, stored, transported, used, or released by them, inform the surrounding
communities of the potential negative effects of any chemicals released by design, develop an
emergency plan for any accidents, inform the government and community of any accident that
might adversely affect the environment, and take “antidote” measures in the wake of such an
accident. The CERC thus provides an example by which FOI legislation can regulate companies
to safeguard basic community interests.
Another virtue of the CERC Bill is that it provides for an independent appeal against
negative decisions to release information to a network of information commissioners at the national,
state, and district levels, and later to an Information Tribunal. The system of information
commissioners is to be presided over by a Chief Information Commissioner (CIC), who acts
very much as the custodian of freedom of information in India, with supervisory powers over
record-maintenance, as well as state information commissioners; and the capacity to review
important decisions concerning the possible release of documents. In addition, the CIC is expected
to submit annual reports on the functioning of FOI legislation to Parliament and recommend
any changes that he or she deems necessary. The CIC and information commissioners must
have significant prior judicial or administrative experience, are appointed for a term of five years,
and cannot be removed without a 2/3rds vote of the legislature on the recommendation of the
executive authority and only for reasons of “proven misbehaviour or incapacity”. Public bodies
are required to respond to complaints filed before information commissioners within a maximum
of 15 days, and commissioners can, in addition to authorising the release of documents, award
compensation or punitive damages against a public body if it finds officials guilty of “unconscionable
conduct, lack of good faith, and unfair dealing”. The burden of proof at the appeals stage lies
with the public body to show why a particular document should not be released. A final appeal
is possible to an Information Tribunal consisting of five members at both the national and state
levels. Members of the Information Tribunal are appointed on the same terms as Information
Commissioners and cannot easily be removed from office. The CERC bill thus creates a twotiered appeals process insulated from political pressure that focuses exclusively on information
issues. The only criticism that one could make is that the appeals structure is overly complex
and the functions of one authority over another are not always clear in the drafting of the bill.
The damage in Sub-section (1) (C) refers to the release of information about a public body or third party to a
competitor.
INTERNATIONAL NORMS AND
LEGISLATING FREEDOM OF
INFORMATION
A comparison of freedom of information legislation, enacted or proposed, in the US,
UK, South Africa, Ireland, Australia, and Canada reveals several common issues tackled in
somewhat different ways across countries.
1)
Proactive disclosure
All Bills/Acts impose a requirement on public agencies to publish certain kinds of information
including a description or index of the classes of records held under their care; information on
agency operations, procedures, and programs; administrative and other staff manuals used for
running the agency; and the names and addresses of officers in charge of releasing records to
the public, and location of facilities to see them. The advantages of publishing such information
are three-fold: First, it automatically increases the flow of information from the government to
the citizenry, and improves the quality of citizen-agency contact; Second, the availability of an
index gives the public a clear understanding of what records are held by the agency and prevents
the holding of secret files or documents; and Third, it reduces the number of requests made
under the FOI statutes by augmenting the supply of published information. All the Bill/Acts
under study have strong requirements to publish certain categories of information and promote
the use of FOI legislation, but the draft South African Open Democracy Bill of 1997 (ODB) is
particularly impressive in this regard. The ODB requires the South African Human Rights
Commission to prepare a guide to using the ODB that includes information on how to
contact the information officer of every government body, the manner and form of making
a request for a particular record, and the procedures for making appeals. The guide is to
be supplied to every governmental body, post-office, and public library for use by ordinary
citizens; in addition, the names, addresses, telephone and fax numbers, and email addresses
of each agency’s information officer is to be published in the telephone directory along
with a reference to the guide and how it can be obtained.23 The South African Bill also
allows any information obtained under the Bill to be broadcast on television or radio for
wider dissemination. Any Indian Bill on FOI should incorporate a similar provision requiring
the government to broadcast information about government programs and schemes, and
FOI legislation itself, in order to reach India’s rural masses where illiteracy runs high in
several states. This is a provision missing from all the three Indian Bills discussed in the
preceding section, making it harder to use FOI legislation as an instrument to enforce
development rights, and bureaucratic accountability to the poor.
2)
Access to Records
a)
Retrospectivity
The issue of retrospectivity is intimately tied to the question of the state of records.
If a country’s record-keeping practices are well developed and records in generally good
condition, then FOI legislation can be fully retrospective, that is records can be requested
Republic of South Africa, Ooen Democracy Bill (199.7), Sections 5 and 6, pp. 10-12
for as long as they are held by government departments prior to being transferred to public
archival holdings. Not all legislation is fully or even partially retrospective, however. The Irish
Freedom of Information Act is not retrospective at all, with the exception of personal information;
records can only be requested that pertain to the period after the enactment of the Act in 1998.
The Australian Freedom of Information Act enacted in 1982 was initially retrospective only to
1977, with an exception again for personal information. The US Freedom of Information Act
(1966), Canadian Access to Information Act (1983), and the UK Draft Freedom of Information
Bill (1999), on the other hand, are fully retrospective. Given the relatively backward state of
Indian records and record-keeping practices, any Indian legislation on FOI would do well to
be only partially retrospective to give the government enough room to prepare to meet requests
for information; otherwise, there could be serious difficulties in implementation that could jeopardise
the credibility of FOI laws. On the other hand, some retrospectivity is a good idea to furnish
an incentive to improve the state of existing records, not just records to be created in the future
after the enactment of FOI legislation.
b)
Gateway Provisions
Several Bills/Acts contain ‘gateway’ provisions in order to discourage requests that might
be vexations, interfere unreasonably with the operations of an agency, or are too broad to be
dealt with effectively. The UK and South African Bills allow officials to reject requests that
they deem to be “manifestly vexatious” in the words of the ODB. The Irish law permit requests
to be turned down not only if they viewed as vexatious but also if they seriously interfere or
disrupt the operations of an agency, while the Australian Act allows agencies to turn down
requests that would “substantially or unreasonably divert the resources of the agency from its
other operations” or “substantially interfere with the performance of the Minister’s functions”.24
The UK Draft Bill goes further allowing a ceiling to imposed on the costs for the government
of meeting an FOI request to be set by the agency involved; any request that goes above it
can legitimately be denied. The UK Government has already said that it is inclined to cap the
ceiling at £500.25 The Canadian and US FOI laws contain no gateway provisions, although
the US law obliges agencies to respond only a request that “reasonably describes” the records
to which access is being sought26, while the Canadian Act permits the government to extend
the normal 30 day limit to respond to request for a “reasonable time” if the requests being
sought are large in number, consultations with other departments are required to respond to
the request, or meeting the request within the original time limit would “unreasonably interfere
with the operations of the government institution.”27 The Canadian law requires any extension
of more than 30 days to be reported to the Information Commissioner. Gateway provisions
were designed to prevent frivolous and/or malicious requests, or large volume requests, sometimes
for commercial purposes, that could immobilise the capacity of agencies to respond to the far
more numerous requests of ordinary citizens. Following this line of reasoning, the outgoing
Canadian Information Commissioner called for an amendment to the Access to Information
Act to permit agencies to refuse requests they consider “abusive”, but to make such a refusal
Commonwealth of Australia, Freedom of Information Act 1982 (Reprinted as at 19 January 1995), Section 24
(1), p. 25.
UK Home Office, Freedom of Information: Consultation on Draft Legislation. May 1999, p. 14, paragraph 59.
US Freedom of Information Act (As amended in 1996), section 3 (A).
Canadian Access to Information Act (1983), Section 9(1).
subject to a binding review by the Information Commissioner.28 The Australian Law Reform
Commission, on the other hand, comes down hard on ‘gateway’ provisions, arguing that they
provide too easy an excuse to government departments to evade releasing information, especially
if their records are poorly organised or managed in the first place.29 The Shourie bill allows
agencies to tum down requests that would “disproportionately divert the resources of a public
authority” or “be detrimental to the safety and preservation of the document”. The Press Council
bill has no gateway provisions, while the CERC draft law allows Information Commissioners
to turn away “malicious or vexations” complaints or appeals, but not original requests for
information. Given the culture of secrecy that pervades India’s bureaucracy and the relatively
poor state of records, there is a risk that ‘gateway’ provisions might be misused to limit the
flow of information from the government to the citizenry. If ‘gateway’ provisions have to be
incorporated into any Indian FOI legislation, their application should be subject to a careful
review by an independent authority.
c)
Time Limits
The issue of time limits is complex: On the one hand, one wants to achieve speedy
processing of requests, but, on the other hand, this may not always be practical in very
compressed time-frames. The experience of the US FOI Act in instructive: Initially, the
Act required agencies to respond to requests for information within 10 business days. Many
agencies were not able to comply with requests within that deadline and Courts were reluctant
to impose sanctions solely for a violation of the legal deadline.30 The 1996 amendments,
bowing to this reality, extended the deadline to 20 business days. The Canadian and
Australian FOI laws provide for a period of 30 days to respond to requests, and the Irish
law 28 days; the South Africa draft bill allows for 21 days to respond to personal requests
and 30 days for all other requests; and the UK draft bill requires authorities to respond
promptly but no more than 40 days. None of the Bills/Acts under study have a provision
for faster requests, say in cases involving life and liberty, except South Africa which allows
for “urgent requests”, which must be responded to immediately, if practical, and, in any
event, within five days at most. Requesters are required to explain why a request should
be considered urgent. All Bills/Acts require agencies to explain why a particular request
has been refused and to inform requesters of appeal procedures. Similarly, most FOI
legislation contains a provision to allow the authorities to extend the time required to
search for a particular record or set of records on various grounds including the need to
consult with other agencies, or if the records needed are so numerous that complying within
the time limit would interfere with the operations of the agency, or other grounds. Extensions
can be granted for 21 to 30 days in the case of South Africa depending on the nature of
the request, 28 days in the case of Ireland, and 10 days in the case of the US. The Canadian
Act allows extensions for a “reasonable time” with a requirement that any extension of
more than 30 days be reported to the Information Commissioner. The UK bill, which
allows for the longest period of time to respond to initial requests, does not provide for
extensions. In the case of India, a 30 day period to respond to routine requests, as provided
21
29
John W. Grace, Information Commissioner of Canada, “Notes for an Address to the Canadian Access and
Privacy Association”, p. 8.
Australian Law Reform Commission, Open Government: A Review of the Freedom of Information Act 1982.
P. 88.
US Congress, A Citizens Guide on Using the Freedom of Information Act and the Privacy Act of 1974 to
Request Government Records (Washington DC: Union Calendar 53, House of Representatives Report 103104, 1993), p. 11.
for by the Shourie and Press Council bills, and a special provision for urgent requests to be
met within 48 hours, would probably be most appropriate. Anything less than 30 days, such
as the 10-day period stipulated in the CERC bill, would be impractical. Extensions for another
30 days should also be permitted under clearly specified conditions to prevent their misuse.
d)
Fees
All Bills have provisions for fees to be charged for requests under FOI legislation. Fees
are seen as an important element in deterring frivolous requests and passing on at least a small
proportion of the cost of an FOI regime to users. On the other hand, a system that passes on
the full cost of providing information would most certainly discourage the use of the law by
everybody except commercial users. Each country has devised rather different ways of dealing
with the problem of fees. Australia is probably the country that charges the most for information,
requiring requesters to pay a small application fee, the costs of making copies of documents,
and charges for both search and decision-making time. Even so, Australia is far from a ‘user
pays’ system: In 1994-95, the estimated cost of providing information was placed at $10, 383,
956 of which only 3.7% was recovered by way of fees and charges.31 The US FOI Act
implements a differential fee structure with commercial users being required to pay for the cost
of copies, search time, and review time, this last category being defined as the amount of time
taken to decide whether a record is exempt or not. Universities and scientific research
organisations, on the other hand, are to be charged for the cost of copies only, while all other
requestors (mostly individuals) are charged for copies and search time, but not for review costs.
High-end commercial users who pay more thus make it easier to charge low-end users (universities
and individuals) less per unit of information. South Africa also has a three-tiered fee system
with personal requesters paying a fee for copying only; a non-commercial requester, such as a
university, a fee for reproduction and the time, beyond an initial 24 hours, needed to search
for a document and prepare it for disclosure; and a commercial requester paying the full cost
of reproduction as well as search and preparation time. The Irish and Canadian Acts, and
UK Bill, however, do not distinguish among different classes of users: The Irish law allows for
fees to be charged for copies and search and retrieval costs, while the Canadian law allows
for a small application fee, copying costs, and search and preparation time in excess of five
hours. The proposed UK Bill simply states that users are to pay 10% of the marginal cost of
locating or disclosing information plus “reasonable" disbursement costs; since the UK Bill proposes
a ceiling of £500 per request, this effectively means that no requester can be charged more
than £50 per request.32 Some FOI laws also provide for fee waivers if it is clearly in the
public interest. The Irish Act, for example, allows fee waivers if the record concerned is of
“particular importance to the understanding of an issue of national importance”.33 The US Act
allows for fee waivers if disclosure significantly enhances “public understanding of the operations
or activities of the government and is not primarily in the commercial interest of the requester”.34
The Canadian Act allows agencies to waive a fee without specifying any reasons for doing so,
while the Australian Act allows for waivers in cases involving financial hardship or if disclosure
would be in the general public interest or a substantial section thereof. A review of these laws
Australian Law Reform Commission, Open Government: A Review of the Freedom of Information Act 1982.
p. 181.
The bill says nothing about the procedure to be used for calculating the marginal cost of procuring information
or each additional unit of information.
Republic of Ireland, Freedom of Information Act, 1997, Section 47 (5)
US Freedom of Information Act (As amended in 1996), section 4 (A) (iii).
provides a strong case in the Indian context for a differential fee structure privileging ordinary
users over commercial ones, with one possible caveat: Such a system might be hard to administer.
Given the persistence of significant poverty in India, fees should also be kept as low as possible
involving charges for copying only if the request is non-commercial in nature. Waivers should
be permitted if disclosure is clearly in the public interest or if charging a fee would cause undue
financial hardship to an individual or group. There should be no discretion in determining fee
structures.
3)
Exemptions
The issue of exemptions from FOI requirements involves a complex balancing act between
what may be disclosed and what may not be disclosed for fear of serious negative consequences.
There are two ways in which to exempt information: One is to exempt particular organisations
from the scope of FOI legislation and the other is to exempt records relating to particular functions
of government from disclosure. The UK Bill and Australian Act, for example, exempt security
and intelligence agencies from compliance with FOI noims in addition to information relating
to certain functions of government. Functional exemptions are of two types: class-based exemptions
that automatically cover all documents falling within a category of information and contentsbased exemptions where a particular record falling within a category is examined for its contents
to determine its suitability for release. Content-based exemptions are subject to a harm test
to determine whether to release them or not. All international FOI legislation contains provisions
for ‘severability’ whereby portions of a record can be released with exempt information deleted;
the question of ‘severability’ does not arise in the case of class-based exemptions.
The most common functions where exemptions from FOI requirements are often granted
include documents relating to national security, foreign policy, and defence; cabinet proceedings;
deliberative processes of government; centre-state relations; sensitive economic and commercial
information, sometimes concerning third parties; law enforcement and public safety; and information
supplied in confidence. Sometimes, documents in a sensitive category are exempt as a class;
other times they are subject to a harm test. The UK Bill requires agencies to show that “prejudice”
would result to a particular function, where contents-based exemptions apply, if a document
were to be released; the Australian Act “substantial adverse effect”; and the Irish Act merely
“adverse effect”. The Canadian Act requires that exemptions be granted only if disclosure
might “reasonably be expected to be injurious” to the function where harm tests apply, while
the South Africa Bill uses different harm tests for different functional areas.
Examples of class-based exemptions common to all countries include documents relating
to information already published, information to be published by a specified date, judicial functions,
and governmental decision-making and policy formulation. One argument advanced for exempting
records relating to governmental decision-making and policy formulation, including Cabinet
proceedings, is to ensure free and frank discussion, and preserve the principle of collective
ministerial responsibility. Of the six countries studied here, only Australia exempts documents
relating to national security as a class, while the US and Canada exempt records relating to
certain aspects of law enforcement as a class. Information supplied in confidence including
information, sometimes from foreign governments, international organisations, and provinces,
other times from informants and third parties, is often exempted as a class. Australia, Ireland,
Canada, and the United States, but not South Africa, for example, allow a class exemption for
confidential information. One problem is that this exemption can be used to shield international
organisations, such as the World Bank or IMF, which often exercise significant power in many
developing countries from public scrutiny and accountability. Australia, the UK, and Canada
also provide for exemptions for information concerning centre-state relations, but subject them
to a harm test35; a similar provision in an Indian FOI bill would therefore not be inconsistent
with international practice. None of the Bills/Acts contain a catch-all provision, such as the
one in the Shourie bill, exempting information that might not serve the public interest, although
the UK bill does authorise the Secretary of State, with the approval of both houses of Parliament,
to create new exemptions if the public interest in doing so outweighs the public interest in disclosure.
The UK bill, however, also contains a clause allowing agencies to make ‘discretionary’ disclosures
of information normally considered exempt, except in cases where certificates are in force, if
the agency considers it in the public interest to do so.
In addition, some Bills/Acts, particularly Australia, the UK, and Ireland, allow Ministers
to issue certificates protecting information in certain categories: such certificates cannot be easily
overturned by normal appeals procedures. The Australian FOI law is by far the most liberal
in its use of such ‘conclusive certificates’ applying them not just to documents relating to national
security and cabinet proceedings, but to other areas, such as executive council proceedings,
internal deliberative processes of government, centre-state relations, and law enforcement and
public safety. Once a ‘conclusive certificate’ is issued, it cannot be revoked by the Administrative
Appeals Tribunal (AAT), the main body for hearing appeals under Australia’s FOI law. The
extensive provision for the use of ‘conclusive certificates’ in the Australian case makes it one
of the most restrictive FOI Bills in the world; Parliament, members of the opposition, and the
Australian Law Review Commission have all objected to use of conclusive certificates especially
outside the ‘core’ areas of national security and cabinet proceedings. The UK draft Bill also
allow for Ministers to issue certificates exempting documents relating to national security and
information concerning security and intelligence agencies; these certificates cannot be revoked
by the Information Commissioner (the first rung of the appeals process), but can be set aside
by the Information Tribunal (the second rung). The Irish law allows Ministers to issue certificates
in the cases of documents relating to national security and law enforcement matters; such certificates
must specify an expiry date, are subject to an annual review by the Prime Minister and Council
of Ministers, and can be appealed to the High Court, but not the Information Commissioner.
An FOI Bill that sought to maximise freedom of information, consistent with the need to restrict
access in some cases, would have fewer functional and organisational exemptions, subject most
functional exemptions to contents-based tests rather than blanket exclusions, and eschew the
use of certificates as a means to cordon off information.
4)
Appeals
Most Bills/Acts provide for an internal review, usually by the head of an agency, if an
initial request for information is rejected. Usually such internal reviews are expected to be
conducted in an expeditious fashion — South Africa specifies 30 days to consider an internal
appeal, Ireland 21 days, the United States 20 days, while Australia allows a requester to appeal
directly to the Administrative Appeals Tribunal (AAT) if no decision is taken on an internal
appeal after 30 days. South Africa is also the only country to allow an ‘urgent’ internal appeal,
which must be completed within five working days. The Canadian Act and UK Bill do not
specify processes for internal review and requesters can proceed directly with an external appeal
if they wish to do so. Australia charges a small fee for an internal review as does South Africa,
It should be noted that in Canada information obtained in confidence from the provinces is granted a class
exemption, and not subject to a harm test.
the latter in the case of commercial requesters only.
It makes good sense to require an internal appeal prior to an external appeal to give
agencies an opportunity to alter decisions without litigation, and reduce the burden on the external
appeals process; on the other hand, where there is provision for external mediation, rather than
litigation, by an Ombudsman or Information Commissioner, such mediation should be permitted
at any stage after the rejection of the initial request by the agency. Canada and Australia, for
example, provide ample opportunity for outside mediation. In Australia, requesters have the
option of going to the Ombudsman for mediation instead of filing an appeal with the AAT; if
the Ombudsman fails to resolve the matter, the requester can then proceed with a formal appeal
to the AAT. The Ombudsman has the right to refuse to mediate until an internal review has
occurred. In Canada, the Information Commissioner’s primary function is to mediate disputes
between requesters and agencies; the Commissioner can make recommendations, but cannot
order agencies to release information. On the other hand, s/he has the authority to ask the
Courts to address probable transgressions of FOI law by government agencies, but this has
been resorted to only sparingly in the history of the Canadian Act.36 One reason why Canadian
Information Commissioners have been reluctant to appeal to the Courts is because it is not
clear whether the latter will rule in favour of expanding the scope of FOI laws; some Court
rulings may have the opposite effect, although in practice the Canadian Information Commissioner
has had reasonable success in persuading the Courts to overturn certain agency decisions. In
the US, for example, Courts have usually sided with the government in protecting classified
information relating to national security and defence. Mediation thus not only offers a chance
to resolve a dispute at a relatively low cost in a reasonable span of time, but also avoids the
risks of testing FOI laws in Court.
All countries provide for external appeals to an independent authority: In the case of
the US, this independent authority is the district court in the area where the petitioner resides.
Sometimes the threat of going the Court in the US case — and presumably in other countries
as well — is enough to encourage an agency to settle the case by releasing at least a portion
of the information requested. The possibility of filing an appeal thus gives requesters a potential
stick to wield against agencies in their battle for information, but its credibility depends entirely
on a swift and fair appeals system. In South Africa, also, requesters can proceed directly to
the High Court after an internal review and may receive legal assistance from the South African
Human Rights Commission (SAHRC). Canada allows for an appeal to federal court after the
Information Commissioner has had an opportunity to resolve the matter. The UK bill proposes
a two-tiered external appeals process with appeals being made first to an Information Commissioner
and then to an Information Tribunal; appeals to the Information Tribunal can be filed against
decisions of the Information Commissioner by requesters or agencies, or by the Information
Commissioner against agencies that ignore her or his rulings. A further appeal, on points of
law, to the High Court is allowed. Ireland also provides for an appeal to an Information
Commissioner whose decisions are binding except in cases, where certificates are in effect,
followed by an appeal to the High Court on points of law. In Australia, appeals are allowed
to the AAT, followed by an appeal to the Courts on points of law; Australia is the only
country to charge a fairly substantial fee for filing an appeal with the AAT.
One advantage of the UK and Irish appeals process is that it provides for external
appeals to be first made to a specialised body exclusively concerned with information issues;
Information Commissioner of Canada, The Access to Information Act: 10 Years On (Ottawa: Minister of Public
Works and Government Services, 1994). pp. 10-12.
such bodies are likely io be less burdened than the regular court system, and be more sensitive
to the issues involved. South Africa, Ireland, and Canada allow judges to hold public agencies
responsible for paying the costs of an appeal, even if the applicant was unsuccessful, if an important
principle of law is involved; the South African Act goes further by allowing such costs to be
shouldered by public agencies if the appeal “promoted the interests of open, accountable, and
participatory administration by one or more organs of the state’’.37 South Africa, Canada, and
the United States all place the burden of proof in any judicial proceedings on the agency concerned
to show why a given record cannot be released. The US assigns priority to information cases
in the docket, but does not specify a time limit within which such cases must be heard, and
most other countries also refrain from deadlines for completing external appeals.
The independence of the external appeals process is supported by two factors: (1) the
separation of powers that exists in long-established democracies, which guarantees the existence
of an independent judicial branch of government in the first place, and (2) statutory provisions
that establish the independence of Information Commissioners. The Irish Act, for example,
appoints the Information Commissioner for a fixed term of six years and prevents her or him
from being removed from office except for “stated misbehaviour, incapacity, or bankruptcy”
after resolutions passed by both houses of Parliament. In Canada, the Information Commissioner
holds her or his office for seven years during “good behaviour” and can only be removed by a
vote of both the Senate and House of Commons. The UK draft bill, however, fails to indicate
how the Information Commissioner or members of the Information Tribunal will be appointed
nr removed.
This brief reviews suggests that any FOI law for India would have to contain three elements
to ensure a fair appeals process: a speedy internal review, ample opportunities for mediation,
and formal appeals to a specialised and independent Information Commission or Tribunal followed
by recourse to the High Court on points of law. No fees should be charged at any stage of
the appeals process, timely deadlines established for hearing appeals by specialised information
bodies or the High Court, and, in the case of appeals to the High Court, the government should
shoulder the costs of applicants if important principles of law are involved or the appeal serves
the public interest. The burden of proof throughout should be on the government to justify
withholding a record.
5)
An Advocate for FOI Laws
Most international FOI legislation provides for the creation of an institutional advocate
for freedom of information laws. The advocate is required to publicise the law, monitor its
functioning and implementation by government agencies, suggest possible changes to make it
more effective, train information officers, promote a culture that facilitates information access,
consult with government agencies and private groups about problems being encountered in the
administration of FOI laws, receive funds and make donations to promote freedom of information,
mediate disputes over access, provide legal assistance to those seeking information from
government in a court of law, and publish reports on the operation of FOI laws for Parliament
and the public. In South Africa, the task of advocacy is vested with the South African Human
Rights Commission (SAHRC): One novel feature of the South African advocacy legislation is
that is requires the SAHRC to promote an understanding of the Bill among backward communities
in particular. In Ireland, Canada, and the UK, this advocacy function lies clearly with the Information
Commissioner; in the case of the UK and Ireland, the advocate is also a judge, leading to a
”
Republic of South Africa. Open Democracy Bill (1997), Section 111 (3) (b).
potential conflict between the two roles. The US and Australia rely on the legislature to play
the role of advocate for freedom of information; in the US, the Attorney General prepares a
report for submission to Congress on the operation of the FOI law on the basis of individual
agency reports required by law to be submitted to her or him, while in Australia agencies are
required to submit annual reports to Parliament detailing the numbers of requests for information
received, accepted or rejected fully or in part; the numbers of appeals filed, accepted, or rejected
by the AAT; a description of any fees and charges imposed; and the numbers of ‘conclusive
certificates’ issued by the Minister, among other things.
FOI laws, especially in their infancy, require a strong and independent advocate to monitor
and promote their use; preferably, the functions of advocacy and administering judicial appeals
should be institutionally separate, as in the case of Canada and South Africa, for the sake of
credibility, impartiality, and effectiveness. A court that is supposed to hear information cases
cannot be considered impartial if,,at the same time, it is expected to serve as an advocate for
freedom of information. Nor can an institution armed with the power of judicial sanction be
expected to be much of an advocate for the cause of FOI. Separating the two would also
free up each institution to concentrate on a single task, advocacy in one case and deciding
appeals in the other, thereby promoting efficiency through specialisation. The idea of national
and state councils to serve as advocates for FOI laws in India, as proposed by the Shourie
and Press Council bills, is thus a good one provided they can be structured to enhance their
effectiveness through frequent activity, a prestigious and independent membership, and a generous
budget set by Parliament.
6)
Whistle-blower Protection
The only FOI Bill/Act that contains explicit protection for those who reveal corruption
and mismanagement is the South African one. Under section 88 of the South African Open
Democracy Bill (ODB), no one can be held criminally or civilly liable, be subject to any disciplinary
proceeding, or be removed from office, denied promotion, or transferred if the person believed
“in good faith” that he or she was disclosing an impropriety involving corruption, abuse of power.
and serious maladministration, including a substantial “waste of public resources” or “danger
to the health and safety of an individual or the public”.38 The burden of proof is on the whistle
blower to show that his or her disclosures were necessary to avert a “serious and imminent
threat to the safety or health of an individual or the public, to ensure that the impropriety concerned
was properly and timeously investigated, or to protect himself or herself against serious or
irreparable harm from reprisals” or to show that the public interest in disclosure outweighed
the public interest in non-disclosure in light of the importance of an “open, accountable, and
participatory administration”.39 Such protection would apply only in the context of disclosures
made to a Parliamentary committee, the committee of a state legislature, the Attorney General,
the South African Human Rights Commission, the Auditor-General, and the Public Protector
or to the media. While the US FOI Act does not itself provide for whistle-blower protection,
separate legislation in the form of the Civil Service Reform Act (1978) exists, which does so.
The UK is also considering approving a separate bill, the Public Interest Disclosure bill, to
provide protection for whistle-blowers, which allows employees to make unauthorised disclosures
if they can show that such disclosures were in the public interest by, say, publicising the risk of
a significant health hazard or attempts to defraud the public. In India, it is absolutely essential
Republic of South Africa, Open Democracy Bill (1997). Section 88 (1) and 88 (2).
Republic of South Africa, Open Democracy Bill (1997). Section 88 (3) (b).
to provide whistle-blower protection to deter and expose corruption and mismanagement by
government officials either through an FO1 law or through separate legislation. For the moment,
none of the blueprints for an Indian FO1 law provide protection for whistle-blowers, a major
blunder that needs to be addressed.
7)
The Private Sector and FOI
One critical issue is the extent to which private actors are subject to the requirements
of FOI legislation. FOI legislation can intersect with private interests in different ways. Companies
can seek information about other companies possessed by government agencies, often as a
way of learning about their competition. One of heaviest users of US FOI laws, for example,
are businesses; one well know case is that of Suzuki, which obtained test data from the
Environmental Protection Agency (EPA) relating to the environmental performance of Toyota
vehicles in the United States. Most laws will allow third parties the right to appeal against
disclosures of information that they consider prejudicial to their interests; the US FOI Act curiously
does not require agencies to inform third parties of imminent disclosures, but many agencies
do so anyway. Such notices often result in appeals to block disclosures, or “reverse FOI”
cases seeking to use FOI legislation to prevent the release of information.
Most FOI laws contain an exemption for commercial information involving trade secrets
or information that might undermine the competitive position of a company, which provides a
measure of protection for corporations. However, one critical issue is whether companies should
be required to release information, regardless of whether this involves disclosing trade secrets,
information supplied in confidence, damaging its competitive position, or undermining its negotiating
position, if there is a clear public interest in doing so. The South African bill is very clear in
this regard: It empowers the government to disclose any information in its possession concerning
(1) the safety of goods and services supplied by a third party that might result in consumers
being able to exercise better informed choices, and (2) the results of any test conducted by, or
supplied to, the government regarding “public safety or environmental risk”. The Canadian
FOI law also allows the government to override the protection given to third party information
if this concerns the results of product or environmental tests conducted by the government or
if the disclosure is in the public interest insofar as it relates to “public health, public safety, or
protection of the environment and if the public interest in disclosure clearly outweighs in importance
any financial loss or gain to, prejudice to the competitive position of, or interference with
contractual or other negotiations of a third party”.40 Ireland also allows the government to
release sensitive commercial information about a third party that would normally be exempt “in
order to avoid a serious and imminent danger to the life or health of an individual or to the
environment” or if the head of an agency believes that the public would be better served, “on
balance”, by releasing such information than withholding it.41 The US and Australian laws,
and UK Bill, contain no provision for releasing third party information in order to protect public
safety, the environment, or public health, but this simply reflects the fact that these countries
already have other laws and regulatory mechanisms in place to monitor companies in these
critical areas. None of the Bills/Acts contain a provision for the release of third party information
concerning tender bids for government contracts or the possibility of obtaining information of
importance to the public not in the possession of the government directly from companies.
Canadian Access to Information Act (1983). Section 20 (4) and (6).
Republic of Ireland, Freedom of Information Act, 1997. Section 27 (2) (e) and Section 27 (3).
India should permit the release of privileged commercial information on the same terms
as the South African Bill and Irish Act, with additional clauses that make all tender bids public
by law, and require companies to disclose any information affecting the safety of their products
and their health and environmental consequences. The Shourie Bill, like the Irish law, allows
for the release of third party commercial information if the public interest in disclosure outweighs
the harm that would result to the company, but does not require companies to disclose information
about the health, safety, or environmental implications of their products. The CERC Bill applies
a somewhat narrower test for the release of third party information, on the lines of the South
African bill, but also imposes stringent environmental disclosure requirements on companies.
The Press Council Bill is overly broad and invasive of private interests, subjecting companies
to the same FOI requirements as public agencies, obliterating the distinction between them,
but would offer the possibility of obtaining information not in the possession of the government
from companies directly. Of the three Indian Bills, the CERC Bill does the best job of balancing
the need to subject companies to FOI requirements insofar as their activities affect the public
domain, while respecting their freedom as intrinsically private actors.
8)
Penalties
All laws must have effective penalties to enforce compliance with their provisions. One
critical question is the stage at which penalties should be imposed. The Press Council Bill, for
example, automatically imposes a fine of Rs. 50 a day on officials who fail to furnish information
on time. This provision, however well intentioned, is not consistent with international practice.
None of the Bills/Acts studied here allow for automatic penalties in such cases for two reasons:
First, automatic penalties constitute a violation of the due process rights of the officials involved
and second, officials may be unable to furnish information on time for reasons beyond their
control, such as the poor state of records or a request that is too broadly phrased and/or involves
a search for too many documents. A better alternative might be to deny agencies the right to
collect fees in the case of delayed requests. All Bills, however, provide for the imposition of
some penalties for the non-furnishing or misuse of information on various grounds after an appeal
to an external authority. The US FOI Act, for example, allows district Courts to recommend
to the Special Counsel that disciplinary action be taken against officials who arbitrarily and
capriciously withhold information and assess costs and attorney fees against the government
when information has been improperly withheld. The South African draft Bill allows relief or
compensation for harm from the courts for the government’s use or disclosure of inaccurate
personal information, which may stem from a refusal to correct personal information or other
factors. The UK draft Bill imposes a hefty fine of £5000 on any person found guilty of altering.
concealing, or destroying records with the intent of preventing their disclosure,42 and Canada
is considering reforming its FOI law to impose similar penalties on those, who wilfully
alter or destroy records to undermine the right of access.43 Another concern is ensuring
that external agencies, such as Information Commissioners, Tribunals, or Courts can
investigate alleged offences against FOI laws. The UK bill, and Irish, and Canadian Acts,
all contain a provision making it an offence, punishable by a fine and/or imprisonment, to
obstruct investigations by Information Commissioners into alleged violations of FOI rules.
The UK Bill also empowers the Information Commissioner to seek a warrant from a judge
to enter, search for, and seize documents from, the premises of a public agency suspected
42
43
UK Home Office, Freedom of Information Bill 1999 (Draft Version). Section 66
John W. Grace, Information Commissioner of Canada, “Notes for an Address to the Canadian Access and
Privacy Association”, pp. 9-10.
of not co-operating with an ongoing investigation, and use reasonable force to do so, if necessary.44
Any Indian Bill on FOI legislation should contain penalties involving a fine and/or prison term
for altering or destroying records to thwart their disclosure and also for any action taken to
obstruct overseeing bodies empowered to investigate alleged violations of FOI laws or enforce
compliance with them. The CERC Bill contains both these elements, unlike the Shourie Bill,
which overlooks the use of penalties as an instrument of enforcement.
UK Home Office, Freedom of Information Bill 1999 (Draft Version), Schedule 3.
TOWARDS AN INDIAN FOI BILL
Before making any specific recommendations about the design of an Indian Bill, it is
worth raising two key issues. First, one clear goal of any FOI law in India is that it should
serve an instrument to promote development rights in India. To ensure that this happens, an
FOI law should contain elements that facilitate its use by ordinary people, particularly in rural
areas. These elements should include a provision requiring the state to broadcast information
about government programs and entitlements — and the FOI Bill itself — to promote citizen
awareness of their rights, training for Information Officers to help them process oral requests
and deal with the poor in a sensitive and helpful manner, and a speedy and effective appeals
process understood by, and accessible to, ordinary citizens. These legal provisions should be
supplemented by sustained pressure from NGO’s, political and social activists, the press, and
the legal profession to ensure that India’s FOI Bill is used to promote the interests of the needy,
particularly rural Indians. Second, while this paper has focused on analysing six major international
FOI laws or proposed laws and drawing lessons for India, this does not imply that India should
blindly imitate these laws without adapting them to Indian conditions. The purpose of this
comparative study is really to draw out the common elements that make up the basic building
blocks of an effective FOI regime that might help in the fashioning of an FOI Bill designed to
deal with Indian problems and situations. Another goal of this comparative exploration is to
pinpoirfbpractices in the FOI legislation of other countries that India would do best to avoid:
The Australian practice of issuing ‘conclusive certificates’ not subject to external review being
one such example. Other countries have clearly followed a similar path to their own FOI legislation,
drawing lessons from the experience of other countries, while shaping them to fit their own
circumstances. The Canadian Act, for example, differs in significant ways from the US FOI
Act, while being similar in some respects as well.
Specific Recommendations for an Indian FOI Bill'.
®
Strong Pro-disclosure Requirements: This should include provisions requiring agencies
to publicise details of their programs by electronic means, maintain and organise records
to render them accessible to the public, create an index of all records for public use,
and publish all materials relating to agency rules, guidelines, operations, procedures,
and performance.
©
Publicising the FOI Act by making a guide for its use available in every government
office, including post-offices, and transmitting information about how to use the
Act by radio and television in order to reach remote areas.
O
Making the Act Partially Retrospective: The extent of retrospectivity depends
on the capacity of the government to organise its records to meet public demands
for information before-hand, but a period of three to five years seems appropriate.
O
No Gateway Provisions: The Act should not contain any ‘gateway’ provisions
that can be used as excuses to deny requests for information except for the case
of overly broad ones in which case the Information Officer should be required to
help narrow the request to make it more manageable.
O
Reasonable Response Times: The Act should provide for reasonable response times
for most requests. A 30-day period in which to respond to requests seems appropriate
given most international practice and the search and retrieval constraints imposed by
the state of Indian records. Extensions should be permitted for an additional 30-days
for carefully defined grounds.
Urgent Requests: The Act should contain a provision to allow for urgent requests in
cases involving life and liberty that should be responded to immediately and, in any event,
within no more than 48 hours.
A Two-Tiered Fee Structure: Fees for copying, search time, and review time should
be charged from commercial requesters only; other applicants should be required
to pay only copying costs. Fees should be completely waived for non-commercial
requesters if the request is in the public interest or on grounds of financial hardship.
Exemptions should be narrowly defined. Class exemptions should be permitted
only for cabinet documents, information already published and readily available at
a reasonable price and information that is due to be published within a period of
90 days. All other exemptions should be subject to a relatively stringent test that
would require the government to show that ‘substantial harm’ would from result
from disclosure, not merely ordinary harm. There should be no provision for the
creation of new exemptions, except by amendment, and no clauses, such as the
one in the Shourie bill that allows the government to exempt any record that it
feels would not serve public interests. The use of certificates to shield particular
records from being disclosed should be completely eschewed.
Appeals should be heard by an independent and specialised body competent
to hear cases relating to information. The first rung of external appeals should
be heard by an Information Commissioner followed by recourse to an Information
Tribunal and/or the High Court on points of law. The Information Commissioner
should also act as a mediator in disputes involving agencies and requesters.
External mediation by the Information Commissioner should be allowed to proceed
alongside an internal appeal to the head of an agency, but an internal appeal should
be a pre-requisite for any formal external appeal in order to discourage litigation
and give agencies an opportunity to reconsider. Internal appeals should be decided
within 30-days of being filed after which the requester should automatically have
the right to appeal to the Information Commissioner. Plaintiffs should have the
right to hire professional legal or other assistance for internal and external appeals;
and the costs of any appeal should be awarded against the government, even if
the government wins the case, if the appeal involves an important principle of law,
is deemed to be in the public interest, or contributes to transparency and accountability
in government.
Creating an Institutional Advocate for FOI: Any FOI law in India will need an
institutional advocate to monitor compliance with the law, report to Parliament,
receive feedback from agencies and requesters, make suggestions for further reforms,
and foster support for freedom of information. This advocacy function should not
be combined with a judicial one, such as the power to hear and decide appeals,
although it could be merged with a mediating function. The idea of creating National
and State Councils for Information that could fulfil this role is a good one; if this
involves too much expense or administrative complexity, the Information
Commissioner’s role could be limited to mediation and advocacy, as in the case of
Canada, with formal external appeals being heard by an Information Tribunal and
then by the High Court.
Whistle-blower Protection is an absolute must for India given the high levels of corruption
and mismanagement that plague administration and governance. This should be introduced
either as part of an FOI bill or as a separate legislative initiative.
Private companies should be subject to the FOI bill insofar as their activities
affect the public domain. The government should be able to release commercial
information normally considered exempt in cases where there is a threat to the life
and safety of an individual or the public, a public health hazard, or a significant
environmental risk. In addition, the government should be allowed to release such
information on the basis of a simple public interest test. Finally, companies should
be required to provide information about their products and processes that might
have implications for public safety, health, or the environment. There should be
no burden on companies to release information that has no direct bearing on the
public.
Penalties are necessary to enforce FOI laws. Agencies that delay providing
information beyond the stipulated period, including extensions if appropriate, should
forfeit the right to collect fees for such information. Prison terms and/or fines
should be imposed on those who wilfully destroy or alter records to prevent their
disclosure, are found to have acted capriciously and arbitrarily in refusing to divulge
records, and who obstruct investigations carried out by authorities vested with hearing
appeals and ensuring compliance with FOI legislation.
Repeal of the Official Secrets Act and Reform of the Conduct Rules of the
Government of India: The exemptions provided by FOI legislation should be
sufficient to meet the need for secrecy in government at certain times in certain
areas, while also preserving the foundations of a well-informed democratic society.
The passage of FOI legislation thus makes the OSA irrelevant. To retain both statutes
would be to create serious confusion that would inevitably have to addressed by
the Courts. The Conduct Rules should also be reformed to make it an obligation
for government servants to release information consistent with any FOI law in effect.
The Commonwealth Human Rights Initiative (CHRl) is an
international independent nonprofit organisation headquar
tered in India. Its objectives are to promote the practical real
isation of human rights in the Commonwealth. It educates on
human rights issues and advocates for greater adherence to
human rights standards.
CHRI has been working on the Right to Information as part of
its commitments to the values of freedom of speech and
expression and good governance. Our work includes:
•
collecting and disseminating information and material
on the issue;
•
educating people about the issue;
•
Networking with different groups consisting of NGOs,
lawyers, bureaucrats, media persons, rural and urban
elected representatives and officials from public bodies,
students and youth groups.
•
•
promoting debates and discussions on the issue; and
carrying this feedback to policy makers.
We are grateful to the Friedrich Naumann Stiftung
(FNSt) and the Canadian International Development Agency
(CIDA) for supporting our work on Right to Information.
CHRI
N-8, llnd Floor, Green Park Main
New Delhi-110016 INDIA
Tel: +91 -11 -686 4678,685 0523
Fax:+91-11-686 4688
E-mail: chriall@nda.vsnl.net.in
http://www.humanrightsinitiative.org
The Commonwealth Human Rights Initiative (CHRl) is an
international independent nonprofit organisation headquar
tered in India. Its objectives are to promote the practical real
isation of human rights in the Commonwealth. It educates on
human rights issues and advocates for greater adherence to
human rights standards.
CHRI has been working on the Right to Information as part of
its commitments to the values of freedom of speech and
expression and good governance. Our work includes:
•
collecting and disseminating information and material
on the issue;
•
educating people about the issue;
•
Networking with different groups consisting of NGOs,
lawyers, bureaucrats, media persons, rural and urban
elected representatives and officials from public bodies,
students and youth groups.
•
•
promoting debates and discussions on the issue; and
carrying this feedback to policy makers.
We are grateful to the Friedrich Naumann Stiftung
(FNSt) and the Canadian International Development Agency
(CIDA) for supporting our work on Right to Information.
CHRI
N-8,1 Ind Floor, Green Park Main
New Delhi-110016 INDIA
Tel: +91 -11 -686 4678,685 0523
Fax: +91-11-686 4688
E-mail: chriall@nda.vsnl.net.in
http://www.humanrightsinitiative.org
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esdfcorttfd^, sod edfexrivdo ,^?30dd afoaodacd dxreddo
adrtebatfrt dd djadd^do.
a a
8. djaoddd^do, ejro&zieo uasad.- -d, eaaoiodod
erodaoqiri^fa BaodFridrt.a9/jod<C odaa^de doaoddodo erod^dd,
oaa4AiBaFd4
ea^cidod erodacdrtert e^oridded dado «
doaoddrWdo, faasaooio^dBajh edd4dodo edaoa £>&>ddodo d?3rt
iodouod erodaodrWFb ededd dxaeS doadadodo:
ddodo, d? easc±>do^ E5a,dodssac! aasao^aod addo
ddFrteb dooBaoioaoad ddtaaolo sod sdeddci^ djadarfd^de^.
9. doddrteb.- olsa^de S^do *ja,Q8ad^, 5Se d^drad
eaoio© rLadoda^d edao±>
olsa^de oiooi aadradede,
&©edead djaSodoi)?^ e^dAdco Sduaadik, odaa doo£>4 addrtert
[2000 : 28
zfcSabex) aty OQSabzi), 2000
13
doaoa^dod dd4ded asariaa dd4d<ydocd eda 3«?adad odasa
dd4d<udoda doae» odosi sadraddbd dja&^odd^ ijdAAdQ,
(i) d^ad s^asaddraj adei)d doa^ Eja£>Bad3$, ed^
edasaud^ de^da^co oix>S edsaddd^ daU, ddoajacd sado
Axja^dodo zjjadAjadacaadod wod rj^ad
asbtd ^add
djasaodd^d^ dxdd doddd^ aadadxd adab eod doddd^
edd dedddod edasa eded odaa^jde d?dd ddodadbd®,
daa^onaodd taai aowod ddaa© adadd^da; adab
(ii) edda, ddrt M^oddad deasa dodadri^ eaod<5 2>da
g,da^ dd zjddaftdd^cd.
10. N^o&aoodrte’ wdsad ro6«bod d^aaod.- -d? eaaodadd
edod© airodd odaa^de tsdedd doaodd®, odaa^d? ?3a4odaejoda^
odad^e rod, edr eadasa
d^dd^odd^ eoAe^Oddtjjde,
adsb eoid odaa^de ededdd^, -d? eaaodadd eaod<S e&?<£)d
adoae^asahoded dj&dd^dea.
11. wddodidoaS) enajdacSo djaroddda, oojaoadd^da.eadodadd wvduodrisd, ssaoodOdad odaa^d? aadradd,
odadde eadodadd edasa erododd^F d^od eaad& udad
odadde ddodd doaodd©
ddAd saadafid erodaodrW
adadsan, oa«4 ddpd e^asa ena^oddSF di^od eaod© 2J<dd
odadde ddod^ rfoaoa^dod oaa$4 daad adododf ddAd odaa^d?
<^dd sadaaad®, ed^ edoridasacdda ade atfrijaoadcda,
dorsaada^^naAdd^cd.
12. aodadrttf ddfsaarad.- (1) oas^dsardad, e^daaddod
adaaoS agadr d^dd adaad ddaasaod
eajboddad erodaodri^d^
saodFridrtaa^doa^dsajA aodadris&d^ dddtoadcd.
i li h -3
14
Btrorutf s£oto3 sidabixi
2000
[2000 : 28
(2) a^edaan da;& dod deed easadd Ksdtrofsa^abS^
aadeiaartdcd ecd £>oi>darteb,
dxoa?3 aero edaa oiros^de.
adabrterroh enadwod ^sJadada, aodd:(a) 5e3e d/drad eaabfi ;3caao±>aartd^ daOj.
’ (&) rtrodadarfeaa ertd^dad edaa rtrodaadr/adacsad
o±rod>de ^dd ddaia.
(3) -d? ea^edadad daedrt dddaad d,3o5rooda aabdadd^
eda dddasad dodd eda^ derid croas daari daodead d,daJjaoda
?jddd daaod, eda tsadedddSdaaari aoda e^dedrid® edaa
aoaad daeeirooda adad adda edaa coda adodd e5>deddrW©
ad^aariudaaad
daaadda odrte* edaoiaddrt daoa^d^da
dada edd^ daoa^eaad eadedd^ edaa edd
ddaaaolad
eadedrfd) daaAcdaad daaod, e SoiadadO oirodc5f droaaFUrf^
daadeaa addro rfddrteb aadd, edaro e noiadadeii droddraddoda
addro dddrteb a^dd, rfodsaardaarod, aari droaarerod drodd®
drod, dorsadasaooiroridujCb edaa dOssadasaeoSsarid^do, edd
eod edroddf droaarda edaa djad4doda e ^oiadad daedrt dod
droad cairodd? saoiard ftoda^ aad^aaridod ^d^da.
13. added dada ena^^adurt^a.- (1) feard^ drod3 ddcdaeaa |jy
ad&j e^a5ded, 2000 d^ (2000d cfaardu oc^dsd s}od6 9)
daaaeatf ad^rfrtja^erohd.
(2) coart ddAdaannarlraj, 3do e^dedda droderod
oSro^de BacdaF edaa Mro^oad oirod>c5e g.dadd^ eaR>o±>dad
eaod© droderond edaa ^trotfpand aoda zpad^sS/b.
15
sijaZoS Ejdo&oo
acdosfcrteb, 2002
w^drarte ^e±> sJud
eftdrsrttf) -.
1.
ao?3db S±)do EJ3,d02^
16
2.
EJOzpasSrisfc
17
3.
3fJc sj/drarf eaolxD
4.
siroJoS todhAb^dsDjn ssoiiFansd
5.
«Mwri&
19
eSstuaS-ii
20
asddrteb s&oosac&^rte
oeS s±>d3 es3ao±> eodd
17
17
16
etoFi#
sicSoisex
Saiixbricb, 2002
xt^oa dodo tided xbaadrt dUnaeocdo
eQjtfjarfcJ
7tjoa34: fcwio'S:56:oSjaedori:2002 (2), tSorteoado, ajroorf: 18cS«
tsoeJj 2002
&3aFUtf dteJod ddo±>eoo dfcj eaacdodo 2000d (2000d W
?iF39F63g easedodo 28) 12<5e d^drad (1)?3<? erod d^drad dooaeo^
erid6da^oadod,
dtsaZod ddcdoeoo d^^oiidorieb, 2001d
^dddo, sSsaFO aao^ddjd^ edd d^udoio BFoao^aod dooaddo
adri’Ais^rt, ^dOod zoaadroriadocoad d^rteod e^tddrieo dodo,
dedri^Fd esgJOAi ajoaoc 12-10-2001d ^fosfu^ oa2s6dd,d aded
d3,io±> IV-a sparidO eadjadd doa36: aad,o±o 244 aad/j 2000
d© dj^dddo^dOod;
ddo dssFO oaa^ddjd) 12-10-2001 dodo srodFas^ort
dradoiodod dteado^dood;
dodo ^c^odoad e|ed^ri^o dodo deodrWd^ oaa$6 dsaFdd)
dOrirfddo^dOod;
d^ri 3F33Ft& doaJod ddcdoeo d^eQSaJodo, 2000d (2000d
*s>rt& eaaoiodo 28) 12j5e d^drad (1)& enod d^draaod d,d^3ad
easadrWd^ doaodd, &oaFd£ dsaFds^ ds dojacd ds doooad»
JOoiodorWdo dddodd, aodd.aoSodoritfo
1. aSddo dodo 23a,dod-- (1)
acdodori^ &33Fdtf doaSod
ddcdooo d&j aoiodori<sb, 2002 aodo ^rfoiod^do.
2) es^rWo, dsaFO oaa^dd.d© tss^rW d,3t3doi> ajoao^aod
zsaort add^do.
toFUiS rots sigd tpsri - IV-A oSesl c!3,« Jioa54. 1057 asaoS. i8-7-2002d©
ifa3Ff3& sto&J sWcobeu
0cub£toft&, 2002
17
2. dOt^aaSrfcb.- di doddjrW® doddFS^ ed6aa ertd4dadd
Sojaddb.-
(<a) “eaaoddo” aodd, £?5aFd£ dja&>3 ddadsjj d&j
e£>aofo;±, 2000d (2000d SsaFtbtf eajboddo 28)
(23) “d/dra” aodd, ea^addjd aodo d^dra
(&) “ddojarf” aodd, di aoi>djri<?rt ert3doad ddxrarf.
3. 3rfe z^Jdrad eaafc® Sed) addritfo daosadafiri^
d>tfurScdo oe3 dodo esdQoSo eodd.- d,3ol®odo ?jadF«a^
sjapsad^, 3?5e d^drad (23) d)odd® aaF^dadoad adcdorts??^
ddF^do^daddoa doadssa Hyotfd doetf ^dU^d^do.
ddodb, ?radFKM s^dssdd) aojaddoadadonad oira^de
<^dd
dda, idbaojsdrt e^aa ddddjd© e dra2o3oix>
d^rtraoadd tsd^sa &>oa3 ddrd eddo±>© •dinaritfe d,^t3Adod
djaSodc-ixO oiroz^de aderadfS 'wadd ooart dj^ddod edds£d
4. djaJod tudAPtosJdB^n Bacdor dpad.- (1) -di eaeboi>s±c5
eaoi)© dba&^oi)^ ddoi>eo ^dysbd aa d6Soix>, EJduaS-a ad®
d^db s^egad^ aodo tsaJFodd^ d®?id^da.
(2) d^do sroasadd) etSFobbdo de^OddS, ©^Ddd© &e&3
d^dd^ aedd^db. asart ^e^odoad ezSFrt’S’rt d/Sc&aodo dgdo
33a)aBads&> aodo oadjdd^ dd adFZodd^cb.
(3) dTiadezSd d^rts^ adAdjs^ds^hcJ dbe^ di daoad
ijaes^Sd© aaFsgd&ddod ^dd^da.tfjaes^tf
1.
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ddoiad adcdbrte* doddFd®
djdoiraoda ^fSoiraert
adj djaaaobarttfo
G
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&aix£rte>, 2002
19
ds&a ddodd, (i) doab (ii)Sf £)odritf ^odd^d^
&>oa3 etSrrt AioaodAdo^ dsadoancbd BaajplwW^ aa€>*jd
ddbaaab aodj agjasJ ezSFofc^ naiDoa^waojdx
5. ejueooritfo.- (1) 7f5e d/drad (i)o5e erod d^drad
east© aodo
j^d; aaprodd
&>Ooi) E^asad^
2) eod djSolraoci) edeta, o±rod ededd ddbd, e&eco
^©^eroAdolraf e tsdedd ioodo d,Soi^ a3jaoadd^± d>sb edd<0.(a) ezSFnadrf d?jd; dx& £>va?j djd> aS?£±> sra^BadS*
^owo^d^ dddrtei&j
(zd) Tu^do ETOjdBadd otfrod ecJ?dd ddad^ e&?ex>
aojadcancJolrae eod odes! oiroa^naddja
ajoaotfde^;
(A) e&e£)rt aaadris?^;
(a) t5&eex>nad?i) «ed» drocdd dosoaddrf^;
- ^dojaa^d^cb.
ate&>.3 sfi&dxv a>c^ vaixiirM), 2002
20
ds&JSeS - £1
(4 (l)FSe ao±is±) s5js«B)
:
1. e^Fnadd sgaraF a53cb
2.
as?a3
3.
&aeodte3 d^aaJejSd asidrisfo
:
4.
dTjaaSeaa ^oao^sjS^cbsd sSsmf
:
5.
oiroaS enxSfdrtenaA ateJodcdo :
eaSdjdd ^c5 adodo adsaSadoixi
EdcSoiDsd© ezSrcsadd s?jS ado?
d^ea doa5s:
3s?:
Q
afsotf:
Ofjao^:
ozSraadd 32»
tSs^ri.- cLaesi^sodaaAdosS / e^raFssandb^ etSFrWFk
JooadoAdcart^cb).
^FsaFt3o oaz^zsaed tJdesaFb^ad
E±)d3 tssdd ao3O3<0
£)o.3. Eipraa^
38aFdd oa<?3 3ao±>FdS>F,
Aaoa zbdo t5Css?d domdfsa ^©aa3,
(AiaaiFa^ &ocb&®ddris? dasadraa dod).
[2000:Kar Act 28
The Karnataka Right to Information Act, 2000
21
KARNATAKA ACT NO. 28 OF 2000
THE KARNATAKA RIGHT TO INFORMATION ACT, 2000
Arrangement of Sections
Sections:
1. Short title and commencement
23
2. Definitions
24
3. Obligation of public authorities
26
4. Right to information
27
5. Procedure for suply of information
29
6. Grounds for refusal to supply information
in certain cases
30
7. Appeals
30
8. Power to remove difficulties
31
9. Penalties
32
10. Bar of jurisdiction of courts
32
11. Act to have overriding effect
32
12. Power to make rules
32
13. Repeal and savings
33
STATEMENT OF OBJECTS AND REASONS
It is considered necessary to have a legislation to provide
right of access to information to the citizens of the State which
would promote openess, transparency and accountability in
administration and ensure effective participation of people in the
administration.
22
The Karnataka Flight to Information Act, 2000
[2000:Kar Act 28
The Karnataka Right to Information Bill, 2000 among other
things provides for the following:(i) Requiring public authorities to make voluntary disclosure
of certain information referred to in clause 3.
(ii) Listing exemption from giving information under certain
circumstances as mentioned in clause 4.
(iii)
Specifying the procedure for supply of information;
(iv) Specifying the grounds for refusal to supply information
in certain cases.
(v) Imposing a penalty on the competent authority upto two
thousand rupees for failure to give information without any
reasonable cause.
(vi) An appeal is provided against the order of the competent
authority and a second appeal lies to the Karnataka Appellate
Tribunal;
Certain incidental provisions are also made.
Since the matter was urgent and the Karnataka
Legislature Council was not in session the Karnataka Right to
Information Ordinance 2000. (Karnataka Ordinance No.9 of 2000)
was promulgated to achieve the object.
Hence the Bill.
(L.A. Bill No. 2 of 2000)
[2000:Kar Act 28
The Karnataka Right to Information Act, 2000
23
KARNATAKA ACT NO. 28 OF 2000
(First Published in the Karnataka Gazette Extraordinary on the
thirteenth day of December, 2000)
THE KARNATAKA RIGHT TO INFORMATION ACT, 2000
£
(Received the assent of the Governor on the tenth day of
December, 2000)
An Act to provide for right of access to information to the
citizens of the State and in relation to the matters connected
therewith or incidental thereto.
Whereas, right to Government held information is accepted
by the Supreme Court as a part of right to speech and expression
guaranteed to citizens in the Constitution.
And whereas providing right of access to information to
the citizens of the State promotes openess, transparency and
accountability in administration and ensures effective participation
of people in the administration and thus makes democracy
meaningful.
W
And whereas it is expedient to provide for right of access
to information to the citizens of the State and in relation to the
matters connected therewith or incidental thereto and for the
purposes hereinafter appearing;
Be it enacted by the Karnataka State Legislature in the
fiftyfirst year of the Republic of India as follows:-
1. Short title and commencement.- (1) This Act may be
called the Karnataka Right to Information Act, 2000.
Published in the Karnataka Gazette Part IV - A Extraordinary No. 303
dated . 7.2.2001 (File No.
47 rosid 2000)
24
The Karnataka Right to Information Act, 2000
[2000:Kar Act 28
(2) It shall come into force from such date, as the State
Government may, by ’[notification]1, appoint and different dates
may be appointed for different provisions of this Act.
2. Definitions.- In this Act, unless the context otherwise
requires,(a) "Competent authority” means head of the office or any
officer or person as may be notified by the State Government for
the purpose of this Act:
Provided that where the Competent Authority transfers
application to any officer or person under the proviso to sub
section (2) of sections, such officer or person shall be deemed
to be the Competent Authority".
'lnformation'
(b)
means information relating to any matter
in respect of the affairs of the administration or decisions of a
public authority;
(c)
'Public authority' means,(i) all offices of the State Government including the
Karnataka Public service Commission;
(ii) all local authorities, all authorities constituted by
or under any Act of the State Legislature for the time
being in force, a company, Corporation, trust, society,
any statutory or other authority, Co-operative society
or any organisation or body funded, owned or
controlled by the State Government.
1. Section 1 and 12 have come into force w.e.f. 12-10-2001 vide Notification
No. VAPRAU 244 VAPRASI 2000 Bangalore-1 dated 12-10-2001. Please
see page 40, Section 3 excluding clause (c) and (d) Section 2 to 11 and section
13 have come into force w.e.f. 18-7-2002 vide Notification No. DPAR 56
YOMASA 2002(1) dated 18-7-2002. Please see the Notification at page 40.
[2000:Kar Act 28
The Karnataka Right to Information Act, 2000
25
but does not include,(i)
offices of the Central Government;
(ii) any establishment of the armed forces or Central
Para Military forces;
(iii) any body or corporation owned or controlled by
the Central Government;
(d) 'Right to Information' means right of access to
information from any public authority,(i)
by obtaining certified copies of any records;
(ii) by obtaining diskettes, floppies or any other
electronic mode or through print-outs where such
information is stored in a computer or in any other
device;
(iii)
(e)
in such other mannner as may be prescribed.
'record' includes,(i)
any document, manuscript and file;
(ii) any microfilm, microfiche and facsimile copy of a
document;
(iii) any reproduction of image or images embodied
in such microfile (whether enlarged or not); and
(iv) any other material produced by a computer or by
any other device.
(f) 'Trade secret' means information contained in a formula,
pattern, compilation, programme , device, product, method,
technique or process which is not generally known and which
may have economic value.
26
The Karnataka Right to Information Act, 2000
[2000:Kar Act 28
3. Obligation of public authorities.- Every public authority
shall,(a) maintain all records in such manner and form as is
consistent with its operational requirements duly catalogued and
indexed;
(b)
publish at such intervals as may be prescribed,-
(i) the particulars of its organisation, functions and
duties;
(ii) the powers and duties of officers and employees
and the procedure followed by them in the decision
making process;
(iii) the norms setup by the public authority for the
discharge of its functions;
(iv) the details of facilities available to citizens for
obtaining information;
(c) publish all relevant facts concerning such of the
important decisions and policies that affect the public as may be
prescribed while announcing such decisions and policies;
(d) before sanctioning or initiating or causing to sanction or
initiate any project scheme or activity as may be specified by the
State Government, publish or communicate to the public generally
or to the persons affected or likely to be affected by the project,
scheme or activity in particular in such manner as may be
prescribed, the facts available to it or to which it has reasonable
access which in its opinion should be known to them in the best
interests of maintenance of democratic principles;
[2000: Kar Act 28
(e)
The Karnataka Right to Information Act, 2000
27
publish such other information as may be prescribed.
4. Right to information.- (1) Subject to the provisions of
this Act every citizen shall have the right to information.
(2) Notwithstanding anything contained in sub-section (1),
no person shall be given,(a) information, the disclosure of which would prejudicially
affect the sovereignty and integrity of India, security of the State,
strategic scientific or economic interest of India or conduct of
international relations;
(b) information, the disclosure of which would prejudicially
affect public safety and order or which may lead to an incitement
to commit an offence or prejudically affect fair trial or adjudication
of a pending case;
(c) information relating to Cabinet papers including records
of the deliberations of the Council of ministers, Secretaries and
other Officers:
Provided that information regarding the decisions of the
Cabinet alongwith the reasons leading to the decision shall be
made available and every Government Order issued on the basis
of the Cabinet decision shall be accompanied by a statement
explaining the reasons for and the circumstandances under which
the decision is taken.
(d) information the disclosure of which would harm,
frankness and candour of internal discussions including inter
departmental or intra departmental notes, correspondence and
papers-containing advice or opinion as also of projections and
assumptions relating to internal policy analysis:
28
The Karnataka Right to Information Act, 2000
[2000:Kar Act 28
Provided that information regarding minutes or records,
advice including legal advice, opinion or recommendation made
or given in respect of the executive decisions or policy
formulations shall be made available after an executive decision
is taken or policy formulation is done.
(e) information the disclosure of which would prejudice the
assessment or collection of any tax, cess, duty or fee or assist in
avoidance or evasion of the tax, cess, duty or fee.
(f) infromation the disclosure of which would constitute a
breach of privilege of the Parliament or the State Legislature:
Provided that the Competent Authority shall before
withholding information under this clause refer the matter to the
Karnataka Legislative Assembly Secretariat or the Karnataka
Legislative Council Secretariat, as the case may be for
determination of the issues and act according to the advice
tendered by the Secretariat:
Provided further that in computing the period of fifteen
working days under sub-section (2) of section 5 for the purpose
of this clause, the time required for determination of issues under
the first proviso shall be excluded.
(g) information regarding trade or commercial secrets
protected by law or information, the disclosure of which would
prejudicially affect the legitimate economic and commercial
interest or the competitive position of a public authority; or would
cause unfair gain or loss to any person;
(h)
information regarding any matter which is likely to,(i) help or facilitate escape from legal custody or affect
prison security; or
[2000:Kar Act 28
The Karnataka Right to Information Act, 2000
29
(ii) impede the process of investigation or
apprehension or prosecution of offenders.
5. Procedure for supply of information.- (1) A person
desirous to obtain information shall make an application to the
competent authority in the prescribed manner, along with such
fee, in such form and with such particulars, as may be prescribed:
Provided that the fee payable shall not exceed the actual
cost of supplying information.
(2) On the receipt of an application requesting for
information, the competent authority shall consider it and except
for justifiable reasons, pass orders thereon either granting or
refusing it, as soon as practicable and in any case within fifteen
working days from the date of receipt of the application:
Provided that where the competent authority doesnot have
the information, he shall within fifteen days from the date of receipt
of application transfer the application to the officer or person
with whom such information is available and inform the applicant
accordingly and thereafter such officer or person to whom such
application is transferred shall furnish information within fifteen
working days from the date of receipt of the application from the
competent authority.
(3) Where a request is rejected under sub-section (2), the
competent authority shall communicate in writing to the person
making the request,(i)
the reasons for such rejection;
(ii) the period within which the appeal against such
rejection may be preferred;
(iii)
the particulars of the appellate authority/
30
The Karnataka Right to Information Act, 2000
[2000: Kar Act 28
6. Grounds for refusal to supply information in
certain cases.- Without prejudice to the provisions of section 4,
the competent authority may also reject a request for supply of
information where such request,-
(a) is too general in nature and the information sought is of
such nature that, it is not required to be ordinarily collected by
the public authority:
Provided that where such request is rejected on the
aforesaid ground, it shall be the duty of the Competent Authority
to render help as far as possible to the person seeking information
to reframe the request in such a manner as may facilitate the
supply of information;
(b) relates to information that is required, by law, rules,
regulations or orders to be published at a particular time; or
(c) relates to information that is contained in published
material available to public;
(d) relates to personal information the disclosure of which
has no relationship to any public activity or which would cause
unwarranted invasion of the privacy of an individual except where
larger public interest is served by disclosure:
Provided that the information relating to returns of assets
and liabilities filed by any Government servant shall be made
available to the public.
7. Appeals.- (1) Subject to such rules as may be prescribed,
any person,(i) aggrieved by an order of the competent authority
may, within thirty days from the date of receipt of such
order; or
[2000:Kar Act 28
The Karnataka Flight to Information Act, 2000
31
(ii) who has not received any communication within a
period of fifteen working days from the date of making
application under section 5, may within thirty days
next after such period;
appeal to such authority as may be prescribed:
Provided that no appeal shall lie against an order of
witholding of information under clause (f) of sub-section (2) of
section 4.
(2) The appellate authority may, after giving the person
affected a reasonable opportunity of being heard, pass such order
as it deems fit.
(3) Any person aggrieved by the order of the appellate
authority under sub-section (2) may prefer an appeal to the
Karnataka Appellate Tribunal.
(4) Appeals referred to in sub-sections (1) and (3) shall be
disposed of within thirty days from the date of receipt of such
appeals.
8, Power to remove difficulties.- If any difficulty arises in
giving effect to the provisions of this Act, the State Government
may, by an order make such provisions not inconsistent with the
provisions of this Act and appear to them to be necessary or
expedient for removing the difficulty:
Provided that no such order shall be made after the expiry
of two years from the date of commencement of this Act.
9. Penalties.- Where any competent authority, without any
reasonable cause fails to supply information sought for within
the period specified under section 5 or furnishes information which
is false with regard to any material particulars and which it knows
or has reasonable cause to believe it to be false,-
32
The Karnataka Right to Information Act, 2000
[2000:Kar Act 28
(i) the authority immediate superior to the competent
authority may impose a penalty not exceeding two thousand
rupees on such competent authority as it thinks appropriate after
giving him a reasonable opportunity of being heard and such a
penalty shall be recoverable from his salary or if no salary is
drawn as arrears of land revenue; and
(ii) he shall also be liable to disciplinary action under the
e
service rules applicable to him.
10. Bar of jurisdiction of courts.- No Court shall entertain
any suit, application or other proceeding in respect of any order
made under this Act and no such order shall be called in question
otherwise than by way of an appeal under this Act.
11. Act to have overriding effect.- The provisions of this
Act shall have effect notwithstanding anything inconsistent
therewith contained in any other law made by the State
Legislature in respect of any matter falling under State list or
concurrent list except the provisions of any existing law or a law
made by Parliament in respect of any matter falling under
concurrent list.
12. Power to make rules.- (1) The State Government
may, after previous publication by notification make rules to carry
out the provisions of this Act.
(2) In particular, and without prejudice to the generality of
the foregoing power, such rules may provide for all or any of the
following matters, namely:-
(a)
the fee payable under section 5;
(b) any other matter which is required to be, or may
be, prescribed.
V
[2000: Kar Act 28
The Karnataka Right to Information Act, 2000
33
(3) Every-mfe made under this Act shall be laid as soon as
may be after it is made, before each House of the State
Legislature while it is in Session for a total period of thirty days
which may be comprised in one session or in two or more
successive sessions and if before the expiry of the session in
which it is so laid or the session immediately following, both the
Houses agree in making modification in the rule or both the
Houses agree that rule should not be made the rule thereafter,
shall have effect only in such modified form or be of no effect,
as the case may be, so however, that any such modification or
annulment shall be without prejudice to the validity of anything
previously done under that rule.
13. Repeal and savings.- (1) The Karnataka Right to
Information Ordinance, 2000 (Karnataka Ordinance No. 9 of
2000) is hereby repealed.
(2) Notwithstanding such repeal anything done or any
action taken under the said Ordinance shall be deemed to have
been done or taken under this Act.
The above translation of the tor-usS eSjsJoA stdoixco
oaaoiisi) 2000 (2000d
ease*;* rfoa54. 28) be published in the
Official Gazette under clause (3) of Article 348 of the Constitution
of India.
I Z/C7 r\aiiiaiar\a i
tvz im\/ii
THE KARNATAKA RIGHT TO INFORMATION RULES, 2002
Arrangement of Sections
Sections:
1. Title and commencement
35
2. Definitions
36
3. Manner and interval of publication of certain
particulars etc, under Section 3
36
4. Procedure for supply of information
36
5. Appeals
38
Form-A
39
Personnel and Administrative Reforms Secretariat
Notification
No. DPAR/56/YOMASA/2002(2), Bangalore,
Dated: 18th July 2002
Whereas the draft of the Karnataka Right to information
Rules, 2001 was published as required by sub-section (1) of
Section 12 of the Karnataka Right to information Act, 2000
(Karnataka Act 28 of 2000) in Notification No. =satd,odx> 244
2000 in Part IV-A of the Karnataka Gazette Extraordinary dated
12-10-2001, inviting objections and suggestions from persons
likely to be affected thereby, within thirty days from the date of its
publication in the Official Gazette.
Whereas, the said Gazette was made available to the
public on 12-10-2001.
And whereas, the objections and suggestions received
have been considered by the State Government.
Now, therefore in exercise of the powers conferred by
sub-section (1) of section 12 of the Karnataka Right to information
Act, 2000 (Karnataka Act 28 of 2000), the Government of
Karnataka hereby makes the following rules, namely:-
Rules
1. Title and Commencement.- (1) These rules may be
called the Karnataka Right to information Rules, 2002.
2) They shall come into force on the date of their
publication in the Official Gazette.
Published in the Karnataka Gazette Part IV-A Extraordinary No. 1057
dated 18-7-2002.
36
The Karnataka Right to Information Rules, 2002 [2000: Kar Act 28
2. Definitions.- In these rules unless the context otherwise
requires:-
(a)
“Act” means the Karnataka Right to information Act,
2000 (Karnataka Act 28 of 2000).
(b)
“Section” means a section of the Act;
(c)
“Form” means a form appended to these rules.
3.
Manner and Interval of publication of certain
particulars etc, under Section 3.- Every public authority shall
publish, on the notice board, once in a year the matter specified
in clause (b) of Section 3.
Provided that such publication will not be necessary if
the information is included in any other publication, report, booklet
or pamphlet, that may have been brought out by the Public
Authority or there is no change in the information already
published during the previous year.
4. Procedure for supply of information.- (1) Any person
desirous to obtain information under the Act shall make an
application to the competent authority in Form-A.
(2) The Competent Authority shall acknowledge the
receipt of the application in writing. A register of applications so
received shall also be maintained by each Competent Authority.
(3) The fees for supplying the copies of the document
shall be as specified in the table below:Table
1.
In respect of matters
in A4 size paper
For each Folio
Rupees Five
[2000:Kar Act 28
2.
The Karnataka Right to Information Rules, 2002 37
In case where information
is supplied in the floppy of
1.44MB
Rupees one hundred
per floppy
(4) In the case of maps and plans, etc., a reasonable fee
shall be fixed by the Competent Authority in each case depending
upon the cost of labour and material required to be employed.
(5) The Competent Authority shall, within seven days
from the date of receipt of the application under sub-rule (1)
indicate the copying fees on the application and the applicant
shall remit the fees to the Competent Authority through postal
order or court fee stamps. On payment of such fee, the
competent authority shall inform the applicant the Jate on which
the copy requested for would be ready.
(6) The date of receipt of the application as mentioned in
sub-section (2) of Section 5 would be the date of receipt of fee
by the competent authority under sub-rule (5).
Provided that the application so received may be returned
to the applicant where:(i)
the purpose is not clearly indicated in the application.
(ii)
the application is incomplete or otherwise defective.
(iii)
the record, from which the information is to be
furnished is not readily available with the public
Authority and :s
pending with the Courts, Lokayuktha, Police or any other
authority at the time of the receipt of the application.
Provided further that in case of clauses (i) and (ii) a
fresh application may be filed after complying with observations
made with reference ?o the earlier application.
38
The Karnataka Right to Information Rules, 2002 [2000:Kar Act 28
5. Appeals.- (1) An appeal under sub-section (1) and
Section 7 shall lie to an authority immediately superior to the
competent authority.
2) Every such appeal shall be accompanied by a copy
of the order, if any, appealed against and it shall specify:-
(a) the name and address of the applicant and the
particulars regarding the competent authority.
(b) the date of receipt of order, if any, of the Competent
Authority appealed against.
(c)
the grounds of appeal; and
(d)
the relief which the applicant claims.
[2000:Kar Act 28 The Karnataka Right to Information Rules, 2002
39
Form - A
[See Rule 4(1)]
1.
Full Name of the Applicant
2.
Address
3.
Details of the document required
4.
Year to which the document
pertains
5.
Purposes for which the information
is required and how the applicant
is interested in obtaining the
information
Receipt No.
Date:
Place:
Date:
Signature of the applicant.
(Note:- Defective/incomplete applications are liable to be
returned)
By Order and in the name of the
Governor of Karnataka
M.C. POONACHA
Under Secretary to Government,
Department of Personnel & Administrative Reforms,
Public Grievances & Redressal Organisation.
40
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