ANTI-CORRUPTION LAW SERIES 12
ANTI-CORRUPTION LAW SERIES 12
Detailed Analysis of the
Indian Freedom of Information Act 2002
&
Recommendations For Amendments
BACKGROUND
1. The right to information has been
recognised by the Indian Supreme Court for decades as a constitutionally
protected fundamental right. Since 1997, State Governments have been taking the
lead in enacting legislation setting out the framework for implementing the
right in practice. Nine State Governments have now enacted legislation, but it
remains a fact that people in the other 20 states of India are still reliant
only on their constitutional right if they want to access information. People
should not be expected to undertake litigation in the High Court and/or Supreme
Court every time they require a simple piece of information from their
government.
2. The Central Government passed the
Freedom of Information Act in December 2002. Although Presidential Assent was
provided soon after, more than 18 months later the Act has still not come into
force. This is disappointing. In any case, the current Act is deficient in many
respects, including its limited scope (specifically, the exclusion of private
bodies from coverage), the breadth of its exemptions, the failure to include a
public interest override of exemptions, the absence of an effective independent
appeals mechanism and the failure to include public education and monitoring
provisions. These shortcomings need to be remedied as a priority if the Act is
to effectively serve its purpose.
3. It is encouraging that the newly
elected United Progressive Alliance has stated its commitment to taking
practical measures to reform the current Act. The Congress Party stated in its
election manifesto that: "All government agencies but particularly those
that deal with citizens on a day-to-day basis must operate in a responsive and
accountable manner. The Right to Information Act at the centre will be made
more progressive, meaningful and useful to the public. The monitoring and
implementation of the Act will he made more participatory and the penalty
clauses regarding delays, illegal denials and other inadequacies relating to
the supply of information to the public will be operationalised soon.
Protection will be extended to all "whistleblowers" through statutory
means, if necessary." More recently, in a speech to the joint session of
Parliament on 7 June 2004, President APJ Abdul Kalam reiterated that: “The
Right to Information Act will be made more progressive, participatory and
meaningful.”
4. In this reform context, this paper
attempts to provide an analysis of the current Freedom of Information Act and
to suggest changes that should be made to the Act to bring it into line with
international best practice. It is generally well-accepted that there are basic
minimum standards which all RTI legislation should meet. Chapter 2 of CHRI’s
2003 Report, Open Sesame: Looking for the Right to Information in the
Commonwealth1, provides more detailed discussion of these standards. The
critique below draws on this work.2 CHRI has suggested possible amendments
drawing on international best practice, areas for improvement and issues for
further consideration.
5. Notably, any process to amend the law
should be undertaken in a participatory fashion. Experience has shown that a
participatory law-making process can be a major factor in laying a strong
foundation for an effective right to information regime. Implementation is
strengthened if right to information laws are ‘owned’ by both the government
and the public. Best practice requires that law-makers proactively encourage
the involvement of civil society groups and the public in the legislative
process. This can still be done in a variety of ways, for example, by: setting
up a committee of stakeholders (including officials and public representatives)
to consider and provide recommendations on a draft Bill; inviting submissions
from the public before Parliament votes on the Bill; convening public meetings
to discuss the proposed law; and strategically and consistently using the media
to raise awareness and keep the public up to date on progress. There is already
considerable good practice and lessons learned that can be drawn from State-level
experiences with right to information legislation – particularly Delhi,
Karnataka and Maharashtra which have seen an active civil society utilise
access laws and demonstrate their strengths and weaknesses.
1.http://www.humanrightsinitiative.org/publications/chogm/chogm_2003/default.htm
2.All
references to legislation can be found on CHRI’s website at
http://www.humanrightsinitiative.org/programs/ai/rti/international/laws_&_papers.htm
CONSTITUTIONAL
ISSUES
6.Before
coming to an analysis of the Act, it is important to first consider the issue
of the scope of any Central law on the right to information. To date, there has
been considerable confusion and disagreement over the extent of the Central
Government’s law-making competence. This issue needs to be clarified as a
priority, to reduce confusion during implementation.
7.The NDA
Government responsible for enacting the current Act maintained that it had the
legislative competence to enact a law on the right to information for the
entire country, covering both Central and state public authorities. It was
argued that the Centre had sole power to legislate because right to information
is not specifically mentioned in any of the legislative entries in the Lists in
the Seventh Schedule of the Constitution. Therefore, under the residual
law-making power conferred on the Central Government by entry 97 of the Union
List, the Central Government has competence to enact a law. On this
interpretation, the Central Act, once in force, would override all State Acts.
In any case, the Government called on all States with laws to repeal them. It
is not clear what the position of the new Central Government will be.
8..Alternatively,
it is arguable that both the States and the Centre have powers to legislate on
the right to information. It is a well-established legal principle that the
Lists in the Constitution which set out the State and Centre’s law-making
powers refer not just to those matters that are explicitly listed, but also to
those matters that are incidental, or ancillary, to them3. It can be argued
that ensuring the provision of access to information relating to subject matter
explicitly mentioned in a List is a matter “ancillary” to that subject. For
example, if a legislature is competent to legislate on railways transport, it
is also competent to legislate to provide information relating to railways
transport. On the basis of this argument, it follows that:
(i).Parliament
is exclusively competent to legislate on access to information relating to
matters in the Union List; and
(ii).State
legislatures are exclusively competent to do the same with respect to matters
in the State List, such that current state right to information legislation is
valid;
(iii).both
Parliament and the States can enact freedom of information laws in relation to
matters in the Concurrent List.
9.If the
analysis in paragraph 8 is correct, in practice the situation regarding
competence in relation to subject matter under the State and Union Lists is
clear. In relation to subject matter falling in the Concurrent List however,
there may still be confusion. Constitutional law principles are clear that
where there is conflict between a central and state law, the central law will
prevail. However, in practice, bureaucrats working on subject matter falling
under the Concurrent List cannot be expected to have to consider for themselves
whether there is a conflict of laws and if so, which parts of which law will
apply to their work. To avoid confusion, the Centre will need to draft a law
which “covers the field” and operates as the sole law in relation to access to
information for Concurrent List subjects.
10.The
issue of State versus Centre competence is not unique to India. Australia,
Canada and the United States are all federations and each has had right to
information legislation for decades. Although their central governments have
passed access laws, the States/Provinces/Territories have also passed their own
right to information legislation. The interaction between the centre and state
acts is well-illustrated by a comparison of the scope provisions in the
Australian Federal Freedom of Information Act 1982 and the State of Victoria’s
Freedom of Information Act 1982:
•
Federal: s.3 - The object of this Act is to extend as far as possible the right
of the Australian community to access to information in the possession of the
Government of the Commonwealth…
• State:
s.3 - The object of this Act is to extend as far as possible the right of the
community to access to information in the possession of the Government of
Victoria and other bodies constituted under the law of Victoria for certain
public purposes…
3.State
of Bombay v. F.N. Balsara (1951) S.C.R. 682; Baldeo Singh v. I.T.C. (1961) 1
S.C.R. 482.
Recommendations
Both the
State and Central Governments need to give serious consideration to how they
will each develop appropriate right to information laws. Clarification of State
and Centre law-making competencies should be requested from the Supreme Court.
Accordingly, the Central Government may then need to consider to redrafting the
entire current Act with a view to ensuring that it does not attempt to go
beyond the scope of the Central Government’s legislative competence.
Alternatively, If
the
Centre has sole law-making competence, at a minimum the progressive features in
the State laws need to be reflected in the national law.
ANALYSIS
OF FREEDOM OF INFORMATION ACT 2002
Title
& Preamble
11.The
law should be renamed the “Right to Information Act”. The Supreme Court has
repeatedly recognised that access to information as a fundamental RIGHT. This
should be reflected in any legislation on the matter to ensure that
implementing bodies are clear that access to information is not a discretionary
gift granted to the people by a benevolent government. It is a constitutionally
mandated obligation on the government to implement the corresponding right.
12.In the
same vein, the Preamble should be drafted in stronger terms. This is
particularly important because courts will often look to the preamble of
legislation when interpreting the law. The current Preamble is problematically
worded and reflects a number of defects in the law. It:
• Provides
the right to access information only to “citizens” not to all people (see
paragraph 15);
• Refers
only to “public authorities”, without also covering private bodies (see
paragraph 16-17);
• Is
targeted at improving “administration”, rather than more broadly improving
‘governance’, a term which covers the political as well as the bureaucratic
aspects of government.
Recommendations
- Rename the law “Right to Information
Act”.
- Redraft the Preamble to make it
explicit that the objectives of the Act are to:
(i) give
effect to the Fundamental Right to Information, which will contribute to
strengthening democracy, improving governance, increasing public participation,
promoting transparency and accountability and reducing corruption
(ii) establish
voluntary and mandatory mechanisms or procedures to give effect to right to
information in a manner which enables persons to obtain access to records of
public authorities, and private bodies where the information is needed for the
exercise and/or protection of a right, in a swift, effective, inexpensive and
reasonable manner.
(iii) promote
transparency, accountability and effective governance of all public authorities
and private bodies by including but not limited to empowering and educating all
persons to:
- understand
their rights in terms of this Act in order to exercise their rights in relation
to public authorities and private bodies.
- understand
the functions and operation of public authorities; and
- effectively
participating in decision making by public authorities that affects their
rights.
Current
Chapter I - Preliminary
Section 1
13. Section 1(3) requires the date of
enactment of the Act to be specifically notified. As recent history has
demonstrated, such a formulation has allowed the law to sit on the books for 18
months despite receiving Presidential assent. Although it is understandable
that the Government may wish
to allow
for time to prepare for implementation, best practice has shown that the Act
itself should specify a maximum time limit for implementation, to ensure there
is no room for the provision to be abused and implementation to be stalled
indefinitely. Experience suggests a maximum limit of 1 year between passage of
the law and implementation is sufficient (see Mexico for example).
Recommendations
- Amend s.1(3) to include a maximum
time limit for the Act coming into force in, ideally immediately but not later
than 1 year from the date the Act receives Presidential asset.
Section 2
14. Section 2, which contains the Act’s
definitions, is currently somewhat confusingly set out. Consideration should be
given to moving and/or reworking some of the definitional clauses. It is
extremely important to draft these definitions carefully to ensure that they
maximise the breadth of the coverage of the Act and do not inadvertently
exclude relevant information from the scope of the law. Specifically:
• It is not necessary to include a
definition of ‘freedom of information’. Rather, much of this clause could more
appropriately be merged with the current s.3. Also, to ensure consistency and
clarity, the term “right to information” should be used throughout the whole Act,
rather than freedom of information. Notably, the parts of the definition which
deal with the form of access to be provided should more appropriately sit in
the body of the law. See paragraph 28 below for further discussion on this
issue.
• The definition of “public authority”
is too narrow.
- Although the inclusion of bodies
substantially funded by the Government goes some way to covering private or
quasi-public bodies providing public services, the scope of the law should
include “bodies which undertake public functions on behalf of the Government”.
At a time when the Government is increasingly outsourcing and in some cases
even privatising the provision of public services - in the electricity,
telephones and transport sectors for example – it is important that the public
still has an assured right to access information about these services.
- It should be made explicit that the
Act covers all three arms of government: executive, legislature and judiciary,
subject to the exemptions. While these three arms should all be captured under
the proviso covering bodies established under the Constitution, to avoid any
ambiguity, this should be made clear.
• The definition of “information” is
unnecessarily narrowed by requiring the information to relate to “administration,
operations or decisions of a public authority”. Best practice from throughout
the Commonwealth indicates that most Acts simply refer to “access to
information held by or under the control of” a body.
Recommendations
- Delete the definition of “freedom of
information” with a view to merging its provisions with s.3 setting out the
right to information and a new provision detailing forms of access.
- Broaden the definition of “public
bodies” to explicitly include all arms of government as well as all “bodies
which undertake public functions on behalf of the Government”.
- Broaden the definition of
“information” to ensure it covers any information “held by or under the control
of the Government”.
Current
Chapter II – Freedom of Information and Obligation of Public Authorities
Section 3
15. Section 3 currently restricts the right
to citizens only. The coverage of the Act should extend to allow all persons
access to information under the law, whether citizens, residents or
non-citizens (such as asylum seekers). This best practice approach has been
followed in a number of jurisdictions, including the United States and Sweden,
the two countries with the oldest access laws. This change may require the
inclusion in s.2 of a definition of “person”.
16. The scope of the Act should be extended
to cover information held by private bodies which is necessary for the exercise
or protection of a right. Private bodies are increasingly exerting significant
influence on public policy. Furthermore, as noted above, India has witnessed
increasing outsourcing of important government functions and is likely to
continue to see further privatisation of important services as part of its
economic development strategy. In this context, it is unacceptable that these
bodies, which have such a huge effect on the rights of the public, should be
exempted from public scrutiny simply because of their private status. As one
commentator aptly observed, the scope of a right to information law needs to be
“resolved by reference to its role in protecting the fundamental interests of
citizens, and not by reference to the provenance or structural characteristics
of the institution holding the contested information.”4
17. Part 3 of the South African Promotion of
Access to Information Act 2000 (POAIA) already provides a working example of
this approach. It is notable that the POAIA has been enacted in a developing
country with similar challenges to those faced by the Indian Government, such
that it is no excuse that this best practice example cannot be replicated in
India. It is suggested that a new s.3 could be drafted as follows:
(1) Subject to this Act, every person has a
legally enforceable right to obtain access in accordance with this Act to
information held by or under the control of:
(a) A public authority [as defined in s.2
taking into account the recommendations made in paragraph 14 above];
(b) A private body where access to that
information is necessary for the exercise or protection of any right.
Recommendations
- Amend s.3 to confer a right to
information on all people not just citizens.
- Broaden s.3 to extend a right to
access information “held by or under the control of a private body where access
to that information is necessary for the exercise or protection of any right”.
This change may also require the inclusion in s.2 of a definition of “private
body”.
Section 4
18. The huge volume of information in
governments’ hands requires that information be carefully managed so that
authorities can locate and provide requested information in a timely and
efficient way. In this context, it is positive that s.4(a) requires all public
authorities to properly maintain their records. However, s.4(a) should more
explicitly require that appropriate record keeping and management systems are
in place to ensure the effective implementation of the law. Section 6 of the
Pakistan Freedom of Information Ordinance 2002 provides useful guidance in this
context, specifically requiring computerization of records and networking of
information systems. Consideration should also be given to empowering an
appropriate body to develop guidelines or a Code on records management to this
end. This has been done in the United Kingdom where, under s.46 of the Freedom
of Information Act 2000, the Lord Chancellor is responsible for developing a
Code of Practice on records management.
4.Lewis,
D. (2003) “The need and value of access to information from no-state agencies”,
CHRI unpublished, p.9.
Pakistan:
s.6 Computerisation of records - Each public body shall endeavour within
reasonable time and subject to availability of resources that all records
covered by the provisions of this Ordinance are computerised and connected
through a network all over the country on different system so that authorised
access to such records is facilitated.
19. It is positive that s.4(b) requires suo
moto disclosure by the bodies covered by the Act. However, the list of topics
which public bodies are required to proactively publish and disseminate should
be extended. Article 7 of the Mexican Federal Transparency and Access to Public
Government Information Law 2002 provides an excellent model for consideration:
With the
exception of classified or confidential information as stipulated in this Law,
the subjects
compelled
by the Law must…put at the public’s disposition and keep up to date the
following information:
I. Their constitutional structure;
II. The powers of each administrative unit;
III. A directory of their public servants,
from the level of the head of the department or his equivalent and below;
IV. The mont hly remuneration received for
each position, including the system of compensation as established in the
corresponding dispositions;
V. The address of the liaison section, as
well as the electronic address where requests for information can be received;
VI. The
aims and objectives of the administrative units according to their operational
schemes; VII. The services they offer;
VIII. Their procedures, requisites and forms…;
IX. Information concerning the budget
assigned to each agency, as well as reports about its disbursement, in the
terms established by the Budget for the Federation’s Expenses. In the case of
the Executive Branch, this information will be made available for each agency
and entity by the Secretariat of the Treasury and Public Credit, which will
also inform the pub lic about the economic situation, public finance and the
public debt in the terms established by the budget;
X. The results of the audit of any subject
compelled by the Law completed, as appropriate, by the Secretariat of the
Comptroller and Administrative Development, internal comptrollers or the
Federation’s Superior Auditor, and, in such cases, the corresponding
explanations;
XI. The design and execution of subsidy
programs as well as the amounts allocated to them and criteria for access to
them.
XII. All concessions, permits or
authorizations granted, with their recipients specified.
XIII. All contracts granted under the terms of
the applicable legislation detailing for each contract:
(a) The public works, goods acquired or
rented, and the contracted service; in the case of studies or research the
specific subject must be indicated;
(b) The amount;
(c) The name of the provider, contractor or
the physical or moral person to whom the contract has been granted, and
(d) The periods within which the contracts
must be completed.
XIV. The norms applicable to each subject
compelled by the Law.
XV. The reports that each subject must
generate, according to the law.
XVI. Mechanisms for citizen participation in
cases where they exist, and
XVII. Any other information that may be useful or
considered relevant, in addition to information based on statistical surveys
that is responsive to the public’s most frequently asked questions.
The
information to which this article refers must be made public in such a form as
to facilitate its use and comprehension by individuals, and ensure its quality,
veracity, timeliness and trustworthiness…
20. Section 4(b) should also explicitly
require that public bodies publish the information to ensure maximum accessibility
by the public, with a minimum obligation that the information is published in
the local language on every body’s website and a copy held for (free)
inspection at all of the body’s offices, ie. not just the body’s headquarters.
A maximum time limit should be included for updating the information,
preferably every 6 months and no more than annually. The initial effort will be
worth the investment as it will reduce requests in the long run because people
will be able to easily access routine information without having to apply to
public bodies.
21. The scope of ss.4(c)-(e) also needs to be
clarified. It is commendable that the Government intends to proactively provide
the public with information about development activities and government
decision-making. However, considering the sheer volume of information this
could cover, it may be useful to provide guidelines, whether in the rules or in
the Act itself, to more clearly direct officials as to what information needs
to be proactively disseminated at a minimum, when, how, how often and to whom.
Such guidelines may also specify different dissemination requirements according
to the size and/or cost of the different activities or the subject matter of
the relevant decisions.
Recommendations
- Amend s.4(a) to require every public
body “to maintain its records in a manner which facilitates the right to
information as provided for in this Act”, including requiring bodies to
computerise records and network information systems, and consider requiring a
body to develop specific guidelines on proper record keeping and management
which must be followed by all bodies subject to the Act.
- Extend the proactive disclosure
obligations imposed on public bodies.
- Insert an additional clause
elaborating how information should be published:
“ For the
purpose of this section, information should be published widely and in a manner
easily accessible to the public. “Publish” shall mean appropriately making
known to the public the information to be communicated through notice boards,
newspapers, public announcements, media broadcasts, the internet or other such
means and shall include inspection at all of the bodies offices. All materials
shall be published keeping in mind the local language and the most effective
method of communication in that local area.”
- Insert an additional clause requiring
information to be updated at least every 6 months.
- Clarify how ss.4(c)-(e) will be
implemented in practice.
Insert:
New - Chapter III – Procedures for Making Requests Section 5
22. It is positive that s.5 of the Act
requires the appointment of Public Information Officers (PIO), because the
designation of officers within public bodies who are specifically responsible
for managing and promoting access to information can be a useful way of
ensuring the law is more effectively implemented. However, s.5(1) should make
it clear that PIOs should be nominated at the local level, and not just at the
headquarters. In the context of a Central Government law, it will be
particularly important that people in outlying areas and states are able to
lodge and follow up requests locally. Section 5(1) of the Maharashtra Right to
Information Act provides a good example, as does s.17 of the South African
Promotion of Access to Information Act 2000. It should be noted though, that
any delegation provisions must make it explicit that if delegates are given the
same powers as PIOs, they will also be subject to the same penalties for
dereliction of duty. Likewise, officials whose assistance is requested by a PIO
may also be subject to penalties for any failure to comply with the law.
Maharashtra:(1)
Every Competent Authority shall for the purposes of this Act, designate one or
more officers as Public Information Officers in all administrative units and
offices under such Authority;
(2) Every Public Information Officer-shall
deal with a request 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 or Employee as he considers necessary for
the proper discharge of his duties.
(4) Any Officer or Employee whose assistance
has been sought under sub -section (3), shall render all assistance to the
Public Information Officer seeking his assistance..
South
Africa: (1) For the purposes of this Act, each public body must, subject to
legislation governing the employment of personnel of the public body concerned,
designate such number of persons as deputy information officers as are
necessary to render the public body as accessible as reasonably possible for
requesters of its records.
(2) The information officer of a public body
has direction and control over every deputy information officer of that body.
(3) The information officer of a public body
may delegate a power or duty conferred or imposed on that information officer
by this Act to a deputy information officer of that public body.
(4) In deciding whether to delegate a power
or duty in terms of subsection (3), the information officer must give due
consideration to the need to render the public body as accessible as reasonably
possible for requesters of its records.
(5) Any power or duty delegated in terms of
subsection (3) must be exercised or performed subject to such conditions as the
person who made the delegation considers necessary.
(6) Any delegation in terms of subsection
(3)—
(a) must be in writing;
(b) does not prohibit the person who made the
delegation from exercising the power concerned or
performing
the duty concerned himself or herself; and
(c) may
at any time be withdrawn or amended in writing by that person.
(7) Any right or privilege acquired, or any
obligation or liability incurred, as a result of a decision in terms of a
delegation in terms of subsection (3) is not affected by any subsequent
withdrawal or amendment of that decision.
Recommendations
- Insert a new clause requiring PIO’s
to be appointed at the panchayat, district, taluka and block levels and
permitting the delegation of the PIOs functions as necessary to ensure maximum
accessibility for the public.
- Draft the delegation provisions to
make it explicit that delegates and officials whose assistance is requested by
the PIO will be subject to the same offences and penalties regime as PIOs for
failure to comply with the law.
Section 6
23. Section 6 which sets out how a request
for information is made is a crucial provision. Best practice requires that
access procedures should be as simple as possible and designed to be easily
availed by all members of the community, whether illiterate, disabled or
geographically distant from centres of power. It is positive that the provision
currently places a responsibility on the PIO to render assistance to reduce
oral requests in writing and that it does not require that a request should be
in any particular form. Requiring requestors to submit a specific form may in
practice prove an obstacle to access, as some people may not have easy access
to said forms, for example because they cannot download it from the internet or
because they are not proximate to a government office where they can be
obtained. As long as the requestor provides sufficient particulars to allow
information to be identified and located, that should be sufficient.
24. In practice, it would be useful for
receipts to be provided once applications are received by bodies. This would
ensure that requesters have written proof of the date on which they submitted
the application and written recognition from the relevant body of the time
limits which apply to the request. The receipt should also acknowledge payment
of fees, if any (see paragraph 26-27 below for further discussion re fees). In
order to ensure maximum ease for users of the law, s.6 should also make it
clear that applications can be made in any of India’s official languages. It
should be the duty of the relevant public body to translate the request. To
require all requestors to submit an application in Hindi or English could in
practice exclude millions of people from utilising the law.
25. Section 6 should also make it explicit
that applications must not require requestors to state a reason for their
request. This should prevent cases like that of Ma harashtra, where the Act
does not require reasons to be provided, but the request form prescribed via
regulation has introduced this condition. There should be no room for officials
to deny requests simply because they are not satisfied with the requestor’s
reasons for wanting the information. Most Acts in the Commonwealth specifically
provide that no reasons need to be provided by an applicant.
Recommendations
- Insert a new clause requiring bodies
to provide applicants with a receipt of their application, including the date
of receipt, the date by which a response must be provided and details of fees
paid (if any).
- Insert a new clause making it
explicit that applications can be submitted in any of India’s official
languages.
- Insert a new clause making it
explicit that requestors are not required to state a reason for their
application.
Section 7
26. Section 7 appears to permit the
imposition of a fee for access. Best practice requires that no fees should be
imposed for accessing information, particularly government information, as
costs should already be covered by public taxes. At the very least, no
application fee should be levied because
the
initial work required to locate information and determine its sensitivity to
disclosure is a routine and expected task of government. This is the case in Trinidad
& Tobago where s. 17(1) of the Freedom of Information Act 1999 specifically
states that no fees shall be imposed for applications. Notably, s.17(3) of the
Trinidad & Tobago Act goes further and states that the even where fees are
imposed, if a body subject to the Act fails to comply with the time limits for
disclosure of information, access to which the applicant is entitled shall be
provided free of charge. If any fees are imposed, the rates should be set with
a view to ensuring that the costs imposed for access are not so high as to
deter potential applicants. At the most, fees should be limited only to cost
recovery, with no additional margin for profit, and a maximum limit should be
imposed. Charges should only cover reproduction costs, not search or
collation/compilation time. Imposing fees in respect of the latter could easily
result in prohibitive costs, particularly if bureaucrats deliberately drag
their heels when collating information in order to increase fees.
27. Provision should be made to allow the
waiver of fees levied under the Act where that is in the public interest, such
as where a large group of people would benefit from release/dissemination of
the information or where the objectives of the Act would otherwise be
undermined (for example, because poor people would be otherwise excluded from
accessing important information). Such provisions are regularly included in
access laws in recognition of the fact that fees may prove a practical obstacle
to access in some cases. A definition of “public interest” may be included to
provide direction to officials implementing the law. Section 29(5) of the
Australian Freedom of Information Act provides a useful model:
Australia:
Without limiting the matters the agency or Minister may take into account in
determining whether or not to reduce or not to impose the charge, the agency or
Minister must take into account:
(a) whether the payment of the charge, or
part of it, would cause financial hardship to the applicant,
or to a
person on whose behalf the application was made; and
(b) whether the giving of access to the
document in question is in the general public interest or in the interest of a
substantial section of the public.
Recommendations
- Delete the requireme nt for payment
of a fee at the time an application is made.
- Insert a new clause clarifying that
any fees charged for provision of information “shall be reasonable, shall in no
case exceed the actual cost of copying the information such as making
photocopies or taking print outs and shall be set via regulations at a maximum
limit taking account of the general principle that fees should not be set so
high that they undermine the objectives of the Act in practice and deter
applications”.
- Insert a new clause which states that
“if a body subject to the Act fails to comply with the time limits for
disclosure of information, access to which the applicant is entitled shall be
provided free of charge”.
- Insert a new clause allowing for the
waiver and/or remission of any fees where their imposition would cause
financial hardship or where disclosure is in the general public interest.
Insert
new section – Form of Access
28. As noted in paragraph 14, bullet point 1
portions of the current definition of “freedom of information” in s.2 of the
Act should be moved to sit with the provisions in s.7 which deal with the form
of access provided. Additionally, the current provisions dealing with the form
of access should be extended to allow for inspection of works and the provision
of translations and records in alternative formats in some cases. Section 2(i)
of the Delhi Right to Information Act and ss.12(2) and (3) of the Canadian
Access to Information Act provide useful models:
Delhi:
"right to information"…includes the inspection of works, documents,
records, taking notes and extracts and obtaining certified copies of documents
or records, or taking samples of material.
Canada:
(2) Where access to a record or a part thereof is to be given under this Act
and the person to whom access is to be given requests that access be given in a
particular official language, a copy of the record or part thereof shall be
given to the person in that language
(a) forthwith, if the record or part thereof
already exists under the control of a governm ent institution in that language;
or
(b) within a reasonable period of time, if
the head of the government institution that has control of the record considers
it to be in the public interest to cause a translation to be prepared.
(3) Where
access to a record or a part thereof is to be given under this Act and the
person to whom access is to be given has a sensory disability and requests that
access be given in an alternative format, a copy of the record or part thereof
shall be given to the person in an alternative format
(a) forthwith, if the record or part thereof
already exists under the control of a government institution in an alternative
format that is acceptable to that person; or
(b) within a reasonable period of time, if
the head of the government institution that has control of the record considers
the giving of access in an alternative format to be necessary to enable the
person to
exercise the person's right of access under this Act and considers it
reasonable to cause that record or part thereof to be converted.
29. It is very positive that s.7(3) requires
that, where a request is rejected, reasons and appeal rights should be
communicated to the applicant. This is a crucial provision as the information
contained in the notice will be relied upon by the requestor in determining
whether to proceed with an appeal. In this context, consideration should be
given to elaborating upon the current provision to make absolutely sure that
requestors are provided with sufficient information by officials. Section 26 of
the Australian Freedom of Information Act 1982 provides a useful example:
Where, in
relation to a request, a decision is made relating to a refusal to grant access
to a document in accordance with the request or deferring provision of access
to a document, the decision-maker shall cause the applicant to be given notice
in writing of the decision, and the notice shall:
(a) state the findings on any material
questions of fact, referring to the material on which those findings were
based, and state the reasons for the decision;
(b) where the decision relates to a document
of an agency, state the name and designation of the person giving the decision;
and
(c) give to the applicant appropriate
information concerning:
(i) his or her rights with respect to
review of the decision;
(ii) his or her rights to make a complaint to
the Ombudsman in relation to the decision; and
(iii) the procedure for the exercise of the
rights referred to in subparagraphs (i) and (ii);
including
(where applicable) particulars of the manner in which an application for review
under section 54 [dealing with internal reviews] may be made.
30. Section 7(3) regarding notification of
decisions should be extended to cover instances where a request is partially
rejected (as permitted under s.10). Likewise, even where access is granted,
notices should include information about requestors’ rights to appeal the
imposition and calculation of any fees and any adverse decision regarding the
form of access to be provided.
Recommendations
- Insert a new clause clearly setting
out the forms of access allowed under the Act, in the broadest terms possible.
The clause should specifically allow inspection of materials and taking of
samples and extracts, as well as the provision of translations and records in
alternative formats in certain specified cases.
- Amend s.7(3), which sets out the
content of rejection notices, to:
- Elaborate on the content of notice to
ensure that requesters have sufficient information on which to base an appeal
and are fully aware of their appeal rights.
- Make it clear that it applies to both
total and partial rejections of requests.
- Insert a new clause setting of the
content of notices allowing disclosure, including information regarding appeals
again the imposition of fees, the amount of fee and the form of access.
Insert
new section – Transfer of Requests
31. The procedural provisions in the Act
currently do not deal with transfers of requests, where requests are made to
the wrong body. This is a serious oversight. It is easy to envisage cases where
requestors misdirect an application; often it is not clear to a layperson which
department would have primary responsibility for a particularly subject. For
example, the drilling of borewells relates to rural development and tribal
welfare, as well as municipal and panchayat bodies – who would a requestor
apply to for information about the borewell in their village? The government
knows its own business most fully, such that the government should be
responsible for ensuring that misdirected applications are transferred.
Transfers should be prompt; in practice, public bodies will almost immediately
be able to determine whether a particular request should be transferred and can
do so without delay. Requestors themselves should not be required to resubmit
applications as this could result in additional fees and unnecessary delays.
Notification should be provided to requestors if an application is transferred,
so that they will know who to follow up with. Section 8 of the Jamaican Access
to Information Act 2002 provides a useful model.
8. —(1) Where an application is made to a
public authority for an official document —
(a) which is held by another public
authority; or
(b) the subject matter of which is more
closely connected with the functions of another public authority, the first
mentioned public authority shall transfer the application or such part of it as
may be
appropriate to that other public authority and shall inform the applicant
immediately of the transfer.
(2) A transfer of an application pursuant to
subsection (1) shall be made as soon as practicable but not later than [5] days
after the date of receipt of the application.
Recommendation
- Insert a new clause requiring bodies
to transfer applications and notify requestors of the transfer, within 5 days,
where applications are submitted to the wrong body.
Insert
new section – Deemed Refusals
32. Experience with implementation of access
to information regimes has shown that many officials avoid the application of
the law by simply ignoring requests. To address this problem, “deeming”
provisions need to be included so that a failure to respond to a request in
time is automatically deemed a refusal, thereby allowing appeal provisions to
be invoked. Experience in the states of India has shown that the absence of
such a deeming provision has sometimes resulted in confusion over whether and
when appeals can be lodged and dealt with.
Recommendation
- Insert a new clause on deemed
refusals in the following terms:
If a
Public Information Officer fails to give the decision on a request for access
to the requestor concerned within the period contemplated in s.7(1), the Public
Information Officer is, for the purposes of this Act, regarded as having
refused the request.
Insert:
New – Chapter IV – Exemptions
Section 8
33. While keeping in mind the overarching
principle of maximum disclosure, it is nevertheless well-accepted that there
can be a small number of legitimate exemptions in any access regime. Exemptions
to the rule of maximum disclosure should be kept to an absolute minimum and
should be narrowly drawn. The key principle underlying any exemption is that
its purpose must be to genuinely protect and promote the public interest. Even
where exemptions are included in legislation, they should not apply to
documents more than 10 years old. Further, ALL exemptions should be subject to
a blanket “public interest override” whereby a document which falls within the
terms of a general exemption provision should still be disclosed if the public
interest in the specific case requires it.
34. The current exemptions regime found in
ss.8 and 9 of the Act is seriously problematic because it is not tempered by a
public interest override. This is a major deficiency. A public interest
override provision application to all the exemptions in the Act should be
included as a matter of priority, in accordance with best practice. The test
for exemptions is in 3 parts:
(i) Is the information covered by a
legitimate exemption?
(ii) Will disclosure cause substantial harm?
(iii) Isthelikelyharmgreaterthanthepublicinterestindisclosure?
Recommendation
- Insert a public interest override
provision which covers all exemptions under the Act in the following terms:
Notwithstanding
any provision in this Act, a body may not refuse to indicate whether or not it
holds a record, or refuse to communicate or disclose or allow access to
information, unless the harm to the protected interest outweighs the public
interest in disclosure.
35. Even with the inclusion of a public
interest override, it remains important to ensure that the exemptions included
in the law are tightly drawn and are the minimum required to protect legitimate
interests. While some of the exemptions in ss.8 and 9 are necessary, wide
ranging exemptions can defeat the very purpose of the legislation. Notably,
because the object of the legislation is to give effect to the fundamental
right to information under the Constitution of India, any restrictions placed
on the right to information should arguably be limited to the restrictions
allowable in the Constitution of India. There has been considerable debate in
this context about whether the current exemptions regime is constitutionally
valid.
Recommendation
- Review the constitutionality of the
entire exemptions regime with a view to deleting all exemptions which are not
permissible in accordance with the Constitution.
36. In the event that the current exemptions
are not struck down as unconstitutional, nevertheless the exemptions in s.8
still require considerable amendment to bring them into line with best
practice.
At the
outset, it is problematic that all of the exemptions adopt a low threshold test
of harm to a protected interest to justify exemption, namely the requirement
that disclosure “prejudicially affect” the protected interest. Legally, this
constitutes very broad wording. Alternative formulations require that
disclosure would cause “serious harm” or “substantial prejudice”. Such wording
ensures sufficient protection for sensitive information without setting the bar
so low that even the slightest negative consequence of disclosure can be used
to justify withholding information.
37. Section 8(1)(a) legitimately attempts to
protect information that is sensitive to national security, international
relations and India’s strategic scientific and economic interests. However,
consideration should be given to deleting the protection given to information
related to “the sovereignty and integrity of India”. Experience has shown that
such broad concepts have been notoriously misused by Government MPs who too
often hide their partisan misdeeds under the banner of national sovereignty. In
any case, the exemption for “security of the State” already covers the relevant
information, but is a tighter term and therefore less open to abuse.
38. Section 8(1)(b) attempts to provide
legitimate protection against the disclosure of information that would
undermine law enforcement activities and/or the judicial process. However, the
exemption is currently too broad; it should not justify withholding information
to protect “public safety and order”. Notably, this phrase is used in Article
19(2) of the Constitution as a general exemption. However, more guidance needs
to be provided on its practical content to prevent abuse. The phrase has too
often been interpreted by governments to stifle opposition on the grounds that
said opposition would ‘threaten public order’. There is a real danger that the
exemption in this form could be used to undermine the Act. One can imagine
public officials arguing that that the release of documents proving corruption
by top level politicians could prejudicially affect public order because it
might encourage people to – legitimately – agitate against the Government.
39. Section 8(1)(c) is a common provision in
federations. The need to protect sensitive inter - governmental information is
understandable. However, the current wording of the exemption to allow
protection for information “exchanged in confidence” between governments could
be abused by officials to unjustifiably keep information secret by simply
putting a heading of “in confidence” on documents.
40. Section 8(1)(d) should be deleted because
best practice maintains that it is improper to provide exemptions for entire
classes of information. While some information in some Cabinet papers may be
sensitive – and on that basis, will be covered by one of the other exemption
provisions in the Act - it is not the case that all Cabinet papers are always
sensitive. Furthermore, this provision could easily be abused; the Government
could simply send politically sensitive documents to Cabinet to deliberately
protect them against disclosure.
41. Section 8(1)(e) should be substantially
amended because it is not appropriate that it attempts to exempt the disclosure
of advice given to the government during the decision-making process.
Ironically, this is exactly the kind of information that the public should be
able to access, unless it is particularly sensitive. The public has the right
to know what advice and information the Government bases its decisions on and
how the Government reaches its conclusions. It is not enough to argue that
disclosure would inhibit internal discussions. Officials should be able – and
be required – to ensure that their advice can withstand public scrutiny. To
fear such transparency raises questions about the soundness of the entire
decision-making process. Of course, it will generally not be appropriate to
disclose advice prior to a decision being reached. In this context, protection
should be provided for “premature disclosure which could frustrate the success
of a policy or substantially prejudice the decision -making process”. Of
course, relevant information should still eventually be disclosed – it is only
premature disclosure that should be protected.
Recommendations
- Assuming that the current exemptions
in s.8 ARE constitutionally valid:
- Delete the phrase “information, the
disclosure of which would prejudicially affect” in ss.8(a), (b), (c) and (f)
with the phrase “information, the disclosure of which will or is likely to
cause serious harm”;
- Delete the words “the sovereignty and
integrity of India” from s.8(1)(a);
- Delete the words “public safety and
order” from s.8(1)(b), or alternatively provide additional guidance as to the
scope/limits of this phrase;
- Replace the words “may lead to an
incitement to commit an offence” to “is reasonably likely to lead to the
commission of an offence” in s.8(1)(b);
- Delete the words “including
information exchanged in confidence between the Central and State Governments
or any of their authorities or agencies” from s.8(1)(c);
- Delete s.8(1)(d) entirely;
- Replace s.8(1)(e) with the following
provision:
“A body may
refuse to indicate whether or not it holds a record, or refuse to communicate
information, where to do so would, or would be likely to: -
(a) cause serious prejudice to the effective
formulation or development of government policy;
(b) seriously frustrate the success of a
policy, by premature disclosure of that policy”.
42. Section 8(2), which deals with
declassification of documents over time, has a number of defects. Best practice
supports a reduction in the maximum non-disclosure period from 25 years to 10
years. This takes into account the fact that documents are not automatically
declassified at this date, but rather are reviewed to assess whether sufficient
time has passed so that they are no longer sensitive and can be released. It is
illogical and inappropriate that the decision of the Government as to the
computation of the lapsed period under s.8(2) is final and unappealable. In
accordance with s.12, all other decisions which affect non-disclosure are able
to be appealed. Decisions under s.8(2) should be no different.
Recommendations
- Amend s.8(2) to reduce the time limit
for consideration of declassification of records to 10 years.
- Delete from s.8(2): “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”.
Section 9
43. Section 9(a) allows public bodies not to
process requests where to do so would unreasonably divert their resources. Such
provisions are quite common. However, considering the poor state of records
management in many bodies currently, this provision begs the question – if
records management were more efficient, would a request falling under this
provision have actually diverted a large amount of resources? There is no need
for the additional clause in the provision allowing requests to be rejected if
they “adversely interfere with the functioning of such authority”. This phrase
is very broad and could be interpreted by recalcitrant officials to deny legitimate
requests. PIOs should also be required to offer assistance to amend requests
before they are rejected under this section. Otherwise, a requestor will have
to incur additional costs by reformulating their application and then
submitting it as a new request.
44. Section 9(d), which deals with
non-disclosure to protect personal privacy, should be moved to sit with the
other exemptions provisions. It is legitimate that a certain level of
protection be accorded to the privacy rights of third parties. Notably though,
privacy rights often need to be balanced against the public’s right to know,
particularly in instances where it is public officials that are asserting the
right to privacy to protect against disclosure on their own behalves. Section
24 of the draft Access to Information Bill 2004 recently prepared by Government
of Uganda provides a useful model to draw on when formulating an provision to
protect third parties’ privacy rights:
(1) Subject to subsection (2), an information
officer shall refuse a request for access if its disclosure would involve the
unreasonable disclosure of personal information about a person, including a
deceased individual.
(2) A person may be granted access to a
record referred to in subsection (1) in so far as the record
consists of
information -
(a) about a person who has consented in
writing to its disclosure to the person requesting the record;
(b) that was given to the public body by the
person to whom it relates and the person was informed by or on behalf of the
public body, before it is given, that the information belongs to a class of
information that would or might be made available to the public;
(c) already publicly available;
(d) about a person who is deceased and the
person requesting the information is -
(i) the person's next of kin; or
(ii) making the request with the written
consent of the person's next of kin; or
(e) about a person who is or was an official
of a public body and which relates to the position or functions of the person,
including, but not limited to -
(i) the fact that the person is or was an
official of that public body;
(ii) the title, work address, work phone
number and other similar particulars of the person;
(iii) the classification, salary scale or
remuneration and responsibilities of the position held or services performed by
the person; and
(iv) the name of the person on a record
prepared by the person in the course of employment.
Recommendations
- Delete from s.9(a) the words:
“adversely interfere with the functioning of such authority”.
- Amend s.9(a) to require PIOs to offer
assist requesters to reformulate their requests before they are rejected on the
basis of s.9(a).
- Move s.9(d) to sit with the other
exemptions clauses under s.8.
- Amend s.9(d) to narrow the protection
for private information and make it subject to a public interest override.
Section
10
45. It is positive that the Act allows for
severability and disclosure of non-exempt information. Accordingly s.10(2)
should be amended to require the relevant notice to the requestor advising of
partial disclosure to also include advice regarding the opportunity and process
for appealing that decision. This should be worded along the lines of s.7(3)
which deals with rejection notices, taking account of the analysis and
suggestions in paragraph 30 above.
Recommendation
- Amend s.10(2) to require the notices
advising of partial disclosure to include advice regarding the appeals process.
Section
11
46. Paragraph 2 of s.11(1) should be deleted
because, as discussed in paragraphs 33-34 above, a public interest override
should be applicable to all the exemptions contained in the Act. There is no
reason why the Act should provide for a public interest override only in
respect of third party information.
47. The time limits in ss.11(1)-(3) are
unnecessarily long. Considering that requests not involving third parties are
required to be disposed of within 30 days at the most, but “as expeditiously as
possible”, it is difficult to justify doubling this time limit where a third
party is involved. At the very least, consideration should be given to amending
these clauses to require that such requests are still disposed of “as
expeditiously as possible”. More appropriately, initial notifications to third
parties should be made within 5 days; this is a reasonable time for an initial
determination to be made regarding whether a third party needs to be consulted.
Third parties should then be given 15 days to respond and should be able to
respond orally (eg. by telephone) or in writing/electronically. A maximum of 10
days could then be allowed for a final decision. Many laws require all
decisions
– whether
involving third parties or not – to be made within the basic time limit of 30
days. In some jurisdictions, the time limits for processing requests are as
little as 5 days.
Recommendation
- Delete paragraph 2 of s.11(1).
- Reduce the time limits in
ss.11(1)-(3) to 30 days in total.
Insert:
New - Chapter V: Complaint and Appeals
Section
12
48. Best practice international standards
require that an effective access to information law include an appeals
mechanism which is independent of government, as well as cheap, quick and
procedurally simple. The failure of the Act to include such an appeals process
is one its most serious deficiencies. In fact, even the basic internal appeals
process currently included in the Act is poorly drafted.
49. Currently, the Act appears to allow for
two internal appeals: s.12(1) allows for an initial internal appeal but leaves
the details of that process to be determined at a later date and prescribed in
regulations; and s.12(2) allows for a second appeal to the “Central Government,
State Government or Competent Authority”. It is appropriate that the law allows
for one internal appeal, as this is a cost-effective way of allowing the
government to verify its own decisions. In practice, a middle level official
will make the initial decision and it will be cross-checked on appeal by a
senior official. There is no justification for two internal appeals however.
This would simply increase the administrative burden on the bureaucracy and
costs.
Recommendation
- Delete s.12(1), thereby reducing the
number of internal appeals to one.
- Amending s.12(2) to take into account
the recommendations below regarding the establishment independent Information
Commission.
Insert
new sections – Information Commission
50. While internal appeals provide an
inexpensive first opportunity for review of a decision, oversight by an umpire
independent of government pressure is a major safeguard against administrative
lethargy, indifference or intransigence and is particularly welcome where
court-based remedies
are slow,
costly and uncertain. The fear of independent scrutiny ensures that exemption
clauses are interpreted responsibly and citizens’ requests are not
unnecessarily obstructed. While the courts satisfy the first criteria of
independence, they are notoriously slow and can be difficult to access for the
common person. As such, in many jurisdictions, special independent oversight
bodies have been set up to decide complaints of non-disclosure. The have been
found to be a cheaper, more efficient alternative to courts and enjoy public
confidence when they are robustly independent, well-funded and procedurally
simple.
51. Best practice supports the establishment
of a dedicated Information Commission with a mandate to review refusals to
disclose information, compel release and impose sanctions for non - compliance.
Experience from a number of Commonwealth jurisdictions, including Canada,
England, Scotland and Western Australia, has shown that Information
Commission(er)s have been very effective in raising the profile of the right to
information and balancing against bureaucratic resistance to openness. Of
course, there are alternatives to an Information Commission. For example, in
Australia, the Administrative Appeals Tribuna l has appeal powers and in New
Zealand and Belize the Ombudsman can deal with complaints. A number of states
in India have appointed an existing administrative tribunal to hear appeals and
in Maharashtra the Lokyukta performs this function. However, experience has
shown that these bodies are often already overworked and/or ineffective, such
that they have rarely proven to be outspoken champions of access laws.
52. In Canada and the United Kingdom, a
single Information Commissioner has been appointed, However, a Commission with
multiple Commissioners and/or multiple state -based Commissions would be more
appropriate in the Indian context because it is anticipated that the workload
of such a body would be too much for a single Commissioner and/or Office to
manage. The members of any Information Commission need to be, and be seen to
be, people of integrity who are also qualified to hear appeals. Commissioners
will have an important role to play in countering possible resistance within
Government towards openness and information disclosure such that it important
that candidates are well-respected as well as highly competent. The draft
Kenyan Access to Information Bill 2000 provides a useful model:
10(2) The
person appointed to the office of Information Commissioner shall -
(a) be a person qualified to be appointed as
a judge of the High Court of Kenya;
(b) be publicly regarded as a person who can
make impartial judgments;
(c) have sufficient knowledge of the
workings of Government;
(d) not have had any criminal conviction and
not have been a bankrupt;
(e) be otherwise competent and capable of
performing the duties of his or her office;
(f) not be the President, Vice President, a
Minister or Deputy Minister, a serving public officer or a Member of
Parliament; and
(g) not hold any other public office unless
otherwise provided for in this Act.
53. The procedure for appointing Information
Commissioners must be impartial and independent of government interference, to
ensure that Information Commissioners are seen as non-partisan. The
Commissioners need to be given security of tenure and salary. In accordance
with the principles of the separation of powers, removal should only be
permitted through impeachment proceedings in Parliament. Appointment and
removal procedures should reflect those currently used for appointment of
judges.
54. To ensure the absolute independence of
the Information Commission, a specific provision affirming the independence of
the Information Commission should be included in the Act. It should be
explicitly stated that the Commission must have “budgetary, operational and
decision-making autonomy and should be completely independent of the
interference or direction of any other person or authority, other than the
Courts”.
55. In setting up the appeals regime of the
Information Commission, it is first necessary to detail the parameters of the
Commission’s appeal remit. Section 88 of the Queensland (a State of Australia)
Freedom of Information Act 1992 is a good general provision which could be used
as a starting point. Likewise, s.31 of the Canadian Access to Information Act
1982 provides a good model:
Queensland:
(1) In the conduct of a review, the Commissioner has, in addition to any other
power, power to—
(a) review any decision that has been made by
an agency or Minister in relation to the application concerned; and
(b) decide any matter in relation to the
application that could, under this Act, have been decided by an agency or
Minister;
and any
decision of the Commissioner under this section has the same effect as a
decision of the agency or Minister…
Canada:
(1) Subject to this Act, the Information Commissioner shall receive and
investigate complaints
(a) from persons who have been refused access
to a record requested under this Act or a part thereof;
(b) from persons who have been required to
pay an amount under [the fees provisions] that they consider unreasonable;
(c) from persons who have requested access
to records in respect of which time limits have been extended…where they
consider the extension unreasonable;
(d) from persons who have not been given
access to a record or a part thereof in the official
language
requested by the person…, or have not been given access in that language within
a period of time that they consider appropriate;
(d.1)
from persons who have not been given access to a record or a part thereof in an
alternative format pursuant to a request..., or have not been given such access
within a period of time that they consider appropriate;…
(f) in respect of any other matter relating
to requesting or obtaining access to records under this Act.
56. In order to ensure that the Information
Commission can perform its appeal functions effectively, it is imperative that
Commissioners are explicitly granted the powers necessary to undertake a
complete investigation and ensure enforcement of their orders (see paragraphs
62-67 below for more re enforcement). The powers granted to the Canadian
Information Commissioner under s.36 of the Canadian Access to Information Act
1982 provide a useful model:
(1) The Information Commissioner has, in
relation to the carrying out of the investigation of any complaint under this
Act, power:
(a) to summon and enforce the appearance of
persons before the Information Commissioner and compel them to give oral or
written evidence on oath and to produce such documents and things as
the
Commissioner deems requisite to the full investigation and consideration of the
complaint, in the same manner and to the same extent as a superior court of
record;
(b) to administer oaths;
(c) to receive and accept such evidence and
other information, whether on oath or by affidavit or otherwise, as the
Information Commissioner sees fit, whether or not the evidence or information
is or would be admissible in a court of law;
(d) to enter any premises occupied by any
government institution on satisfying any security requirements of the
institution relating to the premises;
(e) to converse in private with any person in
any premises entered pursuant to paragraph (d) and
otherwise
carry out therein such inquiries within the authority of the Information Commissioner
under this Act as the Commissioner sees fit; and
(f) to examine or obtain copies of or
extracts from books or other records found in any premises entered pursuant to
paragraph (d) containing any matter relevant to the investigation.
(2) Notwithstanding any other Act of
Parliament or any privilege under the law of evidence, the Information
Commissioner may, during the investigation of any complaint under this Act,
examine any
record to
which this Act applies that is under the control of a government institution,
and no such record may be withheld from the Commissioner on any grounds.
57. In addition to the Commission’s
investigative powers, it is necessary to clearly set out the Commission’s
decision-making powers, to ensure that bureaucrats cannot attempt to ignore its
decisions as recommendatory only. In accordance with best practice evinced in a
number of jurisdictions (eg. the State of Queensland in Australia, Mexico), the
Commission should have the power to make binding determinations, compel parties
to take action, enforce compliance with
orders
and impose sanctions as appropriate. Without strong powers, the Commission
could easily be ignored and sidelined by a bureaucratic establishment which is
determined to remain closed. Section 88 of the Queensland Freedom of
Information Act 1992 (which is replicated in paragraph 55 above), as well as
s.82 of the South African Promotion of Access to Information Act and ss.42-
43 of the
Article 19 Model FOI Law provide very useful examples:
South
Africa: The [appeal body] hearing an application may grant any order that is
just and equitable, including orders--
(a) confirming, amending or setting aside the
decision which is the subject of the application…;
(b) requiring [the relevant body] to take
such action or to refrain from taking such action as the court considers
necessary within a period mentioned in the order;
(c) granting an interdict, interim or
specific relief, a declaratory order or compensation; or
(d) as to costs.
Article
19: 42(2) In his or her decision pursuant to sub-section (1), the Commissioner
may: - a. reject the application;
b.
require the public or private body to take such steps as may be necessary to
bring it into compliance with its obligations under Part II;
c. require
the public body to compensate the complainant for any loss or other detriment
suffered;… d. in cases of egregious or wilful failures to comply with an
obligation under Part II, impose a fine on
the
public body.
(3) The Commissioner shall serve notice of
his or her decision, including any rights of appeal, on both the complainant
and the public or private body.
43. (1) The Commissioner may, after giving a
public body an opportunity to provide their views in writing, decide that a
public body has failed to comply with an obligation under Part III.
(2) In his or her decision pursuant to
sub-section (1), the Commissioner may require the public body to take such
steps as may be necessary to bring it into compliance with its
obligations…including by: -
a. appointing an information officer;
b. publishing certain information and/or
categories of information;
c. making certain changes to its practices
in relation to the keeping, management and destruction of records, and/or the
transfer of records to the [insert relevant archiving body];
d. enhancing the provision of training on
the right to information for its officials;
e. providing him or her with an annual
report, in compliance with section 21; and/or
f. in cases of egregious or wilful
failures to comply with an obligation under Part III, paying a fine.
(3) The Commissioner shall serve notice of
his or her decision, including any rights of appeal, on the public body.
58. An additional provision replicating
s.30(3) of the Canadian Access to Information Act 1982, which gives the
Information Commission the power to initiate its own investigations, should
also be included. In practice, this will be useful in allowing the Commission
to investigate delays in providing information, because these cases will often
not reach the Commission as a complaint if the information is finally handed
over, but may still be worthy of review and the imposition of a penalty,
particularly if the Commission uncovers a pattern of non-compliant behaviour.
59. In addition to the key issues discussed
above, a number of additional procedural provisions will also need to be
considered and addressed; for example: setting a maximum time limit for
decisions of the Information Commission, preferably no more than 30 days;
setting out the form that notices of appeal decisions should take; allowing for
“deemed decisions”, where failure by the Information Commission to deal with
the complaint in time is treated as a refusal such that remaining appeals
processes can then be availed; allowing for delegation of Information
Commissioners’ powers.
Recommendations
- Insert a new section/Part
establishing an independent Information Commission. At a minimum, the following
issues must be addressed:
- Qualifications of the Commissioner(s)
and appointment and removal process, with a view to ensuring independence from
Government;
- Parameters of the Commission’s appeal
remit;
- Investigatory powers, including the
ability to review all documents and power to initiate own investigations;
- Decision-making powers, including the
power to make binding determinations, compel parties to take action, enforce
compliance with orders and impose sanctions;
- Procedures, including time limits for
decisions; form of notices of appeal decisions; “deemed decision” provisions;
delegation of Information Commissioners’ powers.
Insert
new section – Appeals to the Courts
60. Section 15 of the Act, which bars the
jurisdiction of the Courts, needs to be deleted. The Supreme Court has held on
numerous occasion that the right to information is a constitutionally
entrenched fundamental right. Decisions made by bureaucrats in relation to a
constitutional right must be amenable to challenge in a court of law. Such
appeals fall within the original jurisdiction of the High Court and the Supreme
Court under Articles 32, 139 and 226 of the Constitution.
Recommendation
- Replace s.16 with a provision which
explicitly states that appeals from decisions of the Information Commission can
be made to the courts, on points of fact and law.
Insert
new section – Burden of Proof
61. The burden of proof should be on the body
refusing disclosure and/or otherwise applying the law to justify their
decision. This is justified because it will be unfair and extremely difficult
for members of the public – who will never have seen the document they are
requesting – to be forced to carry the burden of proof. Section 61 of the
Australian Freedom of Information Act 1982 provides a useful model:
(1) Subject to subsection (2), in proceedings
under this Part, the agency or Minister to which or to whom the request was
made has the onus of establishing that a decision given in respect of the
request was justified or that the Tribunal should give a decision adverse to
the applicant.
(2) In proceedings [relating to third
parties], the party to the proceedings that opposes access being given to a
document in accordance with a request has the onus of establishing that a
decision refusing the request is justified or that the Tribunal should give a
decision adverse to the applicant.
Recommendation
- Insert a new section clarifying that
the burden of proof during the appeals process is on the body refusing
disclosure and/or otherwise applying the law to justify their decision.
Insert
new section – Offences & Penalties
62. The Act is seriously weakened by the
absence of comprehensive offences and penalties provisions, a shortcoming which
should be rectified as a priority. Sanctions for non-compliance are
particularly important incentives to timely disclosure in jurisdictions where the
bureaucracy is unused to hurrying at the request of public.
63. In the first instance, it is important to
clearly detail what activities will be considered offences under the Act. It is
important that these provisions are comprehensive and identify all possible
offences committed at all stages of the request process – for example,
unreasonable delay or withholding of information, knowing provision of
incorrect information, concealment or falsification of records, wilful
destruction of records without lawful authority, obstruction of the work of any
public body under the Act and/or non-compliance with the Information
Commissioner’s orders.
64. Once the offences are detailed, sanctions
need to be available to punish the commission of offences. International best
practice demonstrates that punishment for serious offences can include
imprisonment, as well as substantial fines. Notably, fines need to be
sufficiently large to act as a serious disincentive to bad behaviour.
Corruption – the scourge that access laws assist to tackle – can result in huge
windfalls for bureaucrats. The threat of fines and imprisonment can be an
important deterrent, but must be large enough to balance out the gains from
corrupt practices.
65. When developing penalties provisions, lessons
learned from the Indian states with right to information laws are illuminating.
In Maharashtra, penalties are able to imposed on individual officers, rather
than just their department. In reality, without personalised penalty
provisions, many public officials may be content to shirk their duties, safe in
the knowledge that it is their employer that will suffer the consequences. It
is therefore important in combating entrenched cultures of secrecy that
individual officers are faced with the threat of personal sanctions if they are
non-compliant. The relevant provisions need to be carefully drafted though, to
ensure that defaulting officers, at whatever level of seniority, are penalised.
It is not appropriate for penalty provisions to assume that penalties will
always be imposed on PIOs. If the PIO has genuinely attempted to discharge
their duties but has been hindered by the actions of another official, the PIO
should not be made a scapegoat. Instead, the official responsible for the
non-compliance should be punished.
66. Most Acts contain combined offences and
penalty provisions. A number have been replicated for consideration below: s.12
of the Maharashtra Right to Information Act 2002; s.49 of the Article 19 Model
Law; and s.54 of the UK Freedom of Information Act 2000.
Maharashtra:
(1) Where any Public Information Officer has without any reasonable cause,
failed to supply the information sought, within the period specified…the
appellate authority may, in appeal impose a penalty of Rs 250, for each day’s
delay in furnishing the information, after giving such Public Information
Officer a reasonable opportunity of being heard.
(2) Where it is found in appeal that any
Public Information Officer has knowingly given -
(a) incorrect or misleading information, or
(b) wrong or incomplete information ;
the
appellate authority may impose a penalty not exceeding Rs 2000, on such Public
Information Officer as it thinks appropriate after giving such officer a
reasonable opportunity of being heard...
(4) The penalty under sub-sections (1) and
(2) as imposed by the appellate authority, shall be recoverable from the salary
of the Public Information Officer concerned, or if no salary is drawn, as an
arrears of land revenue.
Article
19: (1) It is a criminal offence to wilfully: -
a. obstruct
access to any record contrary to this Act;
b.
obstruct the performance by a public body of a duty under this Act; c.
interfere with the work of the [appeals and/or monitoring body]; or d. destroy
records without lawful authority.[..or e. conceal or falsify records.]
(2) Anyone who commits an offence under
sub-section (1) shall be liable on summary conviction to a fine not exceeding
[insert appropriate amount] and/or to imprisonment for a period not exceeding
two years.
United
Kingdom: (2) If a public authority has failed to comply with [a notice of the
appeals body, the appeals body] may certify in writing to the court that the
public authority has failed to comply with that notice.
(3) Where a failure to comply is certified
under subsection (1), the court may inquire into the matter and, after hearing
any witness who may be produced against or on behalf of the public authority,
and after hearing any statement that may be offered in defence, deal with the
authority as if it had committed a contempt of court.
67. To remove any ambiguities from the law,
it should be clear that the internal appeal authority, Information Commission
and courts are all empowered to impose sanctions under the Act.
Recommendation
- Insert comprehensive offences and
penalty provisions to deal with unreasonable delay or withholding of
information, knowing provision of incorrect information, concealment or
falsification of records, wilful destruction of records without lawful
authority, obstruction of the work of any public body under the Act and/or
non-compliance with the Information Commissioner’s orders.
- Enable sanctions to be imposed
personally on any individual found guilty of an offence under the Act, including
PIO delegates and individuals whose assistance was requested by a PIO.
- Empower the internal appeal
authority, Information Commission and courts to impose sanctions under the Act.
Current
Chapter III: Miscellaneous
Section
13
68. It is positive that s.13 operates to
protect public authorities and their employees from liability arising from
disclosures.
69. It is positive that s.14 explicitly
provides that the new access law overrides all other inconsistent legislation.
A right to information law should be comprehensive, both in the right it
extends and the restrictions it recognises. The list of exe mptions included in
the law should be exhaustive and other laws should not be permitted to extend
them. In this context, it is important to note that best practice requires that
the Official Secrets Act and other laws or civil services rules which entrench
secrecy should be repealed and/or substantially amended. If other laws
restricting the right are kept on the law books, there will be confusion about
which provisions have priority – secrecy or openness.
70. As detailed in paragraph 60 above, it is
arguable whether s.15 is constitutionally valid such that it would be struck
down by the courts. In any case, it operates to undermine the objectives of the
Act and therefore needs to be deleted.
Recommendation
- Delete section 15, because barring
appeals to the courts is unconstitutional.
Section
16
71. Section 16 currently operates as a de
facto exemption clause, excluding entire bodies/institutions from the purview
of the Act. This is contrary to best practice and the promotion of open
government.
While it is understandable that the Government should wish to protect against
the disclosure of sensitive security/intelligence information, this is
adequately provided for by the national security exemption in s.8(1)(a). It is
unnecessary and unjustifiable to go beyond this and simply assume that all the
information held by security/intelligence organisations is sensitive and needs
to be put beyond the scope of the Act. For example, basic information such as
personnel records, procurement contracts and general budget information cannot
be justifiably exempted.
Recommendation
- Delete section 16, because the
exemptions in s.8 are sufficient to protect sensitive information.
Suggested
Additional Provisions
Insert
new section – Monitoring & Reform
72. It is increasingly common to include provisions
in access laws mandating a body to monitor and promote implementation of the
Act, as well as raise public awareness about using the law. Monitoring is
important - to evaluate how effectively public bodies are discharging their
obligations and to gather information which can be used to support
recommendations for reform. Different monitoring models are found in various
jurisdictions. Some countries require every single public body to prepare an
annual implementation report for submission to parliament, others give a single
body responsibility for monitoring – a particularly effective approach because
it ensures implementation is monitored across the whole of government and
allows for useful comparative analysis – and still others prefer a combination
of both. Section 40 of the Trinidad & Tobago Freedom of Information Act
1999 and s.48 and 49 of the United Kingdom Freedom of Information Act 2000
provide useful models of potential monitoring approaches:
Trinidad
& Tobago: (1) The Minister shall, as soon as practicable after the end of
each year, prepare a report on the operation of this Act during that year and
cause a copy of the report to be laid before each House of the Parliament.
(2) Each responsible Minister shall, in
relation to the public authorities within his portfolio, furnish to the
Minister such information as he requires for the purposes of the preparation of
any report under this section and shall comply with any prescribed requirements
concerning the furnishing of that information and the keeping of records for
the purposes of this section.
(3) A report under this section shall include
in respect of the year to which the report relates…:
(a) the number of requests made to each
public authority;
(b) the number of decisions that an applicant
was not entitled to access to a document pursuant to a request, the provisions
of this Act under which these decisions were made and the number of times each
provision was invoked;
(c) the number of applications for judicial
review of decisions under this Act and the outcome of those applications;
(d) the number of complaints made to the
Ombudsman with respect to the operation of this Act and the nature of those
complaints;
(e) the number of notices served upon each
public authority under section 10(1) and the number of decisions by the public
authority which were adverse to the person's claim;
(f) particulars of any disciplinary action
taken against any officer in respect of the administration of this Act;
(g) the amount of charges collected by each
public authority under this Act;
(h) particulars of any reading room or other
facility provided by each public authority for use by applicants or members of
the public, and the publications, documents or other information regularly on
display in that reading room or other facility; and
(i) any other facts which indicate an
effort by public authorities to administer and implement the spirit and
intention of this Act.
United
Kingdom: 49(1) The Commissioner shall lay annually before each House of
Parliament a general report on the exercise of his functions under this Act.
(2) The Commissioner may from time to time
lay before each House of Parliament such other reports with respect to those
functions as he thinks fit
48(1) If
it appears to the Commissioner that the practice of a public authority in
relation to the exercise of its functions under this Act does not conform with
that proposed in the codes of practice under sections 45 and 46, he may give to
the authority a recommendation (in this section referred to as a "practice
rec ommendation") specifying the steps which ought in his opinion to be
taken for promoting such conformity.
(2) A practice recommendation must be given
in writing and refer to the particular provisions of the code of practice with
which, in the Commissioner's opinion, the public authority's practice does not
conform
Recommendation
- Insert a new section making the
Information Commission responsible for monitoring of implementation of the Act,
including overseeing annual reports from bodies covered by the Act and
submitted a summary report to Parliament.
Insert
new section – Education & Training
73. It is increasingly common to include
provisions in the law itself mandating a body not only to monitor
implementation of the Act, but also to actively promote the concept of open
governance and the right to information within the bureaucracy and amongst the
public. Such provisions often specifically require that the government ensure
that programmes are undertaken to educate the public and the officials
responsible for administering the law. Sections 83 and 10 of the South African
Promotion of Access to Information Act 2000 together provide a very good model:
South
Africa: 83(2) [Insert name], to the extent that financial and other resources
are available--
(a) develop and conduct educational programmes
to advance the understanding of the public, in particular of disadvantaged
communities, of this Act and of how to exercise the rights contemplated in this
Act;
(b) encourage public and private bodies to
participate in the development and conduct of programmes referred to in
paragraph (a) and to undertake such programmes themselves; and
(c) promote timely and effective
dissemination of accurate information by public bodies about their activities.
(3) [Insert name of body] may--
(a) make recommendations for--
(i) the development, improvement,
modernisation, reform or amendment of this Act or other legislation or common
law having a bearing on access to information held by public and private
bodies,
respectively; and
(ii)
procedures by which public and private bodies make information electronically
available;
(b) monitor the implementation of this Act;
(c) if reasonably possible, on request,
assist any person wishing to exercise a right [under] this Act;
(d) recommend to a public or private body
that the body make such changes in the manner in which it administers this Act
as [insert name of body] considers advisable;
(e) train information officers of public
bodies;
(f) consult with and receive reports from
public and private bodies on the problems encountered in complying with this
Act;
10(1) The
[Information Commission] must, within 18 months…compile in each official
language a guide containing such information, in an easily comprehensible form
and manner, as may reasonably be required by a person who wishes to exercise
any right contemplated in this Act.
(2) The guide must, without limiting the
generality of subsection (1), include a description of--
(a) the objects of this Act;
(b) the postal and street address, phone and
fax number and, if available, electronic mail address of:
(i) the information officer of every public
body; and
(ii) every deputy information officer of
every public body…;…
(d) the manner and form of a request
for…access to a record of a public body…[or] a private body…
(e) the assistance available from [and the
duties of] the Information Officer of a public body in terms of this Act;
(f) the assistance available from the
[Information Commission] in terms of this Act;
(g) all remedies in law available regarding
an act or failure to act in respect of a right or duty conferred or imposed by
this Act, including the manner of lodging --
(i) an internal appeal; and
(ii) an application with [the Information
Commission and] a court against a decision by the information officer of a
public body, a decision on internal appeal or a decision of the head of a
private body;…
(i) the provisions…providing for the
voluntary disclosure of categories of records…;
(j) the notices…regarding fees to be paid
in relation to requests for access; and
(k) the regulations made in terms of [under
the Act].
(3) The [Information Commission] must, if
necessary, update and publish [see the discussion re the meaning of “publish”
at paragraph 20 above] the guide at intervals of not more than two years.
Recommendation
- Insert a new section placing specific
responsibility on a body(s) – preferably the new Information Commission - to
promote public awareness, including through the publication of a Guide to RTI,
and provide training to bodies responsible for implementing the Act, and
requiring resources to be provided accordingly.
Insert
new section – Whistleblower Protection
74. As the tragic case of Satyendra Dubey
recently demonstrated, India is in desperate need of comprehensive legislation
to protect employees who “blow the whistle” on wrongdoing within their
organisation. Ideally, specific legislation could be enacted to protect
whistleblowers. However, at a minimum, international practice endorses the
inclusion of whistleblower protection provisions in access to information laws.
This is justified on the basis that maximum information disclosure requires
that individuals who disclose information in contravention of the law and/or
their employment contracts because they believe that such disclosure is in the
pubic interest should be protected. The inclusion of strong whistleblower
protection is important in order to send a message to the public and officials
that the government is serious about opening up to legitimate scrutiny.
Consideration should be given to including an additional article in the law
dealing with whistleblower protection. Section 47 of the Article 19 Model FOI
Law provides a good model:
(1) No
one may be subject to any legal, administrative or employment-related sanction,
regardless of any breach of a legal or employment obligation, for releasing
information on wrongdoing, or that which would disclose a serious threat to
health, safety or the environment, as long as they acted in good faith and in
the reasonable belief that the information was substantially true and disclosed
evidence of wrongdoing or a serious threat to health, safety or the
environment.
(2) For purposes of sub-section (1),
wrongdoing includes the commission of a criminal offence, failure to comply
with a legal obligation, a miscarriage of justice, corruption or dishonesty, or
serious maladministration regarding a public body.
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S.No
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Dear
Ngo leaders promote activities such as :-
(All
forms of corruption must be ended to secure the basic rights of all people
and ensure a world where everyone can live in dignity)
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1.
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Organize, communicate, and raise awareness on Anti corruption
laws to your target people.
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2.
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Identify the victims and witnesses of corruption in your working
area
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3.
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Identify the need of Legal consultancy for Consumer rights,
women’s rights, Child rights, aged rights, revenue, education, documents
registration, social welfare, public and temple property panchayat, forest,
insurance, and all government department corruptions related issues etc
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4.
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Contact for such issues with an affidavit and we will make the
difference
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We also
know that corruption can’t be rooted out in one big sweep. Rather, fighting
it is a step-by-step, project-by-project process.
|
MANISHANKAR
CEO-Anti-Corruption And Human
Rights Movement®-Chennai
Email: anticorruption.org2007@gmail.com.
Mobile:91 9087856137
Follow us on:
Twitter : @anticorp_2007
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