Right2Information

Right to Information – Master key to good governance

Excluding ‘notings’ from RTI: Convincing House could be tough

Posted by rtiact2005 on August 4, 2006

Excluding ‘notings’ from RTI: Convincing House could be tough

SEEMA CHISHTI

Posted online: Friday, August 04, 2006 at 0000 hrs

http://www.indianexpress.com/story/9901.html

 

NEW DELHI, AUGUST 3:While the UPA government is determined to rally support for its proposed amendment to the Right to Information (RTI) Act to exclude ‘file notings’ from its ambit, it could be difficult convincing the House, as the Parliamentary Standing Committee examining the Bill had in 2004-05 thought it was okay to reveal ‘notings’.

 

In the Act, the definition of ‘information’, by including ‘‘opinions, advices’’ actually draws ‘file notings’ under it. The Standing Committee of Parliament on Personnel, Public Grievances, Law and Justice which went into the draft of the Bill, adopted the Bill on March 16, 2005. The Committee chairman, Congress MP from Tamil Nadu, E.M. Sudarsana Natchiappan told The Indian Express, ‘‘We did examine the ‘notings’ matter then. At the time, we thought it was useful to allow access, but now, with practical difficulties cropping up, we feel the amendment is necessary.’’

Natchiappan admits that in its sittings on March 1-2 last year, when it considered each clause of the Bill, the process was virtually captive of the draft provided by the National Advisory Council (headed by the UPA Chairperson at the time and staffed by many of the same experts who had then come forward with opinions on several aspects of the Bill).

It, therefore, decided that it was okay to allow internal deliberations of the government to be available for viewing by everyone who bothered to ask. But subsequently, in Natchiappan’s words, the ‘‘practical’’ aspect forcing the rethink, has been the pressure exerted by the bureaucracy, which sees the right to know about internal deliberations as untenable.

Bureaucrats feel that opening up internal recommendations of individual officers to public scrutiny exposes them to being targeted by vested interests. Honest officers, they say, would hesitate to speak their mind on decisions they don’t agree with. Those lobbying within the government for firmly deleting ‘notings’ from the new law, say that even ensuring basic governance in a country of India’s size and complexity is a big task. Opening up ‘notings’ to the public would just compound problems.

Says Minister of State for Department of Personnel and Training, Suresh Pachauri,‘‘Notings with implications on social and developmental matters would continue to be revealed. Other notings not being available does not curtail anything. In which country is the right to information so powerful as India’s?’’

Information activists disagree. Nikhil Dey of MKSS says the amendments being sought are far-reaching, ‘‘as they take away the right to know anything while the deliberative process is on. Also, the draft amendment has a section where they want to take away the power of the Information Commission to impose penalties on those who don’t part with information. If the amendment is passed, they can only recommend penalties to the government not levy them, as they can now’’.

The government, as part of the case it is making to justify the exclusion of ‘file notings’, says that nowhere in the developed world are ‘notings’ or details of the decision-making process revealed. What is also true is that in the Freedom of Information Act (passed by the Lok Sabha in December, 2002) ‘file notings’ are explicitly excluded.

This now-repealed Act says in Chapter 2, ‘‘minutes or records of advice including legal advice, opinions or recommendations made by any officer of a public authority during the decision-making process prior to the executive decision or policy formulation’’ would be exempt from the law.

Most of the nine states that had enacted their own right to information laws before the RTI Act came into being, also make this exclusion clear.

For example, in the case of Tamil Nadu that enacted the law in 1997, it is clearly spelt out that ‘‘internal opinion, advice, recommendations, consultation and deliberation’’ would not be revealed. Acts in Rajasthan, Goa, Maharashtra, Karnataka, Delhi and Jammu & Kashmir have similar clauses.

seema.chishti@expressindia.com

3 Responses to “Excluding ‘notings’ from RTI: Convincing House could be tough”

  1. N. Anbarasan said

    Excluding file notings is a clear sign of bureacracy winning over democracy.

  2. P.K. Aditya, Chandigarh said

    ”PIECE OF GOOD NEWS – MHA versus DOPT – on RTI File-notings.
    I have some valuable information received from the Ministry of Home Affairs, just today, August 3, 2006, in response to a request made on June 27, 2006, to the MHA. for some information on RTI. In Office Memorandum F.No.A.43020/42/2006-RTI, dated July, 19, 2006, there is mention of advice received by MHA from the Ministry of Law and Justice, on specific reference made by the Ministry, regarding the alteration in definition of ‘information’, in section 2(f) of the RTI Act, done by DOPT on website of Persmin. Its para 2 reads: “On a specific reference made to them, the Ministry of Law and Justice have now advised as under: “…..Disclosure of Information under the Act is subject to exemption provide under section 8 of the Act. In other words the definition of the word ‘information’ has to be read under section 8 of the Act. Therefore, the piece of information can be protected from disclosure if the public authority is satisfied that in public interest such disclosure outweighs the harm to the protected interests.” GREAT.

    This should take wind out of sails of all those who think that the DOPT definition was/ is applicable to all sort of subject matter files, as the cabinet decision of July 20 would make us believe. It sets at rest all the assertions made by the government that all type of file-notings can be stopped from disclosure, allowing only those concerning social and development issues, or so. This is primarily the view of the Ministry of Law and Justice. It needs to be looked into by the Government, as to on what legal advice, or legal basis, did the cabinet take the decision, credited to it. It also says that only such piece of information can be protected from disclosure, with regard to which ‘public interest‘ outweighs the harm to the protected interests. This advice takes us back to the foundation created over half a century, under sec. 123 of the Evidence Act, and Article 74(2) of the Constitution, to decide what can be disclosed and what not. This should please all RTI activists, currently agitating for stopping any amendment of the Act, as far as file-notings are concerned.
    For the un-initiated, may it be recorded that reference had been made by the MHA, mid October 1955, simultaneous with RTI Act coming into force, and upon MHA finding the ‘clarification made by the DOPT on the website of the Ministry of Personnel’, to be contrary to the provisions of the RTI Act, 2005, whereby in the definition of ‘information’, under sec.2(f), alteration had been made by the DOPT by addition of words: ‘but does not include file-notings’. In about a month’s time MHA was informed by the DOPT, that regarding legal sustainability of its said interpretation, as put on the website, ‘it is in order’. Though it was a rather tall and illegal order, the MHA had to comply and issue its OM No.A-4-43020/42/2005-Ad.1 dated November 25, 2005, with copy widely circulated to all concerned, including Ministries/ Departments/ PIOs/SPIOs etc, for compliance. Its detrimental impact on RTI is incalculable.

    This matter had come also to the notice of the Central Information Commission, which noted in its Minutes dated 21-2-2006, as well as dated 7-3-2006, that DOPT be apprised of the decision of the CIC in Satyapal v. TCIL dated Jan. 31, 2006, and to say that the decision of the DOPT is in contrast to the decision of the CIC. There was mention therein of another DOP&T OM No. 10/8/2006-IR dated Feb. 2, 2006, being at variance with the CIC decisions. DOPT is known to have ignored CIC decision, and let the website continue to carry the obnoxious alteration. The latest on this matter is the Pyarelal decision of July 13, 2006, reiterating the Satyapal decision and CIC directing the DOPT to comply, but it did not wish to do so. No wonder after some hectic parleys the DOPT managed to have its obnoxious and nefarious decision rubber-stamped by the cabinet. Clearly an example of bureaucracy versus politics. I must quickly and humbly apologise for any harsh words used, inadvertently.

    If any one has any questions, I would be much too happy to elaborate, or stand corrected. There is enough material on: ‘matter to be an affair of State’, or ‘injury to public interest’, or ‘privilege of the government to not disclose certain information’, or ‘sworn affidavit by Minister-or-Secretary’, and naturally Supreme Court decisions involving Sec.123 of the Evidence Act, and on Art.74(2) of the Constitution of India and umpteen High Court rulings, all meaning what the great jurist M.C.Chagla, Chief Justice of the Bombay High Court had said in 1951: “. . . . Public interest must be paramount and private interest must give way when there is any conflict between the public and private interest”. Of course, there are several gems of quotations in: ‘Raj Narain 1975’, ‘S.P.Gupta 1982, R.K.Jain 1993, ‘PUCL 2004’, among others, on these matters. All in all, all sort of documents, no matter whether these are file-notings, or endorsements on file, or blue-books, or whatever, cannot be en masse ordered to be not disclosed, as the government seems to be intending. Emphasis is not on ‘allowing’ certain categories, but on ‘not-allowing’ what cannot be disclosed. Very well said that: ‘disclosure of information about functioning of the government must be the rule and secrecy an exception, justified only where the strictest requirements of public interest so demands’. It is the subject matter which counts, not its form. Supremacy of State alone is supreme.

    P.K. Aditya, Chandigarh

  3. Dhirendra Krishna said

    Definition of “information” in section 2(f) is very clear and without any ambiguity. Opinions and advises are also “information” according to the definition.

    File Notings are papers/documents, where opinion and advises are recorded. As such, file notings can not be excluded, without modification of 2(f).

    In my humble opinion, DOPT would commit a BLUNDER, if the proposed amendment is only in the definition of records under section 2(i), without changing the definition of “information” under 2(f)

    Further, it is my personal assessment that DOPT is quite capable of commiting blunders. They have already given a wrong definition of “Information” in their web site, excluding file-notings.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

 
%d bloggers like this: