Right2Information

Right to Information – Master key to good governance

Campaign on File Notings/Draft RTI Amendment Bill 2006—August 2006

Posted by rtiact2005 on August 5, 2006

---------- Forwarded message ----------
From: Aditi Datta <aditi@humanrightsinitiative.org>
Date: 04-Aug-2006 18:02
Subject: Campaign on File Notings/Draft RTI Amendment Bill 
2006---August
2006
To: pmk1504@gmail.com

Dear Prakash:
Please find attached a backgrounder for civil society as well as the 
copy of the tentative RTI Amendment Bill, 2006. Would be great if the Bill is 
up on Humjanenge.
As you know there is presently a raging controversy around the issue of 
file notings. The issue of file notings - notes that detail the reason
bureaucratic decisions are made - has been a bone of contention ever 
since the Right to Information Act was passed in 2005. But, no sooner was the 
Act passed in Parliament, the Department of Personnel and Training (the 
nodal agency for the implementation) of the act, had declared on its website 
that file notings were not covered by the Right to Information Act, 2005.
Notwithstanding the united opposition by civil society and the media on 
this issue, in December, 2005, the DOPT was instructed by the Prime Minister 
to change rules so that disclosure pertaining to file notings could only 
be disclosed if it was related to social and development issues.
The controversy over file notings was settled by a decision of the 
Central Information Commission (CIC) that declared in two of its ruling, this 
year that file notings clearly fall within the purview of the definition of 
the terms 'information' and 'record'. However last month, the cabinet 
decided to amend the Right to Information Act, 2005 that would put file noting 
outside the preview of the Act causing much furor amongst civil society and 
media at large. The press statement from the Prime Minister's Office on 26th 
July reiterated that it was only clarifying that "the Union Cabinet had in 
fact approved last week an amendment to section 2 (i) (a) of the Act that
specifically provides that file notings of all plans, schemes and 
programmes of the Government that relate to development and social issues shall be
disclosed."  BUT WHY CLARIFY THAT WAS NEVER IN DOUBT?

We have been able to get a copy of the tentative draft bill 
(19/06/2006) titled THE RIGHT TO INFORMATION (AMENDMENT BILL) 2006, which we would 
be critiquing and send it to you soon.

In the mean time please protest against this retrograde decision by 
joining in the dharna in front of Jantar Mantar from 7th to 15 August. Also 
send in your petition to our Prime Minister Dr. Manmohan Singh, President Abdul
Kalam Azad, Smt Sonia Gandhi, Rakesh Malhotra (DOPT), Shri Priyaranjan
Dasmunsi (Minister for Information and Broadcasting and Minister for
Parliamentary Affairs), Sanjay Baru (Media Adviser-PMO), Suresh 
Pachauri(Minister of State-Ministry of Personnel, Public Grievances and 
Pension) H R Bharadwaj (Minister of Law and Justice), Pulok Chatterjee (Additional
Secretary-PMO). In case you are not attend able to join the Dharna, 
please send in your petitions to your Chief Minister and Governor as well 
mobilise your networks and liaison with and cultivate the media in your 
campaign.

Please find attached with this mail a copy of the backgrounder that 
provides an overview of the controversy, what is file notings, what is the 
importance of file notings, activities at National Level and activities that could 
be undertaken at the state level and a list of IMPORTANT people (with 
emails,phone and fax numbers) to whom you can send in your Petition. Also find
attached the Tentative Draft Bill, 'The Right to Information (Amendment
Bill), 2006' which is also on our homepage  www.humanrightsinitiative.org

For more information contact Sohini Paul 
(sohini@humanrightsinitiative.org
and Aditi Datta(aditi@humanrightsinitiative.org or call 011 26528152; 
011
2685 0523).

Kind Regards

Aditi Datta
Media and Communications Officer
Commonwealth Human Rights Initiative
B-117, Sarvodaya Enclave, Second Floor.
New Delhi 110017. INDIA 9818216242
www.humanrightsinitiative.org http://www.humanrightsinitiative.org

Tentative draft amendment

THE RIGHT TO INFORMATION (AMENDMENT BILL, 2006)

A BILL

*to amend the Right to Information Act, 2005.*

BE it enacted by Parliament in the Fifty-seventh Year of the Republic 
of India as follows:

1. (i) This Act may be called the Right to Information (Amendment) Act,
2006.

Short title an commencement.

2. It shall come into force on such date as the Central Government may, 
by notification in the Official Gazette appoint and different dates may be
appointed for different provisions of this Act.

Amendment of section 2

2. In section 2 of the Right to Information Act, 2005 (hereinafter 
referred to as the principal Act), in clause (i), for sub-clause (d), the 
following shall be substituted, namely:_

"(d) any other material produced by a computer or any other device,

but does not include, for the purpose of sub-clause (a), 
file noting except substantial file notings on plans, schemes, programmes of 
the Central Government or a State Government, as the case may be, that 
relate to development and social issues:."

Amendment of section 8.

3. In section 8 of the principal Act, in sub-section (1) ,-(i)

(A) in clause (i), for the first proviso, the following proviso shall 
be substituted, namely:-

"Provided that the decisions of Council of Ministers and 
the reasons thereof shall be made public after the decision has been taken, 
and the matter is complete, or over":

(B) after clause (j), the following clauses shall be inserted namely:-

"(k) information relating to identity of any individual, or group of
individuals, who made inspection, observations, recommendation, or gave
legal advice or opinion or referred to in any minute relating to plans,
schemes, programme of the  public authority which relate to development 
and social issues:

Provided that a citizen shall have a right to information 
in respect of plans, schemes, programmes of the public authority relating 
to development and social issues other than those exempted under clauses 
(a) to (m) of this sub-section;

(l) information pertaining to a process of any examination conducted by 
any public authority, or assessment or evaluation made by it for judging 
the suitability of any person for appointment or promotion to any post or
admission to any course or any such other purpose, the disclosure of 
which would adversely affect the objectivity or fairness of such process;

(m) copies of noting, or extracts from, the document, manuscript and 
file so far as it relates to legal advice, opinion, observation or 
recommendation made by any officer of a public authority during the decision making 
process prior to the executive decision or policy formulation."

4. In section 18 of the principal Act, after sub-section (4), the 
following sub-sections shall be substituted, namely:-

Amendment of section 18

(5) The Central Information Commission or State Information Commission, 
as
the case may be, shall take all necessary measures in order to promote 
the
use of electronic record to facilitate effective disclosure of 
information,
record keeping, information management and for making information 
easily
available and make recommendation in respect of such measures may 
include-

(a) institution of effective implementation and monitoring mechanisms 
for
right to information under this Act including designing strategies for
successful implementation of the provisions of this Act.

(b) conducting of workshops and conferences to develop an action plan, 
to
collaborate with the multiple stakeholders (including the State nodal
agencies, Administrative Training Institutes, civil society, the media,
academics, international institutions such other institutions) for
implementation and monitoring mechanisms for right to information under 
this
Act;

(c) undertaking research for the identification of systems and tools 
that
need to be developed and deployed in order to support the 
implementation of
the right to information under this Act;

(d) development of guidelines on minimum requirements regarding the 
content
of each proactive disclosure obligation and the methods of publication.

*Explanation*- For the purposes of this sub-section, the expression
"electronic record" shall have the meaning assigned to it in clause (t) 
of
sub-section (1) of section  2 of  the Information Technology Act, 2000.

21 of 2000

(6) The Central Information Commission or State Information Commission 
as
the case may be shall submit, its recommendations under this section to 
the
Central Government or the State Government as the case may be, which 
may
accept of such recommendations and decision of such Government on the
recommendation shall be final."

*BACKGROUNDER FOR CIVIL SOCIETY ON FILE NOTINGS*

* *

**

**

*The 
Background………………………………………………………………………….*<http://mail.google.com/mail/?&ik=6b45a4eec7&view=cv&search=inbox&th=10cd98bc00b9ca1f&lvp=2&cvp=2&qt=&zx=1nhspj-twv7qx#background>

*What is File Notings…………………………………………………………………….
..*<http://mail.google.com/mail/?&ik=6b45a4eec7&view=cv&search=inbox&th=10cd98bc00b9ca1f&lvp=2&cvp=2&qt=&zx=1nhspj-twv7qx#file_notings>

*Why File Notings are
important…………………………………………………………*<http://mail.google.com/mail/?&ik=6b45a4eec7&view=cv&search=inbox&th=10cd98bc00b9ca1f&lvp=2&cvp=2&qt=&zx=1nhspj-twv7qx#file_notings_important>

*Activities at National Level and State
level…………………………………………….*<http://mail.google.com/mail/?&ik=6b45a4eec7&view=cv&search=inbox&th=10cd98bc00b9ca1f&lvp=2&cvp=2&qt=&zx=1nhspj-twv7qx#activities>

*List of Resource People to whom you can send your Petition
……………………..*<http://mail.google.com/mail/?&ik=6b45a4eec7&view=cv&search=inbox&th=10cd98bc00b9ca1f&lvp=2&cvp=2&qt=&zx=1nhspj-twv7qx#resource>
*       *

* **THE PROBLEM / BACKGROUND:* The Right to Information Act was enacted 
by
the Indian Parliament in May 2005.  It got the Presidential assent in 
June
and the Act came into force on October 12 last year. It provided a 
historic
opportunity for citizens in India to ask for information that were 
hitherto
held from them for a long time. The issue of file notings — notes that
detail the reason bureaucratic decisions are made — has been a bone of
contention ever since the legislation was passed. No sooner was the Act
passed in Parliament, the Department of Personnel and Training (the 
nodal
agency for the implementation) of the act, had declared on its website 
that
file notings were not covered by the Right to Information Act, 2005.
Notwithstanding the united opposition by civil society and the media on 
this
issue, in December, 2005, the DOPT was instructed by the Prime Minister 
to
change rules so that disclosure pertaining to file notings could be
disclosed only if it was related to social and development issues.

The controversy over file notings was settled by a decision of the 
Central
Information Commission (CIC) that declared in two of its ruling, this 
year that
file notings clearly fall within the purview of the definition of the 
terms
'information' and 'record' and has recently issued the Department a 
show
cause notice to the DOPT for refusing to take its own interpretation 
off the
website. In July 20, 2006, the cabinet decided to amend the Right to
Information Act, 2005 that would put file noting outside the preview of 
the
Act causing much furor amongst civil society and media at large. The 
press
statement from the Prime Minister's Office on 26th July did seek to 
clarify
that "Government has remained committed to the principles of greater
transparency and accountability in the public decision-making process".
Nevertheless, it is to be noted that in the absence of availability of 
the
full text of the proposed amendments there is room for suspicion about 
the
scope and intention of cabinet approved amendments. The press note also
reiterates that it was only clarifying that "the Union Cabinet had in 
fact
approved last week an amendment to section 2 (i) (a) of the Act that
specifically provides that file notings of all plans, schemes and 
programmes
of the Government that relate to development and social issues shall be
disclosed."  *BUT WHY CLARIFY WHAT WAS NEVER IN DOUBT? *

* **WHAT IS FILE NOTINGS: *

Ø      At the outset, we must first consider the definition of the term
'information' under the RTI Act. Section 2(f) of the RTI Act states
that *"information"
means any material in any form, including records, documents, memos, 
emails,
opinions, advices, press releases, circulars, orders, logbooks, 
contracts,
reports, papers, samples, models, data material held in any electronic 
form
and information relating to any private body which can be accessed by a
public authority under any other law for the time being in force. *This
definition of the term information is very wide. In order to determine
whether 'file notings' fall within the ambit of 'information', an
understanding of the legal connotation of certain terms like 'record',
'document' 'file', and 'opinion' is essential. The nature of a file 
noting
comes within the ambit of opinion, advice, reports, and papers. **

Ø      The definition of 'information' under Section 2(f) the RTI Act
includes opinion. The term 'opinion' means something more than mere
retailing of gossip or of hearsay; it means judgment of belief, that 
is, a
belief or a conviction resulting from what one thinks on a particular
question. The belief or conviction may manifest itself in conduct or
behaviour, which indicates the existence of the belief or opinion.
Therefore, file notings may be construed as an expression of opinion by
government officials with regard to any matter under their 
consideration and
therefore in the context of the RTI Act, should be treated as 
accessible
information.

Ø      The term 'information' has been very widely interpreted and has 
not
been exhaustively defined under the RTI Act. File notings can therefore 
be
interpreted to clearly constitute 'information' in the form of records,
documents, or opinions.

Ø      Further, the exemptions laid down in Section 8 of the RTI Act 
also do
not expressly permit the exclusion of file notings. Therefore, the 
demand
for a blanket exemption on disclosure of file notings as suggested by
government officers is not legally tenable under the provisions of the 
RTI
Act.

Ø      It is therefore clear that the legislative attempt has been to
interpret the term 'information' broadly, and specifically to cover 
types of
information, which some authorities seek to exclude from the purview of 
the
RTI Act such as file notings. The objective of the RTI Act is securing
access to information under the control of public authorities, by 
citizens
in order to promote transparency and accountability in the working of 
every
public authority and control corruption. The disclosure of file notings 
will
therefore serve as a further check and discourage public officials to
involve in corrupt practices.

Ø      It is worthwhile to review the international best practices 
followed
with regard to access of information. A comparative study of the 
Freedom of
Information Acts of some of the countries like United Kingdom, 
Australia and
Canada, from which we have drawn upon heavily, indicate that the term
'information' has been interpreted very broadly, with emphasis on 
maximum
disclosures and minimum exemptions. No special exemptions have been 
made
with regard to disclosure of file notings in any of these Acts.

*WHY FILE NOTINGS ARE IMPORTANT?*

q   The underlying rationale why file notings are important pieces of
information and should be disclosed is because it allows people to know
about the way decisions are taken and that the ladder of 
decision-making is
adhered to. And that only those people authorized to make decisions are
taking the decisions.  That decision made against rationale that people
willing to stand up to.

q   Because it indicates the movement of the file and who have had 
access to
it;

q   The chronology of the decision making process;

q   The rationale behind the decision finally arrived at;

q   There are rules that govern the decision making process. These are 
laid
down in various manuals regulations and guidelines. They include the
hierarchy through which a decision making process must start and where 
it
must finish. There is no room for the extraneous interloper. Yet there 
are
many who may influence the process because they are powerful or have 
vested
interest. File notings indicate for sure where the file has been and 
who has
had a hand in the decision-making. Ensuring that file notings may be
scrutinised at some future date means that those not in the line of
decision-making will hesitate to call for the file or make notes on it. 
This
will assist the honest bureaucrats who are trying to do their job 
without
extraneous influence;

q       Because it is a way of checking that only such considerations 
have been taken into account, which should have, been taken into account and 
not any other. Arbitrary decision-making means that a) things that should 
not have been taken into consideration have been taken into consideration, 
or that b) things that should have been taken into consideration have been 
left out. Decisions are also considered to be arbitrary when decision maker 
is not at arms length from the decision. If the decision maker or the 
person who is giving advice gives it when he has an interest in the outcome 
then there is bias and that is revealed in the file notings. It is 
imperative that things that should not be hidden when giving advice are noted in 
the file or revealed by the advice giver;

q       Revelation of file notings means that government is bound to 
keep closely to the   rules of business and the criteria set down;

q       It leads to rules based governance rather than a patronage and
discretion based governance;

q       It means that there is less room for the exercise of 
discretions without justifications;

q       It means there is much less possibility of rational decisions 
being overridden for expediency;

q       Because written criteria would be the basis for judging whether 
the right decision had been arrived at rationally and all due diligence had 
been exercised;

q       Exceptions would have to be justified in the public eye;

q       File notings are the anatomy of governance. It is the X-ray 
through which the maladies of governance can be examined.

q       If file notings are to be exempt from public knowledge, the 
present Act allows it under very proper circumstances. It does not allow 
blanket exemptions because something belongs to a category like cabinet papers 
but rather by virtue of its content. If the content is such that to reveal 
it would harm the public interest and retaining it would actually serve 
the public interest then file notings are exempt even under the present 
law.

APPEAL/PETITION/RECOMMENDATION/SUGGESTION

We therefore appeal to the civil society to undertake activities both 
at the national and at the state level to protest the retrograde decision by 
the Union Cabinet to amend the RTI Act as well through our activities stop 
the Government from its sinister design.

*ACTIVITIES AT THE NATIONAL LEVEL:*

·         If you can please join us in for a Dharna in front of Jantar
Mantar to protest against the retrograde amendment from 7-15th August

·         The Media too has been roped/backgrounder has been sent more 
than 400 journalists all over the country to write/do a features story on 
the programme. Spread the message far and wide to your networks and 
contacts

·         Join us for a Seminar/Meeting/Workshop at YMCA on 10 and 11,
August, 2006.

*ACTIVITIES AT THE STATE LEVEL*

In case it is not possible for you to join the Dharna in Delhi for any
reasons, you can still continue with your campaign in your state

·         You can organise Dharna of like minded
people/youth/students/media, civil society

·         Liaison with and cultivate the media in your campaign (send 
the backgrounder for Journalists to your networks)

·         Send a petition to PM/and other people listed below

·         Send a petition to your Chief Minister and Governor

·         Meet the Chief Minister and the Governor with your petition 
if its possible

·         Get important and influential people in your city and state 
to speak on the issue

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