Right to Information Act – File Notings – DOPT interpretation faulty.
Posted by rtiact2005 on August 11, 2006
Right to Information Act - File Notings - DOPT interpretation faulty.
Honourable Sir, Kindly allow me to submit some views on the matter of file notings, under RTI, the Right to Information Act, 2005. As you are aware there is so much being said by the public, and done/ undone by the government, that the average citizen is in a quandary. Right to information is so basic and fundamental a right, under the Constitution, that whatever Act, or law, is invoked for enrichment of public, basic rights should not be trampled, to the extent that it becomes unconstitutional. The Government is talking of giving more and the public perceives it is less and less. Net result should not be such that the Courts are left to decide whether a certain information will be available. RTIA must lead to easing the situation, rather than block information, by making it cumbersome. The present note is prompted by an Office Memorandum, of the Ministry of Home Affairs dated July 19, 2006 (see para 1). The Cabinet is said to have decided to amend the RTIA, in its meeting on July 20, 2006 (see para. 2). Every other day new obstacles are being announced, through media. For the less initiated, certain elements of background are given in para 3. The decision to exempt all file Notings, except certain chosen areas does not seem constitutional, as per settled law, broadly that: â€˜regarding functioning of the government, disclosure must be the rule and secrecy an exceptionâ€™. Through highhandedness of the DOPT, without any force of law, an alteration was made of definition of â€˜informationâ€™, on official websites, and even Office Memoranda issued to Ministries and Departments, to comply. Upon this matter raised by MHA, with Ministry of Law and Justice, MLJ has clarified that matter, as mentioned in the July 19, 2006 OM, that disclosure, or nondisclosure must depend upon proper assessment of â€˜public interestâ€™ vis-Ã -vis protected interest. â€˜That the definition of the word â€˜informationâ€™ has to be read under section 8 of the Actâ€™, and that â€˜public interest is supremeâ€™ are the sermons. What is section 8 under RTIA, is section 123 under the Evidence Act, whereby in case of Affairs of State, the Government can claim privilege to not disclose particular matters, provided properly supported by a sworn affidavit, by the Minister/ Secretary of concerned Department, leaving it to the court to decide whether disclosure would â€˜injure public interestâ€™. What should not be disclosed are already listed in Sec.8, which can be revisited/revised, but to say all notings, except those on selected topics only, are barred does not seem logical. Similarly section 8(1)(i) of RTIA takes care of Article 74(2) of the Constitution. Some references to settled law are given in para 5. Prayer is that you may kindly apply your mind and not be party to snuff life out of the RTI Act. If there is any query, kindly raise through email and let me help. If any hard copy is required, I can send by Fax or courier. Thank you very much in anticipation. With regards, yours sincerely, P.K. Aditya, Chandigarh. PIECE OF GOOD NEWS â€“ MHA versus DOPT â€“ on RTI File-notings. 1. 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 under 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 MHA, regarding the alteration in definition of â€˜informationâ€™, in section 2(f) of the RTI Act, done by DOPT on website of Persmin. After reproducing the website version of sec.2(f), altered by DOPT, its para 2 reads: â€œOn a specific reference made to them, the Ministry of Law and Justice have now advised as under: â€œâ€¦..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 â€˜informationâ€™ 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.â€ GREAT. 2. 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, 2006, 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 view of the Ministry of Law and Justice needs to be looked into by the Government, as to on what legal advice, or legal basis, did the cabinet take the recent decision, credited to it, and continuing to taking new decisions. It also says that only such piece of information can be protected from disclosure, with regard to which â€˜public interestâ€˜ outweighs the harm to the protected interests. This advice takes us back to the foundation created over last half 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 several amendments of the Act, as far as file-notings are concerned. 3. For the less-initiated, may it be recorded that reference had been made by the MHA, mid October 2005, simultaneous with RTI Act coming into force, upon MHA finding the â€˜clarification made by the DOPT on the website of the Ministry of Personnelâ€™, to be contrary to the provisions of the RTI Act, 2005, whereby in the definition of â€˜informationâ€™, under sec.2(f), alteration had been made by the DOPT by addition of words: â€˜but does not include file-notingsâ€™. In about a monthâ€™s time MHA was informed by the DOPT, that regarding legal sustainability of its â€˜said interpretationâ€™, as put on the website, â€˜it is in orderâ€™. 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. 4. 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. CIC has held that: â€˜citizen has the right to seek information contained in file notings, unless the same relates to matters covered in Section 8 of the Actâ€™. There was mention, in minutes, of another DOP&T OM No.10/8/2006-IR dated Feb. 2, 2006, being at variance with the CIC decision. 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 the CIC directing the DOPT to comply. But DOPT did not do so. No wonder after some hectic parleys it managed to have its obnoxious and nefarious decision rubber-stamped by the cabinet. Clearly an example of supremacy of bureaucracy. I must quickly and humbly apologise for use of any harsh words, but no malice, and inadvertently. 5. If any one has any questions, I would be much too happy to elaborate, or stand corrected. There is enough material on: â€˜matter to be an affair of Stateâ€™, or on â€˜injury to public interestâ€™, or on â€˜privilege of the government to not disclose certain informationâ€™, or on â€˜sworn affidavit by Minister-or-Secretaryâ€™, and naturally several 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 way back in 1951: â€œ. . . . Public interest must be paramount and private interest must give way when there is any conflict between the public and private interestâ€. There are much too many gems of quotations in: â€˜Raj Narain 1975â€™, â€˜S.P.Gupta 1982â€™, â€˜R.K.Jain 1993â€™, â€˜PUCL 2004â€™, 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 service record, or whatever, cannot be en masse ordered to be not disclosed, as the government seems to be intending. Emphasis should not be on â€˜allowingâ€™ certain categories to be disclosed, but on â€˜not-allowingâ€™ what cannot be disclosed. Very well said that: â€˜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 demandsâ€™. It is the sensitivity of the subject matter which counts, not its composition or form. Supremacy of State alone is supreme. Individuals should not matter. 6. I intend to transmit this note to as many email addresses I have and wish that it is given due importance by RTI activists in the current tirade regarding â€˜file-notingsâ€™. I propose to also send copies to the President, Smt. Sonia Gandhi, Prime Minister, the Minister of State for DOPT, the Minister for Parliamentary Affairs, Minister of Law and Justice, and some Opposition members, among others. P.K. Aditya, Chandigarh, August 4, 2006. email: firstname.lastname@example.org.â€
To: whatever @sansad.nic.in