The Right to Know

"Where a society has chosen to accept democracy as its creedal faith, it is elementary that the citizens ought to know what their government is doing". 

-Justice P.N. Bhagwati

Free flow of information is a sine qua non of ensuring an accountable and transparent democracy. The right to have access to information held by public authorities has been recognized as fundamental human right by the United Nations. Ensuring public access to information in accordance with national legislations and international agreements is also a Sustainable Development Goal. According to a Global Survey conducted by UNESCO in 2019, 125 countries have enacted Right to Information or similar provisions.

The enactment on Right to Information Act, 2005 ushered the Indian Democracy from a representative to a participatory one. India transitioned from a culture of secrecy enabled by colonial legislations like the Official Secrets Act, 1889 to guaranteeing information as a matter of right through the Right to Information Act, 2005.

The framers of the Indian Constitution envisioned India where the governance is of the people, for the people and by the people. Good Governance rests on the tenets of public participation and transparency. In order to be able to contribute effectively to governance a citizen needs to be informed. The RTI Act, 2005 seeks to provide this enablement to Indian citizens.

Important Provisions:

1.What is ‘information’ according to RTI Act, 2005? Section 2(f) of the RTI Act, 2005 provides that information is in any material form, including records, documents, emails, memos, opinions, advices, press releases, circulars, orders, log books, contracts, reports, papers, samples, models.

It also includes date held in an electronic form. Information pertaining to a private body that a public authority has access to under any statute also falls within the ambit of ‘information’ under the Act.

2. What comprises ‘records’ under the Act?

Records form an important aspect of information. These include any document, manuscript or file, any copy of images contained in a microfilm, any other material produced by a computer or any other device.

3.What is the ‘Right to Information’?

‘Right to Information’ as per the RTI Act, 2005 allows citizens to obtain information from all public authorities as a matter of right. It includes the right to inspect records, take notes, extracts, and certified copies of records and also procure information in printed or electronic form.

Section 2(j) (ii) of the Act allows the applicant to seek certified copies of information. The Act does not define what certified copies are which has caused lack of awareness amongst the Public Information Officers regarding the same. As per the office memorandum issued by the Department of Personnel and Training (DoPT), in 2015, it was clarified that when a request is made for certified copies, the CPIO should endorse on the document “True copy of the document/record supplied under the RTI Act”. He must also add the seal containing the name, the title of the CPIO and the name of the public authority.” In John Numpeli v. The PIO, W.P.(C) No. 31947 of 2012 (P), the Kerala High Court was deciding whether the Act mandates the provision of certified copies. The court held that there is no merit in the contention that grant of certified copies may give authenticity to the documents which may not be genuine or even fabricated.

4. What are the obligations of authorities under the Act?

Section 5(1) of the RTI Act, 2005 requires a Public Authority to appoint Public Information Officers to provide information to citizens requesting the same. The key responsibilities of the PIO include facilitation of requests of information and responding to requests. Responding to requests involves the PIO to compile or find all the information requested. He then should filter the information as per the exceptions enlisted in the Act and then notify the applicant, within the stipulated time limit.

The Act further provides for the establishing First Appellate Authorities as well as Second Appellate Authorities to address the concerns of the aggrieved party.

5. Which Authorities are required to provide information under the RTI Act?

All government agencies under the Centre and the State are required to furnish information under the Act. It is pertinent to understand what constitutes ‘public authorities’ as it determines the scope of this Act. What is included and what is exempted from the ambit of this definition is oft debated. For instance, the Prime Minister’s Citizen Assistance and Relief in Emergency Situations, or PM CARES Fund has been at the forefront of this debate, lately. The fund was set up following the COVID-19 onset in the country, post which the Union Government received several RTI inquiries but refused to respond citing that the fund did not fall within the definition of ‘public authority’. The petitioner, contending in favor of the PM Cares being a Public Authority, argued that since trustees of the fund are the Prime Minister, the Defence Minister, the Home Minister and the finance minister, it attributes that the fund is set up and operated by the Government. However, the Central Government has said on affidavit that “this Trust was neither intended to be or owned, controlled or substantially financed by the Union government, any state government, or any instrumentality of any government.”

6.   What are ‘third parties’?

Public authorities hold information that may or may not be created by them. When the information is not created by public authorities and is held by them by way of it being received from other authorities during their course of work, such information may be said to involve a third party. According to the Act, when such an information is sought under the Act, Section 11(1) lists the criteria that must be satisfied before the Public Information Officer is required to consult the third party before such information is furnished to the applicant. These provisos are not attracted in all applications involving a third party for instance, the results of tenders negotiated to private companies may be released after the conclusion of the tender process.

7. Can information be denied to an applicant?

Section 8 of the Act enlists information that is exempt from disclosure. Information pertaining to India’s national security and sovereignty, national economic interests, records relating to the law enforcement and judicial process, trade secrets and information regarding personal privacy is exempt from disclosure should the Public Information Officer be of the opinion that it shall jeopardize the interests of the nation or pose a threat to a person’s rights. However, information regarding appointments, promotions, upgradations and even the leaves taken by a public servant do not qualify as personal information and cannot be denied under this Section.

8. What happens when an applicant is aggrieved by the decision of the Public Information Officer?

If an applicant has not received a decision from the PIO or is aggrieved by it, under Section 19 he may appeal against such decision within 30 days from the expiry of such period or from the receipt of the decision before the State Information Commission or the Central Information Commission as the case may be. In case of Appeals, the SICs and the CIC are authorized to give directions to the public authority as per Section 19 (8) (a) or it may require the public authority to compensate the aggrieved for the detriment suffered by him.

The SICs and CIC are also empowered to impose penalties on the erring public authority as per Section 20 of the Act, which provides teeth to the Act. A PIO who is found to have refused information without a reasonable cause or with a mala fide intent or has knowingly furnished false information or has obstructed the process, he may be liable to pay a penalty of Rs. 250 per day.

Dos and Don’ts of filing an RTI Application:

The Right to Information, Act is a citizen friendly act. The following points maybe noted while seeking information under the same.

Dos:

• The RTI application should be addressed to the appropriate Public Authority. Attention needs to be given to this as addressing it to the wrong authority may lead to delay in responses.

• The query should be in simple and clear words. The information sought must be specific and one must try to mention the exact time period and place for which the request is being made. An expert’s help may be taken for preparing the application.

• Do take note of the exemptions listed in the Act under Sections 8 and draft your query accordingly.

• One must note the time various time periods prescribed in the Act under Sections 7, 19 and 19(3) and proceed with appeals accordingly.

• Do submit your application in the prescribed format on plain paper.

Don’ts:

• The RTI Act, 2005 is right to information and not right to interrogation. One must not frame the information in the form of questions.

For e.g.: Incorrect: “When will the road construction in XYZ Area be completed?”

Correct: “Kindly provide information regarding the time period prescribed for the completion of road construction projects in areas like XYZ”.

• Refrain from asking multiple queries relating to different departments at the same time. This reduces the chances of the applications being rejected.

The Right to Information Act is the fruition of a citizen led battle to discard the culture of secrecy that pervades all pillars of the Indian democracy. In a time where the state is present in almost all aspects of a person’s day to day life, having an informed citizenry is a safeguard against corruption.