Right to Information

    Many bodies operate primarily as service to the citizens of India, though some of them may be even commercial or business bodies. When RTI application is received by them, they take a view that RTI Act does not apply to them. They contend that they are not ‘Public Authority’ (PA) as defined u/s.2(h) the Act.

    Basically, such bodies need to be transparent and accountable not only to those they deal with, but to the citizens at large. Such bodies include co-operative societies, NGOs, various educational and medical institutions and so on.

    One may appreciate if the RTI application is mischievous in nature or is for harassment, and the body takes the view that it is not a PA, but not when citizen requests for information which leads the body to become more transparent and accountable.

    Matter came before Central Information Commission in respect of (1) LIC Housing Finance Ltd. (LICHF) (2) LIC Mutual Fund Asset Management Co. Ltd. (LICMF) and (3) G.I. Housing Finance Ltd. (GIHF). Applications and complaints are filed by 10 individuals and the decision is given by 3-member bench of Chief IC and two other ICS.

    All above 3 bodies took the view that they are not PA and refused to provide the information sought.

    Facts of the above three bodies are as under :

    LICHF : It is a Public Ltd. Company. 45.918% of shares are owned by LIC (40.497 %) and three other PSUs.

    LICMF : It is a Public Ltd. Company. LICMF made detailed submissions and based on 16 submissions made, stated that it is not PA. The same included : It is purely a business/commercial entity, it is not a Government Company as defined u/s.617 of the Cos. Act and the shares held by LIC in it are not even 50%.

    GIHF : Government-owned companies hold 47.7% of total shares, directorship on its Board is linked to the tenure of the respective Director with a Government-owned or controlled organisation.

    Decision :

    CIC held that the above facts are sufficient enough to bring these three bodies within the definition of the term ‘substantially financed’ as in S. 2(h)(d)(ii).

    CIC also noted that ‘Substantially financed’ does not mean more than fifty percent financed or majority shareholding by the Appropriate Government.

    It also held that :

•      It can be inferred that the control of LIC over LICHFL is explicit and effective.

•      LICMF is administratively controlled by the LIC of India.

•      GICMF is controlled by six Public Authorities.

    Hence, it held : “In view of the above observations and findings, we decide that all the three respondents, LIC Housing Finance Limited, LIC Mutual Fund Asset Management Co. Limited & GIC Housing Finance Limited are ‘Public Authorities’ under the RTI Act. All of them are, therefore, obliged to take all necessary steps to carry out their duties and responsibilities assigned by the Act. Insofar as these appeals/complaints are concerned, the Commission directs the respondents to provide the requested information to the concerned applicants within a period of three weeks from the date of receipt of this decision.

    [10 Appellants & Complainants v. LIC Housing Finance Ltd., LIC Mutual Fund Asset Management Co. Ltd. and G.I. Housing Finance Ltd. decided on 28-10-2009]

Travel and medical expenses of the President of India : S. 7(9) of the RTI Act :

    The appellant, Shri Chetan Kothari of Mumbai, in four different appeals sought information regarding travel and medical expenses of (a) the President of India (b) Vice-President of India, and (c) The Prime Minister of India.

    Hereunder are covered two appeals re. (a) above. He had sought the above information not just for the incumbent but also for the earlier Presidents with break-up of each covering 11 Presidents starting with Dr. Rajendra Prasad and ending with Smt. Pratibha Patil. Also break-up for the period when they were not serving as President of India.

    CPIO responded as under :

    “The information asked for would have to be compiled and would disproportionately divert the resources of public authority and will be detrimental to the normal functioning of the office.”

    CIC while deciding the matter read out the contents of S. 7(9) to CPIO of the President’s Secretariat and asked him to identify under what clause of the Act he was authorised to actually refuse information sought, since this clause deals only with the option of providing information in a form other than that asked for. CPIO Shri F. A. Kidwai submitted that according to his understanding this clause entitled the CPIO to refuse the information if it would disproportionately divert the resources of the public authority or would be detrimental to the safety or preservation of the record in question.

    Decision Notice :

    Ss.(9) of S. 7 does not authorise a CPIO to refuse information under the RTI Act, but only allows him to provide the information sought in a form other than that sought. The best way of doing this is to interact with the appellant and provide him the information in alternative form. The decision of the CPIO in both applications to the President’s Secretariat is, therefore, invalid and inasmuch as it is supported in the order of the Appellate Authority, both orders of the Appellate Authority Ms. Chaube are set aside.

    In the normal course, the orders of the President’s Secretariat would have been set aside and it would have been directed to consider the appellant’s two RTI applications of 9-2-2008 and 29-5-2008 afresh. However, since the Ministries holding information sought are different to the President’s Secretariat as elaborated by Ms. Rasika Chaube in her order of 14-7-2008, the applications are now transferred to the CPIOs of Ministry of Health, Ministry of External Affairs and Ministry of Defence who will process these applications in response to the RTI applications made to them directly by Shri Chetan Kothari. Appeals concerning the President’s Secretariat are, therefore, allowed, but without cost.

    (Note : The above reporting covers decision on two out of four appeals. Other two for the expenses on the VP of India and on the PM of India are not covered in this issue.)

Part B : The RTI Act

Continuing from October to December BCAJ, the summary of two reports :

One study by PricewaterhouseCoopers (PWC) as appointed by the Department of Personnel and Training (DOPT), titled ‘Understanding the key issues and constraints in implementing the RTI Act’. Its final report as Executive Summary is published in June 2009.

Second study by National Campaign for People’s Right to Information (NCPRI) and RTI Assessment & Analysis Group (RaaG) in collaboration with number of other social bodies including TISS, Mumbai under the title ‘Safeguarding the Right to Information’. Its interim findings are published in October 2008.

DOPT-PWC Report :

Improving efficiencies at Information Commission :

The appeal process is a key component of the RTI Act. It is one of the controls established to ensure that the information is provided to common citizens.

Key issues observed :

Any person who does not receive a decision within the time specified in Ss.(1) or clause (a) of Ss.(3) of S. 7, or is aggrieved by a decision of the Public Information Officer may, within thirty days from the receipt of decision, appeal to an officer who is senior in rank in each Public Authority — commonly referred as the First Appellate Authority [S. 19(1)]. A second appeal against the decision shall lie within ninety days from the date on which the decision should have been made or was actually received, by the Central/State Information Commission [S. 19(3)]. However, there are significant challenges observed at the Information Commission. The findings of the study were as follows :

•  Large pendency of cases with a wait time of 4-12 months existed in most of the States. This discouraged people from filing appeals.

• Information seeker survey pointed out that 47% of the citizens did not receive replies to their RTI application with 30 days.

• Appellants had to incur expenses to attend the hearing of second appeals at Information Commission. As per S. 19(8)(b), the Information Commission may require the Public Authority to compensate the complainant for any loss or other detriment suffered. However whether this clause can be invoked for compensating the travel expenses of the appellants is an area of contention and was not observed during the study.

The adjudicatory role of the Appellate Authority is critical in making this Act a success. As per the estimates, projected numbers of the secondary appeals would grow to 2.5-3.0 lakhs by the year 2011. This would require developing innovative ways to dispose of cases, without diluting the rights of either party.

Recommendations :

Improving the disposal rate of complaints/appeals by the Information Commission through the following recommendations :

• Hearings through video conferencing : Since the Information Commissions are situated in State capitals (with exceptions like Maharashtra), it is inconvenient for applicants to be present during the scheduled hearing. This problem assumes significance in cases of matters pertaining to the Central Government, where the appellant has to travel to New Delhi. It is proposed that the Information Commissions use video conferencing (VC) as a mode of communication for such hearings. VC facility is available at each district headquarter which may be used for this purpose.

•  The CIC, as per S. 12(7) and SIC, as per S. 15(7), with the approval of the appropriate Government should open offices at other locations, so as to reach out to the masses.

•  Passing order on merit of the case without hearing. This would address issues of rescheduling the hearing, in case of absence of the appellant or the PIO.

•  Usage of software application for managing the processes at the Information Commission. This application  should  assist  in  improving productivity/efficiency in disposal of cases, drafting of orders, day-to-day office administration etc.

Further the recommendations on other important issues are as follows :

•  Composition of Information Commissions : As per the S. 12(5) and S. 15(5), the composition should be such that it should have people with wide knowledge and experience in law, science and technology, social service, management, journalism, mass media or administration and governance. To implement these sections in spirit, it is recommended that the people who have worked in Government should be restricted to 50% (if not less) as recommended in the ARC report.

•  To facilitate the induction of the new Commissioner, where he/she does not have a back-ground of law/quasi-judicial role, he/she should go through an induction period before assuming full charge.

•  Usage of RTI-compliant standard templates should ensure quick and reasoned orders to the appellant. It may be noted that the templates have a strong linkage to the Act and leave little room for errors.

Raag & NCPRI Report :

Current status and preliminary findings :

4) RTI case studies :

RAAG has now collected some 5,000 case studies from across the country in a further effort to understand who is using the Act, to what end, and what the outcomes have been. While thus far, case studies have been culled primarily from the national Hindi and English press, and by looking at relevant websites, mailing lists and blogs, attention is now turning to collecting more stories from the vernacular press as well.

These case studies show myriads of citizens using the Act in previously unknown ways, disproving the misperception that only RTI activists use the Act. Since the Act was born from people’s needs, it has been branching out continually as more and more people use it. For example, while it may strengthen some people’s Right to Life by helping them answer ration-related questions; it also helps others close down a polluting factory. In some cases, applicants faced threats, not all of which were ‘paper tigers’. In others, a larger group came forward to support an individual’s application. There are even interesting cases of Internet users forming their own online RTI support groups to help each other fill applications.

Similarly, there are extremely encouraging stories of RTI success by individuals or groups that are generally stonewalled by the Government, such as women, SCs and STs, people coping with physical challenges. Examples include economically-weaker sections using it to get school admissions for their children, a visually-challenged person using it to question his village panchayat, a ninety-year-old woman to get her passport, and supposed beneficiaries of the Indira Awas Yojna to avail of this scheme.

Other stories are emanating directly from field groups throughout the country. Many people’s movements, citizens’ groups, and non-governmental organisations now rest their work heavily on the Right to Information Act, using it for broader societal purposes.

In other words, RTI activism does not stand in isolation, but is being used as a potent instrument to improve governance and transparency across a variety of issues, including the Public Distribution System, municipalities, elections, trade unions, genetically-modified foods, dams, and the National Rural Employment Guarantee Act.

Cases of particular interest are being culled out and sent for rewriting, to make them more readable from the human interest angle. These will then be compiled into a compendium to be released in January. The RAAG team is also hoping to commission an author to write a novel featuring the Right to Information Act. These case studies will also become the basis for a play on the Right to Information Act, to be performed in January.

5) Website survey of S. 4 compliance :

As mentioned earlier, the departmental websites of the 240 state and district-level Public Authorities covered in the urban survey are also being evaluated for S. 4 compliance. This is to ascertain whether Public Authorities have begun to ‘pro-actively’ report the detailed operational, financial, and service-related information the Act requires of them.

The website survey of all 240 state and district-level sample Public Authorities is now half-way done.
 
One of the major findings of this ‘work in progress’ is that most S. 4-related information is not found on the website of the Public Authority itself as would be most logical, but on the State or Central RTI portal. Many websites also have frequent connectivity problems, making it difficult for citizens to use them to find the information they are seeking. There are also significant differences in the quality and depth of websites across States, with some providing extremely detailed and insightful information to citizens, while others provide almost nothing. However, a general pattern is that State Government websites tend to contain more information than District Government websites.

6) Survey of RTI coverage by the media :

As mentioned earlier, the People’s RTI Assessment is analysing the role that the print media has played as a disseminator and user of the Act. Leading newspapers and magazines in over ten states (Bihar, Goa, Gujarat, Karnataka, Kerala, Madhya Pradesh, Maharashtra, Orissa, Rajasthan, Uttarakhand, Tamil Nadu), as also leading national English and Hindi publications are being analysed. Each state analysis is being undertaken by a partner organisation or individual.

This national analysis of the media is intended to answer the following questions :

•  How much coverage have different publications given to RTI-related issues and cases ?

• What role have different publications played in raising public awareness about the RTI Act and its use ?

•  What tone and approach have different publications assumed vis-à-vis the RTI Act ?

• Have newspapers, magazines and other publications used the RTI as a tool for investigative journalism, and have they found it useful ?

•  What does the Indian media establishment (i.e., owners, editors and journalists) think of the RTI Act ?

•  Has the Indian media establishment begun to internalise the RTI in letter and/or spirit by enhancing the transparency of their own functioning ?

Additionally, State partners are collecting clippings of all RTI coverage in their States, and RAAG intends to upload this entire collection onto a national People’s RTI Assessment portal.

Status — This analysis is now half-way done, and State partners are beginning to send in the first draft for their analysis reports. From a cursory review of these, it appears that RTI coverage of the media is not as intense as might be assumed, and that many journalists are still learning how to use the RTI for investigative purposes.

State media survey consultants will now begin the process of interviewing editors, journalists, and media house owners to determine their perceptions about the RTI and its potential impact in India. The final analysis report should be complete by late December 2008.

Important pronouncements by the Commission :

When Shailesh Gandhi, CIC was in BCAS office addressing RTI activists and journalists, he distributed compilation of 8 important profound pro-nouncements by the Central Information Commission.

In this part, the first is being covered, others to be followed in subsequent issues :

1. No imagined exemptions :

This Commission is conscious of the fact that it has been established under the Act and being an adjudication body under the Act, it cannot take upon itself the role of the Legislature and import new exemptions hitherto not provided. The Commission cannot of its own impose exemptions and substitute their own views for those of the Parliament. The Act leaves no such liberty with the adjudicating authorities to read law beyond what is stated explicitly. There is absolutely no ambiguity in the Act and tinkering with it in the name of larger public interest is beyond the scope of the adjudicating authorities. Creating new exemptions by the adjudicating authorities will go against the spirit of the Act.

Under this Act, providing information is the rule and denial an exception. Any attempt to constrict or deny information to the Sovereign Citizen of India without the explicit sanction of the law will be going against rule of law.

Right to Information as part of the fundamental right of freedom of speech and expression is well established in our constitutional jurisprudence. Any restriction on the Fundamental Rights of the Citizens in a democratic polity is always looked upon with suspicion and is invariably preceded by a great deal of thought and reasoning. Even the Parliament, while constricting any fundamental rights of the citizens, is very wary. Therefore, the Commission is of the view that the Commission — an adjudicating body which is a creation of the Act — has no authority to import new exemptions and in the process curtail the Fundamental Right of Information of citizens.

Undiplomatic disclosures :

Soli Sorabjee under ‘Soli LOQUIES’ writes in Sun-day Express of 25-10-2009 (extracts) :

Thanks to the freedom of Information Act in the UK, there have been startling revelations in the release of letters written by British ambassadors about foreign governments and the people of the country where they had been stationed.

The most devastating assessment was in a 1967 memo by Roger Pinsent, Britain’s ambassador to Nicaragua, stating that “the average Nicaraguan is one of the most dishonest, unreliable, violent and alcoholic of Latin Americans”. The letters are brutally frank but certainly not diplomatic. A successful application under our RTI Act for disclosure of assessments made by our diplomats about countries where they were posted would be very illuminating. The problem is that any disparaging criticism, even if true, would be withheld by timorous babus because of likely potential damage to foreign relations with other countries. Unfortunately, satyameva jayate has no place in these matters.

Unauthorised alterations in the flat :

One, Ms. Kanika Golder, was put in the dock by her housing society after she made unauthorised alterations in her flat purchased on the 20th floor of the storeyed Shivalaya Residency Co-operative Housing Society in Thakur Complex, Kandivli (E). She took the RTI route to find out that almost every neighbour of hers had also made such unauthorised constructions. But after follow-ups with the BMC failed to yield any result, she approached the Bombay High Court.

A report submitted by the BMC to the Court admit-ted that almost every flat holder had illegally encroached upon the corridor up to the lift door. There was an amalgamation of flats and major alteration inside the flats. The refuge area has also been encroached upon. Even though the BMC tried to argue that the illegalities cropped up at the time of construction, a Division Bench of Justices Ranjana Desai and Mridula Bhatkar ruled, “We are not concerned with the question as to whose instance the encroachment is done. If there is any encroachment, it should be removed immediately, because if the area outside the lift is encroached upon, in case of fire or other such calamity, it may prove hazardous. If the refuge area is occupied, it is also dangerous to the housing society,” the order said.

When the Court came down heavily on the civic body, the BMC begun action by demolishing certain portions in the tower.

RTI helps retired Government employees to get their dues :

RTI activist, Milind Mulay, was prompted to file the RTI query as his mother, Vijaya S. Mulay, who re-tired as a nurse from Marol Maternity Home, did not get her dues for over one and a half years. “I was made to run from pillar to post, but they found a new excuse every day,” Mulay said.

RTI replies had revealed that the leave encashment dues of many employees had remained unpaid.

In a Circular dated November 10, the State Finance Department ordered that full payment should be made to the retired government employees. The Circular also said that excuses like not having full details (like the revised pay) should not be used to delay payments.

The payment should be made in full and at one stroke. If there is any difference in the amount because of revised dues, even that should be given in the lump sum instead of in part payments, the Circular said.

In the Fire Brigade alone, 41 firemen had not been paid leave encashment dues for three years.

The RTI replies revealed that around Rs.6.81 crore have been pending in dues to the 787 employees. Fourteen municipal wards alone are sitting on the files of 308 employees.

A senior fire officer who won the President’s Gallantry Award for meritorious service said that “for around one and a half year he was curtly asked to call up later. Many Fire Officers and firemen like me did not take leave for months together, working seven days a week. But this is the way the department has rewarded us”.

RTI and emails at BMC :

BMC is trying to make it easier for citizens to file online complaints to officers. RTI reply showed that only 40% of BMC personnel used their official email IDs.

The Chief Minister has now in the Circular dated November 9, instructed personnel in all government departments, including the civic corporation, to use their official email IDs for departmental communication, especially in instances where files get stuck for months together.

The BMC now plans to make all official IDs according to the officer’s post (or office) and not his or her name. These way complaints from the public will reach the new officer even if the old one is transferred. BMC officials admitted that the civic corporation has done little to promote the use of online facilities among employees or citizens. There are now plans to bring out pamphlets with the details of all official email IDs. “We will also provide the email IDs in the civic guide,” an official said.

RTI replies on BMC employees Internet usage pat-terns had revealed that in a 20-day period only around 40% of personnel actually used their official e-mail IDs. Data provided by the BMC’s IT cell showed that while 2,897 official IDs were created by the department, an average of only 1,172 emails were sent daily. Further,

• An average of 312 e-mails bounced back and 47 were rejected from official IDs every day;

• A senior BMC official has said that only 1% of civic Public Information Officers have official e-mail IDs.

Rs.5, 000 demanded for reply in about 45 pages to RTI application :

The Delhi University (DU) seems to be taking sides when it comes to answering queries through the Right to Information Act. Months after Amitabh Amit, a civil servant and ex-DU student, alleged that two DU professors — including PM Manmohan Singh’s daughter Upinder — victimised him for objecting to an ‘anti-culture’ essay in the course, the varsity has sent him a bill of Rs.5, 000 to cover costs incurred to answer the question.

In reply to a fresh RTI application filed by Amit, District Information and Public Information Officer, DU said they spent the sum on typing and photo-copying information to answer his earlier query about Professor Singh, and only after receiving the amount due for the previous query, will it be pos-sible to entertain further questions.

DU’s late realisation has surprised Amit. “I am being victimised because I dared to question the PM’s daughter. Even if you consider all the answers sent to me, they will not be more than eight to nine replies of four to five pages each. I don’t know how they charged me Rs.5,000,” he said.

According to RTI activist, the usual charge for an RTI reply is Rs.2 per page. Therefore, Amit should not have been charged more than Rs.90.

Details on Judges’ appointment :

The Supreme Court on December 4 stayed an order of the Central Information Commission (CIC) to the Apex Court to make public details of discussions in the collegium relating to appointment of Judges and the correspondence between the Chief Justice of India and another Judge relating to alleged interference of a Union Minister in a pending case.

Accepting Attorney General G. E. Vahanvati’s suggestion that the matter was of grave importance and required threadbare scrutiny, a Bench issued notice to RTI applicant S. C. Agrawal and posted the matter for hearing after five weeks.

This marks the beginning of the SC’s maiden judicial journey to examine the impact of the RTI on the happenings in the inner sanctum of the highest echelon of judiciary relating to administration of justice, which had been traditionally kept away from public knowledge.

An important clarification came from the Bench before it embarked on the journey — “there is no backtracking on right to information”. Probably, it was hinting at the recent decision of Judges of the Apex Court to put their assets and liabilities on the official SC website.

Appearing for the RTI applicant, Counsel Prashant Bhushan said it was the SC which had got the ac-colades for pushing the right of a citizen to access information. But, a perception is gaining ground that when it came to enforcing the right to information on judiciary, the SC was backtracking.

A firm assurance came from the Bench that the judiciary was not against the citizen’s right to information. It said : “You can take it from us that there is no backtracking on the right to information. We will examine the issue threadbare”.

Assailing the direction to make public information which was available only with the CJI, the SC, in its two petitions, said the CJI held the information pertaining to the appointment of Judges in a fiduciary capacity. So it should be exempted from the public under the RTI Act.

Endorsement of food products of Pepsi :

A RTI battle by a doctor against his colleagues for endorsing two Pepsi products had made the Central Information Commission (CIC) sit up and direct the Medical Council of India (MCI), a statutory body to regulate standards of medical practice in the country, to take up the issue with their Ethics Committee.

The Indian Medical Association (IMA) had, under a cloud of controversy, gone ahead and given its seal of approval to Pepsi’s Tropicana fruit juices and Quaker cereals. Dr. K. V. Babu, a native of Kannur district in Kerala and a life member with the IMA, chose to stand back from his fellowmen to question how ethical is it for doctors to support Pepsi’s commercial products. He took his queries right up to the CIC after the MCI and later the Ministry of Health and Family Welfare passed the buck from one to the other. “IMA is endorsing food products of Pepsi and that such endorsement is unethical,” Information Commissioner Annapruna Dixit voiced Babu’s questions in a recent hearing, later recorded in her order.

“He requests clarification since he is an IMA member. He wants to know whether endorsement of a commercial product by a medical organisation is unethical or not,” the Commissioner explained.

She directed the Medical Council “to place the issue before the Ethics Committee at its next meeting and to inform Dr. Babu the decision taken by the committee” by December end 2009. The Commission ordered the Public Information Officer, IMA, to furnish necessary information to the doctor by December 15.