Tuesday, 5 July 2016

Layman’s Guide to RTI Act 2005 Part 3: How to avoid refusal by Public Information officer?

Can government give every information that is requested by a citizen? No. The country cannot run unless some information is secret or confidential in government organizations.

For example, information that is of strategic importance (such as the latest missile being developed by Indian Space Research Organization (ISRO), cannot be shared with the public. Similarly, if peace talks are being held between Indian and its neighbouring country, such details cannot be disclosed until the talks are concluded.

Intelligence and national security organizations of the government are generally exempted from the ambit of the RTI Act. For example:
Intelligence Bureau.
Research and Analysis Wing (RAW)
Directorate of Revenue Intelligence
Central Economic Intelligence Bureau
Directorate of Enforcement
Narcotics Control Bureau…

A complete and updated list of these exempted organizations is available in Second Schedule of RTI Act.

Generally, all the types of information that you may not get under RTI are specifically mentioned in Section 8, 9 and 11 of RTI Act. Please read these sections carefully, and word your RTI application in such a way that it does not attract the provisions of these sections.

 Section 8:
8(1) There shall be no obligation to give any citizen,—
  1. Information which would affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign State or lead to incitement of an offence;
  1. information which has been expressly forbidden to be published by any court of law or tribunal or the disclosure of which may constitute contempt of court;
  1. Information which would cause a breach of privilege of Parliament or the State Legislature;
  1. information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants disclosure;
  1. information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants disclosure
  1. information received in confidence from foreign Government;
  1. information, the disclosure of which would endanger the life or physical safety of any person or identify the source of information or assistance given in confidence for law enforcement or security purposes;
  1. information which would impede the process of investigation or apprehension or prosecution of offenders;
  1. cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers:
The decisions of Council of Ministers, the reasons thereof, and the material on the basis of which the decisions were taken shall be made public after the decision has been taken, and the matter is complete, or over.
  1. information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless PIO or the appellate authority is satisfied that the larger public interest justifies the disclosure.
The information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person.

Section 8(2) says: Notwithstanding anything in the Official Secrets Act, 1923 nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests.

Section 8(3) says: Subject to the provisions of clauses (a), (c) and (i) of sub-section (1), any information relating to any occurrence, event or matter which has taken place, occurred or happened twenty years before the date on which any request is made under section 6 shall be provided to any person making a request under that section:
Where any question arises as to the date from which the said period of twenty years has to be computed, the decision of the Central Government shall be final, subject to the usual appeals provided for in this Act.

Confidential papers

What happens if the information that you have requested directly pertains to a third party?

Section 9 says: PIO may reject a request for information where such a request for providing access would involve an infringement of copyright subsisting in a person other than the State.

In cases other than copyrights, the PIO will probably have to seek the opinion of that third party and take their opinion into consideration. However, by cleverly framing your RTI application as a request for a generic class of information i.e. not relating to any particular individual or commercial entity, it is usually possible to get around this obstacle.

Section 11 says: “Where a PIO intends to disclose any information or record, or part thereof on a request made under this Act, which relates to or has been supplied by a third party and has been treated as confidential by that third party, the PIO shall, within five days from the receipt of the request, give a written notice to such third party of the request and of the fact that the PIO intends to disclose the information or record, or part thereof, and invite the third party to make a submission in writing or orally, regarding whether the information should be disclosed, and such submission of the third party shall be kept in view while taking a decision about disclosure of information:

Provided that except in the case of trade or commercial secrets protected by law, disclosure may be allowed if the public interest in disclosure outweighs in importance any possible harm or injury to the interests of such third party.

Where a notice is served by the PIO under sub-section (1) to a third party in respect of any information or record or part thereof, the third party shall, within ten days from the date of receipt of such notice, be given the opportunity to make representation against the proposed disclosure.

PIO shall, within forty days after receipt of the request, if the third party has been given an opportunity to make representation under sub-section (2), make a decision as to whether or not to disclose the information or record or part thereof and give in writing the notice of his decision to the third party.

There is a slim chance that the third party will not object to the PIO giving you the papers. There is an even slimmer chance the PIO will overrule the objections of the third party and give you the papers. The odds are you will not get confidential documents.

Protection of confidentiality is also covered under Sections 8(1) (d) and (e), mentioned in the previous chapter i.e.

(d) information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants disclosure;

(e) information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants disclosure.

However, if you are able to convince the PIO and his bosses (i.e. the competent authority) that it is necessary to disclose this information in the larger public interest, then you can indeed get access to even information that is identified as third-party, confidential or given to the public authority in fiduciary capacity. Choose your words carefully while drafting your RTI application. Prominently mention public interest so that it becomes difficult for the PIO to refuse at the initial stage itself.

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