Right To Information Act 2005 And Public Records Act 1993

The Right to Information Act, 2005 (RTI Act, 2005) has provided for certain obligations that every “Public Authority” is required to fulfill. All Government Departments, including NAI, are Public Authorities within the meaning of Section 2(h) of the RTI Act, 2005.

Section 2(h) of the RTI Act, 2005 provides that “Public Authority” means any authority or body or institution of self-government established or constituted- (a) by or under the Constitution; (b) by any other law made by Parliament; (c) by any other law made by State Legislature; (d) by notification issued or order made by the appropriate Government, and includes any- (i) body owned, controlled or substantially financed or (ii) non-Government organisation substantially financed, directly or indirectly by funds provided by the appropriate Government.

This “Research Report” briefly outlines those responsibilities of NAI vis-à vis RTI Act, 2005.

Section 2 of the RTI Act, 2005 provides that unless the context otherwise requires-

(i) “Information” means any material in any form, including records, documents, memos, e-mails, 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.

NAI would be required to provide “Information” to the information seekers who have made an RTI Application.

(ii) “Record” includes-

(a) Any document, manuscript and file;

(b) Any microfilm, microfiche and facsimile copy of a document;

(c) Any reproduction of image or images embodied in such microfilm (whether enlarged or not); and

(d) Any other material produced by a computer or any other device.

The definition of “Public Records” U/S 2(e) of Public Records Act, 1993 (PRA 1993) is almost identical with the definition of Records under the RTI Act 2005. These Records can be sough under the RTI Act, 2005 as “Information” through RTI Application.

(iii) “Right to information” means the right to information accessible under this Act which is held by or under the control of any public authority and includes the right to-

(i) Inspection of work, documents, records;

(ii) Taking notes, extracts or certified copies of documents or records;

(iii) Taking certified samples of material;

(iv) Obtaining information in the form of diskettes, floppies, tapes, video cassettes or in any other electronic mode or through printouts where such information is stored in a computer or in any other device.

(iv) “Third party” means a person other than the citizen making a request for information and includes a public authority.

Section 3 of the RTI Act, 2005 provides that subject to the provisions of this Act, all citizens shall have the right to information.

Section 4(1) of the RTI Act, 2005 provides that every public authority shall-

(a) Maintain all its records duly catalogued and indexed in a manner and the form which facilitates the right to information under this Act and ensure that all records that are appropriate to be computerised are, within a reasonable time and subject to availability of resources, computerised and connected through a network all over the country on different systems so that access to such records is facilitated;

With laws like the proposed Electronic Services Delivery Bill, 2011 the requirements to computerise Records and Public Records of NAI would become almost mandatory. We at Perry4Law and Perry4Law Techno Legal Base (PTLB) strongly recommend initiation of Digitilisation and Digital Preservation Initiatives by NAI as soon as possible.

The provisions of Information Technology Act, 2000 would also apply to the initiatives of NAI. Further, provisions regarding Digitilisation and Digital Preservation must be incorporated in the proposed Amendments in the Public Records Act, 1993 itself.

(b) Publish within one hundred and twenty days from the enactment of this Act,-

(i) The particulars of its organisation, functions and duties;

(ii) The powers and duties of its officers and employees;

(iii) The procedure followed in the decision making process, including channels of supervision and accountability;

(iv) The norms set by it for the discharge of its functions;

(v) The rules, regulations, instructions, manuals and records, held by it or under its control or used by its employees for discharging its functions;

(vi) A statement of the categories of documents that are held by it or under its control;

(vii) The particulars of any arrangement that exists for consultation with, or representation by, the members of the public in relation to the formulation of its policy or implementation thereof;

(viii) A statement of the boards, councils, committees and other bodies consisting of two or more persons constituted as its part or for the purpose of its advice, and as to whether meetings of those boards, councils, committees and other bodies are open to the public, or the minutes of such meetings are accessible for public;

(ix) A directory of its officers and employees;

(x) The monthly remuneration received by each of its officers and employees, including the system of compensation as provided in its regulations;

(xi) The budget allocated to each of its agency, indicating the particulars of all plans, proposed expenditures and reports on disbursements made;

(xii) The manner of execution of subsidy programmes, including the amounts allocated and the details of beneficiaries of such programmes;

(xiii) Particulars of recipients of concessions, permits or authorisations granted by it;

(xiv) Details in respect of the information, available to or held by it, reduced in an electronic form;

(xv) The particulars of facilities available to citizens for obtaining information, including the working hours of a library or reading room, if maintained for public use;

(xvi) The names, designations and other particulars of the Public Information Officers;

(xvii) Such other information as may be prescribed; and thereafter update these publications every year.

These are very wide mandates especially the one created by clause (xiv) that requires NAI to provide details in respect of the information, available to or held by it, and reduced in an electronic form.

(c) Publish all relevant facts while formulating important policies or announcing the decisions which affect public;

(d) Provide reasons for its administrative or quasi-judicial decisions to affected persons. Section 4(2) of the RTI Act, 2005 provides that it shall be a constant endeavour of every public authority to take steps in accordance with the requirements of clause (b) of sub section (1) to provide as much information suo motu to the public at regular intervals through various means of communications, including internet, so that the public have minimum resort to the use of this Act to obtain information.

Again the desirability to adopt Digitilisation of Records and Public records by NAI is clear from Section 4(2) of RTI Act, 2005.

Section 4(3) of the RTI Act, 2005 provides that for the purposes of sub-section (1), every information shall be disseminated widely and in such form and manner which is easily accessible to the public.

Section 4(4) of the RTI Act, 2005 provides that all materials shall be disseminated taking into consideration the cost effectiveness, local language and the most effective method of communication in that local area and the information should be easily accessible, to the extent possible in electronic format with the Central Public Information Officer or State

Public Information Officer, as the case may be, available free or at such cost of the medium or the print cost price as may be prescribed.

The Explanation to Section 4 of RTI Act, 2005 provides that for the purposes of subsections (3) and (4), “disseminated” means making known or communicated the information to the public through notice boards, newspapers, public announcements, media broadcasts, the internet or any other means, including inspection of offices of any public authority.

Section 6 (1) of the RTI Act, 2005 provides that a person, who desires to obtain any information under this Act, shall make a request in writing or through electronic means in

English or Hindi or in the official language of the area in which the application is being made, accompanying such fee as may be prescribed, to the appropriate officer.

An RTI Application can also be made through E-Mail, Fax or any other Electronic means. Thus, NAI must keep in place a “System” and “Procedure” for dealing with Electronic Records and Electronic RTI Applications.

Section 8 (1) of the RTI Act, 2005 provides that notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,-

(a) Information, disclosure of which would prejudicially 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;

(b) 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;

(c) Information, the disclosure of which would cause a breach of privilege of Parliament or the State Legislature;

(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 the disclosure of such information;

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

(f) Information received in confidence from foreign Government;

(g) 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;

(h) Information which would impede the process of investigation or apprehension or prosecution of offenders;

(i) Cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers:

Provided that 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:

Provided further that those matters which come under the exemptions specified in this section shall not be disclosed;

(j) 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 the Central Public Information Officer or the State

Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information:

Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person.

Section 8(1) of the RTI Act, 2005 outlines the “Grounds” on which NAI can “Refuse” to give Information about Records and Public Records to an RTI Applicant. By virtue of Section 22 of the RTI Act, 2005, these are the “Only Grounds” subject to which NAI can refuse information to RTI Applicants.

The grounds mentioned in the Public Records Act, 1993 would no more be relevant after the passing of the RTI Act, 2005. The proposed amendments in the Public Records Act, 1993 must add the “Grounds and Exemptions” that NAI wishes to add in addition to the one mentioned by RTI Act, 2005.

Section 8 (2) of the RTI Act, 2005 provides that 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) of the RTI Act, 2005 provides that 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:

Provided that 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.

The 20 years period is in conformity with the proposed amendments suggested by the Consultation Committee of NAI formulated to suggest Amendments in the PRA 1993.

Section 9 of the RTI Act, 2005 provides that without prejudice to the provisions of section 8, a Central Public Information Officer or a State Public Information Officer, as the case may be, 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.

Section 10(1) of the RTI Act, 2005 provides that where a request for access to information is rejected on the ground that it is in relation to information which is exempt from disclosure, then, notwithstanding anything contained in this Act, access may be provided to that part of the record which does not contain any information which is exempt from disclosure under this Act and which can reasonably be severed from any part that contains exempt information.

NAI can provide “Partial Access” to its Records and Public Records.

Section 10 (2) of the RTI Act, 2005 provides that where access is granted to a part of the record under sub-section (1), the Central Public Information Officer or State Public Information Officer, as the case may be, shall give a notice to the applicant, informing-

(a) That only part of the record requested, after severance of the record containing information which is exempt from disclosure, is being provided;

(b) The reasons for the decision, including any findings on any material question of fact, referring to the material on which those findings were based;

(c) The name and designation of the person giving the decision;

(d) The details of the fees calculated by him or her and the amount of fee which the applicant is required to deposit; and

(e) His or her rights with respect to review of the decision regarding non-disclosure of part of the information, the amount of fee charged or the form of access provided, including the particulars of the senior officer specified under sub-section (1) of section 19 or the Central Information Commission or the State Information Commission, as the case may be, time limit, process and any other form of access.

Section 11(1) of the RTI Act, 2005 provides that where a Central Public Information Officer or a State Public Information Officer, as the case may be, 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 Central Public Information Officer or State Public Information Officer, as the case may be, 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 Central Public Information Officer or State Public Information Officer, as the case may be, 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.

NAI receives many Archives, Records, Books, etc by way of Gifts and otherwise by Third Parties. Such Records, etc must be given subject to the provisions of this Clause or to the Terms and Conditions subject to which they have been given to the NAI by such Third Parties. .

Section 11(2) of the RTI Act, 2005 provides that where a notice is served by the Central Public Information Officer or State Public Information Officer, as the case may be, 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.

Section 11(3) of the RTI Act, 2005 provides that notwithstanding anything contained in Section 7, the Central Public Information Officer or State Public Information Officer, as the case may be, shall, within forty days after receipt of the request under Section 6, 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.

Section 11(4) of the RTI Act, 2005 provides that a notice given under sub-section (3) shall include a statement that the third party to whom the notice is given is entitled to prefer an appeal under section 19 against the decision.

Third Party Relationships of NAI must be suitably regulated. A sound and practical Procedure or Guidelines in this regard is desirable on the part of NAI.

Section 22 of the RTI Act, 2005 provides that the provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923, and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.

The RTI Act, 2005 would “Override” the provisions of Public Records Act, 1993 and its Rules by virtue of this section.

Section 24 (1) of the RTI Act, 2005 provides that nothing contained in this Act shall apply to the intelligence and security organisations specified in the Second Schedule, being organisations established by the Central Government or any information furnished by such organisations to that Government:

Provided that the information pertaining to the allegations of corruption and human rights violations shall not be excluded under this sub-section:

Provided further that in the case of information sought for is in respect of allegations of violation of human rights, the information shall only be provided after the approval of the Central Information Commission, and notwithstanding anything contained in section 7, such information shall be provided within forty-five days from the date of the receipt of request.

Section 24 (2) of the RTI Act, 2005 provides that the Central Government may, by notification in the Official Gazette, amend the Schedule by including therein any other intelligence or security organisation established by that Government or omitting therefrom any organisation already specified therein and on the publication of such notification, such organisation shall be deemed to be included in or, as the case may be, omitted from the Schedule