Right to Information (RTI) Act, 2005
Frequently Asked Questions
1. When
did the Right to Information Act, 2005 come into force?
The
Right to Information Act came into force fully on the 12th October, 2005 (120th
day of its enactment i.e., 15th June, 2005). Some provisions came into force
with immediate effect viz. obligations of public authorities [Section 4(1)],
designation of Public Information Officers and Assistant Public Information
Officers [Sections 5(1) and 5(2)], constitution of Central Information
Commission [Sections12 and 13], constitution of State Information Commission
[Sections 15 and 16], non-applicability of the Act to Intelligence and Security
Organizations [Section 24] and power to make rules to carry out the provisions
of the Act [Sections 27 and 28].
2.
Who is covered under the Right to Information Act, 2005?
The
Act extends to the whole of India except the State of Jammu and Kashmir
[Section 1].
3.Are
"file notings' included in the definition of Information?
Section
2 (f) of the RTI Act defines 'information’ which includes ‘record'. Section
2(i)(a) states that a 'record' includes any document, manuscript and file. The
operative definition of a 'file' is given in the Manual of Office Procedure
prepared by the Central Secretariat, Government of India. The definition of
'file' in the Manual includes 'notes' and 'appendices to notes'.
In
CIC Decision No. ICPB/A-1/CIC/2006 dt.31.01.2006, the CIC held that “file
notings are not, as a matter of law, exempt from disclosure”. Thus, file
notings can be disclosed under the Act.
4.
If the law under which a Public Sector Unit (PSU) has been constituted does not
allow access to information to the people such as agendas of board meetings
etc., will such information have to be given under the RTI Act?
PSUs
fall within the category of public authorities. Even if the law constituting a
PSU does not allow disclosure of certain categories of information, the RTI
Act, 2005 overrides any such law in existence. Hence the designated PIO for the
organisation under question has to provide the information.
However,
if an applicant seeks information, that includes commercial confidence, trade
secrets or Intellectual Property Rights (IPRs) etc. the disclosure of which
will affect the competitive position of that PSU, such information may not be
given unless there is a larger public interest involved.
5.Government
offices have been providing information to people on the basis of their oral
requests in the past. Does the RTI Act require such informal practices to end?
No,
there is no need to discontinue the conventional and informal practice of
giving information upon oral request. The RTI Act does not put an end to such
practices. If information can be given without delay upon oral request it is
better to give such information to the requester rather than require him/her to
put in a formal application. This helps reduce paper work for the public
authority.
6.Can
Government officers get access to Annual Confidential Reports (ACRs) under the
RTI Act?
As
per decision No.18/IC(A)/2006 dt.28.03.2006, the CIC held that “the assessment
reports by the superior officers are personal and confidential information and
therefore exempted under Section 8 (1)(j) of the RTI Act”.
In
the case stated above, the Central Information Commission upheld the public
authority’s (Indian Oil Corporation’s) decision that ‘Annual Performance
Appraisal Reports’ cannot be shared as they are confidential in nature.
7. Can
students ask for copies or inspection of their answer scripts if they are
unhappy with the marks awarded by the examiner in public examinations?
The
present position is that the Central Information Commission has ruled, on an
appeal submitted to it, that students cannot have access to answer scripts /
supplements [CIC Decision No. 22/ICPB/2006 dt. 18.05.2006]
8. Every
department performs different kinds of functions at different levels of
operation from the Secretariat to the Taluka/Village level. Will disclosure
under Section 4 (1) (b) have to be made for every one of these levels
separately?
Yes.
In several states more than one public authority are notified within every
department from the secretariat level to the district and sub-district levels.
Every such public authority will have to develop its own proactive disclosure
documents or Information Handbooks unique to its powers, functions, area
of operation etc.
Section
4 (1)(b) is designed to ensure that public authorities disclose certain
information which are important to the public voluntarily at every level of
operation. It is to be noted that, if implemented properly, Section 4(1)
(b) will reduce the workload of officials and public authorities with regard to
the requirement of providing information on request. This is because the
information which is regularly needed by the public can be accessed by them
without the need of going through a process of making specific request.
9. Will
not the publication of the 17 manuals mentioned under Section 4(1)(b) be very
difficult and burdensome?
The
requirement to publish 'manuals' reflects the objectives of Section 4 (1)(b)
for proactive disclosure on the part of every public authority, which is simply
to publish and disseminate key information routinely in a manner and form which
is easily accessible and understood by the public [Sections 4(3) and 4(4) of
the RTI Act which specifically require this].
The
17 subsections of Section 4(1)(b) are 17 categories of information that a
public authority is required to prepare and disseminate proactively through handbooks,
notice boards, print and electronic media etc.
Most
of the information required to be published proactively under this section may
already be available within the public authority albeit in a scattered manner.
These will need to be collected and collated to fulfil the requirement of
Section 4(1)(b). Several officials are pleased with Section 4(1)(b) as it will
help them streamline their own recordkeeping, monitoring and reporting
procedures. Once the information is compiled and published it in a suitable
format it will be easy to update it.
Furthermore,
not every public authority may be required to collate information under all
categories of Section 4(1)(b). For example, the Finance Department in a State
may not be issuing any permits or concessions. As it does not perform such
functions the Finance Department will not be held at fault for not including
this category of information in its Public Information Directory.
The
CIC has, in one of its letters (dt. 10.05.2006) to all Ministries / Departments,
stated that “it is in the interest of the public authorities to make available
all the 17 manuals to the citizens, which is likely to reduce the volume of
requests for information under the RTI Act”.
If
appropriate management information systems are developed and maintained by
departments using information and communication technologies, the preparation
of the information to be published at different levels annually can be a simple
affair
10. Is
it enough to disseminate information under Section 4 (1)(b) on the Internet?
Information
under Section 4 (1) (b) shall be disseminated through notice boards, news
papers, public announcements, media broadcasts, the Internet or any other
means.
11. Is
it enough to publish information under Section 4 (1)(b) only once at the time
of the commencement of the RTI Act?
No.
The Act requires that every public authority has to update its publications
under Section 4(1)(b) every year. The Central/State Government/ Departments
will have to come out with general instructions for time-bound updating of all
categories of information, including formats for publication. Every public
authority may in turn publish updated information that is specific to its functions
following the guidelines.
12.What
will be the penalty if a public authority/department is not able to meet the
deadline for proactive disclosure (120 days)?
It
is advisable to publish as much information as possible under Section 4(1)(b)
within the deadline and give it wide media publicity so that people know that
the public authority/department is earnest about implementing the law. Any
person can make complaint to the relevant Information Commission under Section
18 (1)(f) of the Act and the Commission may even require the public authority
to compensate the complainant for any loss or other detriment suffered.
It
must be noted that the Information Commission has the power under Section
19(8)(a)(vi) to receive from a public authority an annual compliance report in
relation to Section 4 (1)(b). This reporting mechanism will technically make
the public authority answerable to the Information Commission for all acts of
commission and omission in relation to proactive disclosure.
13.Can a
request be denied if it is too big? If not, how can we handle such requests
best? How much information can a citizen request in one application? If he/she
asks 20-30 kinds of information in one application should it be given? Or
should the citizen be asked to put in fresh applications for each point of
information requested and also be asked to pay application fees every time?
The
Act does not permit rejection of an application simply because it relates to a
large number of documents. Under Section 7 (9), information shall be provided
in the form in which it is sought unless it would ‘disproportionately’ divert
the resources of the public authority. A PIO can request the applicant to
visit his/her office personally and inspect the required documents or files.
However, the PIO shall communicate the date and time to the applicant for such
inspection. The PIO has to determine and justify what constitutes
‘disproportionately divert resources’.
An
applicant can ask for 20 to 30 different kinds of information in the same
application and cannot be asked to apply afresh.
If
the information published under Section 4 (1) (b) of the Act is comprehensive
and proper information systems are maintained to enable such publication, even
if an applicant requests for many pieces of information, the same can be
provided to the applicant without much difficulty. Appropriate record
management systems need also to be instituted.
14.If in
a single application the applicant requests information that relates to a
public authority and also other public authority/authorities, is the PIO
responsible for giving all that information himself/herself?
The
RTI Act makes it clear that the PIO has the power to transfer an application or
parts of it if the same relates to information held by another public authority
[Section 6 (3)]. The application shall be transferred to the PIO concerned
immediately - within 5 days - and the applicant has to be informed about the
transfer in writing.
15. Is
it possible that some elements may misuse this law and use the information to
blackmail/threaten officers?
The
fact that the Act requires making as much information as possible available
with the public authorities in the public domain may actually prevent blackmail
to honest and sincere officers. If information is divided into two types,
namely ‘open to disclosure’ and ‘not open to disclosure’, that which is not
disclosed must be based only on the exemptions stipulated under the Act. Thus,
the question of blackmail or threatening may not arise. As far as possible,
information must be made public so as to reduce any possibility of blackmail.
An honest and sincere officer need not fear blackmail at all. The strict
adherence to the law would facilitate smooth functioning of such officers as
they will be protected by law.
17.If
there is a flood of applications for inspection of records how will the PIO
provide access to all applicants and also do justice to his/her other
designated duties? What if one such applicant mutilates or destroys a record
during inspection?
Under
the Act, every public authority will need to designate as many PIOs as may be
required to deal with requests for information from citizens. The PIOs may fix
one or two particular days in a week for inspection of records. The Competent
Authority needs to make rules and guidelines for public authorities regarding
the procedure to be followed for allowing inspection of records [The Public
Records Rules (1997), Rule No. 11(2) prepared by the Government of India may be
adopted as a model].
It
is important that the PIO takes adequate precautions for the safety of records
being inspected. If, however, it is found that a person examining a record or
document has mutilated or tampered with the document or attempted to do so it
will be appropriate for the PIO/public authority to lodge a criminal complaint
immediately.
18.If
the same kind of information is sought by more than one person should it be
made available to all such requesters?
Yes,
it has to be made available. However it is advisable that such records be
digitised as far as possible and uploaded on the Internet to facilitate easy
access.
19.If
the information requested by a citizen has already been proactively disclosed
can a PIO refuse to accept the request?
There
is nothing in the RTI Act that states that information disclosed proactively
should not be provided to a citizen on request. If such information is
requested the same can be provided in the available formats upon payment of
fees/charges at rates prescribed by the Government.
20.Is the
Assistant Public Information Officer (APIO) an assistant to the Public
Information Officer (PIO)?
No,
the APIO is not an assistant to the PIO. A Central / State APIO (as the case
may be) may be designated at the sub-district or sub-divisional level where a
public authority may not have an office or administrative unit [Section 5(2)].
Designation
of APIOs is particularly useful for Departments of the Government of India
which rarely have offices below the district level. However, it has been
decided that the CAPIOs of Department of Posts will also act as CAPIOs for
other Central Government Public Authorities, which do not have an office / or
an administrative unit operative at the sub-district / sub-divisional level.
These
CAPIOs (of the Department of Posts) will receive requests on behalf of the
Central Government public authorities and forward them to the CPIOs concerned.
21.If
the information requested by the applicant is in the possession of the APIO
should he/she not give that information to the applicant?
Under
the RTI Act, the APIO’s obligation is confined to forwarding the request to the
PIO concerned forthwith – within five days.
22.If a
PIO has touring duties as well, then he will not be physically present to
receive application in the office. Will his absence amount to refusal to accept
information request?
The
best solution for such situations is for the public authority concerned to
designate another official within the same public authority (to act as PIO) and
to receive applications. The duty of this PIO in maintaining the PIO’s register
will be the same. This will ensure that citizens' applications are always
received to suit their convenience and prompt action is taken on the same.
Incidentally,
a particular public authority may appoint multiple numbers of PIOs such that
each PIO is designated for a specific area of the organisation’s functioning.
Yet, if an applicant approaches any PIO, he/she cannot refuse to accept the
application on the ground that it does not belong to his/her jurisdiction.
Accepting
the application, the PIO has to seek the requested information from the
officer/s in control of the requested information (who may be another PIO, but
for the purpose of dealing with this application, he/she becomes an ‘Other
Officer’ – in control of the requested information). He / she cannot direct the
applicant to take his / her application to the other PIO.
23.Will
Panchayats/Municipalities (or any local authority) have to appoint PIOs
irrespective of the size of their office / administrative unit?
Yes.
Every public authority shall have to appoint a PIO, irrespective of the size of
its office / administrative unit.
24.Should
BPL applicants be charged the further fees
for providing information requested?
Persons
belonging to the ‘Below Poverty Line’ category cannot be charged any fees /
charges at all. The form of access can be decided by the PIO concerned subject
to the provision of the Act that information shall be provided in the form in
which it is sought unless it would ‘disproportionately’ divert the resources of
the public authority.
25.If
the applicant does not pay the additional fees towards cost of providing
information within the 30 days deadline will the PIO be penalised for failing
to provide information to the applicant?
No.
The PIO will not invite any penalty in such cases. The 30-day clock stops
ticking from the date of dispatching the intimation for further fees issued by
the PIO and restarts on the date on which the applicant pays the additional fee
[Sections 7(3)(a) & 7(3)(b)].
For
example, if the PIO dispatches the intimation letter on the 5th day from the
date of receipt of the complete application only 5 days would have elapsed from
the 30 days limit. The clock will restart on the date on which the applicant
pays the ‘further fees’. The PIO will have to provide the information within 25
days from the date of payment of such further fees. If the applicant chooses to
seek a review of the additional fee from the appellate authority or the SIC/CIC
the period taken for giving a decision on this matter (if it is decided that no
further payment is needed) or for actual payment of further fees (if it is
decided that further fees would need to be paid), will not be included in the
30 day limit.
26.If
the applicant does not respond to the intimation letter of the PIO requesting
payment of further fee will the PIO be duty-bound to provide information to the
applicant? Will the PIO be duty-bound to provide information within 30 days
even in such cases?
No.
The PIO is not duty bound to provide information to the applicant in such
cases. The RTI Act states very clearly that the PIO will provide access to
information only upon payment of further fee as may be determined [Section
7(1)] by him/her (for non-BPL cases).
27.Are
officials required to give information about themselves and their families
under the law? Can the public request this kind of information? Should it be
given?
Officials
are not required to provide private or personal information which is exempted
under Section 8(1)(j) of the Act. Again, this must be decided on a case by case
basis (as has indeed been the case with the decisions of the CIC). If public
interest is served by disclosing such information then it must be given.
28. Can
any citizen ask any information that is more than 20 years old even if it does
fall within the category of exemptions? Will the PIO be penalised if he/she is
unable to provide such information?
Yes,
any citizen can ask any information more than 20 years old held by or under the
control of a public authority, irrespective of whether the information
requested for falls within the category of exempted information or not. Nothing
in the Act bars a citizen to ask for such information. The PIO concerned has to
provide information ‘held’ under the control of the public authorities subject
to the provisions of the Act relating to exemptions stipulated under the Act.
29.In
cases where building plans and designs of bridges or other important public
structures have been requested and if the PIO has reasonable suspicion that the
applicant will use those plans for commercial purposes and make a profit out of
it, should such information be given?
If
disclosure of building plans and designs would prejudicially affect the
economic or security interests of the State or if they relate to commercial
confidence, or trade secrets or intellectual property rights, the disclosure of
which would harm the competitive position of a third party, then such
information would attract exemption under the Act. However, if the concerned
authority is satisfied that larger public interest warrants the disclosure of
such information, the same can be disclosed.
30.What
if existing departmental manuals prevent disclosure of information to the
people?
All
such manuals were drawn up before the RTI Act came into force. These manuals
will have to be reviewed in the light of the new law and all procedures for
denying access to information will have to be done away with unless they relate
to the exempt categories of information. Even in the case of exempt information
the manuals should be so designed as to facilitate complete or partial access
in the public interest. All new departmental manuals likely to be drawn up in
future must conform to the new regime of transparency set up under the RTI Act,
2005.
31.Periodic
weeding of files results in destruction of many documents which are not
important enough to maintain for as long as 20 years or more. So it will not be
possible to give such information after they have been destroyed. Will the PIO
be penalised for this?
If a
record has been destroyed legally the question of penalisation does not arise.
But the RTI Act clearly requires a review of all weeding practices in existence
to ensure that information which could be requested under the Act is not
destroyed. More generally, it is necessary to consider a review of current
records management processes.
32.What
is the process for taking a decision on granting partial access to a record?
Who is the authority to make this decision within a public authority?
Section
10(2)(b) of the RTI Act makes it clear that the PIO is the deciding authority
for granting partial access to records that may contain exempted information.
However, when partial information is disclosed the PIO needs to provide valid
reasons for the decision. He also needs to mention his name and designation as
the decision maker and the applicant’s right with respect to the review of the
decision, including the particulars of the AO, time limit, process etc.
Only
that part of the record which does not contain any information which is exempt
from disclosure and which can reasonably be severed from any part that contains
exempt information, may be provided.
33.Will
the APIO be punished for giving wrong or misleading information just as a PIO
can be penalised under this Act?
Given
that, under the RTI Act, the APIO’s obligation is confined to forwarding the
request to the PIO concerned forthwith - within five days, the question of
punishment for an APIO for giving wrong or misleading information does not
arise.
In
one of its decisions, the CIC has stated that the APIO has a limited role of
transmitting applications and appeals to their proper destination… and that the
APIO’s responsibilities are not co-extensive with the PIO.
34.Will
a PIO be penalised if the suiperior officer orders him not to release
information to the requester?
It
needs to be mentioned here that the PIO must note that it is not necessary on
his / her part to seek the permission / approval of a superior officer of the
public authority concerned for providing information under his / her control.
The Act is clear about the fact that the PIO is an independent authority under
the law and no approval is required from any superior official to release the
requested information.
If a
PIO acts upon any order of his/her superior and malafidely rejects requests
fully / partially, he/she is liable to be penalised under the Act.
In
case the information sought for is not available with a PIO, he/she can take
the assistance of any other officer including asking for information under that
officer’s control and such officer will be treated as a PIO for the purpose of
the Act and its penal provisions.
In
the event a PIO seeks information from another official for providing
information, his/her communication and receipt of information (to and from the
other official) should be put down in writing and a proper record of the same
should be maintained. This will be helpful, in the defense of the PIO
concerned, should the information, turn out to be misleading or wrong, and an
appeal is made against the PIO.
35.If
the information given by the PIO in response to a request turns out to be wrong,
false or misleading but the PIO was not responsible for the creation of that
record or such information will he/she be penalised by the ICs?
The
RTI Act provides protection to the PIO for ‘action taken in good faith’. If the
requested record has not been prepared by the PIO but by some other officer or
if the data compiled by the PIO was received from some other officer and the
PIO merely passed on that information to the applicant without having prior
knowledge that such information was wrong or false or misleading he/she is not
guilty of an offence under the RTI Act. The Information Commission will
penalise PIO only in such cases where it may find him/her guilty of giving
wrong, false or misleading information in a malafide manner.
36.The
PIO continues to be under the purview of the Official Secrets Act (OSA) of
1923. How will he reconcile his duties under the RTI Act with the secrecy
required to be maintained under the OSA? What happens to the oath of secrecy
every officer is required to take while joining service?
It
must be noted that the provisions of the RTI Act, 2005 shall be effective
notwithstanding anything that may be inconsistent with its provisions in the
Official Secrets Act, or any other Act of the Union or the State Governments
(see RTI Act, 2005, Chapter VI, Scetion21).
The
‘Oath of Secrecy’ taken by Government employees therefore only applies to the
information that has been exempted from the ambit of the provisions of the said
Act. Broadly, this exempted information pertains to matters / issues related to
national security, defence, and integrity of the country. The Oath
will not be adequate and the test of public interest is the overriding
consideration.
38.What
is “Public Interest”?
In
the Indian context, and especially in the context of the RTI Act, 2005, a
significant judgment of the Supreme Court of India can be taken note of in
understanding the term “public interest”.
In
‘S. P. Gupta v President of India’, AIR 1982 SC 149, Justice Bhagwati, in
referring to ‘public interest’, maintained:
“Redressing
public injury, enforcing public duty, protecting social, collective, ‘diffused’
rights and interests vindicate public interest… [in the enforcement of which]
the public or a class of the community have pecuniary interest or some interest
by which their legal rights or liabilities are affected.”
In
State of Gujarat v Mirzapur Moti Kureshi Kasab Jamat & others AIR 2006
Supreme Court 212, the Apex Court held “the interest of general public (public
interest) is of a wide import covering public order, public health, public
security, morals, economic welfare of the community, and the objects mentioned
in Part IV of the Constitution [i.e. Directive Principles of State Policy]”.
One
of the decisions of the Central Information Commission also throws some light
on this term. Public interest includes “disclosure of information that leads
towards greater transparency and accountability” [in the working of a public
authority] (Decision No. CIC/OK/A/2006/00046, dt. 02.05.2006).
39. Who
are the Appellate Authorities and what are the key provisions for appeal under
the Act?
First
Appeal: First appeal to the officer senior in rank to the PIO in the concerned
Public Authority within 30 days from the expiry of the prescribed time limit or
from the receipt of the decision (delay may be condoned by the Appellate
Authority if sufficient cause is shown).
Second
Appeal: Second appeal to the Central Information Commission or the State
Information Commission as the case may be, within 90 days of the date on which
the decision was given or should have been made by the First Appellate Authority
(delay may be condoned by the Commission if sufficient cause is shown).
Third
Party appeal against PIO's decision must be filed within 30 days before first
Appellate Authority; and, within 90 days of the decision on the first appeal,
before the appropriate Information Commission which is the second appellate
authority.
Burden
of proving that denial of Information was justified lies with the PIO.
First
Appeal shall be disposed of within 30 days from the date of its receipt. Period
extendable by 15 days for reasons to be recorded in writing. [Section19 (6)]
There
is no time limit prescribed under the Act for deciding second appeals
40. What
is the jurisdiction of courts?
Lower
Courts are barred from entertaining suits, applications or other proceeding
against any order made under this Act [Section 23]. However, the writ
jurisdiction of the Supreme Court and High Courts under Articles 32 and 226 of
the Constitution respectively remains unaffected.
Source :
http://rtiocc.cgg.gov.in/faq.do
Courtesy : http://karnmk.blogspot.in/
