The Hans India: New Delhi: Saturday,
April 16, 2016.
On the face
of it, the Right to Information (RTI) Act has empowered the citizen to a large
extent. However, it seems obvious that the RTI has not been understood
properly, given that the impulse to take shelter under the Official Secrets Act
(by the Executive), the Parliament Privileges (by the Legislature), the
Contempt of Court Act (by the Judiciary), still prevails to a considerable
extent.
The RTI Act
is not just a law promoting disclosure of information but a strategy to improve
delivery of public services through citizen-enforced accountability. Disclosure
of information is the rule and exemption an exception under it. Section 4 of
the Act mandates pro-active disclosure of basic information about the
department, such as the names of the Minister concerned, key staff, contact
details, organisational structure, the services provided and programmes run,
the departmental budget and ongoing updates on expenditure and public
procurement, among other things.
However, the
structure and dynamics of public administration have changed from welfare to
regulatory to commercial activities. The government holds a lot of sensitive
information, the disclosure of which may not, at all times, be in the interest
of the nation or the State or serve any public interest.
While the
call for open government data endorses the proactive disclosure requirement
under the RTI Act, there is a need to develop a robust information disclosure
policy to mitigate the unintended consequences of open data while fostering
transparency in public administration. The Official Secrets Act, 1923 typically
provides legal embargo against espionage and unauthorised disclosure of
information relating to security and intelligence (which anyway qualify for
exemption from disclosure under the RTI Act) and is subject to damage
assessment.
Based on the
sensitivity of the information held by the Public Authority, it is classified
and treated as per Sec 156 & 157 of State Secretariat Office Manual as top
secret, secret and confidential (care being taken to ensure that the Top Secret
category is not unnecessarily employed). Whereas under the RTI Act, exemptions
set out under Sections 8, 9 and 24 form the only basis for refusing access to
government information requested under the Act.
The said
exemptions are either mandatory or discretionary and can be disclosed if public
interest in disclosure outweighs the harm to protected interests of the RTI
Act. However, an administrative authority in which discretion is vested is
supposed to exercise it by taking relevant considerations into account and by
excluding irrelevant considerations. And it is a settled position of law that
the decision of an administrative body is subject to judicial review if it has
not exercised its discretion legally.
So what needs
to be considered under the public interest test?
Factors
favouring disclosure of information are government accountability, public
participation, public awareness and promoting human rights. Factors favouring
non-disclosure are invasion of privacy, statutory prohibition and other
exemptions under Sections 8, 9 and 24 of the Act
And factors
that are irrelevant for consideration under the Public Interest Test are: a) that the information may be misused,
misinterpreted or misunderstood by the applicant; and b) that the disclosure
might cause embarrassment to the government.
In view of
the foregoing, a positive/negative list (department-wise) of such information
which can/cannot be disclosed either wholly or partially can be prepared which
could be only indicative and not exhaustive and is subject to review/revision.
While drawing up such a list, the principle to be adhered to is that only such
information as would qualify under the exemptions of the RTI –those exemptions
(Sec. 8&9) related to commercial confidentiality and national security,
strategic, scientific or economic interests of the State, privacy,
investigations or law enforcement, and information covered by legal privilege
etc should be classified..
The National
Data Sharing and Accessibility Policy (NDSAP)-2012 promotes proactive
disclosure mechanisms to make all sharable and reliable information available
to the public for scientific, economic and social developmental purposes,
subject to legal conformity, protection of intellectual property, formal
responsibility, professionalism, standards, interoperability, quality,
security, efficiency, accountability, sustainability and privacy.
The negative
list under the NDSAP contains all non-sharable data as declared by the
departments/ organisations including restricted data (need-to-know on
authorisation) and sensitive data as defined in various Acts and rules of the
Government of India. This may serve as a precursor requiring far more legal
scrutiny and consideration of the public interest, while formulating a
comprehensive information disclosure policy.
(The writer is Consultant-Law at
Centre for Good Governance, Hyderabad)
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