Deccan Herald: New Delhi: Monday, August 13, 2018.
American
journalist Glenn Greenwald rightly said: “Transparency is for those who carry
out public duties and exercise public power. Privacy is for everyone else”.
Calling a
thief, a thief, is no defamation, because truth is justification for defamation
as per law. But that person might suffer loss of reputation. If that thief is a
public servant, the Justice Srikrishna Committee says that such information
should not be shared under the Right to Information. If the present Section 8(1)(j)
of the RTI Act is amended as the committee has suggested, all public servants
will come to enjoy a greater amount of secrecy.
Justice
Srikrishna recommended that if any disclosure can subject a public servant to blackmail
or extortion, such information shall not be given to citizens. If a citizen
wants to know what action was taken on a complaint of misappropriation of
public money, the Public Information Officer can refuse saying disclosure of
such information would harm the reputation of the ofcer
concerned. Officials’
reputation will come to be protected, rather than permitting people to
scrutinise the wrongs and irregularities in public ofces. The Srikrishna Committee’s
report and Bill have many such ‘data protection’ defences to negate the very purpose
of the RTI.
Even before
the Srikrishna committee, the government’s RTI Amendment Bill 2018 sought to
end the independence of information commissioners. Now, the effect of the
committee’s draft Personal Data Protection Bill, 2018, could be fatal for RTI.
Section
8(1)(j) of the RTI Act prescribes the larger public interest as the test for
whether any information is exempt from disclosure. The Srikrishna draft says
the undefined ‘public interest’ is ambiguous and suggests that it be tightened
up. But what it suggests is even more ambiguous and gives wide scope for
misinterpretation. Srikrishna wants to consider the service details of public
servants as ‘personal data’ and provides for not sharing it under RTI.
According to
the amendment suggested, the PIO can deny, “information which relates to
personal data which is likely to cause harm to a data principal, where such
harm outweighs the public interest in accessing such information having due
regard to the common good of promoting transparency and accountability in the
functioning of the public authority.
It appears
innocent. But, with wide-open and ambiguous expressions such as ‘relates to
personal data’ and ‘likely’, the suggested amendment would practically kill the
RTI. The amendment would protect ‘personal data’ and related information, too;
and information that causes harm would be denied, but also information ‘likely’
to harm, too!
The
Srikrishna definition of harm gives PIOs ample scope to protect officers
against charges of corruption against them, information relating to those
charges, complaints, inquiries and actions against them such as transfer,
demotion or dismissal.
There are 10
gateways for the wrongdoers in public office to escape, according to his
Section 3(21) that says:
“Harm”
includes: (i) bodily or mental injury; (ii) loss, distortion or theft of identity;
(iii) financial loss or loss of property, (iv) loss of reputation, or
humiliation; (v) loss of employment; (vi) any discriminatory treatment; (vii)
any subjection to blackmail or extortion; (viii) any denial or withdrawal of a
service, benefit or good resulting from an evaluative decision about the data
principal; (ix) any restriction placed or suffered directly or indirectly on
speech, movement or any other action arising out of a fear of being observed or
surveilled; or (x) any observation or surveillance that is not reasonably
expected by the data principal.
Worse, the
first two words “harm includes” mean that it could be anything other than those
specified above, too. Any harm a PIO can imagine will do to deny RTI requests.
Disclosure that can cause “bodily injury or mental injury” also can be denied.
Any RTI request that may embarrass or upset or cause worry to ‘data principal’,
that is, the public servant, can be considered as mental injury. The PIO can
instantly reject any request for such embarrassing information that might cause
mental injury.
‘Loss of
reputation’ is another kind of ‘harm’. Every disclosure about disciplinary
action for misconduct can cause loss of reputation. It does not stop with this.
The Srikrishna report says even the possibility of ‘humiliation’’ is enough to
deny information!
The PIO will
find it difficult to determine whether this ambiguous ‘harm’ outweighs the
common good from promoting transparency.
Protecting
black sheep from blackmail
One general
criticism against RTI is that it has helped spawn ‘activists’ who blackmail
public officials. Corrupt officers should not be blackmailed, but should they
have legal protection? The Srikrishna bill comes to their rescue. It will
safeguard the black sheep among public servants from possible blackmail!
The
expression ‘harm’ includes “subjecting him to blackmail or extortion”. If a
public servant faces such a possibility, the PIO can deny information.
Corruption and information relating to it can also be interpreted as matters
that might “subject him to blackmail or extortion”.
There are two
more expressions: (ix)any restriction placed or suffered directly or indirectly
on speech, movement or any other action arising out of a fear of being observed
or surveilled; or (x) any observation or surveillance that is not reasonably
expected by the data principal. Even indirect restriction on speech or fear of
being observed is enough to deny information. These 10 clauses of ‘harm’
provide 10 exit gates for corrupt officers to escape from RTI scrutiny by the
people. And the PIO is free to imagine many beyond these 10.
What the
Srikrishna Committee has recommended is unconstitutional and unwarranted. The
present Section 8(1)(j) of the RTI law offers a balance between right to
privacy of public servants and the ‘public interest’ served by disclosure of
information, much of which was held to be ‘official secrets’ until RTI Act was
passed in 2005. The Srikrishna Committee’s amendments to RTI law must be
rejected completely.
(The writer
is a Central Information Commissioner)
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