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Saturday, September 8, 2007

Secrecy is dead, long live secrecy

Vidya Subrahmaniam, In the nine months since the enactment of the Right to Information Act, 2005, the Government's Ministries have done much to undermine the Central Information Commission and, by implication, the Act itself.

THE PROPOSED amendments to the Right to Information Act, 2005, including an amendment to keep file notings secret, have been called off — at least for now. So what are the chances that they will return in one form or another? Indeed, how strong is the official resistance to the RTI Act as it exists?

The RTI story on the ground is the story of small successes. It is about men and women who got their entitlements by filing or just threatening to file an application under the Act. It is about Bihar's Mazloom Nadaf, a rickshaw-puller, who got the usual run-around on his plea for a home under the Indira Awas Yojana, but who was treated like a king once he had filed an application under the RTI Act: Could he please come to the Block Development Office and collect his cheque? While at it, could he also be so kind as to drop his complaint? It is about Nannu, the East Delhi mazdoor, who having done the rounds for a duplicate ration card, filed a complaint under the RTI Act seeking the names of officers who drove him round the bend. Nannu might have waved a magic wand judging by the swift invite from the Food and Civil Supplies office, where officers fussed over him, gave him tea — and his ration card. As a beaming Nannu departed, his new friends called after him: Would he please drop his complaint?

The moral of all this: Don't ask us questions. Don't ask which officer did what. Just take your ration card, telephone connection, passport, and so forth. Indeed, the larger battle for file notings must be viewed against these smaller victories. Babudom would rather redress your complaint in double quick time than have you track the inside story. And file notings take you precisely where you are not meant to go — into the forbidding and shadowy world of governmental decision-making.

A visit to the website of the Central Information Commission — the final authority under the RTI Act on disclosure of official information — is revealing. The Commission first allowed access to file notings on January 31, 2006, in the Satyapal case. Its reasoning was impeccable. Firstly, that file notings were essential to understand why the Government came to a particular decision: "...[Governmental] decisions are mostly based on the recording in notesheets and even decisions are recorded on the notesheets. No file would be complete without notesheets having `file notings'..." And secondly, that the Act as it stood permitted access to file notings: "... a combined reading of Sections 2(f), (i) and (j) would indicate that a citizen has the right of access to a file of which file notings are an integral part..."

In the seven months since the Satyapal case, the CIC has ruled in favour of file notings in more than 40 cases. The appellants knocked on the Commission's doors because one or another Ministry or Department had refused to part with file notings. This raises the obvious question. Why was the Commission enjoined to decide again and again on file notings when it had already settled the issue in January 2006?

Consider the big guns that turned away applicants seeking file notings under the RTI Act: Ministry of Railways, Ministry of Urban Development, Ministry of Health and Family Welfare, Ministry of Company Affairs, Department of Consumer Affairs, Central Board of Excise and Customs, not to mention the Department of Personnel and Training — on paper the nodal agency for facilitating information under the RTI Act but in practice the most reluctant to parcel out information. The DoPT's response to the CIC's Satyapal ruling was to put up a website posting unilaterally declaring file notings out of bounds for RTI applicants, refusing to take it off to this day. It is this posting that the Ministries and Departments cited when they refused disclosure of file notings to RTI applicants.

The Commission's word on file notings ought to have been treated as final by the Government and its Departments. After all, the Commission's status as the final appellate body under the RTI Act would be sustainable only if it had the freedom to enforce the Act as it understood it. It can hardly have been the Act's intention that its provisions must be interpreted by the government of the day. If that were the case, then it could be left to the government to decide when, how much and to whom information could be given without the need for an appellate body — indeed without the need for a Right to Information Act.

Curiously, it is this situation that prevails today. On paper, the Government has withdrawn the proposed amendments to the RTI Act, including the amendment to disallow file notings. That it was considering an amendment to prohibit file notings is in itself admission that the Act permits them. It also means that the CIC's interpretation of the Act on file notings was correct. Yet the DoPT, whose Minister paradoxically announced that the amendments had been shelved, remains unyielding on the issue. Thus, the CIC might cry itself hoarse on the validity of file notings, the Government might say it has backed off on the amendment on file notings, but the Government's Ministries and Departments will behave as if the amendment was in place.

The CIC gave vent to its exasperation in its June 23, 2006, decision allowing file notings in a case filed by Mahendra Gaur against the Department of Consumer Affairs (DCA). Mr. Gaur, who alleged malpractice in the sale of 2T oil in Rajasthan, took recourse to the RTI Act after he failed to get a hearing. The DCA's Chief Public Information Officer, C.S. Khurana, refused him access to file notings; so in his appeal to Rinchen Tempo, the designated Appellate Authority, Mr. Gaur appended the CIC's Satyapal decision on file notings. Ms. Tempo dismissed the appeal, citing the DoPT's website posting on file notings. Said the Commission: "The question whether file notings are exempt or not has been put to rest by this Commission in Satyapal versus TCIL ... and this decision is in the website of this Commission. In terms of Section 19 (7) of the said (RTI) Act, while the decision of this Commission is final and binding on the parties in that case, in the matter of interpretation of the provisions of the Act, the said interpretation is binding on all the public authorities. Curiously in her decision, she [the Appellate Authority] has ignored to refer to the decision of the Commission even though the appellant has referred to the same in his appeal."

Three days later, it was the Railway Ministry's turn to get an earful from the CIC. Noting that the PIO concerned had denied access to file notings to the applicant only because of the DoPT's website instructions, the Commission said: "... clarifications by the Department of Personnel and Training ... cannot override the statutory provisions of the RTI Act of 2005." Finally, in sheer helplessness and faced with mounting and completely unnecessary appeals against non-disclosure of file notings by various Ministries and Departments, the CIC ordered the DoPT to remove its website posting, which was creating "unnecessary and avoidable confusion in the minds of Public Authorities" who were denying access to file notings even though the RTI Act "does not exempt file notings from disclosure."

Clearly, information is power for the Government — RTI Act or no RTI Act. There can be two sides to the grand battle being fought on the sanctity or otherwise of file notings. It is possible that the Government genuinely fears that access to file notings will, to quote the Prime Minister's Office, "inhibit the expression of frank views by officers ... place him [an officer] under threat or danger." It is a disputable position but not a dishonest position. What is unacceptable is that the Government should repeatedly override the CIC and the RTI Act — in this and other matters. Forget file notings, Government Ministries and Departments have so far shown no inclination to file the mandatory annual reports on the implementation of the Act. The DoPT leads the pack of rebels: It has misinterpreted the Act, encouraged other Ministries to follow this misinterpretation, slighted the CIC over and over, refused to hand over papers to it even though the Act requires it do so and done everything to preserve the regime of secrecy that arms the Government but disarms the people.
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