At every stage of the right to information movement, the biggest hurdles have been created by the bureaucracy. Over the years, they cleverly drafted legislation that appeared to serve the objective of transparency in governance while making sure it contained enough loopholes to avoid just that. However, step by step, the loopholes were removed and mounting public pressure led to Parliament passing the path-breaking Right to Information Act a year ago.
Now that the Act has begun to hurt, threatening individuals with imminent exposure of their questionable decisions, a truly devious tactic has been devised. The government has made the apparently generous gesture of further liberalising the Act with an amendment while actually curtailing its reach. In doing so, the Centre’s Department of Personnel and Training (DOPT), the last redoubt of the bureaucracy, attempts to disempower the central and state Information Commissions, the authorities established to implement the Act. The offence of the Central Information Commission (CIC) is to endorse the crucial right of access to file notings, Cabinet papers and other official documents, under the provisions of the Act.
In typical fashion, this hatchet job is cloaked in subterfuge. While suggesting in an official press note that the commissions’ powers be enhanced, their autonomy is, in fact, sought to be denied. According to the amendment, after the commissions have inquired into complaints, the final decision on the same will lie with the central or state governments. In other words, they will have only recommendatory status.
This is only one of the serious changes attempted to be made in the Right to Information Act in a move unfortunately described by the Prime Minister in a letter to Anna Hazare as aimed to “promote even greater transparency and accountability in our decision-making process”. Access to the material on which a Cabinet decision has already been taken is now permitted, but will be taken away. So will access to the identities of those recording notings and giving recommendations. In other words, accountability will be denied and corruption promoted.
The government’s desire to water down the right to information seems to have originated from the file notings issue. It is these notings that disclose the role of individual bureaucrats in governmental decision-making. If access is limited to innocuous files, bureaucrats are shielded from accountability. This is precisely what the proposed amendment attempts.
More than six months ago, on January 31, 2006, the CIC ruled that “we are of the firm view that, in terms of the existing provisions of the RTI Act, a citizen has the right to seek information contained in ‘file notings’ unless the same relates to matters covered under Section 8 of the Act”. This section lists national security and such grounds that can exempt a piece of information from disclosure, though the Act lays down that access may be allowed “if public interest in disclosure outweighs the harm done to protected interests”.
The ruling by two members of the commission, including its chief, Wajahat Habibullah, could not be more specific. Access to file notings was not limited to development and social subjects, as the amendment seeks. It was allowed in response to an appeal by one Satyapal against the decision of the Chief Public Information Officer of TCIL. The official had insisted that file notings on the documents of which copies had been sought were “exempt from disclosure in terms of the clarifications given by the Department of Personnel in their website”. This was overruled.
Since then, other CIC rulings have embarrassed the government. One required DOPT to allow inspection of certain Cabinet papers involved in a file concerning alleged irregularities in the appointment of the Chairman and Managing Director of MTNL. Access to such information will be ruled out if the proposed amendment is passed by Parliament.
On July 13, the CIC reacted against DOPT’s delaying tactics: “The Commission noted with serious concern that some public authorities were denying requests for inspection of file notings and supply copies thereof to the applicant despite the fact that the RTI Act, 2005, does not exempt file notings from disclosure. The reasons they were citing for non-disclosure of ‘file notings’ was the information posted on the DOPT website to the effect that ‘information’ did not include file notings. Thus the DOPT website was creating a lot of avoidable and unnecessary confusion in the minds of the public authorities.”
After referring to previous letters on the subject, the CIC demanded removal of the instructions concerning non-disclosure of file notings from the DOPT website within five days. The order was not complied with. Instead the amendment on file notings emerged. It is now for Parliament to decide whether to rely on the CIC, the independent agency it has established to interpret and protect the Right to Information Act, or the guile of a department concerned with protecting bureaucratic interests.
Perhaps because it was bound to raise bureaucratic hackles, the CIC was careful to explain its ruling on file notings at length. For those unaware of government procedures, the explanation is essential reading. It brings out the part played by file notings in decision-making. Here is an excerpt from the ruling: “In the system of functioning of public authorities, a file is opened for every subject matter, generally each file also has what is known as note sheets, separated from but attached with the main file. Most of the discussions on the subject matter are recorded in the note sheets and decisions are mostly based on the recordings on the note sheets and even the decisions are recorded on the note sheets. These recordings are generally known as ‘file notings’.
“Therefore, no file would be complete without note sheets having ‘file notings’. In other words, note sheets containing ‘file notings’ are an integral part of a file… Thus a combined reading of Sections 2(f), (i) and (j) would indicate that a citizen would have the right of access to a file of which file notings are an integral part.”
This leaves no doubt that the right of access to file notings is integral to the Right to Information Act, 2005. Parliament should applaud the CIC for its independence and reject the proposed amendment to it.
The writer is former Director,
Press Institute of India