Transparency at the Transparency Commission
I had made a commitment when I was made an Information Commissioner that I would ensure that I decided most of the cases before me in less than 3 months. By and large, I have been able to fulfill this promise and perhaps the average time for decisions must be around two months. Sometime in June 2011, a RTI application was received by my PIO, asking for the decision in a case registered in May, 2010. My staff could not locate the decision anywhere! I realized that the case had not been listed for hearing inadvertently, and no decision had been given. I realized that if a mistake had been made in one case, it could have been made in some others as well. A careful search of 2010 cases revealed another 110 cases which had been forgotten and missed completely!
We listed these for hearing and in one of them, there was a heart rending story. A Government employee had died in 1993 leaving his widow and young children. The widow was illiterate and poor. Since 1993 she had been struggling to get the pension she was entitled to. Since she was illiterate, she probably could not pursue the matter properly and each time there was a great delay, the system required many more proofs to establish her claim. By the time she barely managed to submit the required papers, it took years and office inefficiencies would not take decisions for some years! The lady appeared before me with her son who was an unskilled laborer, and both of them could not describe the exact sequence of events. The PIO however assured me that all the papers had been put in order and she would get her pension and all the dues soon. It will always haunt me for my life,- that despite running a reasonably efficient setup,- after her 17 year struggle, I was instrumental in delaying succor to her by a full year.
This set me thinking and I realized that there could be many such mistakes, which could result in untold suffering to Citizens who approach judicial and quasi-judicial bodies. In most cases there is no list which citizens can access which will tell them, whether their cases are in queue, and whether any logic is being applied in taking up the matters waiting in this queue. I feel upset when I see anyone jumping a queue at the airport, and in judicial and quasi-judicial bodies, the citizen cannot even see the queue. It is necessary that there is transparency in this matter, and citizens can see the queue and also feel assured that it is being dealt with in a transparent non-arbitrary manner. All judicial and quasi-judicial bodies should first ensure that this queue is very short and also give visibility to citizens in the way they take up the cases.
I took up the matter of listing pending cases in the Central Information Commission with the Chief Information Commissioner, who readily agreed. The ‘List of pending cases’ has been displayed on the website of the CIC at www.cic.gov.in and will be updated every month. In the Central Information Commission which is just six years old, this will lead to an opportunity for us to correct mistakes and also reassure citizens that there is fairness in taking up their cases. In most Commissions and judicial bodies, Citizens suspect arbitrariness and corruption in the listing of cases. The simple act of listing all pending cases publicly, will go a long way in restoring Citizens confidence in these Institutions, and also act as self- regulating check.
shailesh gandhi
Central Information Commissioner
The views expressed by me are my personal views and may
not represent the views of the Commission.
15 January 2012.
Showing posts with label Information Commission. Show all posts
Showing posts with label Information Commission. Show all posts
Monday, January 16, 2012
Thursday, July 10, 2008
Definition of 'Information'
When using the Right to Information, it is necessary to understand what is ‘information’. We will look at the definition given in the Act and then attempt to understand what it means.
The Act defines ‘information’ in Section 2 (f):
2 (f) "information" means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force;
Comments: In simple terms it means that information is anything, which exists in any form with a public authority. The specific instances –records, documents, memos, emails, opinions, advices,...,reports,..... samples,models,.. are merely meant to illustrate the broad scope. Clearly file notings are opinions, legal or other opinions obtained by Public authorities, or various reports received by them are all covered. This also lays down a very important principle. Information relating to any private body, which may not be covered by the definition of ‘Public Authority’ (given in Section 2 h), can be obtained through a public authority if the law allows the public authority to access it. Thus if any public authority has the right to ask for any information under the law from a private organisation-which is not a public authority;- the Citizen can ask for it from the public authority. A few illustrative examples of how information may be obtained from institutions which are not Public authorities:
a) Information about a private bank can be obtained from the regulator –Reserve Bank of India,- if the law permits RBI to ask for it. Most information of any significance can be accessed.
b) Information about a private unaided school--from the education department.
c) Information about a Public Limited Company –from the Registrar of Companies or SEBI if the law empowers them to ask for it.
d) Information about a Cooperative Society-from the Registrar of Cooperative Societies.
e) Information about Trusts-from the Charities Commissioner.
There is some difference of opinion on whether the term ‘accessed’ means any information which the authority can ask for under various provisos or the information which the authority is usually supposed to get under the law. As an example: The Labour office requires certain information to be submitted at certain intervals- this certainly can be accessed under Right to Information, since all information with the State is held on behalf of the Citizen. However, the labour office during an investigation, can access virtually all the records of an organisation which normally would not be done. Some RTI users argue that this proviso can therefore be used to mean any information of a private organisation can be obtained through any Public authority by invoking the special investigative powers of the Public authority. Such a wide interpretation would actually mean that all private organisations could be forced to disclose all the information with them. Most Commissions do not agree with this view, and I am inclined to agree with their view. Only the information normally accessed by the Public authorities come under the ambit of RTI. On the other hand all information with the Public authority, is certainly information covered by the Right to Information Act. The Public authority holds the information on behalf of Citizens-the owners and masters of the Government,-on their behalf. Shri Laxmi Chauhan had asked for certain information from the PIO of the Ministry of Mines about BALCO. This was refused by the PIO. The CIC in its decision in this case in No.CIC/AT/A/2007/00389 has categorically stated, “The information must be available in the annual report of the company, which under law is to be submitted to shareholders. Being a shareholder of the company, with representation on its Board of management, the information sought must be available with the Ministry of Mines, and what is available with the Ministry cannot be denied to an applicant under the Right to Information Act.” Thus, once any information is with a Public authority, it is information available to any Citizen under the Right to Information Act, subject to the provisions of the Act. Repeatedly, the Act recognises that what is with the Government is on behalf of the Citizen, who is the rightful master.
The Act defines ‘information’ in Section 2 (f):
2 (f) "information" means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force;
Comments: In simple terms it means that information is anything, which exists in any form with a public authority. The specific instances –records, documents, memos, emails, opinions, advices,...,reports,..... samples,models,.. are merely meant to illustrate the broad scope. Clearly file notings are opinions, legal or other opinions obtained by Public authorities, or various reports received by them are all covered. This also lays down a very important principle. Information relating to any private body, which may not be covered by the definition of ‘Public Authority’ (given in Section 2 h), can be obtained through a public authority if the law allows the public authority to access it. Thus if any public authority has the right to ask for any information under the law from a private organisation-which is not a public authority;- the Citizen can ask for it from the public authority. A few illustrative examples of how information may be obtained from institutions which are not Public authorities:
a) Information about a private bank can be obtained from the regulator –Reserve Bank of India,- if the law permits RBI to ask for it. Most information of any significance can be accessed.
b) Information about a private unaided school--from the education department.
c) Information about a Public Limited Company –from the Registrar of Companies or SEBI if the law empowers them to ask for it.
d) Information about a Cooperative Society-from the Registrar of Cooperative Societies.
e) Information about Trusts-from the Charities Commissioner.
There is some difference of opinion on whether the term ‘accessed’ means any information which the authority can ask for under various provisos or the information which the authority is usually supposed to get under the law. As an example: The Labour office requires certain information to be submitted at certain intervals- this certainly can be accessed under Right to Information, since all information with the State is held on behalf of the Citizen. However, the labour office during an investigation, can access virtually all the records of an organisation which normally would not be done. Some RTI users argue that this proviso can therefore be used to mean any information of a private organisation can be obtained through any Public authority by invoking the special investigative powers of the Public authority. Such a wide interpretation would actually mean that all private organisations could be forced to disclose all the information with them. Most Commissions do not agree with this view, and I am inclined to agree with their view. Only the information normally accessed by the Public authorities come under the ambit of RTI. On the other hand all information with the Public authority, is certainly information covered by the Right to Information Act. The Public authority holds the information on behalf of Citizens-the owners and masters of the Government,-on their behalf. Shri Laxmi Chauhan had asked for certain information from the PIO of the Ministry of Mines about BALCO. This was refused by the PIO. The CIC in its decision in this case in No.CIC/AT/A/2007/00389 has categorically stated, “The information must be available in the annual report of the company, which under law is to be submitted to shareholders. Being a shareholder of the company, with representation on its Board of management, the information sought must be available with the Ministry of Mines, and what is available with the Ministry cannot be denied to an applicant under the Right to Information Act.” Thus, once any information is with a Public authority, it is information available to any Citizen under the Right to Information Act, subject to the provisions of the Act. Repeatedly, the Act recognises that what is with the Government is on behalf of the Citizen, who is the rightful master.
Sunday, July 6, 2008
'Public Authority' in RTI
PUBLIC AUTHORITY under RTI
Whereas there is a clear understanding that all Citizens can avail of the Right to Information, there is some lack of clarity about which institutions have been mandated to give information by the Right to Information Act. Most of this arises because of the arrogance of many who think they cannot be answerable to the Common Citizen of India. They forget that the Citizen is the sovereign of this democracy. The RTI act lays down that all ‘public authorities’ have to provide information to the Citizen. Public authority has been defined by Section 2 (h) of the act as follows:
“h) public authority means any authority or body or institution of self government established or constituted,—
(a) by or under the Constitution ;
(b) by any other law made by Parliament;
(c) by any other law made by State Legislature;
(d) by notification issued or order made by the appropriate Government,
and includes any--
(i) body owned, controlled or substantially financed;
(ii) non-Government organisation substantially financed,
directly or indirectly by funds provided by the appropriate Government;”
Effectively a) , b) and c) and d) mean any authority or body which we consider as Government in common parlance- all Ministries and their departments, Municipal Bodies, Panchayats, and so on. This also includes Courts, Universities, UPSC, Public Sector Undertakings like Nationalised Banks, LIC, and UTI amongst others. All Stock Exchanges and SEBI are Public authorities and subject to RTI. The issue of coverage of Stock exchanges has been settled in a well reasoned order by a full bench decision of the Central Commission in appeal 2006/00684 & CIC/AT/A/2007/00106.
It is worth remembering that establishments of the Parliament, Legislatures, Judiciary, President and the Governors have also been brought under the surveillance of the Common Citizen. It is unfortunate that some ‘Constitutional functionaries’ and other bodies have been displaying their arrogance and ignorance by claiming that they are above the law.
Subclause d (i), and (ii) together mean any non-government organisations which are substantially owned, controlled or financed directly or indirectly by the Government would be covered. Thus aided schools and colleges are Public Authorities, as also any trusts or NGOs which have significant Government nominees; or Companies where the Government either owns substantial stake, or has given substantial finance, are directly covered under the RTI Act. Substantial finance must take into account tax-incentives, subsidies and other concessions as well.
There is some confusion about the words substantial finance. This confusion also prevails in some of the decisions of the Information Commissions as well. Let us again look at the relevant words carefully:
2 “h) public authority means any authority or body….
(d)…..and includes any--
(j) body owned, controlled or substantially financed;
(ii) non-Government organisation substantially financed,
directly or indirectly by funds provided by the appropriate Government;”
The finance could be either as investment or towards the expenses, or both. The way in which the words have been placed, indicates that perhaps (i) relates to investments and (ii) relates to the running expenses.
Thus every institution which is owned by the Government is clearly covered. By any norms, whenever over 50% of the investment in a body belongs with any entity, it is said to be owned by that entity. Since bodies owned by Government have been mentioned separately, the words ‘controlled’ and ‘substantially financed’ will have to be assigned some meaning not covered by ownership. Thus it is evident that the intention of the Parliament is to extend the scope of the right to other organisations, which are not owned by it. No words in an Act can be considered to be superfluous, unless the contradiction is so much as to render a significant part meaningless or they violate the preamble. Therefore it becomes necessary to consider a situation where an entity may be controlled by Government without ownership or substantial finance. Such a situation exists when a Charity Commissioner or Registrar of Societies appoints an administrator to run the affairs of a Trust or Society, or a Court Liquidator takes over administration of some body. The interpretation given by some that ‘control’ means any kind of control like that excercised by the Registrar of Societies over Cooperative societies , or by RBI on all private banks is too wide, and certainly not supported by the law. If we take this very wide interpretation, all Companies are controlled by the Registrar of Companies, all Sales tax dealers by the Sales tax authorities, and all factories by the Inspector of factories and so on. By this logic, all Companies, sales tax dealers and factories amongst others will have to give information under the RTI Act. Such a wide interpretation is clearly not intended in the law.
Let us now consider what are the implications of the words ‘substantially financed.’ It is obvious that as per Section 2 (h) (i) ‘ body …substantially financed’ would be a body where the ownership may not lie with the Government, nor the control. Hence clearly the wording ‘substantially financed’ would have to be given meaning at less than 50% holding. The Company Law gives significant rights to those who own 26% of the shares in a Company. Perhaps this could be taken to define the criterion of ‘substantial finance’. The finance could be as equity, or subsidies in land or concessions in taxation.
Similarly some definition is required where the State provides money for the running expenses of an Institution as covered under (ii). Presently, aided schools and colleges have all clearly been accepted as ‘Public authorities’ though there appears to be no clarity in the matter of NGOs and other organisations which are receiving significant amounts of finance.
The key approach and philosophy of the RTI act appears to be that since the State acts on behalf of the Citizens, wherever the State gives money, the Citizen has a right to know. In my opinion if the money given for the running expenses is over 1 crore the body should be considered as receiving ‘substantial finance’ and is covered in the definition of a ‘Public authority’.
At times it has been argued that to be a Public authority, a body must meet the criterion of being a ‘State’ against which a writ is maintainable. If the intention of the Parliament was to restrict the right to bodies which are the ‘State’, it would have said so, since the concept is well established. The term ‘Public Authority’ is broader and more generic than the word ‘State’ under Article 12 of the Constitution. Hence the intention of the Parliament was clearly based on giving the Citizens,- its masters,- the right to information over all entities owned by them, as well as where their money is being invested or spent.
Whereas there is a clear understanding that all Citizens can avail of the Right to Information, there is some lack of clarity about which institutions have been mandated to give information by the Right to Information Act. Most of this arises because of the arrogance of many who think they cannot be answerable to the Common Citizen of India. They forget that the Citizen is the sovereign of this democracy. The RTI act lays down that all ‘public authorities’ have to provide information to the Citizen. Public authority has been defined by Section 2 (h) of the act as follows:
“h) public authority means any authority or body or institution of self government established or constituted,—
(a) by or under the Constitution ;
(b) by any other law made by Parliament;
(c) by any other law made by State Legislature;
(d) by notification issued or order made by the appropriate Government,
and includes any--
(i) body owned, controlled or substantially financed;
(ii) non-Government organisation substantially financed,
directly or indirectly by funds provided by the appropriate Government;”
Effectively a) , b) and c) and d) mean any authority or body which we consider as Government in common parlance- all Ministries and their departments, Municipal Bodies, Panchayats, and so on. This also includes Courts, Universities, UPSC, Public Sector Undertakings like Nationalised Banks, LIC, and UTI amongst others. All Stock Exchanges and SEBI are Public authorities and subject to RTI. The issue of coverage of Stock exchanges has been settled in a well reasoned order by a full bench decision of the Central Commission in appeal 2006/00684 & CIC/AT/A/2007/00106.
It is worth remembering that establishments of the Parliament, Legislatures, Judiciary, President and the Governors have also been brought under the surveillance of the Common Citizen. It is unfortunate that some ‘Constitutional functionaries’ and other bodies have been displaying their arrogance and ignorance by claiming that they are above the law.
Subclause d (i), and (ii) together mean any non-government organisations which are substantially owned, controlled or financed directly or indirectly by the Government would be covered. Thus aided schools and colleges are Public Authorities, as also any trusts or NGOs which have significant Government nominees; or Companies where the Government either owns substantial stake, or has given substantial finance, are directly covered under the RTI Act. Substantial finance must take into account tax-incentives, subsidies and other concessions as well.
There is some confusion about the words substantial finance. This confusion also prevails in some of the decisions of the Information Commissions as well. Let us again look at the relevant words carefully:
2 “h) public authority means any authority or body….
(d)…..and includes any--
(j) body owned, controlled or substantially financed;
(ii) non-Government organisation substantially financed,
directly or indirectly by funds provided by the appropriate Government;”
The finance could be either as investment or towards the expenses, or both. The way in which the words have been placed, indicates that perhaps (i) relates to investments and (ii) relates to the running expenses.
Thus every institution which is owned by the Government is clearly covered. By any norms, whenever over 50% of the investment in a body belongs with any entity, it is said to be owned by that entity. Since bodies owned by Government have been mentioned separately, the words ‘controlled’ and ‘substantially financed’ will have to be assigned some meaning not covered by ownership. Thus it is evident that the intention of the Parliament is to extend the scope of the right to other organisations, which are not owned by it. No words in an Act can be considered to be superfluous, unless the contradiction is so much as to render a significant part meaningless or they violate the preamble. Therefore it becomes necessary to consider a situation where an entity may be controlled by Government without ownership or substantial finance. Such a situation exists when a Charity Commissioner or Registrar of Societies appoints an administrator to run the affairs of a Trust or Society, or a Court Liquidator takes over administration of some body. The interpretation given by some that ‘control’ means any kind of control like that excercised by the Registrar of Societies over Cooperative societies , or by RBI on all private banks is too wide, and certainly not supported by the law. If we take this very wide interpretation, all Companies are controlled by the Registrar of Companies, all Sales tax dealers by the Sales tax authorities, and all factories by the Inspector of factories and so on. By this logic, all Companies, sales tax dealers and factories amongst others will have to give information under the RTI Act. Such a wide interpretation is clearly not intended in the law.
Let us now consider what are the implications of the words ‘substantially financed.’ It is obvious that as per Section 2 (h) (i) ‘ body …substantially financed’ would be a body where the ownership may not lie with the Government, nor the control. Hence clearly the wording ‘substantially financed’ would have to be given meaning at less than 50% holding. The Company Law gives significant rights to those who own 26% of the shares in a Company. Perhaps this could be taken to define the criterion of ‘substantial finance’. The finance could be as equity, or subsidies in land or concessions in taxation.
Similarly some definition is required where the State provides money for the running expenses of an Institution as covered under (ii). Presently, aided schools and colleges have all clearly been accepted as ‘Public authorities’ though there appears to be no clarity in the matter of NGOs and other organisations which are receiving significant amounts of finance.
The key approach and philosophy of the RTI act appears to be that since the State acts on behalf of the Citizens, wherever the State gives money, the Citizen has a right to know. In my opinion if the money given for the running expenses is over 1 crore the body should be considered as receiving ‘substantial finance’ and is covered in the definition of a ‘Public authority’.
At times it has been argued that to be a Public authority, a body must meet the criterion of being a ‘State’ against which a writ is maintainable. If the intention of the Parliament was to restrict the right to bodies which are the ‘State’, it would have said so, since the concept is well established. The term ‘Public Authority’ is broader and more generic than the word ‘State’ under Article 12 of the Constitution. Hence the intention of the Parliament was clearly based on giving the Citizens,- its masters,- the right to information over all entities owned by them, as well as where their money is being invested or spent.
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