The Draft Right to Information Bill of the Ministry of Information and Communication was put on the ministry’s website in late July 2012 to solicit public feedback.
The RTI Bill will not only lead to sharing of information but also have a strong impact on reducing corruption, enhancing good governance, improving transparency and encouraging people’s genuine participation in democracy.
It therefore is extremely important to ensure that the correct type of RTI Bill is passed to have the above impact. The draft RTI Bill in its current form cannot be passed with its many flaws as having a bad RTI Bill would be worse than having no bill at all.
The Bill has too many provisions that can defeat the very purpose of having a RTI Bill. Some of them need to be deleted while others need to be modified on the principle that the fundamental right of Right to Information under the constitution cannot be overruled by smaller laws and rules.
The section which gives the biggest problem is section 31. The section present under Chapter 5 titled Exempt Official information has two problematic subsections.
Subsection one states that information can be denied if “The overall harm caused by release of the information would outweigh the public interest in having such information disclosed.” The section was not present in the original RTI Draft that had been prepared by the High Court and given to MoIC.
This one clause would make the whole Act toothless, as there is no objective or universal criteria to judge whether some information would cause more harm or more good. This would most likely get used to deny all information that embarrasses or implicates an official or the government, thereby seriously undermining the law’s stated objective of promoting accountability. Such clauses are not found in any of the progressive RTI laws around the world and are not a part of the international standards for transparency laws. This clause should be deleted as there are already more than enough safeguards in the Bill to protect legitimate interests.
Subsection 2 of this section says, “The disclosure of the information is barred under this Act or any other law for the time being in force.”
The highlighted portion violates the letter and spirit of section 2 of the Bill which says “the provisions of existing laws and regulations that are inconsistent with this Act are hereby repealed” and so should be deleted.
Information leading to diversion of resources
Under the Chapter of, ‘Limited conditions for denial’ section 21 also exempts all information that “substantially and unreasonably” diverts resources or interferes with performance of the government.
This is counterproductive clause, especially as it is impossible to universally define what would be a “substantial and unreasonable” diversion or interference. This could, therefore, well result in a lot of information being denied and in public authorities not feeling the need to appoint an adequate number of Information Media Officers (IMOs). It would be better if this section can instead have a clarification that says that no information can be denied on these grounds, but only given in a more convenient form rather than in the specific form asked for by the applicant to save resources and also not create any official diversions.
Denying deliberative and legal information
Another major problem is with section 32 (subsection 3) and 32(subsection 6) under Chapter five on Exempt official Information.
Section 32 (subsection 3) says the public authority may refuse to disclose any information if, “It contains deliberations necessary for the candid advice and consent for the functioning of government.”
This is too general and would exclude all deliberative information, which is one of the most important categories of information that needs to be made public to achieve the objective of the bill: promoting “government accountability”. The people mostly know what the decisions of the government are, as they are the ones who are affected by them. For there to be true accountability, the people need to know why the government decided the way it did. This is also the best way an honest and sincere government can keep the trust of its people. Therefore, this sub-section needs to be deleted.
Section 32 (subsection 6) says the public authority may refuse to disclose any information if, the disclosure relates to an ongoing legal proceeding of a pending case or a case sub-judice.
This is unnecessary and undesirable. Legitimate concerns are already more than adequately covered under sub-sections 7 Section 7 already includes information forbidden to be published by any Court of law or tribunal or the disclosure of which may constitute contempt of Court,”
The danger with Section 32 (subsection 6) is that in many cases RTI is used when a person is under legal pressure. A public authority which may have information that can save the liberty of the individual and also bring on true justice can withhold such information using this section.
Information from any organization
Section 32 subsection 4 says that exempt information will include “information received in confidence from a foreign government or ‘any organization’ on the understanding that it would be treated as confidential and disclosure of which would constitute a breach of confidence.”
While information from foreign governments can be classified the term or ‘any organization’ makes this too wide, especially as there are no restrictions on what type of information can be treated as confidential. This might very well lead to many organizations within and outside the government classifying much of their information as confidential, and thereby defeating the very purpose of an RTI law. Therefore, this restriction should be only for foreign governments, and the government must be willing to give to its people reasons why certain types of information, received from other governments, is being treated as confidential.
Third party information
Section 33 says that, “no information shall be disclosed which relates to or has been supplied by a third party and has been treated as confidential by that third party.”
This section is too sweeping when. The only legitimate provision regarding third party information is that they should be provided a reasonable opportunity to argue, at all stages of the process, why (given the exclusions in this law) the information being asked for is exempt. If they are not able to establish that, then the information must be made public.