Sunday, 7 February 2010

The Right to Information - Open to Interpretation

Mandakini Devasher Surie

Whether it is the debate over access to judges’ assets or individual income tax returns, the Right to Information Act (RTI Act) gets people talking. As a developing area of legislation with few legal precedents, the RTI is open to interpretation. I discovered this first hand a few weeks ago at the Central Information Commission (CIC). Colleagues and I were representing an RTI applicant in a string of second appeal hearings. The applicant had filed an information request with the Delhi Police to get access to statistical information on the number of applications and appeals received by them, as well as copies of RTI applications and appeals from October 2005 – April 2008. The data was being collected as part of the all-India study on the RTI Act being carried out by the Right to Information Assessment and Analysis Group (RaaG). While most of the departments had responded with some statistical information, they were unwilling to part with copies of RTI applications and appeals. The PIOs stated that copies could not be given because i) the information requested would have to be compiled and would divert the resources of the department [Sec 7(9)], and ii) RTI applications and appeals contained sensitive information the disclosure of which would likely to endanger the life and physical safety of a person [Sec 8(1)(g)], impede the process of investigation [8(1)(h)] and invade the privacy of the individual [8(1) (j)].

Early on the hearings, it became evident that none of the PIOs had actually thought about the exemptions they had used. This was particularly evident in the use of privacy and danger to life and physical safety exemptions to deny access to copies of RTI applications and appeals. Bear in mind that RTI applications and appeals only contain the name and addresses of applicants and therefore cannot be considered to contain “personal” information. Moreover copies of these can be downloaded easily from the Delhi Government and the CIC websites. One PIO hilariously argued that providing access to copies of RTIs constituted an infringement of copyright [Sec 8(1) (e)]! A decision on our appeal is still pending, but to my mind the hearings brought to light a lot of interesting questions. For instance, what constitutes a “voluminous” request for information – is it the number of questions or the number of pages? Who decides? Similarly, how do we define a “disproportionate diversion” of resources? Can it be measured? And are RTI applications and appeals personal? What exactly is “personal information?

These are questions that PIOs, Appellate Authorities and Information Commissioners grapple with every day with little guidance. There are broader issues as well – of ensuring that citizens make responsible use of the law, that departments have the human capacity to process and handle information requests and lastly that the pressure for information disclosure is not entirely at the cost of the discretion of officials or vice versa. The balance is a fine one.

Thus, even as CIC issues landmark decisions it also needs to bold decisions on the everyday but often more “tricky” points of the law. Failure to develop clear and concrete guidelines on how to interpret the law or fence sitting on the application of exemptions or on the interpretation of other clauses of the law, will not help. In the absence of clear guidance, the law is likely to become an unholy mess of awry interpretations. The CIC would do well to follow the example of the UK Information Commissioner’s Office which offers detailed guidance on interpreting different clauses of the UK Freedom of Information Act.

Mandakini Devasher Surie is a Research Associate with the Accountability Initiative.

1 comment:

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