The Right to Information Act 2005 Dr R

The Right to Information Act 2005 Dr. R. K. SHARMA Department of Hospital Administration PGIMER, Chandigarh Assisted by Dr Jitender Sodhi

Good Governance The real Swaraj will come not by the acquisition of authority by a few but by the acquisition of capacity by all to resist authority when abused -Mahatma Gandhi

State of UP v Raj Narain 1975. 4 SCC 428 “In a government of responsibility like ours, where all agents of the public must be responsible for their conduct, there can be but few secrets. The people of this country have a right to know every public act, everything that is done in a public way, by their public functionaries. They are entitled to know the particulars of every public transaction in all its bearing. ”

Right to Information Act 2005 • An act to provide for setting out the practical regime of right to information for citizens to secure access to information under the control of public authorities • To promote transparency and accountability in the working of every public authority.

“Right to Information” u/s 2 (j) “Right to information" means the right to information accessible under this Act which is held by or under the control of any public authority and includes the right to— i. inspection of work, documents, records; ii. taking notes, extracts or certified copies of documents or records; iii. taking certified samples of material; iv. obtaining information in the form of diskettes, floppies, tapes, video cassettes or in any other electronic mode or through printouts where such information is stored in a computer or in any other device;

Information u/s 2 (f) Any material in any form including records, documents, memos, emails, 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

Record u/s 2(i) It Includes : i. Any document, manuscript & file. ii. Any microfilm, replica or exact copy of a document. iii. Any reproduction of image or images. iv. Any other material produced by a computer or any other device.

Public Authority u/s 2(h) means any authority , 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 organization substantially financed, directly or indirectly by funds provided by the appropriate Government;

Obligations of Public Authorities u/s 4 (1) • Record Management • Publish – Particulars & functions of the organization, powers & duties – Decision making process & norms – Rules & regulations, instructions – Statement of categories of documents under control – Directory of Officers, designated PIOs & APIOs • Proactive Disclosure of Information.

Exemptions from disclosure u/s 8 (1) a) Which would affect the sovereignty, integrity & security of India. b) Forbidden to be published by any court of Law. c) Which would cause a breach of privilege of parliament or the state legislature. d) Information including commercial confidence, trade secrets or intellectual property. e) Information available to a person in his fiduciary relationship unless competent authority feels , larger public interest is involved.

Exemptions contd…. . f) Information received in confidence from foreign government. g) Endanger the life or physical safety h) Which would impede the process of investigation/apprehension/prosecution of offenders. i) Cabinet papers including records of deliberations of the council of ministers, secretaries & other officers. j) Personalinformation…. no public interest…. invasion of privacy

Appeal u/s 19 • Any person who does not receive information within the stipulated time. • Or aggrieved by decision of the CPIO/SPIO. • In case of no reply within stipulated time. • Aggrieved by the decision of the FAA CIC/SIC

Time Limit for Appeal Authority With in (days) 1 st Appeal Appellate Authority 30 2 nd Appeal CIC 90

Penalties u/s 20(1) &(2) Why? • • Non Performance of the officers. Delay in providing information. Providing incomplete or false information. Rejecting applications for malafied reasons. What? • CIC imposes penalty of Rs. 250/day • Max. penalty is Rs 25, 000/-. • Recommend Disciplinary action against PIO under the service rules. Section 19 (8)(b) “……require the Public Authority to compensate the complainant for any loss or other determinants suffered. ”

RTI Reply delayed

PGIMER Statistics

RTI Applications Received

Commonly asked information PGIMER • • Treatment records of patients. Personal files & service books. Marks obtained in entrance exams. Regarding pay scales & leaves. Regarding status of pending cases or complaints. Minutes & notings of various meetings Engineering related

Landmark/Important decisions on RTI Act 2005

Case Mix • • • Patient care Common Issues Establishment matters Medical Education Medical Research

ISSUES • Number of applications under RTI is on rise • Variety of information is being asked • The Act is either silent or not clear on certain issues since it is a new act and a lot of churning has to take place before it takes its final shape

CHALLENGES • Whether to supply the information or not in a particular case where the information asked for is peculiar and the guidelines are not available?

POSSIBLE SOLUTIONS • The information has to be supplied where it is available and the act furnishes clarity on that issue • In the following cases, the denial to provide information did not satisfy the applicant and the final judgment was given by CIC which became a sort of guideline, and hence a possible solution

1. Non-Specific Information Issues & Challenges: • Information about exact date, time and place of birth of a female child born to someone else between July 2001 to January 2002 in PGIMER. • PIO replied to applicant requesting to furnish some information so that the record can be retrieved Judgment: CIC directed the Appellant to provide the CR number as sought by the PIO and obtain the information he requires Rakesh Kumar Vs PGIMER (CIC/AD/A/2010/000795, 3/8/2010)

2. (a)Optimum use of fiscal resources Issues & Challenges: • Applicant sought information on no. of employees working in PGIMER according to post and designation , no. of houses available for PGI employees according to the type and designation, copy of rules which is followed for allotment of houses • A copy of final merit list, with written & interview of Sister Gr-II, who were recruited in 2005. • CPIO provided all the requisite information and stating the availability of the same w. r. t. no. of employees working according to the post & designation being available on the PGIMER website i. e. www. pgimer. nic. in Sushil Vs PGIMER (CIC/LS/A/2012/001832, 001828 dated 01/10/2012)

2. (a) Optimum use of fiscal resources Judgement: • “Suffice to say that the names of employees are on the website. As regards the provisioning of information, it would regarding pay scales, disproportionately divert the resources of PGIMER. Hence this information is not disclosable to the appellant u/s 7(9) of the RTI Act. The appeal is dismissed. • “In the facts & circumstances of the case, it is ordered that if the appellant himself was a candidate for the interview held for recruitment as Sister Gr-II, then the requested information may be supplied to him in 04 weeks. However, if he was not a candidate, then this information is not disclosable to him and the appellant may be informed accordingly”. Sushil Vs PGIMER (CIC/LS/A/2012/001832, 001828 dated 01/10/2012)

2. (b)Optimum use of fiscal resources Issues & Challenges • Applicant sought information on “Expenses incurred by PGIMER on account of education of Hospital Engineers” • The same was denied with reasons: – the information is not maintained in that manner – it would take much time to inspect all the files to pull out the information. – Compiling this information from the files of all Engineers will disproportionately divert the resources of the Public Authority. Judgment: • PIO Accounts Branch to allow the appellant to inspect the files of all the Engineers for the period 1. 1. 2002 to 21. 5. 2010 so that appellant can compile the information for himself Neeraj Mohindra Vs PGIMER (CIC/AD/A/2011/000138, 15/2/2011)

2. (c)Optimum use of limited fiscal resources Issues & Challenges: Appellant sought for copies of documents & various other details in 62 serials covering the entire gamut of functioning of the company Judgment: – The information sought for is so voluminous that it would definitely cause a lot of pressure on the resources of the organisation – The appellant is at liberty to ask for specific information which would not cause enormous time and efforts to collect and furnish” Hitesh Kumar Vs Oriental Insurance Company Ltd. (570/ICPB/2007, PBA/06/562 15/06/2007)

3. Trade Union Office bearer = Citizen? ? Issues & Challenges: • Appellant being the President of P. G. I. Employees Union sought on information on the official letter head which could not be treated as citizen • Later the information was provided as the CPIO came across with the decision taken by the Commission by which the Commission has taken a consistent view in respect of companies, firms, association of firms, directors, partners, office-bearers of trade-union respectively can seek information under RTI Act in the name of the company, firm and the association of firm even though these entities may not be considered as citizen in terms of RTI Act Sunil Dutt Sharma Vs PGIMER, 2008

4. Information no longer available in records cannot be given • CIC directed PGIMER to conduct an enquiry into the matter of the missing files • After inquiry it was said that weeding of old records was done by the order of DDA. • An Affidavit was submitted regarding the said files, with a copy of the list of weeded files. (it was 20 years old record ) Ashwani Dalal Vs PGIMER CIC/AD/A/2010/000086, 19/3/2010

5. RTI is not about seeking “Opinions” Issues & Challenges: • Information was sought in respect to certain tests/methods followed by the Police by putting various queries to ascertain whether it is conforming with the medical standards • CPIO, PGIMER denied as the same is not covered under RTI Judgement: • The appellant is seeking only opinion of the CPIO regarding some medical tests • Dismissed the appeal Satnam Singh Vs PGIMER, 2008

6. Subjudice Matters Issues & Challenges: • The applicant was denied inspection of the relevant file as the case was subjudice Judgement: “…. . the matter being subjudice cannot be held as a reason for withholding the information and hence directs the PIO to allow inspection of relevant files by the Complainant. ” Varun Kr. Agarwal Vs AIIMS (CIC/AD/C/2010/001065)

7. (a) Medico Legal Case Issues & Challenges: • Information was denied (to a third party) as it was a medical report of a Medico-legal case Judgement: • Medical records in medico legal cases, as per Code of medical Ethics are provided only to the patients themselves or to their authorized representatives. Hence information cannot be provided unless the assaulted victim himself seeks the information or authorizes someone to collect the same in his place. Anwar khan Vs AIIMS (CIC/AD/A/2010/001284, 26/10/2010)

7. (b)Medico Legal Case Issues & Challenges: • Denial of Medico Legal Reports about patients brought to the hospital by the police in criminal cases by the CPIO stating that information is exempted from disclosure as belongs to a third party and also since it is held in a fiduciary relation with the patient Judgement: • “MLCs are indeed legal requirements in criminal cases and that they are not prepared at the instance of the patient but to record injuries inflicted on a person, to be used by Courts in criminal proceedings and hence are not held in fiduciary relation with the patient and that refusal of information under Section 8(1)(e) is unsustainable” Rajkumar Vs MOHFW (CIC/AD/A/2009/001196, 01/10/2009)

8. Post Mortem Report Batla House Case Issues & challenges: • Certified copies of postmortem reports were sought • CPIO denied information stating the same would impede the process of investigation Judgement: “The FIR in this particular case has already been exposed to much publicity and the post mortem reports are now unalterable/ irreversible. Their disclosure in no way could impede the process of investigation or prosecution” • CPIO to provide the postmortem reports after applying Section 10(1) of the RTI Act to severe those parts of the reports which are exempted from disclosure under Section 8(1) Afroz Alam Sahil v/s AIIMS (CIC/AD/A/09 /000572 ; 9/6/2009)

9. Interpretation of the term citizen - Does it include companies, associations, societies etc. “……the application/ appeal from an Association or a Partnership Firm or a Hindu Undivided Family or from some other group of individuals constituting as a body or otherwise is to be accepted and allowed. ” Deepak Gupta, Chairman, All India NGO Welfare Association Vs MCD (CIC/WB/A/2006/00590, 639, 677, 754 to 758 dt. 16. 5. 09)

9. Fiduciary Relationship Issues & Challenges: • Applicant was denied information of her husband with regard to his treatment. Judgement: • Information denied since the information is being held by the Doctor in a fiduciary relationship. • The Appellant was advised either to get an authorization letter from the patient permitting his wife to collect the information or get a court order declaring the wife as the legal guardian. Kavita Vs AIIMS, New Delhi (CIC/AD/A/2010/001654)

FIDUCIARY RELATIONSHIP • When one person places complete confidence or trust in another in regard to a particular transaction or in one’s general affairs or business. • The relationship is not necessarily formally or legally established as in a declaration of trust, but can be one of moral or personal responsibility.

10. (a)Third Party Issues & Challenges: CPIO denied information related to his( applicant’s) deceased mother. Judgement : Applicant to provide proof of the fact that the deceased patient is indeed his mother to the PIO along with a copy of ID card and the PIO to provide complete information to the Appellant. Y. S Sharma Vs Dr. RML hospital , New Delhi. (CIC/AD/A/2011/001138)

10. (b)Third Party The CPIO has applied the section 8(1)(j) of RTI Act technically in rejecting the information to the grand father of the patient…. The CPIO is directed to provide all the information available to the applicant. B D Gupta Vs AIIMS 1109/ICPB/2007

10. (c)Third Party – No Veto Issues & Challenges: • information was sought relating to the departmental inquiry against some other officer • The third party on being consulted rejected the request of the CPIO and based on this rejection the CPIO rejected the request for information Judgement: • RTI Act does not give to an individual or a third party an automatic veto on disclosure of information pertaining to him • The Law requires application of the CPIO’s minds regarding the pros and the cons of the proposed disclosure on the basis of the facts of each case in terms of the norms set out in Section 8 (1) (j) and Section 11 (1) of the RTI Act. K. K. Mahajan Vs. Cantonment Board (CIC/AT/A/2006/00014 dt. 22 nd May 2006. )

11. (a)Frivolous requests Issues & Challenges: The applicant had applied for long list of varied information for the last 20 years. Judgement: – This amounted to making a mockery of the Act. – Asking diverse and lengthy information seemed to be designed only to put the public authorities under undue and uncalled for pressure. – dismissed the case as frivolous and inconsequential. A. P. Tripathi Vs IIT Delhi. (No CIC /OK /A/2006 /00655 dt. 28 March 2007)

11. (b)Frivolous requests Issues & Challenges: Information on 15 queries was sought regarding an Enforcement Officer in the Ministry of Labour, Govt. of India. Point No. 1: Copy of appointment order and the details of salary Point No. 2: Copy of Promotion order and details of salary to the post along with statutory and other deductions Point No. 3: All the transfer orders and Salary Point No. 4: The copies of memo, show cause notice, censure issued Point No. 5: Copy of EPF (Staff & Conditions) Rules 1962. Point No. 6: Copy of return of assets and liabilities Point No. 7: Details of investment and other related details Point No. 8: Copy of report of item wise and value wise details of gifts accepted from family members, friends and relatives at the marriage of his son. Girish R. Deshpande Vs. CIC &Ors. (SLP(Civil)No. 27734@CC 14781/2012)

11. (b)Frivolous requests Point No. 9: Copy of details of movable, immovable properties. Point No. 10: Whether any claim for TA/DA is being made by the officer for attending the criminal case pending. Point No. 11: Copy of Notification Point No. 12: Copy of certified true copy of charge sheet issued Point No. 13: Certified True copy of complete enquiry proceedings initiated against the officer Point No. 14: Unclear Point No. 15: Certified true copy of second show cause notice Girish R. Deshpande Vs. CIC &Ors. (SLP(Civil)No. 27734@CC 14781/2012)

11. (b)Frivolous requests The CIC under Section 8(1)(j) of the RTI Act, 2005 denied replies to Point nos. 1, 2, 3, 4, 6, 7, 8, 9, 13, 14, 15. However, information sought for point nos. 5, 10, 11 were provided. The request for information under point no. 12 was forwarded to the Mumbai Office as per Section 6(3) to which the CIC held that the points for which the information sought and that were denied come under ‘personal information’ as they relate to services career, ITRs, assets & liabilities which under the Section 8(1)(j) of RTI Act. Girish R. Deshpande Vs. CIC &Ors. (SLP(Civil)No. 27734@CC 14781/2012)

11. (b) Frivolous requests Judgement: • In this case finally the Hon’ble Supreme Court ruled that they are in agreement with CIC and Courts below that the information sought was primarily a matter between the employee and employer which fall under expression “personal information” , the disclosure of which has no relationship to any public activity or public interest. On the other hand, the disclosure of which would cause unwarranted invasion of privacy of that individual. • Finally, the Special Leave Petition was decided against the appellant by dismissing it. Girish R. Deshpande Vs. CIC &Ors. (SLP(Civil)No. 27734@CC 14781/2012)

FRIVOLOUS • Frivolous suit is one without any legal merit. In some cases, such an action might be brought in bad faith for the purpose of harassing the defendant. In such a case, the individual bringing the frivolous suit might be liable for damages for Malicious Prosecution. • A frivolous appeal is one that is completely lacking merit • Of minimal importance; legally worthless.

12. Information sought on official letter head Issues & Challenges: • CPIO denied information as it was asked by the applicant in her official capacity and not as a citizen. Judgment: • Even assuming that a Government servant uses the letter head of the office for seeking information and pays fees from out of his personal funds, an application submitted under such circumstances cannot be rejected on the ground that the application has been filed not by a citizen but by a Government servant in official capacity. JD Sahay Vs. Ministry of Finance (CIC/AT/A/2008/00027 & 33 dt. 6. 2. 2009)

12(a). Information no longer available in records cannot be given • CIC directed PGIMER to conduct an enquiry into the matter of the missing files • After inquiry it was said that weeding of old records was done by the order of DDA. • An Affidavit was submitted regarding the said files, with a copy of the list of weeded files. (it was 20 years old record ) Ashwani Dalal Vs PGIMER CIC/AD/A/2010/000086, 19/3/2010

13. Information related to hypothetical questions Issues & Challenges: Applicant was not answered to a hypothetical question & information related to usage , functions, side effects, allergic reactions, levels of toxicity etc. of some drugs. Judgement: “…. the information sought is not available in the records and that it does not fall under the definition of ‘information’ as defined u/s 2(f) of the RTI Act and accordingly rejects the appeal. ” E. Sakthivel Vs JIPMER (CIC/PB/A/2008/0046/-AD)

13. (a) Meaning of information and its coverage Issues & Challenges: Appellant put questions in the form of queries which was rejected by the CPIO Judgement: “The Act does not make it obligatory on the part of the public authority to create information for the purpose of its dissemination” Vibhor Dileep Barla Vs Central Excise & Customs (CIC/AT/A/2006/00588, 9 July 2007)

13. (b)Meaning of information and its coverage • Information would mean any material in existence and not something that has to be created. • …. making an analysis of data or deriving certain inferences /conclusions based upon the data so collected cannot be expected to be done by the CPIO under the RTI Act. • …. . answering a question or making advice or suggestions to an applicant is clearly beyond the purview of the RTI Act.

14. RTI is not about seeking answers and asking questions “……. right to information is not about seeking answer or asking questions. It is more about inspection of documents or records or taking notes, extracts or certified copies of the documents/records. ” Saidur Rehman Vs CIC (CIC/AA/A/2006/32&34 dt. 22 June, 2007. )

15. RTI is not about seeking “Opinions” Issues & Challenges: • Information was sought in respect to certain tests/methods followed by the Police by putting various queries to ascertain whether it is conforming with the medical standards • CPIO, PGIMER denied as the same is not covered under RTI Judgment: • The appellant is seeking only opinion of the CPIO regarding some medical tests • Dismissed the appeal Satnam Singh Vs PGIMER, 2008

16. Reasons for rejection of requests for information must be clearly provided Issues & Challenges: • Information relating to the treatment and subsequent death of a student in the BHU hospital was sought • PIO denied the information saying that the information sought could not be provided under Section 8(1)(g) of the RTI Act. • No further reasons as to how the information sought could not be provided under the RTI Act was given. Judgement: “…Quoting the provisions of Section 8(1) of the RTI Act to deny the information without giving any justification or grounds as to how these provisions are applicable is simply not acceptable, and clearly amount to malafide denial of legitimate information. ” Dhananjay Tripathi vs. Banaras Hindu University (CIC/ OK / A/163, 7. 7. 2006)

17. Pending departmental enquiry CIC, held that the departmental enquiry, was a pending investigation under law, and the same attracted the provisions of Section 8(1)(h). Sarvesh Kaushal vs. F. C. I and others (243 /ICPB /2006 and 244 / ICPB /2006, 27. 12. 2006)

18. Report of departmental enquiry can be disclosed with conditions • The report of departmental enquiry can be shared with the concerned employee, and is not barred for disclosure under any of the exemptions provided in Section 8(1) of the RTI Act. • Public authority can protect the interests of witnesses or other persons whose names appear in the report by not providing them to the appellant Nahar Singh vs. PIO, Delhi Police (CIC/AT/C/2006 /452, 28. 12. 2006)

19. Confidential Reports under RTI Issues & Challenges: Applicant sought the copies of his own CRs Judgment: • Based on the decision of the Hon’ble Supreme Court in “Dev Dutt Vs. Union of India & ors. ” - (2008)8 SCC 725. “the respondent Public Authority is directed to communicate the entries in the ACRs to the appellant for the period asked for by him in his RTI application” P. K. Sarin vs. Director General Works, CPWD (CIC/WB/A/2007/422, 20. 4. 2007)

20. Copies of the Confidential Reports Issues & Challenges: Applicant had sought the copies of his own ACRs Judgement: “the complete information sought by the appellant, meaning certified copies of ACRs shall be provided” N. Krishnamoorthy vs. MTNL, Mumbai (CIC/AD/A/X/2009/154, 24. 3. 2009)

21. File Notings under RTI “…. Notings are an inextricable(cohesive) part of a record as defined u/s 2(f) and further defined u/s 2(i)(a) of the Act…. ” Pyare Lal verma Vs Ministry of Railways (CIC /OK/A /2006 /00154 dt. 2 Jan. 2007)

22. Entrance exam question papers Issues & Challenges: Applicant was denied old question papers of B. Sc Nursing entrance exam of three years, as it was an intellectual property thus exempt u/s 8(1)(d). Judgement: • “the questions set by examiners for the exam can by no stretch of imagination be considered as ‘Intellectual property” since the criteria stipulated for the same are seen to be irrelevant in the case of questions set for an exam as they are not protected under copyright, patent or trade secret laws. ” T. Rajendran Vs JIPMER (CIC/AD/C/2010/000496)

23. Clinical trials Issues & Challenges: Appellant was denied details of clinical trials Judgment: • “…regarding clinical trials, patient related data, trade secrets & intellectual property of the pharmaceutical companies may not be disclosed. ” CIC/AD/A/2011/000115, 18/03/2011

24. Compensation to Appellant Issues & Challenges: • CPIO refused information on the ground that relevant files were not traceable. Judgement: • Under section 4 (1) (a) of the Act, every public authority is required to 'maintain all its records duly categorized and indexed and denial of information on the basis of non-availability of records is not acceptable. • the appellant has surely suffered all kinds of losses, including mental harassment and right to pursue a profession due to non-availability of information, which is clearly related to his livelihood. • An amount of Rs. 50, 000/- (Rupees Fifty thousand only) is awarded to the appellant u/s 19(8)(b) of the Act. Ishwar Lal Vs Indian Oil Corporation Ltd. (4620 /IC(A) /2009 F. No. CIC /MA /C /2009 / 578/ 7. 10. 2009

25. Public Authority can appeal against the decision of a AA under the RTI Act Judgment: • 2 nd appeal is against the decision passed by the First Appellate Authority and it can be preferred by any of the aggrieved parties. • This aggrieved person could be a PIO or a 3 rd party or even a Public Authority as 3 rd party. The Act does not debar a 2 nd appeal either by the PIO or by a Public Authority. V. R. Eliza, CPIO Vs Central Board of Excise & Customs (CIC/AT/A/2008/291 05. 03. 2008)

Summary • Information: Any material in any form – Existing (not to be created) • Disclosure of personal information which would cause invasion of privacy of an individual is exempt from disclosure unless the CPIO is satisfied that it serves larger public interest. • In case of a third party information, the third party has to be taken into consideration……but it’s not a Veto • CPIO can deny frivolous/ voluminous information which disproportionately divert the resources of the Public Authority. • Reason of denying information must be explained to applicant and merely quoting the section of RTI is not enough.

Latest in RTI

Latest in RTI

Latest in RTI Guidelines on suo motu disclosure under Section 4 of the RTI Act • Information related to Procurement • Public-Private Partnerships • Transfer policy and Transfer Orders • RTI applications • CAG & PAC paras • Citizen’s charter • Discretionary and Non-discretionary grants • Foreign tours of PM/Ministers

Please remember Providing information is a rule and denying is an exception

Don’t gag, but let ask

Truth • “Even if I am a minority in ONE, Truth is still the TRUTH”

Cost………? • “IF YOU ARE NOT READY TO DIE FOR IT, PUT THE WORD ‘ FREEDOM’ OUT OF YOUR VOCABULARY”… Malcolm X, Human Rt. Actv. USA

But remember……. • “ I am for TRUTH, no matter who tells it. I am for Justice, no matter who it is, for or against…. , I am for whoever & whatever that benefits Humanity as a whole”……… Malcolm X • Unfortunately, he too was assassinated on Feb. 21, 1965, in Manhattan