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REGULATORY ASPECTS OF BUSINESS

Assignment on topic

FREEDOM TO INFORMATION ACT


2000 - IMPLICATIONS ON PERSONAL
LIFE

Assignment submitted by

K. MONICA
16/PCMA/527

FREEDOM TO INFORMATION ACT 2000


I NT RO D U CT IO N
Freedom of information act, enacted in 1966, is part of the Administrative
Procedure Act, which includes provisions governing rulemaking, administrative hearings,
recordkeeping, and public information. FREEDOM OF INFORMATION ACT's
enactment came amid concern that the then-in-effect law was used more as an excuse for
withholding than as a disclosure statute. One contemporaneous legislative report noted
the vastness of the government and the need to promote trust and accountability.
In enacting FREEDOM OF INFORMATION ACT, Congress strived to balance
the encouragement of government disclosure and the need for accountability with a desire
also to protect certain equally important rights of privacy with respect to certain
information in Government files, such as medical and personnel records. This attempt to
balance government accountability and transparency with protection of sensitive
information has characterized FREEDOM OF INFORMATION ACT debates since its
enactment.
For example, enhanced security concerns following 9/11 prompted then-Attorney
General John Ashcroft to issue a memorandum to federal agencies in October 2001
recognizing FREEDOM OF INFORMATION ACT's importance in promoting
accountability and reducing fraud and government waste, but also emphasizing other
fundamental values held by our society including safeguarding our national security,
protecting sensitive business information, and promoting functional and efficient
government. In a January 2009 memorandum to federal agency leaders, President Barack
Obama set a different tone for his incoming administration, writing that FREEDOM OF
INFORMATION ACT should be administered with a clear presumption: In the face of
doubt, openness prevails.
Two months later, Attorney General Eric Holder issued a memorandum expressly
rescinding the Ashcroft memorandum and advising that [a]n agency should not withhold
records merely because it can demonstrate, as a technical matter, that the records fall
within the scope of an FREEDOM OF INFORMATION ACT exemption.

The

Holder

and

Presidential

FREEDOM

OF

INFORMATION

ACT

memorandums were well-received by journalists and open-government advocates who


had regarded the Ashcroft memorandum's change in emphasis from previous FREEDOM
OF INFORMATION ACT policy with skepticism and concern. Nonetheless, despite the
current

administration's

pronounced

public

commitment

to

FREEDOM

OF

INFORMATION ACT, some reports suggest that it has, similar to previous


administrations, faced challenges in actual FREEDOM OF INFORMATION ACT
execution.
In addition to the concerns about security, protecting confidential corporate and
personal information, and ensuring government efficiency, the large number of
FREEDOM OF INFORMATION ACT requests612,000 in fiscal year (FY) 2009,
according to the Department of Justice (DOJ), some of which can produce thousands of
responsive documents that must be reviewed by staffcan pose a challenge to
FREEDOM OF INFORMATION ACT implementation.
Backlogs of FREEDOM OF INFORMATION ACT requests from previous years
may slow agency response to new requests. Staffing also may be an issue. DOJ estimates
that in FY 2009, roughly 4,000 full-time FREEDOM OF INFORMATION ACT staff
were employed by the federal government. In a recent survey, government FREEDOM
OF

INFORMATION

ACT

professionals

identified

as

key

FREEDOM

OF

INFORMATION ACT implementation obstacles both the lack of staff and shortage of
funding for FREEDOM OF INFORMATION ACT activities and agency staff awareness
and training.

B A CK G R OU N D
The right to information has been recognized by the Indian Supreme Court for
decades as a constitutionally protected fundamental right. Since 1997, State Governments
have been taking the lead in enacting legislation setting out the framework for
implementing the right in practice. Nine State Governments have now enacted legislation,
but it remains a fact that people in the other 20 states of India are still reliant only on their
constitutional right if they want to access information. People should not be expected to

undertake litigation in the High Court and/or Supreme Court every time they require a
simple piece of information from their government.
The Central Government passed the Freedom of Information Act in December
2002. Although Presidential Assent was provided soon after, more than 18 months later
the Act has still not come into force. This is disappointing. In any case, the current Act is
deficient in many respects, including its limited scope (specifically, the exclusion of
private bodies from coverage), the breadth of its exemptions, the failure to include a
public interest override of exemptions, the absence of an effective independent appeals
mechanism and the failure to include public education and monitoring provisions. These
shortcomings need to be remedied as a priority if the Act is to effectively serve its
purpose.
It is encouraging that the newly elected United Progressive Alliance has stated its
commitment to taking practical measures to reform the current Act. The Congress Party
stated in its election manifesto that: "All government agencies but particularly those that
deal with citizens on a day-to- day basis must operate in a responsive and accountable
manner. The Right to Information Act at the center will be made more progressive,
meaningful and useful to the public. The monitoring and implementation of the Act will
he made more participatory and the penalty clauses regarding delays, illegal denials and
other inadequacies relating to the supply of information to the public will be
operationalized soon. Protection will be extended to all "whistleblowers" through
statutory means, if necessary." More recently, in a speech to the joint session of
Parliament on 7 June 2004, President APJ Abdul Kalam reiterated that: The Right to
Information Act will be made more progressive, participatory and meaningful.
In this reform context, this paper attempts to provide an analysis of the current
Freedom of Information Act and to suggest changes that should be made to the Act to
bring it into line with international best practice. It is generally well-accepted that there
are basic minimum standards which all RTI legislation should meet. Chapter 2 of CHRIs
2003 Report, Open Sesame: Looking for the Right to Information in the Commonwealth,
provides more detailed discussion of these standards. The critique below draws on this

work.2 CHRI has suggested possible amendments drawing on international best practice,
areas for improvement and issues for further consideration.
Notably, any process to amend the law should be undertaken in a participatory
fashion. Experience has shown that a participatory law-making process can be a major
factor in laying a strong foundation for an effective right to information regime.
Implementation is strengthened if right to information laws are owned by both the
government and the public. Best practice requires that law-makers proactively encourage
the involvement of civil society groups and the public in the legislative process. This can
still be done in a variety of ways, for example, by: setting up a committee of stakeholders
(including officials and public representatives) to consider and provide recommendations
on a draft Bill; inviting submissions from the public before Parliament votes on the Bill;
convening public meetings to discuss the proposed law; and strategically and consistently
using the media to raise awareness and keep the public up to date on progress. There is
already considerable good practice and lessons learned that can be drawn from State-level
experiences with right to information legislation particularly Delhi, Karnataka and
Maharashtra which have seen an active civil society utilize access laws and demonstrate
their strengths and weaknesses.

C O NS T IT U T IO NA L IS S U ES
Before coming to an analysis of the Act, it is important to first consider the issue
of the scope of any Central law on the right to information. To date, there has been
considerable confusion and disagreement over the extent of the Central Governments
law-making competence. This issue needs to be clarified as a priority, to reduce confusion
during implementation.
The NDA Government responsible for enacting the current Act maintained that it
had the legislative competence to enact a law on the right to information for the entire
country, covering both Central and state public authorities. It was argued that the Centre
had sole power to legislate because right to information is not specifically mentioned in
any of the legislative entries in the Lists in the Seventh Schedule of the Constitution.
Therefore, under the residual law-making power conferred on the Central Government by
entry 97 of the Union List, the Central Government has competence to enact a law. On

this interpretation, the Central Act, once in force, would override all State Acts. In any
case, the Government called on all States with laws to repeal them. It is not clear what the
position of the new Central Government will be.
Alternatively, it is arguable that both the States and the Centre have powers to
legislate on the right to information. It is a well-established legal principle that the Lists
in the Constitution which set out the State and Centres law-making powers refer not just
to those matters that are explicitly listed, but also to those matters that are incidental, or
ancillary, to them3. It can be argued that ensuring the provision of access to information
relating to subject matter explicitly mentioned in a List is a matter ancillary to that
subject. For example, if a legislature is competent to legislate on railways transport, it is
also competent to legislate to provide information relating to railways transport. On the
basis of this argument, it follows that: (i) Parliament is exclusively competent to legislate
on access to information relating to matters in the Union List; and (ii) State legislatures
are exclusively competent to do the same with respect to matters in the State List, such
that current state right to information legislation is valid; (iii) both Parliament and the
States can enact freedom of information laws in relation to matters in the Concurrent List.
If the analysis in paragraph 8 is correct, in practice the situation regarding
competence in relation to subject matter under the State and Union Lists is clear. In
relation to subject matter falling in the Concurrent List however, there may still be
confusion. Constitutional law principles are clear that where there is conflict between a
central and state law, the central law will prevail. However, in practice, bureaucrats
working on subject matter falling under the Concurrent List cannot be expected to have to
consider for themselves whether there is a conflict of laws and if so, which parts of which
law will apply to their work. To avoid confusion, the Centre will need to draft a law
which covers the field and operates as the sole law in relation to access to information
for Concurrent List subjects.
The issue of State versus Centre competence is not unique to India. Australia,
Canada and the United States are all federations and each has had right to information
legislation for decades. Although their central governments have passed access laws, the
States/Provinces/Territories have also passed their own right to information legislation.

The interaction between the center and state acts is well-illustrated by a comparison of the
scope provisions in the Australian Federal Freedom of Information Act 1982 and the State
of Victorias Freedom of Information Act 1982

A N A LYS IS OF FR E ED O M O F IN F O RM ATIO N AC T 2 00 2
The law should be renamed the Right to Information Act. The Supreme Court
has repeatedly recognized that access to information as a fundamental RIGHT. This
should be reflected in any legislation on the matter to ensure that implementing bodies are
clear that access to information is not a discretionary gift granted to the people by a
benevolent government. It is a constitutionally mandated obligation on the government to
implement the corresponding right.
In the same vein, the Preamble should be drafted in stronger terms. This is
particularly important because courts will often look to the preamble of legislation when
interpreting the law. The current Preamble is problematically worded and reflects a
number of defects in the law. It:
1. Provides the right to access information only to citizens not to all people (see
paragraph 15);
2. Refers only to public authorities, without also covering private bodies (see
paragraph 16-17);
3. Is targeted at improving administration, rather than more broadly improving
governance, a term which covers the political as well as the bureaucratic aspects
of government.
Section 1(3) requires the date of enactment of the Act to be specifically notified.
As recent history has demonstrated, such a formulation has allowed the law to sit on the
books for 18 months despite receiving Presidential assent. Although it is understandable
that the Government may wish to allow for time to prepare for implementation, best
practice has shown that the Act itself should specify a maximum time limit for
implementation, to ensure there is no room for the provision to be abused and

implementation to be stalled indefinitely. Experience suggests a maximum limit of 1 year


between passage of the law and implementation is sufficient.
Section 2, which contains the Acts definitions, is currently somewhat confusingly
set out. Consideration should be given to moving and/or reworking some of the
definitional clauses. It is extremely important to draft these definitions carefully to ensure
that they maximize the breadth of the coverage of the Act and do not inadvertently
exclude relevant information from the scope of the law. Specifically:
It is not necessary to include a definition of freedom of information. Rather,
much of this clause could more appropriately be merged with the current s.3. Also, to
ensure consistency and clarity, the term right to information should be used throughout
the whole Act, rather than freedom of information. Notably, the parts of the definition
which deal with the form of access to be provided should more appropriately sit in the
body of the law. See paragraph 28 below for further discussion on this issue.
The definition of public authority is too narrow. Although the inclusion of
bodies substantially funded by the Government goes some way to covering private or
quasi-public bodies providing public services, the scope of the law should include bodies
which undertake public functions on behalf of the Government. At a time when the
Government is increasingly outsourcing and in some cases even privatizing the provision
of public services - in the electricity, telephones and transport sectors for example it is
important that the public still has an assured right to access information about these
services.
- It should be made explicit that the Act covers all three arms of government:
executive, legislature and judiciary, subject to the exemptions. While these three arms
should all be captured under the proviso covering bodies established under the
Constitution, to avoid any ambiguity, this should be made clear.
The definition of information is unnecessarily narrowed by requiring the
information to relate to administration, operations or decisions of a public authority.
Best practice from throughout the Commonwealth indicates that most Acts simply refer to
access to information held by or under the control of a body.

F RE E D OM O F IN FO R M ATIO N AND O BL IG ATIO N OF


P UB L I C AU T HO R IT IE S
Section 3 currently restricts the right to citizens only. The coverage of the Act
should extend to allow all persons access to information under the law, whether citizens,
residents or non-citizens (such as asylum seekers). This best practice approach has been
followed in a number of jurisdictions, including the United States and Sweden, the two
countries with the oldest access laws. This change may require the inclusion in s.2 of a
definition of person.
The scope of the Act should be extended to cover information held by private
bodies which is necessary for the exercise or protection of a right. Private bodies are
increasingly exerting significant influence on public policy. Furthermore, as noted above,
India has witnessed increasing outsourcing of important government functions and is
likely to continue to see further privatization of important services as part of its economic
development strategy. In this context, it is unacceptable that these bodies, which have
such a huge effect on the rights of the public, should be exempted from public scrutiny
simply because of their private status. As one commentator aptly observed, the scope of a
right to information law needs to be resolved by reference to its role in protecting the
fundamental interests of citizens, and not by reference to the provenance or structural
characteristics of the institution holding the contested information.
Part 3 of the India Promotion of Access to Information Act 2000 (POAIA) already
provides a working example of this approach. It is notable that the POAIA has been
enacted in a developing country with similar challenges to those faced by the Indian
Government, such that it is no excuse that this best practice example cannot be replicated
in India. It is suggested that a new s.3 could be drafted as follows:
The huge volume of information in governments hands requires that information
be carefully managed so that authorities can locate and provide requested information in a
timely and efficient way. In this context, it is positive that s.4(a) requires all public
authorities to properly maintain their records. However, s.4(a) should more explicitly
require that appropriate record keeping and management systems are in place to ensure
the effective implementation of the law. Section 6 of the Pakistan Freedom of Information

Ordinance 2002 provides useful guidance in this context, specifically requiring


computerization of records and networking of information systems. Consideration should
also be given to empowering an appropriate body to develop guidelines or a Code on
records management to this end. This has been done in the United Kingdom where, under
s.46 of the Freedom of Information Act 2000, the Lord Chancellor is responsible for
developing a Code of Practice on records management.
It is positive that s.4(b) requires suo moto disclosure by the bodies covered by the
Act. However, the list of topics which public bodies are required to proactively publish
and disseminate should be extended. Article 7 of the Mexican Federal Transparency and
Access to Public Government Information Law 2002 provides an excellent model for
consideration:
Section 4(b) should also explicitly require that public bodies publish the
information to ensure maximum accessibility by the public, with a minimum obligation
that the information is published in the local language on every bodys website and a copy
held for (free) inspection at all of the bodys offices, ie. not just the bodys headquarters.
A maximum time limit should be included for updating the information, preferably every
6 months and no more than annually. The initial effort will be worth the investment as it
will reduce requests in the long run because people will be able to easily access routine
information without having to apply to public bodies.
The scope of ss.4(c)-(e) also needs to be clarified. It is commendable that the
Government intends to proactively provide the public with information about
development activities and government decision-making. However, considering the sheer
volume of information this could cover, it may be useful to provide guidelines, whether in
the rules or in the Act itself, to more clearly direct officials as to what information needs
to be proactively disseminated at a minimum, when, how, how often and to whom. Such
guidelines may also specify different dissemination requirements according to the size
and/or cost of the different activities or the subject matter of the relevant decisions.

EX EM P T IO NS

While keeping in mind the overarching principle of maximum disclosure, it is


nevertheless well- accepted that there can be a small number of legitimate exemptions in
any access regime. Exemptions to the rule of maximum disclosure should be kept to an
absolute minimum and should be narrowly drawn. The key principle underlying any
exemption is that its purpose must be to genuinely protect and promote the public interest.
Even where exemptions are included in legislation, they should not apply to documents
more than 10 years old. Further, ALL exemptions should be subject to a blanket public
interest override whereby a document which falls within the terms of a general
exemption provision should still be disclosed if the public interest in the specific case
requires it.
The current exemptions regime found in ss.8 and 9 of the Act is seriously
problematic because it is not tempered by a public interest override. This is a major
deficiency. A public interest override provision application to all the exemptions in the
Act should be included as a matter of priority, in accordance with best practice. The test
for exemptions is in 3 parts: (i) Is the information covered by a legitimate exemption? (ii)
Will disclosure cause substantial harm? (iii) Is the likely harm greater than the public
interest in disclosure?
Even with the inclusion of a public interest override, it remains important to
ensure that the exemptions included in the law are tightly drawn and are the minimum
required to protect legitimate interests. While some of the exemptions in ss.8 and 9 are
necessary, wide ranging exemptions can defeat the very purpose of the legislation.
Notably, because the object of the legislation is to give effect to the fundamental right to
information under the Constitution of India, any restrictions placed on the right to
information should arguably be limited to the restrictions allowable in the Constitution of
India. There has been considerable debate in this context about whether the current
exemptions regime is constitutionally valid.
In the event that the current exemptions are not struck down as unconstitutional,
nevertheless the exemptions in s.8 still require considerable amendment to bring them
into line with best practice. At the outset, it is problematic that all of the exemptions adopt
a low threshold test of harm to a protected interest to justify exemption, namely the

requirement that disclosure prejudicially affect the protected interest. Legally, this
constitutes very broad wording. Alternative formulations require that disclosure would
cause serious harm or substantial prejudice. Such wording ensures sufficient
protection for sensitive information without setting the bar so low that even the slightest
negative consequence of disclosure can be used to justify withholding information.
Section 8(1)(a) legitimately attempts to protect information that is sensitive to
national security, international relations and Indias strategic scientific and economic
interests. However, consideration should be given to deleting the protection given to
information related to the sovereignty and integrity of India. Experience has shown that
such broad concepts have been notoriously misused by Government MPs who too often
hide their partisan misdeeds under the banner of national sovereignty. In any case, the
exemption for security of the State already covers the relevant information, but is a
tighter term and therefore less open to abuse.
Section 8(1)(b) attempts to provide legitimate protection against the disclosure of
information that would undermine law enforcement activities and/or the judicial process.
However, the exemption is currently too broad; it should not justify withholding
information to protect public safety and order. Notably, this phrase is used in Article
19(2) of the Constitution as a general exemption. However, more guidance needs to be
provided on its practical content to prevent abuse. The phrase has too often been
interpreted by governments to stifle opposition on the grounds that said opposition would
threaten public order. There is a real danger that the exemption in this form could be
used to undermine the Act. One can imagine public officials arguing that that the release
of documents proving corruption by top level politicians could prejudicially affect public
order because it might encourage people to legitimately agitate against the
Government.
Section 8(1)(c) is a common provision in federations. The need to protect sensitive
inter- governmental information is understandable. However, the current wording of the
exemption to allow protection for information exchanged in confidence between
governments could be abused by officials to unjustifiably keep information secret by
simply putting a heading of in confidence on documents.

Section 8(1)(d) should be deleted because best practice maintains that it is


improper to provide exemptions for entire classes of information. While some
information in some Cabinet papers may be sensitive and on that basis, will be covered
by one of the other exemption provisions in the Act - it is not the case that all Cabinet
papers are always sensitive. Furthermore, this provision could easily be abused; the
Government could simply send politically sensitive documents to Cabinet to deliberately
protect them against disclosure.
Section 8(1)(e) should be substantially amended because it is not appropriate that
it attempts to exempt the disclosure of advice given to the government during the
decision-making process. Ironically, this is exactly the kind of information that the public
should be able to access, unless it is particularly sensitive. The public has the right to
know what advice and information the Government bases its decisions on and how the
Government reaches its conclusions. It is not enough to argue that disclosure would
inhibit internal discussions. Officials should be able and be required to ensure that
their advice can withstand public scrutiny. To fear such transparency raises questions
about the soundness of the entire decision-making process. Of course, it will generally not
be appropriate to disclose advice prior to a decision being reached. In this context,
protection should be provided for premature disclosure which could frustrate the success
of a policy or substantially prejudice the decision-making process. Of course, relevant
information should still eventually be disclosed it is only premature disclosure that
should be protected.
Section 8(2), which deals with declassification of documents over time, has a
number of defects. Best practice supports a reduction in the maximum non-disclosure
period from 25 years to 10 years. This takes into account the fact that documents are not
automatically declassified at this date, but rather are reviewed to assess whether sufficient
time has passed so that they are no longer sensitive and can be released. It is illogical and
inappropriate that the decision of the Government as to the computation of the lapsed
period under s.8(2) is final and unappeasable. In accordance with s.12, all other decisions
which affect non-disclosure are able to be appealed. Decisions under s.8(2) should be no
different.

Section 9(a) allows public bodies not to process requests where to do so would
unreasonably divert their resources. Such provisions are quite common. However,
considering the poor state of records management in many bodies currently, this provision
begs the question if records management were more efficient, would a request falling
under this provision have actually diverted a large amount of resources? There is no need
for the additional clause in the provision allowing requests to be rejected if they
adversely interfere with the functioning of such authority. This phrase is very broad and
could be interpreted by recalcitrant officials to deny legitimate requests. PIOs should also
be required to offer assistance to amend requests before they are rejected under this
section. Otherwise, a requestor will have to incur additional costs by reformulating their
application and then submitting it as a new request.
Section 9(d), which deals with non-disclosure to protect personal privacy, should
be moved to sit with the other exemptions provisions. It is legitimate that a certain level
of protection be accorded to the privacy rights of third parties. Notably though, privacy
rights often need to be balanced against the publics right to know, particularly in
instances where it is public officials that are asserting the right to privacy to protect
against disclosure on their own behalves. Section 24 of the draft Access to Information
Bill 2004 recently prepared by Government of Uganda provides a useful model to draw
on when formulating an provision to protect third parties privacy rights:
It is positive that the Act allows for severability and disclosure of non-exempt
information. Accordingly, s.10(2) should be amended to require the relevant notice to the
requestor advising of partial disclosure to also include advice regarding the opportunity
and process for appealing that decision. This should be worded along the lines of s.7(3)
which deals with rejection notices, taking account of the analysis and suggestions in
paragraph 30 above.
Paragraph 2 of s.11(1) should be deleted because, as discussed in paragraphs 3334 above, a public interest override should be applicable to all the exemptions contained
in the Act. There is no reason why the Act should provide for a public interest override
only in respect of third party information.

They are unnecessarily long. Considering that requests not involving third parties
are required to be disposed of within 30 days at the most, but as expeditiously as
possible, it is difficult to justify doubling this time limit where a third party is involved.
At the very least, consideration should be given to amending these clauses to require that
such requests are still disposed of as expeditiously as possible. More appropriately,
initial notifications to third parties should be made within 5 days; this is a reasonable time
for an initial determination to be made regarding whether a third party needs to be
consulted. Third parties should then be given 15 days to respond and should be able to
respond orally (e.g. by telephone) or in writing/electronically. A maximum of 10 days
could then be allowed for a final decision. Many laws require all decisions whether
involving third parties or not to be made within the basic time limit of 30 days. In some
jurisdictions, the time limits for processing requests are as little as 5 days.

C O MP L A IN T AND AP PE A L S
Best practice international standards require that an effective access to information
law include an appeals mechanism which is independent of government, as well as cheap,
quick and procedurally simple. The failure of the Act to include such an appeals process
is one its most serious deficiencies. In fact, even the basic internal appeals process
currently included in the Act is poorly drafted.
Currently, the Act appears to allow for two internal appeals: s.12(1) allows for an
initial internal appeal but leaves the details of that process to be determined at a later date
and prescribed in regulations; and s.12(2) allows for a second appeal to the Central
Government, State Government or Competent Authority. It is appropriate that the law
allows for one internal appeal, as this is a cost-effective way of allowing the government
to verify its own decisions. In practice, a middle level official will make the initial
decision and it will be cross-checked on appeal by a senior official. There is no
justification for two internal appeals however. This would simply increase the
administrative burden on the bureaucracy and costs. are slow, costly and uncertain. The
fear of independent scrutiny ensures that exemption clauses are interpreted responsibly
and citizens requests are not unnecessarily obstructed. While the courts satisfy the first
criteria of independence, they are notoriously slow and can be difficult to access for the

common person. As such, in many jurisdictions, special independent oversight bodies


have been set up to decide complaints of non-disclosure. The have been found to be a
cheaper, more efficient alternative to courts and enjoy public confidence when they are
robustly independent, well-funded and procedurally simple.
Best practice supports the establishment of a dedicated Information Commission
with a mandate to review refusals to disclose information, compel release and impose
sanctions for non- compliance. Experience from a number of Commonwealth
jurisdictions, including Canada, England, Scotland and Western Australia, has shown that
Information Commission(er)s have been very effective in raising the profile of the right to
information and balancing against bureaucratic resistance to openness. Of course, there
are alternatives to an Information Commission. For example, in Australia, the
Administrative Appeals Tribunal has appeal powers and in New Zealand and Belize the
Ombudsman can deal with complaints. A number of states in India have appointed an
existing administrative tribunal to hear appeals and in Maharashtra the Lokyukta
performs this function. However, experience has shown that these bodies are often
already overworked and/or ineffective, such that they have rarely proven to be outspoken
champions of access laws. In Canada and the United Kingdom, a single Information
Commissioner

has

been

appointed,

However,

Commission

with

multiple

Commissioners and/or multiple state-based Commissions would be more appropriate in


the Indian context because it is anticipated that the workload of such a body would be too
much for a single Commissioner and/or Office to manage. The members of any
Information Commission need to be, and be seen to be, people of integrity who are also
qualified to hear appeals. Commissioners will have an important role to play in
countering possible resistance within Government towards openness and information
disclosure such that it important that candidates are well-respected as well as highly
competent. The draft Kenyan Access to Information Bill 2000 provides a useful model:
10(2) The person appointed to the office of Information Commissioner shall The procedure for appointing Information Commissioners must be impartial and
independent of government interference, to ensure that Information Commissioners are
seen as non-partisan. The Commissioners need to be given security of tenure and salary.
In accordance with the principles of the separation of powers, removal should only be

permitted through impeachment proceedings in Parliament. Appointment and removal


procedures should reflect those currently used for appointment of judges.
To ensure the absolute independence of the Information Commission, a specific
provision affirming the independence of the Information Commission should be included
in the Act. It should be explicitly stated that the Commission must have budgetary,
operational and decision-making autonomy and should be completely independent of the
interference or direction of any other person or authority, other than the Courts.
In setting up the appeals regime of the Information Commission, it is first
necessary to detail the parameters of the Commissions appeal remit. Section 88 of the
Queensland (a State of Australia) Freedom of Information Act 1992 is a good general
provision which could be used as a starting point. Likewise, s.31 of the Canadian Access
to Information Act 1982 provides a good model:
In order to ensure that the Information Commission can perform its appeal
functions effectively, it is imperative that Commissioners are explicitly granted the
powers necessary to undertake a complete investigation and ensure enforcement of their
orders (see paragraphs 62-67 below for more re enforcement). The powers granted to the
Canadian Information Commissioner under s.36 of the Canadian Access to Information
Act 1982 provide a useful model:
In addition to the Commissions investigative powers, it is necessary to clearly set
out the Commissions decision-making powers, to ensure that bureaucrats cannot attempt
to ignore its decisions as recommendatory only. In accordance with best practice evinced
in a number of jurisdictions e.g. the State of Queensland in Australia, Mexico), the
Commission should have the power to make binding determinations, compel parties to
take action, enforce compliance with gives the Information Commission the power to
initiate its own investigations, should also be included. In practice, this will be useful in
allowing the Commission to investigate delays in providing information, because these
cases will often not reach the Commission as a complaint if the information is finally
handed over, but may still be worthy of review and the imposition of a penalty,
particularly if the Commission uncovers a pattern of non-compliant behavior.

In addition to the key issues discussed above, a number of additional procedural


provisions will also need to be considered and addressed; for example: setting a
maximum time limit for decisions of the Information Commission, preferably no more
than 30 days; setting out the form that notices of appeal decisions should take; allowing
for deemed decisions, where failure by the Information Commission to deal with the
complaint in time is treated as a refusal such that remaining appeals processes can then be
availed; allowing for delegation of Information Commissioners powers.

H OW F RE E D O M OF IN FO R M ATIO N AC T WO RK S
FREEDOM OF INFORMATION ACT's public disclosure provisions are codified
at 5 U.S.C. 552(a); these rules require the proactive disclosure of records such as final
opinions, policy statements, and staff manuals. The provisions also require public access
to certain frequently requested records, publication of regulations in the Federal Register,
and prompt disclosure of records upon request (subject to certain exemptions).
FREEDOM OF INFORMATION ACT applies to all records in the control or
possession of a federal agency subject to nine exemptions and certain exclusions.
Records within an agency's possession and control include those stored in databases as
well as those that have been archived. Records include papers, videos, e-mails, audio
recordings, maps, and computer documents. However, physical objects, such as old
computers or tape recorders, are not considered records.
An agency for FREEDOM OF INFORMATION ACT purposes includes any
executive department, military department, government corporation, governmentcontrolled corporation, or other establishment in the executive branch of the government
(including the Executive Office of the President), or any independent regulatory agency.
FREEDOM OF INFORMATION ACT's definition of agency has been subject to
litigation and debate but clearly does not encompass Congress; the federal courts; private
individuals and corporations; and local, state, and foreign governments.
Likewise,

FREEDOM

OF

INFORMATION

ACT

does

not

apply

to

nongovernmental or private organizations (e.g., contractors, associations, or other


organizations) simply because they may receive federal funds or support. However,

FREEDOM OF INFORMATION ACT may become applicable to these entities and


others indirectly if relevant documents from or about these entities are in the control or
possession of a federal agency and are released under FREEDOM OF INFORMATION
ACT. For instance, organizations have used FREEDOM OF INFORMATION ACT along
with other records to create a database of federal corporate contractor misconduct and to
investigate state spending of federal homeland security grants.
Any person may make an FREEDOM OF INFORMATION ACT request for a
record to a federal agency, even those who are not citizens or residents of the United
States. This includes state agencies, organizations, and corporations. On occasion,
citizens of other countries have used FREEDOM OF INFORMATION ACT to obtain
U.S. government records about their governments' activities.
To facilitate FREEDOM OF INFORMATION ACT implementation, agencies are
required to publish procedures and fees for FREEDOM OF INFORMATION ACT
requests, including contact information for FREEDOM OF INFORMATION ACT
requests. Agency FREEDOM OF INFORMATION ACT websites may be a good starting
point in obtaining information about FREEDOM OF INFORMATION ACT procedures,
including applicable fees. In addition to agency FREEDOM OF INFORMATION ACT
procedures organizations have published useful guides about FREEDOM OF
INFORMATION ACT.
Once an agency receives an FREEDOM OF INFORMATION ACT request, the
request will be logged. As the request is processed, agency FREEDOM OF
INFORMATION ACT staff may contact the requestor to obtain further information as to
the scope and nature of the request. A search for responsive records will be conducted.
FREEDOM OF INFORMATION ACT staff may themselves conduct a search for
responsive documents and/or ask others in their agency to do so, including public health
and regulatory program staff. Agency staff may be asked as part of a search to review
their files and e-mails, and agency archives also may be searched.
Once identified, any responsive records will be reviewed by agency FREEDOM
OF INFORMATION ACT staff to determine if the record should be exempted from
disclosure. Records may be redacted, or staff may determine that an entire record is not

subject to disclosure. The agency will then respond to the request, denying the request in
entirety or in part, releasing responsive records (with portions redacted if the agency has
determined exemptions should apply), or stating that records will be released upon
payment of an applicable fee. FREEDOM OF INFORMATION ACT fees may be charged
for both searching/locating responsive documents and for copying/duplicating documents.
Fees are detailed in each agency's FREEDOM OF INFORMATION ACT policy.
FREEDOM OF INFORMATION ACT provides that agencies should respond to
FREEDOM OF INFORMATION ACT requests within 20 working days, but in practice
most requests are not processed in this time frame. An agency's partial or complete denial
of a request or its application of a particular exemption to all or part of a particular record
may be appealed within the agency and litigated in court.

F RE E D OM OF IN FO R M ATIO N AC T EX E MP T IO N S
In reviewing a record, agency FREEDOM OF INFORMATION ACT staff will
determine whether one of nine exemptions applies. These exemptions include:
1. Records that are formally classified pursuant to an Executive Order (e.g.,
classified information)
2. Records related solely to the internal personnel rules and practices of an agency
3. Records exempted from disclosure by statute
4. Trade secrets and commercial or financial information obtained from a person
and privileged or confidential
5. Inter-agency or intra-agency memorandums or letters which would not be
available by law to a party other than an agency in litigation with the agency
6. Personnel and medical files and similar files the disclosure of which would
constitute a clearly unwarranted invasion of personal privacy

7. Law enforcement records


8. Federal financial institution reports
9. Geological and geophysical information and data, including maps, concerning
wells
It is important to note that more than one exemption may apply to all or part of a
record. With the exception of Exemption 3, which applies to records for which disclosure
is prohibited by another statute, even should an exemption be applicable, an agency still
may have the discretion to disclose a record in its entirety or in part if it determines such
disclosure to be in the public interest. Agencies will determine whether the benefit of
releasing information will contribute to citizens' knowledge of government information
and activities such that it outweighs any potential harm of disclosure to private
individuals, organizations, or the federal government.
Although the exemptions have many valid purposes and uses, they can also
frustrate attempts by journalists, researchers, and others to further FREEDOM OF
INFORMATION ACT's

purpose

of

promoting

government

transparency

and

accountability. For instance, the deliberative process privilege (Exemption 5) allows predecisional government documents (e.g., draft agency memorandums and reports) to
remain exempt from disclosure. Some commentators have questioned agency application
of this privilege
Exemptions 3 and 4 also play an important role in the public health context.
Commercial confidential or trade-secret information may include information about
pesticide, food, drug, or cosmetic ingredients and drug safety information. In some cases,
statutes such as the Federal Insecticide, Pesticide and Rodenticide Act and the Census Act
expressly prohibit agency disclosure of certain information. Information about public
health regulatory agency enforcement matters or enforcement techniques may be exempt
from disclosure under Exemption 7.

O T HE R RE L ATE D IN FO R M ATIO N AN D D IS C LO S U RE
L AWS

It is important to be aware of other laws related to FREEDOM OF


INFORMATION ACT, government transparency, and release of information because
some of these laws may overlap with FREEDOM OF INFORMATION ACT or prove
useful for situations in which FREEDOM OF INFORMATION ACT is not applicable.
Relevant laws include, but are not limited to the following:
The Privacy Act, enacted in 1974, which allows individuals to request certain records that
federal agencies have compiled on them subject to certain exemptions, such as law
enforcement investigations. The law also restricts federal agencies from disclosing
records they have compiled about an individual without that individual's consent (again
subject to certain exemptions [e.g., for law enforcement investigations]).
The Federal Advisory Committee Act (FACA), which governs the role and functioning of
federal advisory committees and includes disclosure and open-meeting provisions.
The Federal Records Act and other federal records laws, which establish procedures for
managing, maintaining, and disposing of federal records. The National Archives and
Records Administration oversees federal agency recordkeeping and archiving.
The Government in the Sunshine Act, which requires most government meetings to be
open to the public, subject to certain exceptions, such as for privacy/personnel issues, law
enforcement, trade secrets, and internal agency meetings.
States also have enacted laws allowing the public to access and copy records with
exemptions similar to those for the federal FREEDOM OF INFORMATION ACT. States
have enacted sunshine laws that permit the promotion of public participation in
government meetings at which policy and budget decisions are made, subject to certain
exemptions such as public safety and personnel matters. The Reporters Committee for the
Freedom of the Press Open Government Guide includes information about freedom-ofinformation and public-access laws in the 50 states.

T H E C O NV E RS IO N O F FR E ED O M TO INF O R M ATIO N
A C T 2 00 0 TO R IG HT S TO INF O R M ATIO N AC T 2 00 5

(RTI) is an Act of the Parliament of India "to provide for setting out the practical
regime of right to information for citizens" and replaces the erstwhile Freedom of
information Act, 2002. Under the provisions of the Act, any citizen of India may request
information from a "public authority" (a body of Government or "instrumentality of
State") which is required to reply expeditiously or within thirty days. The Act also
requires every public authority to computerize their records for wide dissemination and to
proactively certain categories of information so that the citizens need minimum recourse
to request for information formally.
This law was passed by Parliament on 15 June 2005 and came fully into force on
12 October 2005. The first application was given to a Pune police station. Information
disclosure in India was restricted by the Official Secrets Act 1923 and various other
special laws, which the new RTI Act relaxes. It codifies a fundamental right of citizens.
Scope The Act covers the whole of India except Jammu and Kashmir, where J&K
Right to Information act is in force. It covers all constitutional authorities, including the
executive, legislature and judiciary; any institution or body established or constituted by
an act of Parliament or a state legislature. It is also defined in the Act that bodies or
authorities established or constituted by order or notification of appropriate government
including bodies "owned, controlled or substantially financed" by government, or nonGovernment organizations "substantially financed, directly or indirectly by funds"
provided by the government are also covered in the Act.

A D VAN TAG ES
Empowerment of the common man:
The entire range of common man in the nation has been empowered by such an
initiative in which they have got the full rights to be informed about anything that affects
their life directly or indirectly and the responsible bodies have to answer them positively.
Easy mode of spreading information rightfully:
The RTI has incubated a very concrete and easy mode of spreading information of
all kind in all form where apt information will be received by only the person concerned

and this will in turn result in easy accessibility to information on one hand and time
conservation of all.
Protection of Information:
Since, the selected people with selected queries will be entertained and informed
rightfully and aptly, so this will lead to protection of information thereby protecting
everyone from being wrongly or inappropriately informed or misinformed.
Corruption will decrease gradually:
If a person being asks for information on certain products and services and the
answer has to be delivered by a competent and responsible authority, then the chances of
corruption will certainly minimize. People will not have to bother about being cheated or
victims of frauds and scams.
D I S A D VAN TAG E S
Now, if we talk about the disadvantages or drawbacks of RTI there are some major
issues associated with it. They are:
Unnecessary chaos all over:
There is a big drawback that sustains in our nation, and that is a fact that in this
immensely populated nation and that is the habit to create unnecessary disturbance and
chaos over a newly incorporated plan just to create nuisance. Cases have been filed
against fetching wrong information and asking for abrupt information from different
officials at various levels and this creates nothing but an overall chaos.
An extra burden to the Authorities:
Since the authorized persons are already having loads of works and tasks to be
delivered at their end and after this new act passed they have additional burden to be done
and delivered.
Multiple Public Information Officers (PIO):

The government has appointed multiple PIOs. This results in running of citizens
from office to office in search of correct PIO who can yield correct information.
Peoples accessibility is hectic and time consuming:
There are many offices of PIO where the access of common man is very
prolonged and it becomes very hectic to carry out the process. The subsystems created
beneath the system is basically problematic.
In nut-shell, the RTI has fallen in a horizon of such a territory where its
implications and applications have experienced multiple shades. Advantages and
disadvantages are a part and partial of such enactments but the bottom line remains in the
fact that the execution must be according to the expected proposal and commitment.

IM PLI CATIO N O N PE RSO NA L LIFE


U SE TH E AC TS TO YO U R AD VAN TAG E
Consider what types of information might be available from the public sector to
assist your business and make use of your own rights to access that information. Training
employees about the Acts will increase your effectiveness in this area.

C O NF I D E N T IAL INF O R M ATIO N


Amend standard terms and conditions used for dealing with public authorities to
include drafting to minimize the impact of the Acts. Blanket confidentiality clauses are no
longer likely to be accepted by public authorities or by the Information Commissioner.
Consider segregating confidential and non-confidential material to reduce the risk of
inadvertent disclosure and to increase the likelihood of the confidentiality exemption
applying.

Consider negotiating a clause in the contract which provides a right to be notified


about and make submissions in relation to an information request that may contain
employee / commercially sensitive information. This is important as if a decision made by
the Information Commissioner is unfavorable to you, it will be the decision of the
authority not you as to whether to appeal or not. There is no obligation on the authority to
consult any interested third parties.
You should consider implementing a procedure to ensure that if a request for
comments is received from a public authority, that you have procedures in place to ensure
that this request is dealt with promptly and effectively so that your views are put forward
and considered in good time.
Be aware that information which is passed to public authorities may contain
employee information. Thought should be given to consulting any affected third parties
prior to releasing the information. Consider providing induction training on FOI,
amending your data protection notices and alerting employees to their right to object to
disclosure of information under section 10 of the DPA.

WHAT

DOES

THIS

MEAN

FOR

PUBLIC

SECTOR

EMPLOYERS?
The public sector employer is to a large extent caught between a rock and a hard
place. Whilst the aim of the Acts is to increase openness in the public sector and
disclosing information about decisions and activities of employees may promote this, it is
recognized that employees also have legitimate concerns over privacy and rights to have
those concerns respected. Private bodies
The Central Information Commission (CIC), consisting of Satyanand Mishra,
M.L. Sharma and Annapurna Dixit, has held that the political parties are public
authorities and are answerable to citizens under the RTI Act. The CIC, a quasi-judicial
body,

has

said

that

six

national

parties

- Congress, BJP, NCP, CPI(M), CPI and BSP and BJD - have been substantially funded
indirectly by the Central Government and have the character of public authorities under
the RTI Act as they perform public functions In August 2013 the government introduced a

Right To Information (Amendment) Bill which would remove political parties from the
scope of the law. In September 2013 the Bill was deferred to the Winter Session of
Parliament. In December 2013 the Standing Committee on Law and Personnel said in its
report tabled in Parliament
"The committee considers the proposed amendment is a right step to address the
issue once and for all. The committee, therefore, recommends for passing of the Bill."
With this delicate balancing act, how should the employer prepare for requests made by
third parties about their employees? They could consider the following factors:

I M P L EM E N T P OL IC IE S
The employer should draw up a policy setting out how it intends to deal with
requests for employee information to provide a clear view of how information will be
dealt with under the Acts. This policy should be made available to all employees and
ideally published on the publication scheme (required under the Acts for all public
authorities) for all to see. Policies could cover what types of information and in what
circumstances information will or will not generally be disclosed and also what issues
will be considered in determining whether to disclose employee information. Issuing this
policy will help the authority to meet its DPA obligations to employees.
Know your information
Records management is important. Try to know what personal data you have. This
will also be useful in dealing with subject access requests under the DPA and consider
separating or flagging information at the point of collection or creation to information
which is not exempt from third party requests and other information.
Raise awareness
One potential factor to consider when determining whether information should be
disclosed is what the employee was told when the information was collected. With this in
mind, the authority could consider alerting new employees to the potential for disclosure
of employee information under the Acts by including a notice on induction. Including
FOI as part of new employees' training would provide them with a greater understanding

of the authority's obligations under the Acts and also the relevant exemptions.
Consideration should also be given to alerting employees of their right to object to the
processing of personal information (which includes making disclosures) if there is a
likelihood of them suffering substantial damage or damage and distress under section 10
of the DPA.
Give notice of, or consult the employee about, any proposed disclosure and
certainly where there is any doubt as to whether the information should be disclosed.

I M PAC T O N PR I VATE S E C TOR E M PL O Y ER S


Although it may seem that the Acts will only be relevant to public authorities, in
practice they will also have an effect on the private sector. While there are limited
circumstances where a private company may be deemed a public authority for the
purposes of the Acts (and therefore required to disclose information that it holds), the
more concerning effect of the Acts relates to information that the private sector businesses
hand over to the public sector.
Private bodies are not within the Act's ambit directly. In a decision of Sarbjit Roy
vs Delhi Electricity Regulatory Commission, the Central Information Commission also
reaffirmed that privatized public utility companies fall within the purview of RTI. As of
2014, private institutions and NGOs receiving over 95% of their infrastructure funds from
the government come under the Act.
Most public authorities contract on a regular basis with private sector companies
for the provision of goods and services. Many of these contracts contain sensitive
information which the private sector company would rather not be disclosed. However,
all of this information is held by public authorities and, in theory, is now accessible by
anyone requesting it.

WHAT CAN PRIVATE SECTOR BUSINESSES DO TO PROTECT


THEIR INTERESTS?
They may consider the following factors to protect their interests

Put in place clear internal policies.


Make it clear which individuals are authorized to release information to public
authorities and identify individuals to liaise with public authorities with regard to
monitoring the information once the authority has it.
Raise awareness within the organization of the risk that any information disclosed
to a public authority may potentially end up being disclosed to a member of the public or
a competitor.
Manage information that is provided to public authorities.
Identify which customers may be public authorities and review what information
is provided to them. Record what information is provided to aid monitoring of this. If
information is particularly sensitive, consider whether it is really necessary to disclose it.

C O NC L US IO N
By understanding FREEDOM OF INFORMATION ACT's purpose and key
provisions, public health workers, journalists, and researchers can make use of this
powerful tool to obtain information about important public health issues. With other
relevant laws such as the FACA, FREEDOM OF INFORMATION ACT can help ensure
that important information is disclosed to the public and help advocates of all
backgrounds and ideologies participate in government decision-making. Public health
workers in government agencies who understand the purpose of FREEDOM OF
INFORMATION ACT and similar state laws can help promote transparency and
accountability in government by being responsive to FREEDOM OF INFORMATION
ACT requests when received and by properly understanding the relevant exemptions, and
when and how they should apply. FREEDOM OF INFORMATION ACT's effectiveness
ultimately depends upon both the attitude and commitment with which it is approached

by government agencies and their staff members and the public's insistence that the
statute be implemented in a way that fulfills its vital purpose.
It is clear that both the public and private sector have been significantly affected
by obligations imposed by the Acts, albeit in different ways. It is essential for both sectors
to implement policies, training and raise awareness within their organizations as to how
the Acts should be dealt with within their individual business.