A review of three different articles on the importance of complete access to files vis-a-vis RTI by Arvind Kejriwal in The Stateman, Aruna Roy and Nikhil De in The Kashmir Times and Maja Daruwala and Venkatesh Nayak in The Daily Tribue.

1. RTI Act: Long way to go
The Statesman (India)
August 26, 2006
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Interview with Magsaysay Awardee 2006 and Parivartan leader Arvind Kejriwal
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Available online at: http://www.thestatesman.net/page.news.php?clid=4&theme=&usrsess=1&id=127746

E X C E R P T S
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IT'S NOT MERELY THE QUESTION OF NOTINGS FROM THE AMBIT OF THE ACT, THE PROPOSED AMENDMENTS ARE MUCH MORE DAMAGING. IT IS QUITE A REGRESSIVE STEP. THERE ARE SOME 68 COUNTRIES IN THE WORLD WITH AN RTI LEGISLATION. OUR LAW IS THE BEST IN THE WORLD. FOR SOME STRANGE REASON, THE PRESENT GOVERNMENT IS DOING AWAY WITH WHAT IT HAD SET UP AND FOR WHICH IT EARNED KUDOS.
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The second Magsaysay awardee for the right to information (RTI) campaign, Arvind Khejriwal, has dedicated the award to his organisation, Parivartan, and the campaign. The first Indian to bag this prestigious award for RTI was Aruna Roy, in 2000. The soft-spoken, unassuming Khejriwal (38) has a latent grit and fire that shines through as he speaks. Trained as a mechanical engineer from IIT, Kharagpur, he chose a career in the revenue department of the civil services in 1992. Peer pressure, by his own admission, led him into the bureaucracy. And no, it was not disillusionment with the service that got him out. On the contrary, thanks to the best of postings, his years in the revenue department taught Khejriwal a lot and allowed him to come face to face with the man on the street.

With batch-mate wife Sunita Keshwani, who works in his former office, the revenue department, and two children as a source of moral support, meditation is his outlet for stress. A movie buff by admission, Aamir Khan and Nana Patekar are his favourite stars. Earlier, he would watch every new release, but now, there is not much time for that.

Khejriwal started Parivartan in January, 2000 with a few friends, as a grievance help centre. Complaints from the public were collected and passed on to the departments concerned. “Don’t pay bribes. Come to us and we will get the work done,” was the line adopted by Parivartan in an ad hoc reaction to the feeling “we can do”. There was no RTI Act then and Parivartan members were faced with the dilemma that people were coming to depend on the organisation without being empowered themselves. In 2001, the Delhi government enforced the RTI Act. That was the turning point as Parivartan’s role changed from a mediator to a facilitator and guide. The organisation has helped draft about 2,000 applications in various sectors ~ water, electricity and public distribution system to name a few. With the Magsaysay Award coming at a time when the country’s politicians and bureaucrats are grappling with the scope and ambit of the RTI Act, Khejriwal speaks to Asha Ramachandran on what is at stake for the people. EXCERPTS:


Q: With you becoming the second Indian to be conferred the Magsaysay Award for RTI, would you say this is a boost for the movement?

We have come a long way in the battle for RTI. But this award belongs to the RTI movement. I am happy that the world has recognised the RTI movement in India. At the same time, I am sad that the government is killing it by bringing in amendments to dilute the Act. It is even sadder that it was the very same party, which, when it was in power earlier, had brought in this powerful Act. For some strange reason it is now killing this empowering tool. I have no idea what went wrong in these eight months.


Q: But what about the awareness level among the people that such a right exists for them?

Well, it’s picking up now. Nine states in the country had this Act in place before the Central legislation came into being. Delhi has this law for about six years now. Individuals and organisations are now questioning the administration, which is the essence of this empowerment.

For instance, Delhi’s resident welfare associations (RWAs) are actively seeking answers as their right to know. The administration is on its toes.


Q: But then, corruption is all around us…

Let me put it this way. Corruption is of two kinds ~ extortionist and mutually agreed upon. Extortion is where one pays a bribe to get one’s legitimate dues. In the mutual category, both parties are happy. Extortion involves lower money deals while mutual agreements can be very high priced. Extortionists, however, are much more dangerous as they hurt the citizens’ psyche. It is important to check this. Which is how the idea of Parivartan was spawned. We said: “Don’t pay bribes. Come to us and we will get the work done.”

We effectively used the RTI to seek information on roads, MP local area development (MPLAD) funds and instances where 97 per cent of the ration in PDS was being siphoned off. Our workers were beaten up and we had to face savage attacks. But we succeeded. In fact, our last campaign was the drive against bribes.


Q: Having been a bureaucrat yourself, what is this mindset for wanting to keep information under wraps? Is it merely a sense of power or something more?

You see, there are honest bureaucrats and dishonest bureaucrats. Obviously, dishonest bureaucrats would fear any opening up of the records. As for honest bureaucrats, there is unfortunately this culture of secrecy.

When people question them, they are not prepared for it. Moreover, they suffer from a sense of superiority and dislike anyone questioning them. But then, RTI is all about asking questions.

There is this wall of bureaucratic arrogance that prevents this questioning. But, happily, honest bureaucrats are beginning to realise that the RTI is actually good for them.

Slowly, it is dawning among the bureaucrats that the RTI would help them in the long run. This culture of resistance to parting with any information is vanishing, slowly but surely.


Q: Any instance of such changing values?

The Steel Authority of India Ltd (SAIL) office in Bhilai encourages people, including its employees, to question its officers. This, I would say, is a bold step, which would only help the company.


Q: But how difficult is it for honest bureaucrats to adjust to the Act?

It is difficult to generalise. It is circumstantial. But let me tell you, victimisation has nothing to do with being honest or dishonest. Both can equally be at the receiving end leading to frustration.


Q: Coming to the latest amendment to the RTI Act, does it tantamount to dilution of the Act?

It’s not merely the question of notings from the ambit of the Act, the proposed amendments are much more damaging. It is quite a regressive step. There are some 68 countries in the world with an RTI legislation. Our law is the best in the world. For some strange reason, the present government is doing away with what it had set up and for which it earned kudos.


Q: So then how do we take this campaign forward?

The immediate challenge is to save this Act. We need to question. It is not about finding faults or witch-hunting as is feared. The Act is a tool to empower the people, for the honest tax-payer to know what is being done with his/her money and for the common man to question the actions of the government one has chosen. We have come a long way but the battle ahead is not easy and promises to be a tough one.
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(The author is Special Representative, The Statesman, New Delhi.)

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2. Taking life out of right to information
   By Aruna Roy & Nikhil Dey
   The Kashmir Times
   August 19, 2006
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Online at: http://www.kashmirtimes.com/opinion.htm

Within six months of enacting one of the most progressive RTI laws in the world, the Indian Government has decided to strike at its root, by barring the disclosure of 'file notings.' The paper trail will be kept invisible.

The passage of the Indian Right to Information Act 2005 was hailed, almost universally, as a landmark piece of legislation that could change the relationship of the citizen with the state. It was considered one of the most progressive RTI laws in the world, with several provisions worthy of emulation. With widespread use, it had begun to be seen by citizen groups as a ray of hope to fight corruption, inefficiency, and the arbitrary use of power in an otherwise dark scenario.

However, just six months after the Act has come into effect, the Union Cabinet has approved a set of amendments, some of which will crucially damage the scope and power of the Act. The most critical of these relate to barring the disclosure of "file notings." Also Cabinet papers available currently after the decision is complete will now be barred from disclosure even after the decision is taken. As a result, the process of decision-making will be kept out of the public domain, making it far more difficult for citizens to participate in the process.

What is a government file and why this furore over not wanting to share file notings? To most laypersons the government file is a musty compilation of important papers. Almost all of India, even the illiterate, know it. Anyone who has had anything to do with 'babus'
knows the significance and power the file holds to control the destiny of many people. The government file has two parts to it. The right side has the papers under consideration (PUCs). The left side has the 'notings,' the process through which opinions are written down, added to, and approved or disapproved. These notings reflect the deliberations on the PUCs and, through a series of comments, arrive at decisions. As the Chief Information Commission has explained in a ruling on file notings: "Most of the discussions on the subject/matter are recorded in the note sheets and decisions are mostly based on the recording in the note sheets and even the decisions are recorded on the note sheets. These recordings are generally known as 'file notings.'"

This trail of responsibility and accountability is what the babus do not want disclosed. The government now wants to amend the RTI Act so that file notings relating to most matters are under wraps. As ordinary citizens, we will not have access to the reasons for decisions, many of them irreversible, that affect our lives. The paper trail, vital to establish a chain of transparency and accountability, will now be invisible. It will protect the dishonest manipulators but also give no support to honest officers whose forthright views are overruled, who have to suffer the ignominy of being party to a bad decision they disagreed with.

Although the Cabinet decision came without warning, it has been part of a design. This is revealed by a close examination of the consistent, extra-legal efforts of the bureaucracy to keep file notings opaque. Right through, from the period of the formulation of the Right to Information Acts at the Centre and in the States, the bureaucracy steadfastly fought against allowing access to file notings. This issue seemed to have ended in favour of fairly comprehensive transparency of the decision-making process with the passage of the Right to Information Act 2005.

The Act defines information under Section 2(f) as "any material in any form, including records, documents, memos, e-mails, opinion, 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." This is conclusive and the law should have dictated official action.

However, the Department of Personnel (DoPT) decided to use the FAQ (frequently asked questions) section on its web site to override the law. In response to the question, "What does information mean?" the web site quotes the whole of section 2(f) and then arbitrarily adds the words: "but does not include "file notings'

This could have been considered a misdemeanour of some junior official while drafting an FAQ - had it not been repeated in the manuals and FAQs issued by most State Governments. These FAQs and manuals have become the binding guide (at least in the matter of file notings) for officials responsible for providing information. Citizens across the country found their access to file notings allowed by law but overruled because of a departmental FAQ. Objections and reminders from citizens groups to the DoPT fell on deaf ears, and the matter was brought before the Central Information Commission in the form of an appeal. In its decision of January 31, 2006 in Satyapal vs. TCIL (ICPB/A1/2006), the Commission looked at "whether file notings fall within the exempted class":

It held: "no file would be complete without note sheets having file notings.' In other words, note sheets containing file notings' are an integral part of a file. Sometimes, notings are made on the main file also, which obviously would be a part of the file itself. In terms of Section 2(i), a record includes a file and in terms of Section 2(j) right to information extends to accessibility to a record. Thus, a combined reading of Sections 2(f), (0 & (j) would indicate that a citizen has the right of access to a file of which the file notings are an integral part."

And further: "Therefore, we are of the firm view that, in terms of the existing provisions of the RTI Act, a citizen has the right to seek information contained in "file notings' unless the same relates to matters covered under Section 8 of the Act. Thus, the reliance of the CPIO, TCILO on the web site clarification of the Department of Personnel to deny the information on the basis that Tile notings' are exempted is misplaced."

This should have settled the matter. The Information Commission is, by law, the final arbiter on matters of information. However, the Department of Personnel continued consistently to ignore the orders of the Central Information Commission. This startling sequence of events becomes clear from the July 13, 2006 order of the Commission in Pyare Lai vs. the Ministry of Railway:

"The Commission noted with serious concern that some public authorities were denying request for inspection of file notings and supply copies thereof to the applicants despite the fact that the RTI Act, 2005 does not exempt file notings from disclosure. The reason they were citing for non-disclosure of Tile notings' was the information posted on the DOPT website [www.righttoinformation.gov.in] to the effect that "information' did not include file notings. Thus the DOPT website was creating a lot of unnecessary and avoidable confusion in the minds of the public authorities. The Commission had written to the Department of Personnel on 26th February, 27th March, 8th May and 26th May, 2006 for removing the restriction on vfile notings' from their website. The DOPT regrettably had not acted on the issue so far. The Commission hereby directs the Secretary, Ministry of Personnel & Public Grievances, in exercise of powers conferred on it under Section 19(8) of the Right to Information Act, 2005, to remove the instruction relating to non-disclosure of file notings from the website within 5 days of the issue of this order failing which the Commission shall be constrained to proceed against the Ministry of Personnel."

The DoPT has not complied with this order passed by the Central Information Commission ten days ago to remove the file notings from the website. Could the order of July 13 have been the trigger of a sudden Cabinet decision? Section 8 caters to the often exaggerated concern about security, secrecy, and misuse of information for blackmail that has blocked and threatened the demand for transparency. It serves as an excuse for not being accountable. Even what is permissible under the law after the amendments will be under constant threat of denial. The recent campaign carried out by media and citizens groups in the 'Drive against Bribe through the use of RTF offered many insights into the working of the Act. One revealing aspect is how the slightest ambiguity is used by the system to deny information.

The Government has reportedly said it will allow access to file notings on development and social issues. This will give the bureaucracy enormous powers to selectively rule on what is or is not a development or social issue. Files and records are maintained everywhere, from patwari and panchayat sarpanch onwards. We have had gram sevaks refuse panchayat information under the Rajasthan RTI Act, using the exemption of national security. PIOs will now find it very convenient to turn inconvenient information into a 'file noting.

We know that when people asked for work from the panchayats, even that simple demand got linked to decisions taken at the State, Central or Cabinet level. Policy at the highest level determines what will happen in the village. This is one illustration of how Cabinet notes and papers affect the lives of millions of ordinary people.- People have a right to see these papers, at least after the decision is taken.

Finally, it is not what remains, but what has been taken away by these amendments that we need to understand. The statement of Central Information Commissioner O.P. Khejriwal after the amendments were passed by the Cabinet sums it all up: "Information minus the file notings amounts to taking the life out of the RTI Act." For the energetic and rapidly growing Right to Information movement in India, this is a major challenge to see whether we can protect this nascent fundamental democratic right from being undermined.

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3. File notings: Centre shouldn’t tinker with RTI Act
   by Maja Daruwala and Venkatesh Nayak
   The Daily Tribune, India
   August 20, 2006
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Online available at: http://www.tribuneindia.com/2006/20060820/edit.htm#1

"TRUE, THE PRICE OF FREEDOM IS ETERNAL VIGILANCE BUT EVEN BEING VIGILANT REQUIRES INFORMATION. OLD HABITS DIE HARD. THE GOVERNMENT HAS NOT, AT THE TIME OF WRITING THIS ARTICLE, PUBLICISED THE FULL TEXT OF THE PROPOSED AMENDMENTS NOR ENCOURAGED A PUBLIC DEBATE AROUND THE ISSUE. IN THE FACE OF SO MUCH UNEQUAL POWER, WHAT CHOICE DO PEOPLE HAVE BUT RESORT TO DEMOCRATICALLY VOICED PROTEST?"


The Right to Information (RTI) Act, passed by Parliament last year, is new and finding its ground. Both educated and unlettered people around the country are struggling to make it a reality. Their efforts have begun to stem corruption and arbitrariness in decision-making. It is only natural that shock and dismay pervade the countryside as the Union Government seeks to restrictively amend the RTI Act in a way that will remove file notings away from public scrutiny.

The proposed amendments will end up snatching away people’s right to know in what circumstances, through what process and under whose advice their legislators and civil servants reach decisions, big and small. Fearing that the inconvenienced bureaucracy has forced the political leadership into compromise, citizens groups have launched widespread protests against the move to defang the Act.

On July 26, the Prime Minister’s Office issued a rebuttal, clarifying that “the Union Cabinet had approved an amendment that specifically provides that file notings of all plans, schemes and programmes of the government that relate to development and social issues shall be disclosed.” But why clarify what was never in doubt? File notings relating to development and social issues’ were not excluded from the Act under any of the exemptions to disclosure that broadly relate to national security, commercial competition, and personal privacy. Nor was it mentioned as an exception to the definition of ‘information’.

The confusion regarding the status of file notings was a conscious creation of the Department of Personnel and Training (DOPT). Its website in its Frequently Asked Questions (FAQs) about the Act insisted that file notings were not in fact part of the definition of ‘information’.

The Central Information Commission (CIC) has clarified in at least two decisions that file notings clearly fall within the purview of the definition of the terms ‘information’ and ‘record’; it has recently issued a show-cause notice to the DOPT for refusing to take its own interpretation off the website.

Given the cumulative history of government spin around file notings, there is now strong suspicion at this unexplained desire to clarify the law.

The value of a law lies in its precision. By seemingly ‘gifting’ special classes of information as being available to the public, the amendment will remove from public view all other classes of file notings where they do not specifically relate to development and social issues. At the very least all file notings will become disputed territory.

Once again officials will have enormously increased discretionary powers to deny citizens access to almost every opinion recorded on file on any matter. Where access may be given in a limited number of cases, authors of file notings will enjoy anonymity. Once again, we will not have moved an inch from being a rent seeking and patronage based government to a rule-based government where every action of a public official has to be in conformity with established norms and procedures.

International best practices point to transparency in the deliberations within public bodies. In the US, citizens are provided access to records of opinions expressed by officials in relation to a policy formulated or action that has been taken. In Albania, Germany, Israel, South Africa, Turkey, Uganda and several other countries with functional information access laws, file notings have not been given a blanket exemption. When the government aspires to have the most modern of military equipment to protect the people, the best of medical, transport and communications facilities and the most advanced IT systems, why should it lower the standards of transparency and accountability?

Two more amendments are reported to be waiting in the wings. The first relates to disclosure of materials on the basis of which Cabinet decisions are taken. At present, these can be disclosed after a Cabinet decision has been made. But the proposed amendments will deny access to these materials. This assumes significance as every voting-taxpaying citizen has a right to know what materials form the basis of the Cabinet decisions at the Centre and in the states.

The other proposed amendment relates to the recruitment and examination processes adopted by various public agencies. This has been prompted by fears that the RTI Act may be used to ask about question papers before the examinations have been held or identify members of interview boards with a view to influencing their opinion. Again, there is no need for any amendment as the Act already adequately protects any information that might hurt the competitive position of a third party and can be applied to information disclosure that may prejudicially affect the outcomes of examinations and recruitment procedures.

In reality, the proposed amendment seems aimed at avoiding access to evaluated answer scripts of candidates appearing in such examinations and challenges to the appointment process. Many of our better academic institutions already give candidates the opportunity to see answer scripts and be satisfied that the evaluation has been fairly arrived at. This reduces the possibility of subjectivity in the evaluation process. What could be a better disinfectant for a country drowning in corruption, nepotism, influence peddling and abuse of process than the sunshine of disclosure under the Right to Information Act — especially where appointments and recruitment are concerned?

Amending the RTI Act at the very early stages of its implementation to suit the convenience of elements who would like to hide their negligence and wrongdoings sets a precedent that emboldened governments at the Centre and in the states may soon follow. They will be encouraged to tear up more of the Act again and again whenever they find some provision inconvenient.

True, the price of freedom is eternal vigilance but even being vigilant requires information. Old habits die hard. The government has not, at the time of writing this article, publicised the full text of the proposed amendments nor encouraged a public debate around the issue. In the face of so much unequal power, what choice do people have but resort to democratically voiced protest?

We, therefore, urge the citizens to step in and put an end to this exercise of clipping away the wings of the RTI Act that is fast gaining recognition around the world as one of the best information access laws put in place ever.
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The writers are associated with the Commonwealth Human Rights Initiative, New Delhi