The right to not disclose
Like other members of civil society in favour of transparency, my first reaction to the decision approving amendments to the RTI Act was that it circumscribed the act itself, writes Abhishek Singhvi.
Like other liberal members of civil society in favour of transparency, my first reaction to the Cabinet decision approving amendments to the Right to Information (RTI) Act was that it circumscribed the Act and represented an avoidable curtailment of the disclosure process. An analysis of the sequence of events preceding the original enactment and the recent amendment has led me to conclude that my initial reaction was predictable but erroneous — what the original enactment never gave could not possibly have been taken away by the amendment. One may have different views about what ought to be the ideal level and scope of disclosure in any RTI Act — over-expansive, striking a balance or restrictive. But the facts make it abundantly clear that Parliament never intended to allow file notings to be made available for inspection in the original enactment. Therefore, the amendment, which makes such file notings available for social and development purposes, is a liberalising amendment in comparison to the original enactment.
The following sequence of events is significant and something that most people are unaware of. The previous government created and notified an earlier version, the Freedom of Information Act, 2002, in 2003. This enactment specifically exempted “minutes or records of advice including legal advice, opinions or recommendations made by any officer... during the decision making process... ” from disclosure. File notings and opinions were thus not required to be disclosed.
The present government enacted a more comprehensive RTI to replace the earlier 2002 enactment. Even critics have called the RTI 2004 as one of the ‘most progressive’ RTI versions of the world. The original version of the 2004 draft, emanating from the National Advisory Council (NAC), sought to define ‘information’ in section 2(e) to include, among other things, specifically file notings. After detailed discussion, it was decided to drop the specific reference to file notings. The RTI bill was then introduced in the Lok Sabha in December 2004 with the definition section reflecting this conscious deletion of file notings. The Bill then went to the Parliamentary Standing Committee and the Group of Ministers. The committee and the GoM maintained this deletion and the enactment as finally passed by Parliament did the same.
The present amendment approved by the Cabinet specifically permits disclosure of file notings on social and development issues. It is, in fact, a progressive pro-disclosure development that gives for the first time ever, a specific statutory right to seek disclosure of even file notings for these two categories.
Why then the hullabaloo? It depends on how you look at it. The denial of file notings as disclosable material, which was maintained by the original enactment, was reiterated by the Department of Personnel in its ‘frequently asked questions’ (FAQs) section on its website once the law became operational. While deleting the earlier reference to file notings, the original enactment had not gone to the extent of affirmatively saying that file notings shall not be disclosable. Quite clearly, however, the deletion of file notings from the definition of ‘information’ was intended to achieve the same result.
The absence of a specific negative prohibition in the original enactment was, unfortunately, used to hold that file notings would, by interpretation, fall under the normal meaning and scope of ‘information’ and of ‘file’. The decision in Satyapal’s case, delivered by the Central Information Commission on January 31, 2006, held so. Consequently, when the latest amendment was made, allegations of circumscribing the level of disclosure followed.
Having established that parliamentary intent had never been to provide any access to file notings — and Parliament must be deemed to reflect the will of the people — one can support the decision to have limited access to file notings only on development and social issues on several other grounds. Firstly, the admitted position is that several leading proponents of this right — functioning democracies and developed nations — exempt file notings from disclosure. This is true in the US, Britain, Australia, the Netherlands, France, Canada and Ireland. Such countries have found that untrammeled disclosure through RTI Acts seriously inhibits free, fearless and frank advice. Officers take recourse to ambiguity and ambivalence or simply do not opine on file or do so in highly insipid, non-productive and guarded words. If the entire deliberative process is to be made public, serious reflection on the reputation of officers would also lead to public controversy. Disclosure can also frequently be the basis of harassing officers.
Those in the Opposition who now criticise the proposed amendment consciously deleted file notings disclosure. They are merely protesting for effect. Disclosure for social and development issues opens up a vast vista of possibilities which can be responsibly exploited by responsible citizens.
Public interest always involves balancing of competing public values. As Aristotle put it: “Virtue is the mean between two extremes, each of which is a vice.” Unrestricted disclosure of everything versus no-file-noting disclosure are two extremes which must reflect Aristotelian vices. Reasonably wide disclosure of file notings in two fairly wide categories is the UPA government’s virtuous mean.