Section 4 of RTI Act: How to strengthen the weakest link?

The ‘Right to Information’ has two key facets. One is the provision of information on demand, that is, when asked by individual applicants. Another is disclosure of information suo moto by all public authorities at regular intervals on public platforms like the Internet and so on. Needless to add, the latter is much important than the former.

In an ideal scenario, voluntary disclosure of all information that ought to be in the public domain should be the rule and members of public having to seek information should be an exception. An open government, which is the cherished objective of the RTI Act, can be realised only if all public offices comply with proactive disclosure norms.

But, a perusal of the RTI Act, 2005, reveals that the focus of most of its provisions is on furnishing information on demand rather than effectively ensuring voluntary disclosures by public authorities.

Section 4(2) of the RTI Act mandates every public authority to provide as much information suo moto to the public at regular intervals through various means of communications, including the Internet, so that the public need not resort to the use of RTI Act.

Other important duties of public authority under Section 4 include cataloguing, indexing and computerisation of records, publishing certain basic information pertaining to each organisation within a specified timeframe, publishing all relevant facts while making important policy decisions and ensuring every information is disseminated widely and in an easily accessible manner for the public.

However, even after more than nine years since the enactment of the RTI Act, there are several examples of public authorities that have not published even the basic information expressly specified in Section 4(1)(b), leave alone disclosing any additional information suo moto.

In many cases, “some” information is published in a pro-forma manner and not updated for years together. There are several other cases of non-compliance with Section 4 like non-maintenance of proper websites, not publishing obvious and important items of information on websites, not publishing relevant facts before taking key policy decisions, poor record management practices and so on.

In its Annual Report (2012-13), the Central Information Commission (CIC) lamented that despite having good information & communication technology (ICT) infrastructure, mandatory disclosure norms remain unattended. Only 568 public authorities had so far reported posting of their Section 4(1)(b) disclosures on their websites.

The big question is how to enforce compliance of Section 4 by public authorities?

In the current scheme of the RTI Act, Section 4 obligations are made applicable to public authority as an institution. There is no provision to fix responsibility on any officer at the level of public authority in case of non-compliance. In the case, Delhi Development Authority vs. Central Information Commission & Others (2010), the Delhi High Court observed: “Section 4 merely sets out the obligations of the public authorities. It doesn’t provide the machinery to enforce the implementation of these obligations.”

Arguably, now, anyone can file a complaint under Section 18 with the central or state Information Commission in cases of failure on part of public authorities to comply with Section 4. The Commission can direct the public authority to publish such information under Section 19(8)(a)(iii). CIC delivered some such decisions also. But, for every instance of actual or perceived non-fulfillment of Section 4 obligations by various public authorities, approaching the Commission directly under Section 18 is neither feasible nor desirable.

Further, in Chief Information Commissioner &Anr vs State of Manipur & Anr (2011), the Supreme Court adopted strict construction of Sections 18 and 19 and upheld the view that the Central or State Information Commission while entertaining a complaint under Section 18 of the RTI Act has no jurisdiction to pass an order providing for access to the information. The only order that can be passed by the Commission under Section 18 is an order of penalty provided under Section 20. This judgment cast a cloud over the powers of the Commission to direct the publishing of information under Section 19(8)(a)(iii) on a complaint filed under Section 18.

In view of poor implementation of Section 4, the full bench of CIC, through a directive in 2010, mandated all public authorities to appoint a “transparency officer” in their offices. However, in 2012, this directive was challenged by the government in the Delhi High Court. The case is still pending. The main objection raised was that the order appointing transparency officers was passed by the Commission without jurisdiction and an order under Section 19(8)(a) of the RTI Act could be passed in respect of a specific case, which is before the CIC in an appeal.

It was also argued that there is no general/blanket power vested in the CIC to issue such directions. It appears the government took this stand drawing a cue from the Apex Court’s decision cited above. Needless to say, an amendment to the RTI Act, removing the ambiguity about the powers of the Commission under Sections 18 and 19 would have been a lasting solution.

Meanwhile, the Department of Personnel & Training (DoPT) came up with an office memorandum (15 April, 2013) emphasising the need to set up a “compliance mechanism to ensure that requirements under section 4 of the RTI Act are met”.It was directed that “each Central Ministry/ Public Authority should appoint a senior officer not below the rank of a Joint Secretary and not below rank of Additional HOD in case of attached offices for ensuring compliance with the proactive disclosure guidelines”.Thus, the functions and responsibilities of the “nodal officer” created by DoPT are more or less similar to those of a “transparency officer”envisioned by CIC earlier through its directive (dt. 5th November, 2010).

Another significant direction in the DoPT memorandum was that each public authority should get its proactive disclosure package audited annually by a third party like consultants etc. Unsurprisingly, there is no compliance of this order by public authorities. Not many know about the designation, role and responsibilities of a nodal officer envisaged in the said memorandum of DoPT. Citing non-compliance of its memorandum dated 15, April 2013, DoPT issued another reminder dated 22^nd September 2014 exhorting once again, all public authorities to get their proactive disclosure package audited by a third party.

While designating a senior officer to monitor the implementation of Section 4 is a welcome move, his position is envisaged merely as an internal administrative arrangement within the public authority. His duties don’t include receiving complaints from public in cases of non-fulfillment of Section 4. So, this designation of a “nodal officer”, even as a stop-gap arrangement, is of little utility in enforcing proactive disclosure norms.

To serve its real purpose, it is extremely important that the ‘nodal officer’ is given express statutory recognition. His duty shall be to receive and deliver time-bound decisions on all complaints against actual or perceived non-fulfillment of Section 4 and an appeal against his order can lie with Information Commission (CIC/SIC). This way, it can be ensured that the mechanism to deal with cases of failure of public authorities in ensuring suo moto disclosures becomes speedy, de-centralised and enforceable.

Also, there should be a provision for imposition of monetary penalty on public authority by the Commission in all cases where there is deliberate refusal to publish information under Section 4 or where there is mala fide attempt to hide obvious information from public domain.

Since its enactment in 2005, the RTI Act was not been amended. As we move from the era of individual’s “right to information” into an era of “Open Government Data”, there is a pressing need for amending the transparency legislation to make it more robust in the light of lessons learnt in the last nine years.

(Views expressed are personal).