Freedom of Information: A Comparative Legal Survey - Federation of ...

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Duty to Publish
The Indian RTI Law includes very broad obligations of proactive or routine publication. Every public body
must, within 120 days of the Law coming into force and thereafter updated annually, publish the a range
of information, including the following: particulars of their organisation, functions and duties; the powers
and duties of employees; the procedures followed in decision-making processes; any norms which it
has adopted to undertake its functions; its rules, regulations, instructions and manuals; the categories
of documents it holds and which are in electronic form; public consultation arrangements relating to
the formulation or implementation of policy; a description of all boards, councils, committees and other
bodies, and whether their meetings or minutes are open; a directory of all employees and their wages; the
budget allocated to each of its agencies and particulars of all plans, proposed expenditures and reports
on disbursements made; information about the execution of subsidy programmes and the benefi ciaries;
particulars of the recipients of concessions, permits or other authorisations; facilities for citizens to obtain
information (including reading rooms); the contact details of all information offi cers; and such other
information as may be prescribed. Public bodies must also publish all relevant facts when formulating
policies or announcing decisions which affect the public, and provide reasons for administrative or quasijudicial
decisions to those affected (section 4(1)).
Signifi cantly, public bodies are also required to make a ‘constant endeavour’ to provide as much information
proactively as possible, so as to minimise the need for the public to have recourse to requests to obtain
information. Information shall be disseminated widely and in a manner which makes it easily accessible,
to the extent possible electronically, taking into account cost effectiveness, local language and the most
effective means of communication in the local area of dissemination. Information covered by these rules
shall be provided free, or at the cost of the medium or print cost price (sections 4(2)-(4)).
These proactive publication rules are both extensive and progressive. The question of dissemination is a
very important one and the Indian RTI Law addresses it well. The Law also recognises the interplay between
the extent of proactive publication and the need to lodge requests. Modern communication technologies
are such that public bodies are now able to make a great deal of information available proactively, ideally
anything that might be the subject of a request which is not covered by an exception.
Exceptions
The main exceptions are set out in section 8 of the RTI Law, which provides for a comprehensive regime of
protection for various public and private secrecy interests. Section 24 provides for the complete exclusion
from the ambit of the RTI Law of a number of intelligence and security bodies, namely the 18 bodies listed
in the Second Schedule, such as the Intelligence Bureau, the Narcotics Control Bureau and so on. The
government may amend the Second Schedule by notifi cation, which must be laid before Parliament. State
governments may also specify intelligence and security bodies by notifi cation in the Offi cial Gazette, laid
before the relevant state legislature. The exclusion of these bodies from the ambit of the Law is unfortunate
and unnecessary. At the same time, there is at least an exception to this, for information pertaining to
allegations of corruption and human rights violations. Where information is sought from these bodies in
respect of human rights allegations, it shall be provided only after the approval of the relevant Information
Commission (Central or State) and, notwithstanding the timelines set out in section 7, within 45 days. No
particular procedure is stipulated where the information relates to an allegation of corruption.
The RTI Law, pursuant to section 22, explicitly overrides inconsistent provisions in other laws ‘for the
time being in force’, and it specifi cally mentions the Offi cial Secrets Act, 1923, as one such law. Most, but
not all, of the exceptions do include a form of harm test. The Law also includes a strong public interest
override whereby, when the public interest in disclosure outweighs the harm to the protected interest, the
information should be disclosed notwithstanding not only the exceptions in the RTI Law but also anything
in the Offi cial Secrets Act (section 8(2)). Not satisfi ed with this, the drafters also included specifi c public
interest overrides for certain exceptions (see below).