Misuse of RTI Act seems to be minimal, less than other laws with potential to be oppressive

rti1Excerpts from the chapter “Misuse of the RTI Act” in the study “Tilting the Balance of Power: Adjudicating the RTI Act” by Research, assessment, & analysis Group (RaaG) and Satark Nagrik Sangathan (SNS):

Almost from the start, soon after the RTI Act was enacted in 2005, allegations were made about its misuse. The initial charge was that the act was primarily being used by public servants to seek information about their service matters and was hardly of any service to the people of India, especially the poor and rural populations. For example, in a widely reported order of the Central Information Commission, the commission held:

“5. The information seeker, being an employee of the respondent, is a part of the information provider. Under the RTI, the employees are not expected to question the decisions of the superior officers in the garb of seeking information. Such employees have access to internal mechanisms for redressal of their grievances. Unfortunately, a large number of the government employees are seeking information for promotion of their personal interest. This is done on the pretext of serving the public cause, without realizing the extent of distortions that it causes in use of public resources due to putting up frivolous applications by them for self-interest. This appeal is in no way exception.” (CIC/00373 dated 14.06.2007)

Allegations of vexatious and frivolous applications

Soon after, a new attack started by claiming that a large number of RTI applications were vexatious and frivolous. The Second Administrative Reforms Commission, in its June 2006 report Right to Information: Master Key to Good Governance, took this charge at face value and recommended that the RTI Act be amended to disqualify frivolous and vexatious applications, whatever they might be.

Even the then Prime Minister had stated not once but twice, in his annual speeches at the conference of information commissioners, that the RTI Act was being widely misused. The Prime Minister had also alleged that the government was being overwhelmed by RTI applications. Addressing the annual CIC convention in 2011, the then PM had said15 “A situation in which a public authority is flooded with requests for information having no bearing on public interest is something not desirable”. In 2012, addressing the convention again, the PM stated that requests for voluminous information or those seeking information for a long period of time were “diverting precious man-hours that could be put to better use”.

It was only after the PMO acknowledged, twice, in response to RTI applications, that it had no actual evidence of misuse, and two national studies done by RaaG (2008 and 2014) gave statistical proof that there were negligible numbers of “vexatious and frivolous applications” (less than 1% of the RTI applications analysed could be termed frivolous or vexatious), that the hullabaloo died down a bit. Research studies done by RaaG showed that a total of 67% of the information being asked for was such that it should either have already been made public pro-actively, under section 4, without being requested for (49%), or proactively supplied to the applicant without her having to file an RTI application (18%).

It was mainly because the government was not fulfilling its statutory obligations under section 4 of the RTI Act that millions of India’s citizens had to spend time, energy, and money to get vital information about their basic entitlements. These studies also statistically established that very few public servants were filing applications about their service matters and that a large number of RTI applications emanated from poor urban families and from rural areas, seeking information about their basic entitlements in their bid to secure justice.

The 2014 RaaG study found that 14% of the applicants lived in rural areas, 58% in towns or cities, and 29% in metropolitan centres. If an estimated four million RTI applications were filed in India, in 2011- 12, then this would suggest that over half a million of the applicants were from rural areas. More than half the urban applicants and all of the rural applicants from among those randomly interviewed for the assessment, were from among those living below the poverty line (BPL).

Only 5% of the RTI applications were from public servants seeking information about their service matters.

More recently, there were attacks in Parliament on the right to information. MPs from various political parties alleged that the RTI Act was being misused and that it was being used by tea vendors and labourers to seek information about the space programme. Of course, the MPs involved did not explain how this was a misuse.

Allegations of overtaxing the system

The Supreme Court, in SC CBSE 2011, towards the end of its lengthy order, and without citing any facts or evidence, stated:

“37…Indiscriminate and impractical demands or directions under RTI Act for disclosure of all and sundry information (unrelated to transparency and accountability in the functioning of public authorities and eradication of corruption) would be counter-productive as it will adversely affect the efficiency of the administration and result in the executive getting bogged down with the non-productive work of collecting and furnishing information. The Act should not be allowed to be misused or abused, to become a tool to obstruct the national development and integration, or to destroy the peace, tranquility and harmony among its citizens. Nor should it be converted into a tool of oppression or intimidation of honest officials striving to do their duty. The nation does not want a scenario where 75% of the staff of public authorities spends 75% of their time in collecting and furnishing information to applicants instead of discharging their regular duties. The threat of penalties under the RTI Act and the pressure of the authorities under the RTI Act should not lead to employees of a public authorities prioritising ‘information furnishing’, at the cost of their normal and regular duties.”

These fears were not borne out by the 2014 report of RaaG which, based on the sample of PIOs interviewed across the country, found that on an average a PIO received 17 RTI applications a month in 2012-13. 38% of the PIOs spent less than 2 hours a week on RTI related work, while 39% spent less than 5 hours a week. These findings were neither challenged by the government, nor contradicted by any other study.

It would be unrealistic to argue that any law, including the RTI Act, is never misused. The only thing that can reasonably be claimed is that, based on the statistics cited earlier, the misuse of the RTI Act seems to be minimal and perhaps less than the misuse of many other laws with a far greater potential to be oppressive. Despite this, the constant clamour about its misuse makes one wonder whether it is because the RTI Act is one of the very few laws that empowers the people to take the government to task. Most or all other laws empower governments to regulate and prosecute the public.

Fortunately, the Supreme Court came forcefully to the defence of the RTI user in SC ICAI 2011, and held that public authorities should realise that the era of transparency is here:

“ 25…We do not agree that first respondent had indulged in improper use of RTI Act. His application is intended to bring about transparency and accountability in the functioning of ICAI. How far he is entitled to the information is a different issue. Examining bodies like ICAI should change their old mindsets and tune them to the new regime of disclosure of maximum information. Public authorities should realize that in an era of transparency, previous practices of unwarranted secrecy have no longer a place. Accountability and prevention of corruption is possible only through transparency. Attaining transparency no doubt would involve additional work with reference to maintaining records and furnishing information. Parliament has enacted the RTI Act providing access to information, after great debate and deliberations by the Civil Society and the Parliament. In its wisdom, the Parliament has chosen to exempt only certain categories of information from disclosure and certain organizations from the applicability of the Act. As the examining bodies have not been exempted, and as the examination processes of examining bodies have not been exempted, the examining bodies will have to gear themselves to comply with the provisions of the RTI Act. Additional workload is not a defence. If there are practical insurmountable difficulties, it is open to the examining bodies to bring them to the notice of the government for consideration so that any changes to the Act can be deliberated upon. Be that as it may.”

The RaaG assessment recorded that 80% of respondents in rural FGDs, and 95% in urban FGDs, said that they wanted to use the RTI Act in order to seek redress of their grievances. Analysis of RTI applications showed that at least 16% of the applicants were seeking information that was aimed at getting action on a complaint, getting a response from a public authority, or getting redress for a grievance.

Also, the widespread violation of legal provisions both in the RTI Act and in other relevant laws, for proactively providing information to the people and informing people of the decisions that affect them, has resulted in people having no choice but to file RTI applications as a last resort. In fact, the recent RaaG study shows that a very large proportion of the RTI applications which are held to be examples of misuse as they ask for voluminous information, are actually asking for information that should have been proactively disclosed, but was still not accessible.

Despite the evidence, governments have repeatedly propagated the misuse “myth”. A case in point being the recent tweet by a central government minister about an RTI application asking the government about its plans to counter an invasion by zombies and aliens. The publicity given by the minister’s tweet ensured that this one somewhat funny RTI application was widely covered in leading newspapersand provided further fuel to the detractors of RTI. But consider that over four million applications are filed every year, and yet the one case of “misuse” gets talked about while the remaining three million, nine hundred and ninety-nine thousand nine hundred and ninety-nine genuine cases pass by unnoticed.

Information commissions sometimes add to the hullaballoo regarding misuse, basing their criticism on the appeals and complaints that come up to them. Often commissioners do not realise that only about 5% (see chapter 5(d) for details) of the RTI applications escalate to the commission in the form of second appeals or complaints. These are predominantly from the better off and educated segments of society, who have the wherewithal, the time and the ability to approach the commission. Therefore, even if a quarter of all cases dealt with by ICs seem frivolous, this would be less than 2% of the total applications.

Download full report HERE

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