Disclosure of information on one’s own (public authorities) volition, defined under section 4 of the Right to Information (RTI) Act, was supposed to be strongest pillar of the historic law that came into effect in 2005.

It listed 17 categories of information which had to be proactively disclosed by all public authorities. It required them to routinely disclose information about their functions, decision-making norms, documents held, employee contacts and budgets.

The idea was to cut number of RTI applications and lessen the burden on public authorities.

But then, for a government which had, till then, guarded every bit of official information so zealously, aided by the draconian Official Secrets Act, weren’t we expecting too much?

Of course, we were.

Every ministry and department paying lip service to section 4 dished out outdated information. For example, the website of the home ministry, under section 49(1) (b) (4), is required to describe its roles and functions in detail. However, it has been dismissed in two to three lines.

Prime minister Manmohan Singh’s concerns, expressed on numerous occasions, wherein he said the transparency law should not affect the deliberative processes in the government added to the growing suspicion among the civil society groups that the government, let alone implementing section 4 of the Act, was trying to further restrict the Act.

It is under this bleak scenario surrounding the RTI Act that the recent circular issued by the department of personnel and training (DoPT) which apart from clearing the cloud of confusion in the interpretation of the clauses of section 4, directs all public authorities to implement it within six months and send a compliance report to the chief information commissioner.

“Since promulgation of the RTI Act in 2005, large amount of information relating to functioning of the government is being put in public domain. However, the quality and quantity of the proactive disclosure is not up to the desired level,” said the circular issued on April 15.

“It was felt that the weak implementation of the section 4 of the RTI Act is partly due to the fact that certain provisions of this have not been fully detailed and in case of certain other provision there is need for laying the detail guidelines. Further there is need to set up a compliance mechanism to ensure that requirements under section 4 of the RTI are met.”

The circular carries detailed guidelines on effective implementation of suo motu disclosure under section 4 of the RTI Act 2005.

Apart from detailing the existing clauses of the section 4(1) (b), the circular also includes more items under it, viz. disclosure of information on public-private partnerships (PPP), procurements, transfer policy and transfer orders, discretionary and non-discretionary grants, and foreign tours of prime minister/ministers.

“The new guidelines, spelling out certain clauses and including new items under it, is a significant step towards greater accountability and transparency,” said Anjali Bhardwaj, a member of the National Campaign for People’s Right to Information (NCPRI), which played a crucial role in the drafting of the law.
Under the new guidelines, every public authority would have to disclose: the entire decision-making process along with the chain followed in coming to that decision; the standards by which its performance should be judged; simplified versions of their budgets which can be understood easily by general public and place them in public domain; and information available or held by it in a digital form. 

“It’s a significant step and the government should be lauded for issuing such a detailed guideline,” said PS Bawa, chairman, Transparency International India.

“Most of the ambiguities in section 4 are addressed and the PIOs given suitable advice. There is often reluctance on the part of the department to share information. But this circular shall enable the information officers to provide information without any hesitation. This would save time and embolden the PIOs in exercising their powers,” he added.

“It is a first significant step towards open government,” Alok Sinha, a former bureaucrat, said.

Shailesh Gandhi, the former information commissioner, said that although the government was seven years late in formulating a detailed guideline, it was certainly a positive step.

Section 4 and its non-compliance

According to Venkatesh Nayak of the Commonwealth Human Rights Initiative (CHRI), the RTI law not only require governments to provide information upon request, it also imposes a duty on public bodies to actively disclose, disseminate and publish, as widely as possible, information of general public interest even before it has been requested.

“When the RTI Act came into force in 2005, it required section 4 to be implemented within four months of the implementation of the Act. However, seven years hence, government departments had been turning a blind eye to it,” said Nayak.

“Take, for example, the website of the home ministry. Section 49(1)(b)(4) requires it to describe its roles and functions in detail, but that has been dismissed in two to three lines,” he said.

According to Anjali Bhardwaj of NCPRI, very much like the home ministry, every other department/ministry has routinely flouted section 4. “When the slum department was shifted from MCD to the Delhi government in 2011, it should have been published well, put up on the Delhi government’s and MCD’s websites. But it was not. Again when the Right to Services Act came into effect in Delhi, for many days people did not even know about it,” she said.
The non-compliance of section 4 hits the marginalised section of society the hardest. A survey carried out by the Satark Nagrik Sangathan (SNS), an NGO working in the slums of Delhi, found that the majority of the RTI queries filed by people in the slums related to their day-to-day grievances like queries on their BPL cards or their pension amounts.

For information like these, which should already have been there in the public domain, people make countless trips to the public authority.

A study commissioned by the government in 2009 and conducted by PricewaterhouseCoopers said that 75 percent of the respondents noted their dissatisfaction with the information furnished by the public authorities. This, the study said, is usually due to poor record-keeping within the public authorities and, therefore, becomes a crucial factor in the non-compliance of public authorities with Section 4(1)(b) of the RTI Act.

“Would it not make a significant difference to the lives of such applicants if the information they seek is put up voluntarily under section 4 of the Act,” asked Bhardwaj.    

Formation of a task force
Against the backdrop of continued indifference to section 4 by the public authorities, the civil society groups mounted pressure on the government to come up with a detailed guideline on section 4.

Finally in May 2011, the government formed a task force which included, apart from officials from various ministries, representatives of civil society organisations active in the field of RTI. 

The mandate of the task force was to examine the provisions of section 4(l)(b) and to recommend guidelines for disclosures to be made at various levels of administration; to recommend other items which may be included for suo motu disclosure; to explore the possibility of prescribing simple templates for disclosing specific category of information in order to facilitate disclosure; to recommend mediums through which such disclosure is to be made at various levels, which would include disclosure through electronic means; and to recommend guidelines for complying with the provisions under Section 4.

The guidelines
Based on the recommendation of the task force the DoPT issued a 16-page guideline on section 4 on April 15.

New inclusions: One of the most significant entrants under section 4 is the public-private partnership (PPP), which until now had been off the limits of the RTI Act. According to the new guidelines, “If public services are proposed to be provided through a PPP, all information relating to the PPP must be disclosed in the public domain by the public authority entering into the PPP contract/concession agreement. This may include details of the special purpose vehicle (SPV), if any set up, detailed project reports, concession agreements, operation and maintenance manuals and other documents generated as part of the implementation of the PPP project.”

Other significant inclusions under section 4 are information related to procurement, transfer policy and transfer orders, RTI applications, CAG and PAC references, citizen charter, discretionary and non-discretionary grants and foreign tours of PM/ministers.

“The inclusion of PPP and procurement, I would say, is very significant inclusions under section 4. PPP is important as majority of the core infrastructure projects, including highways, ports, airports, metros and Delhi-Mumbai Industrial Corridor (DMIC), are being undertaken under PPPs. Procurement on the other hand is den of corruption. Putting it under section 4 would make it more transparent,” said Nirpendra Mishra, a former bureaucrat. 

More effective disclosure
The DoPT circular admits that disclosure in regard to certain sub-clauses has been relatively weak, and, therefore, those clauses needed detailed guidelines. Following are the sub-clauses and detailed guidelines along with them.

Decision-making made transparent: This sub-clause requires the public authorities to disclose the entire decision-making chain in the form of a flow-chart explaining the rank/grade of the public functionaries involved in the decision-making process and the specific stages in the decision-making hierarchy.
It should also include the powers of each officer, including powers of supervision over subordinates involved in the chain of decision-making. Again, the exceptional circumstances when such standard decision-making processes may be overridden and by whom, should also be explained clearly.

Where decentralisation of decision-making has occurred in order to grant greater autonomy to public authorities, such procedures must also be clearly explained. In the event of a public authority altering an existing decision-making process or adopting an entirely new process, such changes must be explained in simple language in order to enable people to easily understand the changes made.

Norms on discharge of functions: Under this clause, every public authority should proactively disclose the standards by which its performance should be judged. In order to ensure compliance with this clause, public authorities would need to disclose norms for major functions that are being performed.

“What this clause means is that every public authority has to define the services and goods that the particular public authority provides directly. They will also have to do the detailing and describing the processes by which the public can access and receive the goods and services that they are entitled to,” explained Harinesh Pandya of Janpath, an NGO closely working in the field of RTI in Gujarat.  

Budget and expenditure: Keeping in view the technical nature of the government budgets, the clause says, it is essential that ministries/departments prepare simplified versions of their budgets which can be understood easily by general public and place them in the public domain.

Budgets and their periodic monitoring reports may also be presented in a more user-friendly manner through graphs and tables, etc. Outcome budget being prepared by ministries/departments should be prominently displayed and be used as a basis to identify physical targets planned during the budgetary period and the actual achievement vis-à-vis those targets.

Funds released to various autonomous organisations/ statutory organisations/ attached offices/ public sector enterprises/ societies/ NGOs/ corporations, etc, should be put on the website on a quarterly basis and budgets of such authorities may be made accessible through links from the website of the ministry/department.

All data in electronic form: Under this clause, every public authority must disclose information available or held by it in a digital form. Keeping in view the varied levels of computerisation of records and documents in public authorities, data about records that have been digitised may be proactively disclosed on the respective websites.

Compliance mechanism and nodal officer
One of the reasons why section 4 has seen the poorest compliance is the lack of any monitoring mechanism. The new guidelines from DoPT try to address this lacuna.

According to these new set of guidelines, the action taken report on the compliance of these guidelines should be sent, along with the URL link, to the DoPT and central information commission (CIC) soon after the expiry of the initial period of six months.

Each ministry/public authority should get its proactive disclosure package audited by a third party every year.

“The involvement of CIC and a third party audit is an important addition in the section 4,” Harinesh Pandya of Janpath said.

“Although we cannot call it a foolproof compliance mechanism, the inclusion of the CIC in the audit is certainly appreciated,” said Anjali Bhardwaj of NCPRI.
The DoPT circular also directs public authorities to appoint a nodal officer who will be responsible for the compliance.

“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,” says the circular.

The criticism
The members of the task force that made the recommendations, based on which the final guidelines were prepared, say the government has presented a diluted version of the original recommendations.

“One of the main omissions are the templates for dissemination of information,” said Venkatesh Nayak of CHRI and one of the members of the task force.

“In our recommendations, we put down in detail the way information should be disseminated at all levels of governance. For example, we had said how in case of the public distribution system (PDS) disclosures at the level of fair price shop should go down to the level of ration card holder, while at the level of the district/state, agencies dealing with the disclosures would need to be more broad-based,” he said.

Nayak shot off a letter to the joint secretary, DoPT, expressing his displeasure at the exclusion of this important recommendation of the task force.

“The current guidelines focus more on disclosure through websites. While uploading information on websites certainly puts it in the public domain, not many people in urban and rural India will be able to access it easily. With less than 10 percent internet penetration and usage recorded in the country, it is important to disseminate the voluntarily-disclosed information through other means such as notice boards, wall paintings, SMSes, call centres, toll-free helplines, making information available for free inspection at panchayats, etc,” Nayak said in his letter to the joint secretary sent on April 26.

Another important omission, says Pankti Jog of Mahiti Gujarat Pehel, another NGO that was part of the task force, is a set of practical guidelines to establish a consultative process for ascertaining people’s views on draft policies, laws, rules and regulations prior to their finalisation. “This chapter on pre-legislative consultation has been omitted from the current DoPT guidelines,” she said.

“No doubt the circular misses a lot of important recommendations, but it cannot be denied that it is a significant step towards greater transparency and accountability of public authorities,” said Anjali Bhardwaj of NCPRI.

When contacted, a DoPT official said, “We included what we thought was necessary for the effective implementation of section 4 of the RTI Act. However, we take into account the criticism of the civil society groups and we would consider revising the guidelines again.”

Let us hope that takes less than seven years the government has taken to issue these guidelines.