Open Access Research Article
A COMPARATIVE STUDY OF RIGHT TO INFORMATION WITH U.S, U.K AND INDIA
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A COMPARATIVE STUDY OF RIGHT
TO INFORMATION WITH U.S, U.K AND INDIA
Authored by - Joshua Thomas VJ
Abstract
Democracy
has become an essential tool for most of the present days society, democracy is
the voice of the people where the citizens of the country elect their
representatives and they in turn will act on behalf of the people when this
function is not carried out in an appropriate manner, people will lose the
faith in the system that they are a part of. Right to information is on such
Legislation which prevails in most of the democratic countries so that the
people will have the right to question the elected representatives if they feel
the decisions taken by these officials are not binding or favouring the
society. The researcher in this paper focuses on the aspects, provisions and
various other lacunae challenges faced when the necessary information is not
provided and who should be held Accountable, the methodology used is doctrinal.
Along with this a comparison with other countries is made so that we can take
the help of the legislation world-wide and improve our system by bringing in
necessary changes to the existing framework. The people are sovereign and
have the right to know all the actions and actions of their government to
combat corruption and partisanship. In this regard, Right to Information has
been introduced in India and is considered as an important step in the process
of transparency.
Key-Words
- Right to information, transparency, democracy,
accountability, corruption.
Introduction
The
beginning of the twenty-first century is considered to be the era of
information and technology. With the help of technology one can gain access to
information and with the proper information provided by the government will
create confidence among the people that their elected representatives are
functioning smoothly without any corruption and selfish nature. Information has
an unlimited potential and it is considered as the heart of all the process of
the governance and also it is essential for the smooth functioning of the
democracy as it is an instrument of social justice and equity[1].
In a democratic setup or a country, it is seen that information is empowering
the of being the real sovereign and it makes the subjects to act more
meaningfully and be more vigilant, and it is stated that the concept of
democracy is set to become more vibrant.[2]
The access to information is said to be an key aspect for the development of a
vibrant society, if the people aren’t allowed to access information then it is
said to be dictatorship society where the people or the subjects cannot
question the administrative authority if they do they will be subject to
punishment. A guaranteed right to information is considered to be an essential
aspect as well as the practical antidote towards tackling corruption. With the
help of the role of media it can act as a watchdog as well as scrutinize the
power and expose the mismanagement and corruption. The main purpose of this
Act, is to ensure that justice is extended to all the sections of the society
and there is the element of transparency and accountability in the functioning
of the public officials, at the same time this law does not become a tool to
obstruct the national development and the integration or to destroy the peace,
harmony and tranquillity among the citizens.[3]
Significance of Right to Information
The
word information is derived from the Latin word ‘informare’ which means to
create or give form to. We are living in a society where we elect our
representatives in the form of democratic form of government and it is
necessary for them to provide its subjects who elected them with accurate
information in the affairs, they deal with concerning the public affair. Any
person who is well informed stands a better chance to exercise his legal as
well as other right better than those people who doesn’t have access to any
information. With the help of RTI one can gain access to various information he
or she wishes to gain knowledge of which relates to their benefit, but one
cannot gai access to all the information, certain information is prohibited
such as disclosing of trade secrets, matters concerning the national security,
maps, designs etc of the armed forces these will be withheld by the government,
it is right on part of the government to withhold such information so that the
interest of the society will be protected and will prevail throughout.
Information
can be defined as the human right to secure access to he publicly held
information and it is the corresponding duty of the public body to make sure
that such information is available to the public or the person who seeks it.[4]
Information
includes materials in all forms, including records, documents, memos, e-mails,
comments and statements, opinions, circulars, orders, logs, contracts, reports,
paper forms, models, data materials and electronically stored information.
Section 2(f) of the Right to Information Act 2005 refers to persons provided to
government agencies under existing legislation. Whereas section 2(i) of the Act
also defines the word record as and it includes:
·
Any document, manuscript and file.
·
Any microfilm, microfiche and facsimile
copy of a document.
·
Any reproduction of image or images
which is embodied in such microfilms and
·
Any other material produced by a
computer or any other device.[5]
International Principles on Right to Information
Across
the globe the legislation on right to information varies significantly, however
we can see that there are some similarities that exist and can be identified as
the regular features of a freedom of information regime. It is argued that the
freedom of information and the right to access information detained by the
public bodies is a fundamental right and it is considered to be a part of
freedom of expression where when can express his concerns and get a view or the
desired answer one desires.
One
of the main principles of the right to information is that of the principle of
maximum disclosure where it talks about everyone must benefit equally from the
laws, there are various other principles on right to information.
·
Obligations to publish- where the
public bodies should be under an obligation to publish key information.
·
Promotion of open government- public
bodies must actively promote the concept of open government.
·
Limited scope of exceptions- the
exceptions should be clearly narrowly drawn and subject to strict harm and
public interest.
·
Processes to facilitate access- the
requests for information should be provided without undue delay and it should
be fairly and an independent review of any refusals should be made available.
·
Open meetings- the meetings of the
public bodies should be open to the public, this ensures a transparent and
accountable government.
·
Protection must be provided to the
whistle blowers who release information on the wrong doing.
These
are some of the primary principles that are being laid down under the concept
of the Public’s right to know. [6]
Issues Involved in the Right to Information
The
RTI Act,2005 is a revolutionary legislation in the history of India. The Act
has a unprecedented potential to transform governance and it tries to bring
about the accountability and transparency in the functioning of the government.
This Act is a potential tool in the hands of the common men of the country but
we can see that fortunately or unfortunately people makes use of such a tool.
The main issue that arises is that of the politicians using such a mechanism against
their rivals, journalists and some RTI activists. Even till date this Act did
not become a tool of the common man even if it did the concept of free will is
taken away of the people by the elected representatives. Obviously, the reasons
are traced to be the lacunas of the Act and the lack of the administrative zeal
to implement the Act in the letter and the spirit. Another issue that we can is
that one person can file an RTI against another man and get details of the
property one possesses and this is a clear violation of right to privacy one
has. Along with this there is a need to study the various provisions of the RTI
Act, 2005 along with the legislations that exists in different countries, when
one does this we can see where the areas of RTI in India can be added some
changes because of the comparison made.
Comparative
study of RTI with Different Countries
The right to information in the
global scenario is not a new but a concept where the evolution can be traced
mainly in the 18th century that followed many countries in the
modern times mainly by the end of the 19th century. The RTI was
recognized by the U.N at it very inception in the year 1946, where the general
assembly resolved that the freedom of information is a fundamental human right
and the cornerstone of all the freedom to which the U.N was concerned[7].
The researcher in this paper tries to make a comparative study on the
provisions of the right to information of different countries in order to see
and understand whether the provisions of the Indian Act fulfils the
international criteria of free information or not and upto what extent.
1.
India
The Indian freedom information bill
2002 was finally accepted as law in December 2002, although it never came into
force. The United progressive alliance came into power in the year 2004 and
this set up the national advisory council to monitor the implementation of the
common minimum programme including the right to information movements. Finally
the right to information bill was passed by the parliament in 2005 and the
presidents assent was attainted in June 2005. The official recognition of RTI
in India finds its genesis in the decisions of the S.C holding that it is
included in the constitutional guarantees of freedom of speech and expression.
Ø The right of access:
The Act provides that all the
citizens shall have the RTI, defined as the right to obtain information from
the public authorities’ subject to the provision of the Act.[8]
Ø Definitions:
The Act defines information as the material in
any form, including records, memos, e-mails, opinions, advices, press releases,
circulars, orders, log books, contracts, reports, paper, samples, models and
information relating to the private body which can be accessed by the public
authority under any other law for time being in force.[9]
These definitions in broad terms is a type of information but it limits the
scope of the Act.
Ø Process
The requests must be made in writing
or through the electronic means in Hindi, English or in the official language where
the individuals have any difficulty the PIO is required to assist them.[10]
Requests must be dealt within 30 days, and the request may be accepted subject
to the payment of fee as prescribed or it may be rejected where the information
requested falls within the scope of any exception or is deemed to be invalid.
Ø Duty to publish
The public authorities at regular
intervals prescribed by the government should publish certain information such
as, powers and duties of the officers and employees, the procedure followed by
them, norms, directory of its officers, system of compensation etc. these
bodies are required to publish all the relevant facts relating to the important
decisions and the policies .[11]
Ø Appeals
Within 30 days or an extended period
of time, a requester may file an internal appeal against any decision made by a
public information officer to an officer of higher rank. A decision on the
appeal must be made within 30 days, or within a longer period not to exceed 45
days. Within 90 days of the Central Information Commission's or State
Information Commission's decision on the initial appeal, as applicable, another
appeal may be filed. An appeal by a third party must be filed in 30 days.[12]
Ø Promotional measures
Given the availability of resources,
government agencies must organize, index, and computerize records so that the
information can be accessed within a reasonable time and connected through a
global network. You must also appoint a PIO responsible for handling inquiries
and providing support. At the end of each year, the Intelligence Committee must
prepare a report and send a copy to the competent authority.
This is a general overview of the
right to information Act in the Indian Scenario, along with this a comparison
with U.K and U.S will be discussed during the course of the research and how is
it different will be conveyed in the paper.
2.
United Kingdom
In the United Kingdom there exists
the freedom of information Act of 2000, unlike in India’s right to information
Act of 2005, however in United Kingdom there exists a mystery on the concept of
freedom of information, there is a contrasting vibrant media operating in an
environment of relatively high respect for the freedom of expression with a
government which has, at least until, been obsessed by confidentiality. This
explains the odd situation where by the freedom of information law was not
passed in the U.K until November 2000[13],
long after everyone had established such a law. It is seen that freedom of
information Act in U.K includes a very good process of guarantees along with a
number of innovative promotional measures.
Ø The Right of Access
The first provision of the freedom of
information Act of 2000, provides that any person who is making a request for
any information to a public authority he or she is entitled to be informed in
writing whether or not such body holds the information and if it does the
information must be communicated to him [14].
However, it is seen that this right is not restricted only to the nationality
or residence, it includes any reasonable request by the body for further
information, the payment of fees, any exceptions for various repeated requests.
Ø Definitions
The Act very simply defines
information as "information recorded in any form." The Act is silent
that it includes any information whatsoever held by the public authorities,
this Act also provides that information is understood to be detained by the
public authority, if it’s held other than on behalf of another person, or if
someone holds it on behalf of the authority.
Ø Process
Anyone wishing to access information
must submit a written request with their name, address, and a description of
the data they are looking for. If a request is electronically acknowledged, it is deemed to be in
writing as long as it is legible and can be used as a reference in the future.
When a request is acknowledged
electronically, so long as it is legible and can be used as a reference in the
future, it is considered to be in writing. The Act permits public authorities
to withhold information from being disclosed until any fee must be paid in full
within three months of the due date. The information requester may specify the
format in which he or she wishes to receive the information under the UK FOI
Act. The information seeker has the following three options for how to
communicate information a fair chance to examine a record containing the
information, in permanent or another form, or a digest or summary of the
information, in permanent or another form.[15]
Ø Appeals
Three different levels of appeal are
available under the UK's Freedom of Information Act: the public authority that
holds the information, the Information Commissioner, and a specialised
Information Tribunal. The two bodies mentioned were created and acknowledged in
accordance with the Data Protection Act of 1998 as, respectively, data
protection tribunal, as well as the data protection commissioner. The
Commissioner is appointed by Her Majesty , and the Tribunal is composed of a
chair, a number of deputy chairs chosen by the Lord Chancellor (effectively the
Minister of Justice), as well as additional members chosen by the Secretary[16].
Despite the appointment process, both serve as effective representatives of the
State unbiased organisations.
Ø Promotional Measures
A number of promotional measures is
contained in the U.K freedom of information Act, in this it protects the public
authorities from defamation claims while disclosing the information as provided
by the third parties as long as it does not act with malice. There are two
codes of practice the information provides for, the first being is code of
practise that is developed by thr secretary state to provide the guidance to
the public authorities and second the chancellor shall issue and may from time
to time revise a code of practise providing the guidance to the public
authorities.
These are a brief overview of the
concept of freedom of information in the U.K, a comparison can be seen with
India under the similar headings.
3.
United States
After Sweden it was the united states
the one of the very first countries that embraced the freedom of information,
in 1966 this right was given effect. Since that time ups and downs, it is fair
to say that a significant culture of openness and transparency has developed
into the government, in this it included not only the FOI Act but also it
included the whistle blowers as well as the privacy Act, where the access to
those personal information held by the public authorities. In addition to this
all the states now have freedom of information Acts of their own.
·
Right of
Access
The Act outlines the fundamental
right that anyone has to promptly request information from the agencies listed
and receive it from them, provided that they do so in accordance with the law's
rules and certain basic requirements. The request must be in accordance with
the published rules regarding time, place, any fees, and the procedures to be
followed, and it must rationally describe the record sought. Due to the lack of
restrictions based on citizenship or place of residence, foreigners frequently
use the law.
·
Definition
The definition of "record"
in the Act is "any information that would be in an agency record subject
to the requirements of this section when maintained by an agency in any
format," which is the term used throughout to refer to the subject of a
request. The United States Supreme Court has interpreted and explained that
this includes any record created or obtained by the agency in question that is
under that agency's control at the time the materials are requested.[17]
And the information is held by the agency.
·
Process
Any request for information may be
made by anyone, subject to the formalities noted above regarding clarity and
any procedural guidelines established by the relevant agency. The Act has
detailed regulations regarding deadlines. Requests that fall under the purview
of the law and are not exempt will be considered eligible. Answered
"promptly," as decisions are typically made within 20 business days.
Inwriting the language is not defined unlike India.
·
Duty to
Publish
Different obligations to proactively
make information available to the public are provided by the Act, and it is the
duty of the agency to to publish certain information in the federal register.
The various data that must be published in the Federal Register include
descriptions of central and field organizations, policy statements and
generally applicable legal provisions, where and from whom the data may be
requested, and an overview of general functions. And all the official
procedures. The law also requires agencies to make various information
available for public inspection and copying, unless it is soon to be available
for disclosure or acquisition in accordance with published regulations.
Appeals
Requesters must first appeal any
denial of information disclosure to the head of the concerned agency. This
internal appeal must be resolved within 20 working days, and the requester must
be informed of the possibility of judicial review if it is rejected in whole or
in part[18].
It can be filed internally and by the court.
·
Promotional
Measures
The law has procedures for
considering cases of impediment to entry. The special prosecutor is
investigating whether disciplinary action is warranted if the prosecution of a
public official is upheld and there is a concern about "arbitrary and
negative acts" related to the withholding of information provided by an
agency employee. In addition, each agency head must prepare and publish a
manual for obtaining all records with descriptions of key information, as well
as an index of all key information systems..
|
India
|
United Kingdom
|
U.S. A
|
|
The right of access is available to
every citizen.
|
The right of access is available to
every person and not restricted only to the nationality or residence.
|
There is no restriction as a
citizenship or residence, foreigners can frequently use it.
|
|
Process is made on request in
writing or through electronic means in Hindi, English or through the official
language.
|
The process is in writing but the
language is not specified.
|
Same as United Kingdom.
|
|
Appeal shall lie internally as well
as with the information commission.
|
Same as India
|
It lies internally as well as with
the court.
|
Conclusion
The words
"transparency" and "accountability" are currently used
carelessly in relation to governance, not just in India but also by governments
and international organisations around the globe. The principle that underpins
the right to freedom of information is that public institutions hold
information not for themselves but rather for the general populace. The
fundamental tenet of information is that everyone should have access to all
information, unless there is a compelling public interest to keep it secret.
Such a right is also supported by some strong democratic ideals, such as
respect for all human rights, democratic participation, and effective
government. On the basis of the comparative study that is made between the
different countries, it is observed by the researcher that on the international
level India’s right to information law is one of the best laws, however the
actual implementation of the law leaves a lot to be desired.
[1] G. Palanithurai,
Right to Information Act in India: A note on praxis social action, Vol.62,
p.283. Accessed on 13th November 2022.
[2] Avinish Sharma, Right to
Information: A constitutional Perspective, Vol.43, No.2, p.76. Accessed on 13th
November 2022.
[3] Vinay N. Paranjape, Right to
Information law in India, CLA, Allahabad, first edition 2013, p. 2. Accessed on
13th November 2022.
[4] M. Sarojanamma, Right to
Information for a Transparent and Democratic Government, Andhra Law Times:
2013, June 01;3 (11), p. 20. Accessed on 14th November 2022.
[5] J.N. Barowala, Commentary on
Right to Information Act, universal law publishing co. ed III, 2013 p
108.
Accessed on 14th November 2022.
[6] Pankaj K.P Shreyaskar, RTI Act in
India Future and Implications, Mecgraw Hill Education (India) Private limited
2015 p, 17. Accessed on 16th November 2022
[7] UN General Assembly, Resolution
59(1) 65 the plenary meeting, December 14, 1946. Accessed on 17th
November.
[8]
Bill No. 98-C of 2000. Available at: http://www.freedominfo.org/news/india/foi2002.doc. Accessed on 17th November 2022.
[9]
S.2(f) OF Right to Information Act of 2005.
[10]
S.6(1) of Right to Information Act of 2005.
[11] S.4(1)(b) of Right to
Information Act 2005.
[13] The Freedom of Information Act,
2000 Available at: https://www.cfoi.org.uk/foiact2000.html. Accessed on 17th
November 2022 at 10:30am.
[14] S 1(1) of freedom of information
Act of 2000.
[15] S 16 of freedom of Information
Act 2000.
[16] Data protection Act 1998,
section 6(4).
[17] Department
of Justice v. Tax Analysts, 492 US 136 (1989), pp. 144-145. Accessed on 17th
November 2022.
[18] Clause (a)(6)(A)(ii).
Article Information
A COMPARATIVE STUDY OF RIGHT TO INFORMATION WITH U.S, U.K AND INDIA
Authors: Joshua Thomas VJ
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/01/11
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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- License CC 4.0
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