Draft
Data Protection Bill Gives Corrupt Officers 10 Ways to Escape RTI Scrutiny'
Proposed
Amendment in RTI Act is unwarranted and make the Act redundant :
The
Justice Srikrishna committee recommendations are “clad in more ambiguity” and
leaves “wide scope” for misinterpretation".
Following
the Justice Srikrishna Committee’s recommendation to replace Section 8(1)(j) of
the Right to Information Act with another will render the Act “absolutely
useless in securing access to public records pertaining to public servants”.
Acharyulu
– a former professor of law at the National Academy of Legal Studies and
Research in Hyderabad, and the author of 30 books on law and journalism,
including four on the RTI – has called upon all his colleagues at the Central
Information Commission to “to meet and consider this new threat and take
appropriate steps”.
`Replacement
of section dealing with privacy clause is not warranted’
“The
replacement of Section 8(1)(j) is not warranted”. The privacy of public
servants has been protected by the RTI Act as envisaged by Supreme Court in R.
Rajagopal v Tamil Nadu and Justice Puttaswamy cases” and therefore, there was
“absolutely no need to replace present section 8(1)() of RTI Act.”
`Justice
Srikrishna panel did not consult CIC, its report deserves to be rejected’
Making
a mention of the fact that this “problem” has come up at a time when the
“threat to reduce the status of ICs” has not been “totally diminished” –
referring to fact that the draft RTI Act Amendment Bill 2018, which seeks to
give the Centre the power to determine information commissioners’ tenures and
salaries has only been deferred – the
Personal Data Protection Bill 2018 now stands to threaten the very existence of
what the RTI .
`Harm
test’ to deny RTI would cause more harm than good
Section
8(1)(j) of RTI Act 2005 noted that “notwithstanding anything contained in this
Act, there shall be no obligation to give any citizen …. (j) information which
relates to personal information the disclosure of which has no relationship to
any public activity or interest, which would cause unwarranted invasion of the
privacy of the individual unless the Central Public Information Officer or the
State Public Information Officer or the appellate authority, as the case may
be, is satisfied that the larger public interest justifies the disclosure of
such information.”
Under
the PDP Bill 2018, this clause (j), he said, is replaced to state that
“information which relates to personal data which is likely to cause harm to a
data principal, where such harm outweighs the public interest in accessing such
information having due regard to the common good of promoting transparency and
accountability in the functioning of the public authority”.
“Section
8(1)() if replaced, will expand scope of denial of information with several
ambiguous and very wide expressions. More harmful is proposed ‘harm test’ to
deny the RTI.”
The suggested Section 8(1)(j) says
“information which relating to personal data” can also be denied. “This means
the personal data can be rejected if it causes harm to data principal
(owner/public servant about whom the information is sought).”
`Wide
definition of “personal data” would increase scope of rejection of information’
While
both the RTI Act 2005 and the new draft Bill say “provided…that the
information, which cannot be denied to the Parliament or a State Legislature,
shall not be denied to any person’’, another difference between the two creeps
in where the draft Bill makes a mention in the “explanation”, stating: “For the
purpose of this section, the terms “personal data”, “data principal”, and
“harm” shall have the meaning assigned to these terms in the Personal Data
Protection Act, 2018” and that under “Section 3 (14) “Data principal” means the
natural person to whom the personal data referred to in sub-clause (28)
relates.”
“Section
3 (29) of the Bill 2018 says: “Personal data” means data about or relating to a
natural person who is directly or indirectly identifiable, having regard to any
characteristic, trait, attribute or any other feature of the identity of such
natural person, or any combination of such features, or any combination of such
features with any other information.”
“this
definition itself is very wide in scope. It says any information ‘relates to it
also can be denied. Scope of rejection is expanded without bounds. It is
ambiguous, wide and unlimited.”
Larger
public interest is the key in present RTI Act, draft Bill says ‘public
interest’ is ambiguous
The
CIC has also referred to how in Section 8(1)(j) of the present RTI Act, the
larger public interest is the test to relax the exemption and empowers a public
information officer to give information. “Justice Srikrishna report says the undefined
‘public interest’ is ambiguous and suggested to specify the relaxation clause.”
He cautioned that what has been recommended by the panel is “clad in more
ambiguity” and leaves “wide scope” for misinterpretation.
Because
of the recommendations, the public information officers would have on their
hands a “more difficult task to understand whether this ambiguous harm is going
to outweigh common good of promoting transparency. It is neither easy for PIO
nor for applicant to explain this or justify.”
And
Justice Srikrishna’s recommendation did not define common good, promotion,
transparency and accountability. Moreover, the report or the Bill did not even
define “privacy”.
`Definition
of “harm” can damage RTI’
The most important expression that can cause
serious harm to RTI is “harm”. Section 3 (21) of the draft stated:
“‘Harm’
includes, (i) bodily or mental injury; (ii) loss, distortion or theft of
identity; (iii) financial loss or loss of property, (iv) loss of reputation, or
humiliation; (v) loss of employment; (vi) any discriminatory treatment; (vii)
any subjection to blackmail or extortion; (viii) any denial or withdrawal of a
service, benefit or good resulting from an evaluative decision about the data
principal; (ix) any restriction placed or suffered directly or indirectly on
speech, movement or any other action arising out of a fear of being observed or
surveilled; or (x) any observation or surveillance that is not reasonably
expected by the data principal.”
“harm
includes”, are enough to cause confusion as they may mean “anything beyond what
were specified in 10 clauses” in Section 3(21) of the Bill. And “those harms
are left to the imagination of the PIO”.
`Mental
injury’, `loss of reputation’ may be used to reject all RTI pleas
Another
vague expression that may be used to deny information, the CIC said, was
“bodily injury or mental injury”. He reasoned that since any RTI request may
embarrass, upset or cause worry to the public servant in question, it might be
construed as causing mental injury. “PIO can instantly reject any information
calling it embarrassing or that can cause mental injury!”
Likewise,
since the ‘loss of reputation’ is
another definition of ‘harm’, every disclosure about disciplinary action on
misconduct generally could be seen as capable of causing some ‘loss of
reputation’.
Furthermore,
the Justice Srikrishna report says even
the possibility of ‘humiliation’ is enough to deny information ‘which is likely
to cause harm’. Here again, he said the expression `likely’ is a general prefix
for all kinds of harms listed in Section 3(21) and also those not listed.
Actual harm and likely harm could be grounds for rejection. “The PIO could
imagine any injury is `likely’.
Ten
clauses will offer ten exit gates for corrupt officers to escape RTI scrutiny
In
a similar vein, the CIC wrote that the expression ‘subjecting him to blackmail
or extortion’ has also been used to state that if disclosure of any information
under the RTI is likely to subject a corrupt officer to blackmail or extortion,
the PIO can refuse. “With this clause, every corrupt officer can be safeguarded
from possible blackmail. Corruption related information can become his private
information as per this Bill.
The
clauses pertaining to “restriction placed or suffered” and “observation and
surveillance that is not reasonably expected by the data principal” would
together with the other eight clauses ensure that corrupt officers have “10
exit gates to escape from RTI scrutiny by the people”.
Compiled by Ca Anil Agrawal
Approoved by
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