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The Central Information Commission(CIC) will on Friday decide whether business and commercial interests of Rajya Sabha members can be made public. The information if made public will ensure greater transparency, probity and accountability of public representatives.

According to the rules of the RS Ethics Committee, all members are expected to declare five pecuniary interests — remunerative directorship, regular remunerated activity, shareholding of controlling nature, paid consultancy and professional engagement.

The RS secretariat had rejected making public the information on the argument that it was held in a fiduciary capacity. It also held that this was personal information disclosing which would not serve any larger public interest. Making it public would also amount to breach of privilege of Parliament, it had said.

The Association for Democratic Reforms (ADR) had in 2009 filed the Right to Information application, asking for the `register of interests’ to be made public. In its second appeal, the organization has held that the information related to the `register’ must be disclosed. ADR has argued that since parliamentarians are expected to and usually claim to work in public interest, disclosure of financial interests will promote transparency.

ADR’s national coordinator Anil Bairwal said that parliamentarians were engaged in policy making covering a wide spectrum of issues and dealing with a large amount of public funds that makes it essential for pecuniary interests of MPs be made public. “The information in the register of interest is not information that will cause unwarranted invasion of privacy of MPs and is already available through a variety of sources,” Bairwal said arguing that the information should be made public.

Incidentally, ADR wrote to MPs asking them to voluntarily declare their information under the `register of interest’ information. Six MPs have agreed to do so. Congress leader and chairman of the RS Ethics Committee Karan Singh, Independent MP from Karnataka Rajeev Chandrasekhar, SAD member from Punjab Naresh Gujral, and nominated members Shyam Benegal, M S Swaminathan and H K Dua have expressed their intention to make their business and commercial interests public.

Reacting to this, Bairwal said, “We believe that many more MPs are ready to disclose their information submitted for register of members interest.”

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The Central Information Commission has asked Rajya Sabha Chairman to take a decision on whether disclosure of file notes, under the RTI Act, on notices and questions received from members will be a breach of Parliamentary privilege.

The transparency panel, while deciding the case of an RTI applicant who had sought to know questions and discussions that took place in the Rajya Sabha against the Central Information Commission, has referred the issue of privilege to the Chairman of the House.

Applicant Anita Chabra had also demanded note sheets prepared by the Secretariat on these questions and notices for discussions received from members. The information was denied by the Secretariat citing section 8(1)(c) of the RTI Act which exempts from disclosure information which would cause a breach of privilege of Parliament or the State Legislature.

“This Commission realises that there is no exact codification of Parliamentary Privilege. In view of this the Commission requests the Chairman of the Rajya Sabha to consider whether giving this information would be a breach of privilege of the Parliament,” Information Commissioner Shailesh Gandhi said.

He directed that disclosure of information would depend on the decision of Chairman Rajya Sabha.

The Rajya Sabha Secretariat , while declining to disclose the information, had said it works on the behalf of the Chairman and decisions like notices received from the MPs are taken in terms of the Rules of Procedure of the House.

“…and in this process the Secretariat is exercising the powers and functions of Chairman Rajya Sabha. The decisions arrived at in terms of the said rules are privileged and protected from disclosure into the public domain,” the Secretariat said.

It said the control on the business of the house falls with the jurisdiction of the house itself and this is the Parliament Privilege.

“This being so, it is not felt appropriate to divulge the decision taking process in relation to the business of the house,” it said.

Information Commissioner Shailesh Gandhi said, “This is an interesting proposition but if this is to be accepted, various protection given to certain bodies would be extended far beyond its intended purpose.”

He pointed out when any institution or person denies a citizen’s fundamental right, great care needs to be taken.

“However, the majesty and privilege of the Parliament also have to be respected with equal care for democracy to function properly…If the Honourable Chairman comes to the conclusion that giving this information will not be a breach of privilege of Parliament the PIO is directed to provide the information,” Gandhi held.

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The Central Information Commission has ruled that annual confidential reports of government servants cannot be treated as secret, saying “citizens’ right to information has greater primacy with regard to privacy.” The government has, so far, refused to provide the annual confidential reports (ACRs) by citing the exemption provision of personal information under the Right To Information Act (RTI).

The ACR evaluates the work and performance of a public servant on an annual basis. The labour ministry invoked the clause saying the information had no relation to public interest, while refusing to provide details of ACRs of 17 officials.

VK Sharma of Kolkata had sought information regarding the promotion of these officers in October 2010.

Information Commissioner Shailesh Gandhi, however, said that privacy is a cultural notion related to social norms and cannot be considered a valid exercise to constrain the citizen’s fundamental right to information.

“Parliament has not codified the right to privacy, so far. Hence, in balancing the right to information of citizens and the individual’s right to privacy, the citizen’s right to information would be given greater weightage,” said Gandhi, in his order.

Gandhi also said information such as property details, conviction or acquittal of a public servant of criminal charges, which is routinely collected by a public authority and provided by public servants, cannot be construed as an invasion of privacy.

“Similarly, citizens have a right to know about the strengths and weaknesses as well as performance evaluation of all public servants,” he said, while asking Prakash Tamrakar, public information officer of the ministry, to provide the information sought.

In addition, the order also said that ACRs were first treated as secret by the British, under the Officials Secrets Act of 1923.

But over the years, the trend has drastically changed, with even the judiciary recognising rights of the citizens to access information to bring transparency and accountability in the functioning of the government.

As per the RTI, the Officials Secrets Act (OSA) is not applicable anymore wherever citizens seek access to information, except the exemption provisions under the information law.

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The Central Information Commission (CIC) has ruled that in a conflict between the Right to Information Act and the internal rules of a Public Authority, the RTI Act must prevail. It would prevail even if the internal rules pertain to the Supreme Court.

CIC Shailesh Gandhi passed this order in a case, in which information on certain judicial records was sought from the Supreme Court under the RTI Act. The First Appellate Authority (FFA) in the court held that any information on judicial records could be accessed only under Order XII of the Supreme Court rules.

The judicial records pertained to letters written to judges by R.S. Misra, appellant in the case. Mr. Misra, who wrote the letters in connection with a Special Leave Petition filed by him, wanted to know their status and filed an application under the RTI Act.

Mr. Gandhi held that the Supreme Court could not cite internal rules to deny information if it had been sought under the RTI Act. Further that information could be denied only if the information sought was prohibited under the RTI Act itself.

“The right to information is a fundamental right of the citizen of India. This has been clearly recognised by the Supreme Court in several decisions and subsequently codified by Parliament in 2005. The RTI Act was enacted with the spirit of ensuring transparency…Section 3 of the RTI Act lays down that subject to the provisions of the RTI Act, all citizens shall have the right to information… Further Section 22 of the RTI Act expressly provides that the provisions of the RTI Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923, and any other law for the time being in force or in any instrument having effect by virtue of any law other than the RTI Act. In other words, where there is any inconsistency in a law as regards furnishing of information, such law shall be superseded by the RTI Act. Insertion of a non-obstante clause in Section 22 of the RTI Act was a conscious choice of Parliament to safeguard the citizens’ fundamental right to information…If the PIO has received a request for information under the RTI Act, the information shall be provided to the applicant as per the provisions of the RTI Act and any denial of the same must be in accordance with Sections 8 and 9 of the RTI Act only..”

http://www.thehindu.com/news/national/article2013124.ece

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The selection procedure of the chairman of telecom regulator TRAI including all the details of selection committee meeting should be made public, the Central Information Commission has held.

The transparency panel rejected the plea of the Cabinet secretariat that information was personal in nature and cannot be given under section 8(1)(j) of the Right to Information Act which prohibits disclosure of such details.

“We fail to understand how the desired information could be classified as personal information at all…The information sought in these cases is far from personal. “Selection and appointment to certain posts in the government are part of the administrative decision-making process and must be placed in the public domain as soon as possible in order to ensure transparency,” chief information commissioner Satyananda Mishra said.

Mishra directed the Secretariat to allow the RTI applicant the inspection of entire file related to the selection of the chairman, TRAI. The case relates to an RTI application filed by one Ashok Golas, one of the candidate considered for the selection in the telecom commission, who sought to know from Cabinet secretariat information regarding selection of the member (technology) of telcom commission and chairman, TRAI including the file notes of selection committee meeting, annual confidential reports of the candidates, number of candidates considered for the post among others.

The Cabinet secretariat refused to disclose the information citing personal information clause of the transparency law and also said that information could be used by the applicant to further his interests before any court of law against the government. The secretariat citing a CIC order said information which could be used by any information seeker in support of his case before any court of law should not be disclosed as it could affect the interests of the government which as a third party had also the rights to safe-guard its interests.

This argument of the Cabinet secretariat was also not accepted by the chief information commissioner, who said the case relied by it has no relevance in the present matter and “both the cases are quite different.” Mishra ordered the Cabinet secretariat to disclose date of special committee of secretaries’ meeting to select member (services) and member (technology) of telecom commission including the name and designation of all the officials who took part in the process. He also directed that list of all the officers who were considered for the posts should be made public. Mishra also ordered to make public agenda of the selection committee meeting, guidelines followed by it and file-notings of recommendations made by it to appointments committee but said annual confidential reports of candidates can be withheld.

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