Stop selling that frivolous argument

When you oppose something, usually it is assumed that your opposition is backed by a reason. And depending on the situation, your reasoning can be based on either your experience or some study or data. But what of you are talking just in the air without any justification whatsoever to back your argument? Who is going to believe you in that case?

Five public five public authorities including the prime minister’o Office (PMO) have said that they have never received any ‘frivolous’ application under the right to application (RTI) act in the last five years- that is, since the time of enactment of the act. The response nails the government’s lie that the act should be amendment to discourage frivolous applications.

Other four public authorities include the supreme court, ministry of external affairs (MEA), department of personal and training (DoPT)- the nodal department for the implementation of the transparency act and the Indian embassy in Washington DC.

The information has been obtained by Noida based RTI activist Commodore (Rtd.) Lokesh K Batra and Los Angeles resident Vishal Kudchadakar over a period of six months.

It makes official, what we always knew- that the government does not have any substantial data or survey of any kind to back its ‘frivolous applications’ argument. It is based on the experiences of public information officers (PIOs) who are of the opinion that people are misusing the act by demanding trivial information, supplying which, is sheer wasted of manpower and resources.

Babus dealing with RTI queries have been found giving this excuse in almost every meeting conducted to discuss amendments in transparency act

Just for the sake of argument, let us assume that frivolous and vexatious applications are increasing the workload of government departments.

In this case, who will decide what is frivolous? Considering that there are thousands of public authorities (departments covered under the RTI act) across the country, will the definitions of vexatious vary from one office to another?

Webster’s dictionary defines ‘frivolous’ as something characterized by lack of seriousness or sense or self-indulgently carefree.

Something which is very serious in nature for me can lack of seriousness for you. How can someone else categorise matters of seriousness on my behalf?

Suppose, I have faired well in an examination but the results does not reflect so. I believe that something is wrong and want to see my answer sheet. This is something extremely important for me, but can be frivolous for the staff of the institution. They might say that allowing one student to scrutinize his answer sheet might set a wrong precedent.

Therefore, it is time the government stopped giving the ‘frivolous argument’ while discussing changes in the RTI act and came up with some logic.

This appeared on http://www.governancenow.com on May 16, 2011

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Transparency be default

Broadly speaking, there are two categories of information which a public authority has to provide under the Right to Information (RTI) Act – information sought by the applicant by filing application under the act and information made available suo-moto (without somebody asking for it).

While the situation appears to be somewhat fine with the former category, it is the latter which is still in the nascent stage even after five years of the enactment of the act.

Section 4 ofd the law mentions 17 types of information which the public authorities (bodies covered under the RTI Act) are supposed to display in a manner where the public can access it.

For long, civil society representatives have highlighted that the suo moto disclosure under section 4 was dismal across the country.

The good news is that finally the government has finally acknowledged this reality and has turned to civil society for help in better implementation of suo-moto disclosure.

The department of personnel and training (DoPT), the nodal agency for the implementation of the act, through an office memorandum, dated May 6, constituted a task force for effective implementation of section 4.

The 12-member task force includes representatives of DoPT, ministry of law, three state secretaries involved in enforcing the act and five representatives of civil society.

The task force will finalise its recommendations by the end of this month and submit the same to the DoPT for consideration.

What transpired during the first meeting of the task force held on May 25 provides insights to various aspects related to voluntary disclosure of information by the public authorities.

Here are some of the views which emanated from the meeting which took place at the capital’s North Block:

–    The weak implementation of Section 4 of the RTI Act is partly due to the fact that certain provisions of this section have not been fully detailed. In case of some other provisions, there is need for laying down detailed guidelines as to what information needs to be provided and in which form.

–    Public authorities are not averse to suo-moto disclosure. It is a question of what to put and how to put it. There has to be a move from the minimal to the aspirational level in public disclosures.

–    There is a need for developing a culture of information gathering. Collated information should be provided at various levels such as ward level, municipal corporation level and panchayat level.

–    The manner in which information is displayed needs to be changed.  The information should be in such a form and language as to be decipherable by the lowest strata of society.

–    All Plan schemes of the government should make it mandatory to reflect implementation of section 4.

–    There should be a provision of compensation in cases where section 4 is not implemented.

–     The mindset change should be from transparency by design rather than transparency by default. There is a need for open standards in e-governance.

–    There needs to be fixing of responsibility in case of noncompliance of Section 4 by the public authorities.

–    Public accountability mechanisms have to be defined such as uploading information and it’s monitoring in the various MIS which have been developed. These are essential for the systems to work. An ideal example is present in the MIS updates in Andhra Pradesh under the MGNREGA.

–    There is a need to ensure that all new laws had consistency with the RTI Act and there should be guidelines on what should be included.

–    The government has to find more ways of disseminating information like harnessing the strength of mobile, radio, cyber cafes.

–    There should be a centralised monitoring authority in compliance of Section 4 in every ministry/ department. There should be access to information through cyber cafe in district level and where the information is not available one can proceed to file an RTI application.

How many of the above ideas will be accepted by the government is yet to be seen. But the discussions certainly seem to move to an era of where the government offices will no longer be able to hide information on the pretext of it being confidential.

This appeared on http://www.governancenow.com on July 25, 2011

http://www.governancenow.com/views/columns/transparency-default


How to file RTI plea (without getting killed)

Along with the spread of awareness about the Right to Information (RTI) Act, the threat on those using the law to expose corruption has also increased.

Every time an RTI applicant seeks information which has the potential to unearth the wrongdoings of influential people, he or she is at risk. In some cases, the threat remains limited to phone calls and in others, it cost the applicant his or her life.

Here are some of the points which, if considered, can reduce this threat level and make the RTI law more meaningful:

1. Disseminate the information: As soon as you receive sensitive information through the RTI Act, spread it among others. More people having the information reduces the threat risk to an individual.

2. Multiple applications on one issue: It is always better if many people file RTI queries asking for the same set of information. If the applicants are geographically spread across the country, it is even better.

3. Target the system, not individuals: If you are able to expose irregularities in the system, the officials involved will be held responsible by default. Before filing the application, try to search for a group of activists/applicants working on the cause which you want to take up. If possible, file the application on behalf of that group.

4 When your receive information from a public authority, intimate the head of that public authority about it.

5. Do not use the act as a blackmailing tool. The objective is of the act is to bring transparency in the government functioning and not to blackmail someone.

6. Be polite while interacting with the public information officers. They are just part of the big system.

7. In case your query is directed to an official or an individual, avoid direct contact with that person.

8. Approach police when you get the first threat call/threat in person.

(These suggestions are based on the views of leading RTI activists across the country)

This appeared on governancenow.com, January 25, 2011


RTI: The challenge from within

The other day I was in the office of Delhi’s lieutenant governor (LG).  I was talking to an officer – one of the most honest and efficient in the current lot serving the Delhi government – about the loopholes in the administrative mechanism and the initiatives LG has taken to fix the same.  The focus of the talk shifted to the Right to Information (RTI) Act.

The officer narrated to me an incident, and proudly so, of denying information to an RTI applicant. The applicant, he informed, had asked very technical and specific questions regarding the Yamuna action plan. After going through the questions, this officer phoned the applicant. He turned out to be a research student from the JNU who wanted the information for his thesis.  The officer conveyed to him that it was “unfair” on his part to file an RTI application to obtain this information and he could personally come to the LG office and collect the same.

Legally, the officer was holding the information and could have passed on the same to the applicant. But this, he told me, was one of the many instances in the past, where he had withheld the information.

The officer had just finished telling me about the episode and was expecting applause from me, when another gentleman, an employee in a government office, took the opportunity to recount his experience as a public information officer (PIO).

He told us how he asked an applicant to submit Rs 10,000 towards the cost of gathering the data he had sought in the RTI query. The applicant, the gentleman said, never got back to the office. “You should know ways to deal with such people. They just waste our time and the resources of the system,” he concluded.

One can find such examples of PIOs coming up with flimsy reasons for denying information, in almost all the government offices.

Much has been said about the success of the RTI Act. Praising the law as one of the most revolutionary pieces of legislation, Wajahat Habibullah, the former information commissioner at the CIC, said, “it has caught the imagination of the entire country.”

According to Gopalkrishna Gandhi, former administrator, ‘RTI’ has become the most popular abbreviation in India, second only to ‘CrPC’.

To an extent, they are right.

The transparency act has surpassed many laws in the country in terms of awareness – thanks to civil society.  However, the very objective of the act, that is, to make the system more transparent and accessible to the general public has not been achieved.

And one of the many reasons why the idea of having a transparent democracy has not translated into a reality is the attitude of public servants, who are supposed to provide information to the applicant within a given deadline without asking him/her the reason for demanding information.

Public information officers (PIOs) are the first link between the applicant and the information.

Five years since the law came into existence, the attitude of the PIOs is to keep the records close to their chest rather than passing them on to the applicant who has the legal right to ask for the same.

This is because PIOs are the people who, for years, worked in an environment where they were in the practice of withholding information.

More than anything else, it is about mindset.  And asking for the mindset to change overnight will be asking for too much.

This appeared on governancenow.com on January 17, 2011

 


A soldier’s 4 years jail for 4 worthless documents

Rewind to the summer of 2006.

Commander (retired) Mukesh Saini has just taken premature retirement from the National Security Council Secretariat (NSCS) as Information Security Specialist. The same month, in April, he joins Microsoft (India) as Chief (Information) Security Advisor. In 2004, he had learnt that he would not get further promotions in the navy, which is why he started looking for job opportunities elsewhere.

The NSCS, created in 1999, acts as an interface between the National Security Council, the Strategic Policy Group, and the National Security Advisory Board and coordinates the functioning of intelligence agencies. The NSCS also monitors the functioning of the Defence Intelligence Agency and TECHINT, the agency for the collection of technical intelligence and special counter-terrorism centre in the Intelligence Bureau.

On June 11, Saini gets a call from his perplexed wife. She tells him that a police party is searching their house in Delhi Cantonment area. Saini, who is on a two-week visit to the United States, takes the next flight and rushes back home. But he doesn’t manage to get that far. He is intercepted and detained right at the airport upon his arrival and kept in police custody for two days. He is finally arrested on the night of June 30 and charged with passing on classified information to Rosanna Minchew, a third political secretary at the US Embassy in India. Shib Shankar Paul, NSCS systems officer and Ujjal Dasgupta, director, computers at Research & Analysis Wing (RAW), are also arrested in the same case.

Saini is, however, determined to prove that he is innocent. Over the next 47 months that he spends in Delhi’s Tihar jail, he files nearly 160 applications under the Right to Information Act. A compilation of the replies he receives from various authorities exposes gaping holes in the police’s theory. From the sections under which he was arrested to the way the police conducted the probe, everything shows the authorities acted in haste and without sufficient evidence.

On the basis of the information obtained through the RTI applications, Saini fights his own case since July 2008 and finally manages to get bail in May 2010 more than four years after he was arrested.

Cut to the present and you will find Saini armed with damning evidence against the authorities.

The case against him rests on the allegation that he passed four classified documents to Minchew while working as a coordniator to the government in the Indo-US Cyber Security Forum. Minchew was the local nodal officer representing the US in this forum. One of the four documents, a draft report of the Indian nuclear doctrine was, however, made public by the government in October 1999. Hence, it could not be called a classified document.

The second document was Saini’s own paper on the impact of Kra Canal (a planned canal that links China Sea to Andaman Sea). This paper never got the status of a classified document. That means, two of the four documents that Saini is said to have illegally passed to a foreign national were not classified documents.

That still leaves two documents, which were allegedly stored in the hard disk found in Saini’s house. These contained the minutes of the Indo-US Cyber Security Forum meeting held in January 2003 and a proposal prepared by Saini for the formation of information sharing network amongst agencies. Saini has been able to establish through RTI queries that the police broke open the seal of the hard disk before submitting it to the Central Forensic Science Laboratory (CFSL), Chandigarh, thereby weakening the claim of the police.

During the probe, Sajjan Singh, a sub-inspector with the Delhi Police’s special cell wrote three letters to the NSCS. The first letter, dated June 16, 2006, was addressed to the NSCS chairman. Singh asked the NSCS if they could book Saini under the Official Secrets Act for possessing the draft report on Indian nuclear doctrine and the paper on Kra Canal. The NSCS replied that neither of the two documents was classified.

Singh, however, wrote once again to the NSCS on June 30. This date is important. This time, he sought the NSCS’ opinion on the documents obtained from the hard disk found at Saini’s home. This time, Vinod Kumar Mall, an IB officer on deputation at NSCS gave a handwritten undated reply that the documents were classified.

There is a catch, though. RTI queries show that there is no entry in the NSCS records regarding receipt of Singh’s letter dated June 30. Moreover, Singh is said to have received the reply to this letter personally on the same day. The NSCS, however, says it has no file notings regarding the decision to implicate Saini on the basis of the special cell’s request.

The question, therefore, arises: If the NSCS does not have any official record of receiving letters from the special cell and it did not opine that Saini should be implicated on the allegation made by the special cell in these letters, then what was the basis of his arrest?

Turn to Rosanna Minchew, to whom Saini allegedly passed on the four documents. The information that Saini received from the CFSL, Chandigarh, shows that the hard disk was last accessed on June 15, 2005, while the Indian Embassy in Washington told Saini that Minchew was given the visa on Aug 3, 2005. However, the said documents were last accessed in 2004, so they could not have been passed on to Minchew from this hard disk.

There’s more to implicate the authorities. The NSCS never gave Delhi Police its approval to prosecute Saini. It, however, approached the civilian vigilance department of the Ministry of Defence (MoD) in October, 2007, to procure a sanction and got it in April, 2008—almost two years after submitting the chargesheet in court. The same department of MoD later informed Saini that it was not aware of his duties in the NSCS.

The case is on and the charges against Saini and the other two co-accused are yet to be framed.

Paul and Dasgupta obtained bail in August. The police had claimed that Paul had spoken to his wife and accepted that he did pass classified information to Minchew. But the call details provided by the service provider could not corroborate this claim.

The court raised doubts over the manner in which the police allegedly broke open the seal of the pen drive which was allegedly carrying the classified information.

In Dasgupta’s case, the court considered his age (he was over 64 when he got bail) and that the other two co-accused had secured bail. His impeccable record as a computer expert and the fact that he was re- employed by the R&AW on the basis of his expertise was also taken into account.

Why would the authorities frame somebody like Saini, though, you may well ask. The answer to this natural question will eventually lead you to the task that the NSCS is entrusted with, that is to collate quality intelligence information from the various intelligence agencies.

Saini says that every time he interacted with the intelligence officers, he could sense that they were not forthcoming on information sharing. “By passing on quality information to someone like me who had a naval background, they were losing their turf,” he says. They got a chance to strike when V K Nambiar quit as the NSCS secretary in April, 2006, leaving it headless. “Before that, they could not act because the secretary was there to shield me and my team-mates in the secretariat,” says Saini.

Those familiar with the functioning of intelligence agencies can easily join the dots. “We are facing a situation where inputs and assessments of intelligence agencies are crucial to deal with the complex security challenges the nation is facing. Agency and departmental turf battles and settling of personal animosities have been evidenced.  We can just hope that this case does not become part of this tragic pattern,” says Commodore Uday Bhaskar. The moment such a grave charge is levelled against an individual, says Bhaskar, he or she is abandoned and isolated both institutionally and socially.

“Even if we assume for a moment that the charges were all true, this is no way to treat officials in intelligence agencies. What happened here was uncalled for,” says a former IB director on the condition of anonymity.

An internal security analyst with a Delhi based think tank, who does not wish to be identified, however, says there may be more to Saini’s story than meets the eye. He says, as per his information, Saini and Minchew often met after office hours. “This does mean that Saini passed some information to her, but officers of the stature of Saini who work with the NSCS are very well aware of the protocol. They know that there are times when their moves are monitored. He should have avoided meeting her,” the analyst said. The analyst added, though, that the interrogating agency was clearly biased while probing the case. “Why didn’t they interrogate the American delegate?” he asked, “After all, as per the allegations, she was the recipient of the information. Why did they let her go without any questioning of any kind?”

While in jail, Saini, cyber security expert with a masters in computer applications, business administration and science, helped fellow inmates in drafting bail applications and read chargesheets.

“Around 200 of them got bail,” he says. In his free time, he would paint and make portraits with pencil colours—his childhood hobby. Two of his paintings hang in the drawing room of his Maya Enclave house in West Delhi.

It was not all rosy in jail, of course. He would be strip-searched every time he crossed a gate. But he is not cribbing. “Jail life is jail life. They were just doing their duty. I did not expect any special treatment,” he says, drawing a long breath. It was equally tough on his family, wife and children, while he was behind bars. “They would harass my wife and children,” he says, “They asked my daughter’s friends to stop meeting her or else they would also land in jail. My wife was stalked.”

Mukesh Saini

Now that he is out on bail, he is worried his savings will not last for long. “Nobody is hiring me,” he says, “I have savings which will last for a couple of months more. After that I am broke.”

This appeared in Governance Now, October 1- 15 issue.


Nandan Nilekani on the RTI and the UID project

The RTI Act and the Aadhaar Project have a similar vision at their heart: that the government must be accountable to the people it governs.

While the RTI brings more accountability to governance by enabling better access to information, the UIDAI hopes to do this through the Unique Identification number – the Aadhaar it will issue to individuals across India. The number will allow individuals to clearly establish their identity to any agency in the country. This will be critical in combating the anonymity that impedes access for many of the poor to public benefits and services….

read more on http://cic.gov.in/convention-2010/Speeches/NandanNilekeni.pdf


Wajahat Habibullah’s interview carried by Mint (dated Sep 27, 2010)

The Right to Information (RTI) Act—that empowers citizens to demand information from the government and obliges officials to provide it—completes five years on 12 October. Chief information commissioner (CIC) Wajahat Habibullah, who presides over the implementation of the Act, leaves office on Wednesday.

Read the interview on http://www.livemint.com/2010/09/27001644/Inside-the-govt-a-certain-deg.html