RTI hurdles

The Assam Information Commission has rightly recommended bringing the two investigating agencies of the state- the Criminal Investigation Department (CID) and the Bureau of Investigation of Economic Offence (BIEO) under the ambit of the Right to Information Act, 2005. The RTI Act has adequate built-in safeguards against revealing any sensitive information of investigating and intelligence agencies, and therefore, it is incomprehensible for the ordinary citizens the logic behind keeping the CID and BIEO outside the ambit of the RTI Act. Nine intelligence and security agencies including the CID and BIEO set up by the Assam government are exempted from the purview of the Act. However, "information pertaining to the allegations of corruption and human rights violation in respect of these organizations is not exempted." Enactment of the RTI Act in 2005 was a watershed moment in Indian democracy as it empowered the citizens to get access to information under the control of government departments and authorities which are vital to curb corruption, bring transparency and hold the Central and the state governments and their departments accountable to the citizens. The state information commission argues that both CID and BIEO are investigating agencies and not involved in intelligence gathering and therefore clubbing them in the list of security and intelligence agencies under Section 24(4) of the Act is inconsistent with the provisions under the section.

The debate over the exclusion of intelligence and security agencies under the Act has not yet been settled. To the contrary the list of exemption of the intelligence and security agencies under the Central government kept on expanding. In 2011, the Central government in exercise of the powers conferred by sub-section (2) of the Section 24 of the RTI Act, added Central Bureau of Investigation (CBI), National Investigation Agency and National Intelligence Grid to the list of entries under the Schedule 2 to increase the number of organizations exempted from the purview of the Act to 25 and subsequently the Strategic Defence Command was also added to increase the number of organizations to 26. The Section 24 allows the Central Government, to amend the Schedule 2, by notification in the Official Gazette, by including therein any other intelligence or security organization established by that Government or omitting there from any organization already specified therein and on the publication of such notification, such organization shall be deemed to be included in or, as the case may be, omitted from the Schedule. The debate on whether the organizations included in the Schedule 2 under the Act can hide behind the exemption provision to withhold all information, more particularly, the information pertaining to corruption investigation, has not yet been settled. However, the Central Information Commission has made it clear that even the intelligence and security agencies which are exempted need to appoint a Central Public Information Officer and Appellate Authority because as per section 24 (1) of the Act case relating to corruption and human right violations in respect of these organizations are not exempted from the purview of the RTI Act.

The CIC very recently asked the CBI to justify the denial by the investigating agency of information sought by an RTI applicant. As reported in media, the applicant sought to know to status of the preliminary investigation by the CBI in the MSME Development Institute of Chennai. The CBI, however, invoked the exemption clause under Section 8(1)(h) of the RTI Act to deny information on the ground that disclosure might impede the ongoing investigation. The CIC, however, observed that CPIO, CBI had merely invoked this section without citing any justification any justification as to what inquiry was pending as on the date of their reply or as to how the disclosure would have impeded the investigation. The Delhi High Court also passed a clear direction that the public authorities merely citing the exemption is not enough and must justify how a disclosure of information would attract the exemption clause as "disclosure was made the rule and exemption an exception." The cases investigated by CID and BIEO are of paramount importance to cubing corruption and therefore the citizens should get access to the information pertaining to investigation of economic offences and corruption allegations to seek information as to what actions have been initiated against the corrupt and involved in embezzlement of taxpayers' money. Keeping these two organisations excluded from the RTI Act has only been a shield for the high and mighty to hide behind the exemption clause and influence the investigation when the citizens are in the dark about the findings of the investigation for denial of information by the two organizations. The RTI applicants should take cue from CIC and observations to seek justification of keeping the CID and BIEO exempted. All eyes are on the State Government if it responds to commission's recommendation to bring more transparency.