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Srikrishna Panel’s RTI amendments

American journalist Glenn Greenwald rightly said: “Transparency is for those who carry out public duties and exercise public power. Privacy is for everyone else”.

Calling a thief, a thief, is no defamation, because truth is justification for defamation as per law. But that person might suffer loss of reputation. If that thief is a public servant, the Justice Srikrishna Committee says that such information should not be shared under the Right to Information. If the present Section 8(1)(j) of the RTI Act is amended as the committee has suggested, all public servants will come to enjoy a greater amount of secrecy.

Justice Srikrishna recommended that if any disclosure can subject a public servant to blackmail or extortion, such information shall not be given to citizens. If a citizen wants to know what action was taken on a complaint of misappropriation of public money, the Public Information Officer can refuse saying disclosure of such information would harm the reputation of the officer concerned. Officials’ reputation will come to be protected, rather than permitting people to scrutinise the wrongs and irregularities in public offices. The Srikrishna Committee’s report and Bill have many such ‘data protection’ defences to negate the very purpose of the RTI.

Even before the Srikrishna committee, the government’s RTI Amendment Bill 2018 sought to end the independence of information commissioners. Now, the effect of the committee’s draft Personal Data Protection Bill, 2018, could be fatal for RTI.  

Section 8(1)(j) of the RTI Act prescribes the larger public interest as the test for whether any information is exempt from disclosure. The Srikrishna draft says the undefined ‘public interest’ is ambiguous and suggests that it be tightened up. But what it suggests is even more ambiguous and gives wide scope for misinterpretation. Srikrishna wants to consider the service details of public servants as ‘personal data’ and provides for not sharing it under RTI.

According to the amendment suggested, the PIO can deny, “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.

It appears innocent. But, with wide-open and ambiguous expressions such as ‘relates to personal data’ and ‘likely’, the suggested amendment would practically kill the RTI. The amendment would protect ‘personal data’ and related information, too; and information that causes harm would be denied, but also information ‘likely’ to harm, too! 

The Srikrishna definition of harm gives PIOs ample scope to protect officers against charges of corruption against them, information relating to those charges, complaints, inquiries and actions against them such as transfer, demotion or dismissal.

There are 10 gateways for the wrongdoers in public office to escape, according to his Section 3(21) that says:  

“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. 

Worse, the first two words “harm includes” mean that it could be anything other than those specified above, too. Any harm a PIO can imagine will do to deny RTI requests. Disclosure that can cause “bodily injury or mental injury” also can be denied. Any RTI request that may embarrass or upset or cause worry to ‘data principal’, that is, the public servant, can be considered as mental injury. The PIO can instantly reject any request for such embarrassing information that might cause mental injury. 

‘Loss of reputation’ is another kind of ‘harm’. Every disclosure about disciplinary action for misconduct can cause loss of reputation. It does not stop with this. The Srikrishna report says even the possibility of ‘humiliation’’ is enough to deny information! 

The PIO will find it difficult to determine whether this ambiguous ‘harm’ outweighs the common good from promoting transparency. 

Protecting black sheep from blackmail 

One general criticism against RTI is that it has helped spawn ‘activists’ who blackmail public officials. Corrupt officers should not be blackmailed, but should they have legal protection? The Srikrishna bill comes to their rescue. It will safeguard the black sheep among public servants from possible blackmail!

The expression ‘harm’ includes “subjecting him to blackmail or extortion”. If a public servant faces such a possibility, the PIO can deny information. Corruption and information relating to it can also be interpreted as matters that might “subject him to blackmail or extortion”. 

There are two more expressions: (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. Even indirect restriction on speech or fear of being observed is enough to deny information. These 10 clauses of ‘harm’ provide 10 exit gates for corrupt officers to escape from RTI scrutiny by the people. And the PIO is free to imagine many beyond these 10. 

What the Srikrishna Committee has recommended is unconstitutional and unwarranted. The present Section 8(1)(j) of the RTI law offers a balance between right to privacy of public servants and the ‘public interest’ served by disclosure of information, much of which was held to be ‘official secrets’ until RTI Act was passed in 2005. The Srikrishna Committee’s amendments to RTI law must be rejected completely.

(The writer is a Central Information Commissioner) 

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