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Implementing Proactive Disclosure Duties

Right to Information laws not only require Governments to provide information upon request, they also impose a duty on public bodies to actively disclose, disseminate and publish, as widely as possible, information of general public interest even before it has been requested. This has a number of positive effects:

  • It minimises the time, money and effort required by the public to access important but routine information;
  • It helps people to better understand what information they can access and how and where to seek it;
  • It reduces the overall number of individual requests that bureaucrats have to process, thereby reducing the administrative burden on government of implementing access to information laws.

The Central RTI Act has a very comprehensive proactive disclosure provision at section 4. Specifically, s.4(1)(b) of the Central Act sets out a list of 17 categories of information which have to be proactively disclosed by all public authorities. At a basic level, s.4 requires every public authority to routinely disclose information about its functions, decision-making norms, documents held, employee contacts, and budgets. It goes further though, and even requires regular disclosure of information about subsidy schemes (including details of beneficiaries) and the recipients of licenses, concessions and permits. Considering the amount of corruption in these areas, it is hoped that greater transparency will result in greater accountability.

Collecting and Collating Information
The Uttaranchal Government has already produced a Proactive Disclosure Template which provides detailed guidance to public authorities on how to implement the proactive disclosure provisions under the Central Act. Other jurisdictions could consider using the template as the basis for their own disclosure schemes.

As a general rule, when implementing s.4(1) each different sub-topic should be considered separately and a decision made regarding:

(i) what specific information needs to be collected;
(ii) by whom;
(iii) how often;
(iv) from where/whom; and
(v) how the information can best be disseminated.

Careful consideration needs to be given to what information is most necessary at what level of government. For example, the level of s.4 disclosure for Secretariat level will be different from the contents relating to district level or taluka level operations of the same department. This means that each office of a public authority may proactively publish different types of information. However, each office should also have access to the information held by other offices, just in case someone wants to view it. For example, if someone comes to a district office requesting information about headquarters, officials are still under an obligation to provide the information as soon as possible if they don't hold it themselves. This should be explained to the requester.

Section 4(1)(xvii) of the Central Act allows additional categories of information to be added to the proactive disclosure obligations under the law. This section could be used, for example, to require the regular publication of information about all government contracts that are awarded. In fact, in the spirit of open government your organisation should strive to disclose information regularly that is of interest to the public generally, as well as information, which, if published, would serve to meet the Central Act's objectives of government transparency and accountability.

Section 4(2) of the Central Act specifically requires that public authorities should constantly endeavour to disclose suo moto as much information as possible so that the public have minimum need to resort to using the Central Act. In practice, this means that public authorities should regularly reconsider the level of information they are routinely publishing. It would be smart to review all applications and identify whether any particular category of document is being regularly requested. Such information could then be regularly published - which would not only help the public, but also reduce the burden on officials responsible for processing applications.

All of the current State RTI Acts contain proactive disclosure provisions, although the exact information that is required to be routinely published is different. Unfortunately, in practice, implementation of these provisions has been variable, with many public authorities simply failing to discharge their duties.

For more guidance, you may want to read the following guidance notes, which were published overseas to assist public servants in England and Scotland to prepare for implementation of their Acts:

Publishing and Disseminating Information
Section 4(3) of the Central Act specifically requires that all information "shall be disseminated widely and in such a form and manner which is easily accessible to the public". This is an important provision because it establishes that it is not enough to merely collect information and store it in a cupboard at the head office! Instead, it is essential that all members of the public can access the information easily and through several cheap options, no matter where they live, and that it is in a language and style that can be understood.

Public authorities will need to consider the different forms of disclosure - at the local levels (ie. district/taluka levels), more reliance may be placed on noticeboards and simple, easy to access guides, whereas at the headquarters there may be more reliance on departmental websites, media dissemination (eg. newspaper, radio) and databases.

At a minimum, all s.4 information should be routinely put on your organisation's website (if you have one; if you don't, you should consider creating one, as the internet is increasingly a useful information dissemination tool in India). However, internet connection is not yet readily accessible in all parts of India, and therefore such information should also be kept in hard copy at each of the offices/units of your organisation. As much key information as possible should also be listed on local noticeboards. In South Africa, the proactive disclosure provisions of the law even require that contact details of PIOs are listed in all telephone directories!

Updating Information
Once you have produced this information for the first time, you will need to make sure that it is regularly updated. Section 4(1)(b) of the Central Act requires that, at a minimum, information should be updated every 12 months. However, some information may need to be updated more regularly if it is to be useful for the public. For example, names and contact details of Public Information Officers (see s.4(1)(b)(xvi)) should be updated at least every month. Likewise, information on subsidy schemes (see s.4(1)(b)(xii)) needs to be published and updated monthly if it is to be of any real use in helping the public monitor whether they are receiving their correct entitlements. Furthermore, subsidy information needs to be published so that it is relevant to the locale - ie. each village should proactively publish subsidy information relevant to their village.

Ideally, the Rules should clarify how often each category of information needs to be updated. This is what the Rules in Delhi have done for example. If this clarification is not forthcoming though, public authorities themselves should simply consider what approach would best satisfy the needs of the public to access timely, relevant information and implement accordingly.

Please click on the link to the Central RTI Act to read the detailed provisions contained in the law. Please click on the link to CHRI's State RTI pages to find out more about relevant rules and implementation in your specific State.