InfoRights

Private Organizations Financed by Government Funds

It is a common belief that the Right to Information Act has everything to do with organizations of governance in the Country; the Government sector. It is a misnomer.

The Right to Information Act is likely to affect directly all those institutions and organizations including NGOs who operate on funds provided by the Government, be it State Government or Central Government. And, the provision of funds may be direct or indirect. In either case, the organization or institution is treated on the same footing as any Government establishment for the purpose of the Right to Information Act. It becomes what is technically known as ‘Public Authority' which is defined in the Right to Information Act in Section 2(h) as follows:

2 (h) "public authority" means any authority or body or institution of self- government established or constituted—

(a) by or under the Constitution;

(b) by any other law made by Parliament;

(d) by notification issued or order made by the appropriate Government, and includes any—

(i) body owned, controlled or substantially financed;

(ii) non-Government organization substantially financed, directly or indirectly by funds provided by the appropriate Government;

The relevant portion is clause (d) above. Once an organization becomes a Public Authority within the meaning of the Act, it has to declare itself to be so and appoint Public Information Officers and Assistant Public Information Officers in each of its offices and establishments. Public can directly request for information from such organizations. And, such organizations are duty bound to provide information to public as requested, subject of-course to the provisions of the Right to Information Act.

The only safeguard for such private organizations is that financing by Government ought to be ‘substantial' for the organization to become ‘Public Authority'. On what is substantial is discussed later in this note.

If you are an organization which is financed substantially by Central or State Government, directly or indirectly, then analyze yourself and before a citizen makes a complaint that you are a Public Authority and have not appointed a Public Information officer, declare yourself to be a Public Authority and appoint Public Information Officers. You will also have to...1. maintain your records as provided in Section 4 of the Right to Information Act, and, 2. Publish and disseminate suo-motu material specified in Section 4 of the Right to Information Act to facilitate easy access of a large part of information related to your organization. Section 4 of the Right to Information Act reads as follows:

4 (1) Every public authority shall—

(a) maintain all its records duly catalogued and indexed in a manner and the form which facilitates the right to information under this Act and ensure that all records that are appropriate to be computerised are, within a reasonable time and subject to availability of resources, computerised and connected through a network all over the country on different systems so that access to such records is facilitated;

(b) publish within one hundred and twenty days from the enactment of this Act,—

(i) the particulars of its organisation, functions and duties;

(ii) the powers and duties of its officers and employees;

(iii) the procedure followed in the decision making process, including channels of supervision and accountability;

(iv) the norms set by it for the discharge of its functions;

(v) the rules, regulations, instructions, manuals and records, held by it or under its control or used by its employees for discharging its functions;

(vi) a statement of the categories of documents that are held by it or under its control;

(vii) the particulars of any arrangement that exists for consultation with, or representation by, the members of the public in relation to the formulation of its policy or implementation thereof;

(viii) a statement of the boards, councils, committees and other bodies consisting of two or more persons constituted as its part or for the purpose of its advice, and as to whether meetings of those boards, councils, committees and other bodies are open to the public, or the minutes of such meetings are accessible for public;

(ix) a directory of its officers and employees;

(x) the monthly remuneration received by each of its officers and employees, including the system of compensation as provided in its regulations;

(xi) the budget allocated to each of its agency, indicating the particulars of all plans, proposed expenditures and reports on disbursements made;

(xii) the manner of execution of subsidy programmes, including the amounts allocated and the details of beneficiaries of such programmes;

(xiii) particulars of recipients of concessions, permits or authorisations granted by it;

(xiv) details in respect of the information, available to or held by it, reduced in an electronic form;

(xv) the particulars of facilities available to citizens for obtaining information, including the working hours of a library or reading room, if maintained for public use;

(xvi) the names, designations and other particulars of the Public Information Officers;

(xvii) such other information as may be prescribed and thereafter update these publications every year;

(d) provide reasons for its administrative or quasi-judicial decisions to affected persons.

(2) It shall be a constant endeavour of every public authority to take steps in accordance with the requirements of clause (b) of sub-section (1) to provide as much information suo motu to the public at regular intervals through various means of communications, including internet, so that the public have minimum resort to the use of this Act to obtain information

(3) For the purposes of sub-section (1), every information shall be disseminated widely and in such form and manner which is easily accessible to the public.

(4) All materials shall be disseminated taking into consideration the cost effectiveness, local language and the most effective method of communication in that local area and the information should be easily accessible, to the extent possible in electronic format with the Central Public Information Officer or State Public Information Officer, as the case may be, available free or at such cost of the medium or the print cost price as may be prescribed

Explanation.—For the purposes of sub-sections (3) and (4), "disseminated" means making known or communicated the information to the public through notice boards, newspapers, public announcements, media broadcasts, the internet or any other means, including inspection of offices of any public authority.

If you are one of the affected organizations by virtue of being financed by funds provided by Government, either directly or indirectly, prepare yourself and take a decision. Sooner it is the better. Notice the concept of ‘indirect' in the above situation. If the sources of your funds have any indirect nexus with Government funding, you are likely to be a Public Authority. The consequences are wide and far-reaching. It is here that every organization must make an analysis of itself, of its sources of funds as to whether these funds are coming from any Government funds. If the answer is yes, think of declaring yourself to be a Public Authority. For clarification of any doubts, contact InfoRightsIndia.

The safeguard exists in ‘substantial' financing'. This phrase ‘substantial' has not been defined or elaborated in the Act. The Legislature has not left it to be decided in ‘Delegated Legislation' as well. There is no qualification like ‘as may be prescribed'. The Rule making powers also donot directly cover explanation of this meaning. The Governments therefore cannot take the initiative of making Rules for the same unless they decide to resort to their extraordinary powers of “removing difficulties” in operation of the Act. This power has been specifically given in the Act in Section 30 of the Act.

30 (1) If any difficulty arises in giving effect to the provisions of this Act, the Central Government may, by order published in the Official Gazette, make such provisions not inconsistent with the provisions of this Act as appear to it to be necessary or expedient for removal of the difficulty: Provided that no such order shall be made after the expiry of a period of two years from the date of the commencement of this Act.

(2) Every order made under this section shall, as soon as may be after it is made, be laid before each House of Parliament.

The Central Information Commission had an occasion to analyze this issue in one of its meetings held recently. The Chief Information Commission has written a letter to the Ministry of Personnel in this regard. The contents of this letter have not been made public. It is therefore not known whether the Commission has requested for clarification or for Rules in this behalf. One hopes that reference has been made under Section 30 of the Act. Till the time this issue finally crops up and the picture becomes clear, visitors to this site are requested to participate in InfoRightsIndia “Discussion Forum” on the topic and publish their views which will initiate a debate on what ‘Substantial Finacing' and ‘Indirect' ought to mean for the purpose of the Right to Information Act. Please visit our Section from the home page or click here to participate.

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