Download Cyber law rti drafting pleading moot court and more Lecture notes Law in PDF only on Docsity!
RECORD MANAGEMENT AND RIGHT TO INFORMATION ACT
Records management
Records management , is the practice of maintaining the records of an organization from the time they are created up to their eventual disposal. This may include classifying, storing, securing, and destruction (or in some cases, archival preservation) of records.
A record can be either a tangible object or digital information: for example, training files, office documents, databases, Sanction letters, application data, and e-mail. Records management is primarily concerned with the evidence of an organization's activities, and is usually applied according to the value of the records rather than their physical format.
Definitions of records management
In the past, 'records management' was sometimes used to refer only to the management of records which were no longer in everyday use but still needed to be kept - 'semi-current' or 'inactive' records, often stored in basements or offsite. More modern usage tends to refer to the entire 'lifecycle' of records - from the point of creation right through until their eventual disposal.
The ISO 15489: 2001 standard defines records management as "The field of management responsible for the efficient and systematic control of the creation, receipt, maintenance, use and disposition of records, including the processes for capturing and maintaining evidence of and information about business activities and transactions in the form of records".
Principles of record Management
1 Directed by policy
The records management program is directed by policy
Policy is essential for directing how records will be managed in a public office. Policy establishes how records are created, captured, maintained and disposed of in accordance with the legal, regulatory and business needs of the public office. It informs everyone of the place of records management in the public office, both strategically and operationally.
Policy may be specific to records management or policy for other organizational business may set out rules for record keeping.
Records management policy must be reviewed regularly to take account of changing business activities and priorities and to ensure that the records management program continues to fully support business needs. Compliance requirements
- Records management is directed by policy adopted at the corporate level
- Policy statements direct that records are made, captured, maintained and disposed of in accordance with the legal, regulatory and business needs of the public office
- Policy defines the responsibilities of all personnel who manage records or carry out recordkeeping activities.
2 Planned
The records management program is planned
Records management planning ensures that records are made, captured, maintained and disposed of in accordance with organizational policy and that the appropriate infrastructure is in place to support this. Objectives and performance targets for both the long term and the day to day activity of the program are essential parts of records management planning. These performance targets and objectives should support compliance with legal, regulatory and business needs. Compliance requirements
- Long and short term records management goals are identified and documented in the planning mechanisms of the public office
- Adequate resources are allocated to achieve long and short term records management goals.
3 Staffed by skilled people
The records management program is staffed by skilled people
Access to skilled people is critical to the success of records management. Overall responsibility for the records management program should be assigned to a senior manager with organization-wide influence and appropriate strategic and managerial skills. State Records uses the term 'Nominated Senior Officer' to describe this role. The public office should be able to access records management skills internally through recruitment, training and development or, if not, externally through appropriately qualified consultants, networking with
- Staff use official recordkeeping systems and services and have access to appropriate advice.
5 Monitored and reviewed
The records management program is monitored and reviewed
Monitoring and review is a key principle in ensuring that records management continues to support the objectives of the public office. Monitoring must be done regularly to be of value to the public office and to maximise opportunities for improvement. Planning documentation for a records management program offers useful indicators against which the operational effectiveness of records management policies, processes, training and services can be reviewed. Performance targets and indicators must be reviewed regularly to ensure that they are still relevant to the way records management operates and the public office conducts its business. Compliance requirements
- All aspects of the records management program are regularly reviewed against performance objectives.
- Opportunities are identified for improving the effectiveness, efficiency and quality of records management systems, processes and tools through regular monitoring and review.
- Areas for improvement are addressed in records management planning.
Objective of Record Management An effective Records Management program should be designed to achieve the following objectives:
- Ensure that all needed business records are retained;
- Ensure that all records that are required to be retained by statute, regulation, or contract are retained for the appropriate and approved period of time;
- Ensure that all authorized users can access business records efficiently;
- Ensure that all business records can be read, used, and regarded as authentic once located;
- Establish litigation hold procedures to ensure that potentially responsive documents are not destroyed once litigation and/or government investigation is reasonably anticipated; and
- Establish procedures to ensure the timely destruction of appropriate documents as their respective retention periods expire.
Developing and implementing an effective records management program is a complicated, time-consuming task that requires a multi-faceted team of professionals committed to fully understanding the business and the types of records created by the company. At a minimum, the following individuals must be involved in the effort:
- Senior business personnel from key units within the organization who are knowledgeable of the types of documents that are created within the organization;
- Records retention specialists who possess the necessary skill sets for managing the process;
- Information Technology ("IT/IS") personnel who are familiar with the types of electronic documents the organization creates and receives, know where the electronic documents are stored and how to locate them, and understand the technological capabilities of the company;
- Lawyers and regulatory specialists who are familiar with the legal requirements for document retention.
Before beginning, the team should clearly define their individual roles and responsibilities within the project.
The goal of the team should be to develop a concise policy that clearly defines the record type, applicable retention period, and the source of the retention requirement (whether business, statutory, or regulatory). The team should document and retain records outlining how the program was developed and implemented, in order to be in a position to demonstrate it used "best efforts" to comply with document retention requirements.
The record retention needs of each department of a business vary greatly. This fact must be taken into account when creating a records management program. Different departments create and use records in unique ways and the program, in order to be effective, must accommodate these unique uses and needs.
Before implementing a document retention policy, an inventory of threatened and pending litigation and/or government investigations should be conducted. Steps must be taken, in consultation with counsel, to ensure that all potentially responsive documents are preserved. The stakes of
The RTI Act has fully come into force on October 12, 2005 (120th day of its enactment).However, certain provisions to establish a working framework came into force w.e.f. the date of enactment i.e. June 15, 2005.
- Information
Information is any material in any form. It includes records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form. It also includes information relating to any private body which can be accessed by the public authority under any law for the time being in force.
- Public Authority
A “public authority” is any authority or body or institution of self government established or constituted by or under the Constitution; or by any other law made by the Parliament or a State Legislature; or by notification issued or order made by the Central Government or a State Government. The bodies owned, controlled or substantially financed by the Central Government or a State Government and non-Government organisations substantially financed by the Central Government or a State Government also fall within the definition of public authority. The financing of the body or the NGO by the Government may be direct or indirect.
- Public Information Officer
Public authorities have designated some of its officers as Public Information Officer. They are responsible to give information to a person who seeks information under the RTI Act.
- (^) Assistant Public Information Officer
These are the officers at sub-divisional level to whom a person can give his RTI application or appeal. These officers send the application or appeal to the Public Information Officer of the public authority or the concerned appellate authority. An Assistant Public Information Officer is not responsible to supply the information.
- Right to Information under the Act.
A citizen has a right to seek such information from a public authority which is held by the public authority or which is held under its control. This right includes inspection of work, documents and records; taking notes, extracts or certified copies of documents or records; and taking certified samples of material held by the public authority or held under the control of the public authority.
It is important to note that only such information can be supplied under the Act which already exists and is held by the public authority or held under the control of the public authority. The Public Information Officer is not supposed to create information; or to interpret information; or to solve the problems raised by the applicants; or to furnish replies to hypothetical questions.
The Act gives the citizens a right to information at par with the Members of Parliament and the Members of State Legislatures. According to the Act, the information which cannot be denied to the Parliament or a State Legislature, shall not be denied to any person.
A citizen has a right to obtain information from a public authority in the form of diskettes, floppies, tapes, video cassettes or in any other electronic mode or through print-outs provided such information is already stored in a computer or in any other device from which the information may be e-mailed or transferred to diskettes etc.
The information to the applicant should ordinarily be provided in the form in which it is sought. However, if the supply of information sought in a particular form would disproportionately divert the resources of the public authority or may cause harm to the safety or preservation of the records, supply of information in that form may be denied.
In some cases, the applicants expect the Public Information Officer to give information in some particular proforma devised by them on the plea that they have a right to get information in the form in which it is sought. It need be noted that the provision in the Act simply means that if the information is sought in the form of photocopy, it shall be provided in the form of photocopy, or if it is sought in the form of a floppy, it shall be provided in that form subject to the conditions given in the Act. It does not mean that the PIO shall re-shape the information.
This is substantiated by the definition of the term ‘right to information’ as given in the Act, according to which, it includes right to
applicant by the PIO as prescribed by the Right to Information (Regulation of Fee and Cost) Rules, 2005. Rates of fee as prescribed in the Rules are given below: (a) rupees two (Rs. 2/-) for each page ( in A-4 or A-3 size paper) created or copied; (b) actual charge or cost price of a copy in larger size paper; (c) actual cost or price for samples or models; (d) for information provided in diskette or floppy, rupees fifty (Rs. 50/-) per diskette or floppy; and (e) for information provided in printed form, at the price fixed for such publication or rupees two per page of photocopy for extracts from the publication.
As already pointed out, a citizen has a right to inspect the records of a public authority. For inspection of records, the public authority shall charge no fee for the first hour. But a fee of rupees five (Rs. 5/-) for each subsequent hour (or fraction thereof) shall be charged.
If the applicant belongs to below poverty line (BPL) category, he is not required to pay any fee. However, he should submit a proof in support of his claim to belong to the below poverty line. The application not accompanied by the prescribed fee of Rs. 10/- or proof of the applicant’s belonging to below poverty line, as the case may be, shall not be a valid application under the Act. It may be pointed out that there is no bar on the public authority to supply information in response to such applications. However, provisions of Act would not apply to such cases.
2.1 Time-limit for disposal of request.
Sl.No. Situation Time limit for disposing off applications.
- Supply of information in normal course. 30 days
- Supply of information if it concerns the life or liberty of a person.
48 hours
- Supply of information if the application is received through APIO.
05 days shall be added to the time period indicated at Sr. No. 1 and 2.
- Supply of information if application/ request is received after transfer from
(a) Within 30 days of the receipt of the application
another public authority: (a) In normal course (b) In case the information concerns the life or liberty of a person.
by the concerned public authority. (b) Within 48 hours of receipt of the application by the concerned public authority.
- Supply of information by organizations specified in the Second Schedule: (a) If information relates to allegations of violation of human rights. (b) In case information relates to allegations of corruption.
(a) 45 days from the receipt of application. (b) Within 30 days of the receipt of application.
- Supply of information where the applicant is asked to pay additional fee.
The period intervening between informing the applicant about additional fee and the payment of fee by the applicant shall be excluded for calculating the period of reply.
- Supply of information if it relates to third party and the third party has treated it as confidential.
Should be provided after following the procedure given in para 2.2 of this part of the document.
- Disclosure of Third Party Information
‘Third Party’ is a person other than the citizen making a request for information and includes a public authority.
Information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, is exempt from disclosure. Such information shall not be disclosed unless the competent authority is satisfied that larger public interest warrants the disclosure of such information.
If an applicant seeks any information which relates to or has been supplied by a third party and that third party has treated that information as confidential, the Public Information Officer shall consider whether the information should be disclosed or not. The guiding principle in such cases is that except in the case of trade or commercial secrets protected by law,
- Contempt of court.
- Breach of privilege of Parliament or State Legislature.
- Harm competitive position of a third party (commercial confidence, trade secrets or intellectual property)
- Breach of fiduciary relationship.
- Confidential information from foreign Government.
- That which would endanger the life or physical safety or identify the source of information given in confidence.
- Which would impede the process of investigations, apprehension or prosecution of offenders.
- Invasion of privacy - personal information.
Cabinet papers – including records of deliberations of Council of Ministers, Secretaries and other Officers are also exempted.
- Appeal.
It is the responsibility of the Public Information Officer of a public authority to supply correct and complete information within the specified time to any person seeking information under the RTI Act, 2005. There are possibilities that a Public Information Officer may not act as per provisions of the Act or an applicant may not otherwise be satisfied with the decision of the Public Information Officer. The Act contains provision of two appeals to tide over such situations.
The first appeal lies within the public authority itself which is made to an officer designated as the First Appellate Authority by the concerned public authority. The First Appellate Authority happens to be an officer senior in rank to the Public Information Officer.
The second appeal lies with the Information Commission. The Central Information Commission (Appeal Procedure) Rules, 2005 govern the procedure for deciding appeals by the Central Information Commission.
- Imposition of Penalty
In case the Information Commission at the time of deciding any complaint or appeal is of the opinion that the Public Information Officer has without any reasonable cause, refused to receive an application for information or has not furnished information within the time specified or malafidely denied the request for information or knowingly given incorrect, incomplete or misleading information or destroyed information which was the subject of the request or obstructed in any manner in furnishing the information, it shall impose a penalty of two hundred and fifty rupees each day till application is received or information is furnished subject to the condition that the total amount of such penalty shall not exceed twenty-five thousand rupees. The Public Information Officer shall, however, be given a reasonable opportunity of being heard before any penalty is imposed on him. The burden of proving that he acted reasonably and diligently and in case of denial of a request that such denial was justified shall be on the Public Information Officer.
Application of RTI Act’
- Steps for Disposal of Requests
The procedure to be followed by the PIO right from the stage of receipt of application for information till the disposal involves a number of steps as follows:
- Receive application along with the application fee.
- Scrutinise the application received and the fees prescribed.
- If required, render reasonable assistance to the applicant by reducing the oral request to writing.
- Register the application in the Inward Register.
- Issue acknowledgement and receipt to the applicant.
- Seek information from other officials within the authority, or, if necessary, send the application to another official concerned (who becomes the PIO with respect to the application in question. A proper register has to be maintained to record all such action taken, as well, for such action is an action in good faith will be an action in good faith on the PIO’s part.
- Case Studies
Case 1:
- Can an APIO Sign a Response Letter?
The Act has limited the APIO’s role only to receiving applications for information and appeals and transmitting the same to their proper destination. His responsibilities are not co-extensive with that of the PIO’s. However, this action of the APIO should not create any special disability for the requester in exercising his / her rights under the Act. In the normal circumstances the applicant will receive a reply from the PIO and the PIO only. There is however no legal difficulty for the PIO in using the services of the APIO to transmit his decision on the application to the requestor. Though, it is necessary to caution the Public Authority that any order issued by a APIO on behalf of the PIO must clearly state that the former was only transmitting the orders of the PIO and should also state the name and designation of the PIO on whose behalf he is acting.
CIC Decision: CIC/AT/A/2006/00059 – dt. 5 May, 2006
Case 2:
- Information Pertaining to Commercial and Trade Secrets
As per the Section 8(1)(a) of the RTI Act, information disclosure of which would prejudicially affect the…economic interests of the state… is exempted. Secondly, as per Section 8(1)(i) of the Act, there is no obligation to give any citizen cabinet papers including records, deliberations of Council of Ministers, Secretaries and other officers until the decision has been taken and the matter is complete. Therefore the PIO needs to consider both the abovementioned provisions before taking a decision. If information is denied under any of these clauses, the PIO must communicate to the applicant reasons for applying these clauses.
Case 3:
- Access to Medical Information
Although an applicant has to pay the prescribed fee to seek the information under Section 6(1), Rajaram’s wife need not pay any fee as the Act provides that persons below poverty line need not pay any fee. As per section 7(1) since the information sought relates to the life of Rajaram, the PIO is supposed to give the details of treatment given to Rajaram within 48 hours of the receipt of the request. The PIO may request the doctor treating the patient / official concerned to provide the necessary information; the liability of providing the information sought would, thus, rest on the official whose assistance is sought by the PIO who would then be considered as a deemed PIO.
Case 4:
