By Rana Ajit, IANS
New Delhi : The government is slowly, albeit reluctantly, bowing to the demands for transparency as required by the two-year-old Right to Information Act, and is now allowing disclosure of annual confidential reports in case of “public interest outweighing the private interest”.
The change is evident from a Sep 21 government decision allowing “in the public interest” the disclosure of annual confidential reports (ACRs) of government officials, which were earlier protected from public scrutiny under the Official Secrets Act (OSA).
The circular, issued by the ministry of personnel and public grievances, seeks to streamline the guidelines for disclosure of ACRs in the face of growing demand for their disclosure under RTI.
On the face of it, the memorandum bars the Public Information Authority — appointed in government departments and ministries under the RTI Act to deal with demand for information — from disclosing ACRs in ordinary circumstances.
Yet the note eventually allows disclosure of ACRs in case of “public interest outweighing the private interest”.
The ministry issued the memorandum after a thorough legal vetting by the Department of Legal Affairs in the law ministry.
“An ACR contains information about the character, capability and other attributes of the officials, disclosures of which to any other person would cause unwarranted invasion of privacy,” said the memorandum, barring public disclosure in ordinary circumstances.
“Besides, an ACR, as the name suggests, is also a confidential document, disclosure of which is protected by the Official Secrets Act,” the memorandum said.
“It’s clear from above discussions that the public authority is not under obligation to disclose the ACR of any government employee to the employee himself or any other person.”
In the same breath, the memorandum adds: “The public authority, however, has a discretion to disclose the ACR if he is satisfied that public interest outweighs the harm to the protected interest.”
While allowing the disclosure of an official’s ACR in public interest, the memorandum, however, instructs the public authority to take the approval of the superior officer of the person whose ACR is being disclosed.
Interestingly, while barring disclosure of ACRs in ordinary circumstances, the memorandum makes a meek assertion about the superiority of the OSA over the RTI Act.
“The OSA (of 1923) is not completely superseded by the RTI Act, 2005,” the memorandum says.
A senior law ministry official said the key phrase in this assertion is “not completely”, which indicates that the OSA is indeed superseded by the RTI Act in the event of public interest.
The government’s apparent stand on the superiority of the RTI Act over the OSA is not very different from Chief Information Commissioner Wajahat Habibullah’s reported stand on the issue.
Habibullah said recently: “I am very clear that when there is a direct conflict between the OSA and RTI Act, it is the RTI which prevails. The OSA cannot be used in a manner in which it is inconsistent with provisions of the RTI Act.”