In this blogpost, Pramit Bhattacharya, Student, Damodaram Sanjivayya National Law University writes about the scope and purview of RTI Act, and whether or not the RTI Act applies to private entities. The post also highlights the fact that how the private bodies can be brought under the ambit of the RTI Act, through legal interpretation.

The Right to Information Act was introduced in the year 2005 and replaced the Freedom of Information Act, 2002.[1] The RTI Act was introduced to set up a regime which provided information to the citizen of the country and was in furtherance to the right to information. Under the RTI, any citizen can seek information from a public authority, and the public authority is required to provide the information within thirty days. The RTI also requires the public authority to maintain a computerized record so that it is easier to provide information to anyone who is seeking it. Talking about the earlier times, the disclosure of information was restricted in India by the Official Secrets Act, 1923 and some other laws. These restrictions were loosened up by the introduction of the RTI Act. The RTI Act was passed by the Parliament in June 2005 and came into force from October 2005. This was a central Act. RTI at State level was already in force before the RTI Act was introduced. It was enacted successfully by Tamil Nadu and Goa in 1997, Karnataka and Rajasthan in 2001, Delhi in 2001, Maharashtra and Assam in 2002, MP in 2003, Jammu and Kashmir in 2004, and Haryana in 2005.

The Legislature has supported the right to freedom of information very vehemently in the recent years. Freedom of information can be defined as the freedom to seek, receive and impart information through any form of media regardless of the boundaries.[2] According to a survey, nearly 70 countries had adopted the Freedom of Information Act, till 2006.[3] Out of these 70 countries, 19 countries had adopted a very comprehensive law which brought under its purview, both public and private bodies. In other countries, the law only applied to public bodies.[4]

In the era of globalization and liberalization, public bodies have also spread their wings to become global brands. In such a scenario, many private bodies are also involved in a lot of public functions, and it is vital to fix their accountability.

Private Bodies and the Right to Information

The Indian Legislature did not include private bodies under the RTI directly. But in the landmark judicial pronouncement of Sarabjit Roy v. Delhi Electricity Regulatory Commission,[5] it was reaffirmed by the Central Information Commission that privatized utility companies are also included under the umbrella of the RTI Act, regardless of their privatization. One of the common misunderstandings among the general public is that only those entities which are a subsidy to the government or are funded by the government are under the purview of the RTI Act. But the fact is that private bodies also falls under the RTI whether or not they are substantially funded or aided by the government

Where are Private Entities Covered?

Private entities are not covered under Section 2 (a) of the Act according to which “appropriate government” refers to a public entity which is constituted, owned, established, substantially financed (directly or indirectly) or controlled by the-

• Central Government
• State Government
• Union Territory Administration

But private entities are covered under Section 2 (f) of the RTI Act which states that information means any material in any form including any document, form, memo, email, logbook, circular, sample, contracts, models, papers or any data help in electronic form and any information related to a private body which can be accessed by a public authority under any law in force for the time being.

Reading it with Section 8 (1) (j) of the Act which states[6] that information which can’t be denied to the State Legislature and the Parliament can’t be denied to any person, it can be interpreted that private bodies also falls under the RTI Act, albeit indirectly.

Therefore, reading between the lines, it is evident that private entities also fall under the range of the RTI Act through any public authority with which they are registered. In case an individual wants to gain some information from a private body, it becomes crucial for him to identify the Public Authority with whom the private entity is registered. For instance, banks register themselves through the Reserve Bank of India and Co-operative Societies register themselves through Deputy Registrar of Co-operative Societies. The information Commissioner of the Central Information Commission,[7] M M Ansari has also stated that as long as the private bodies and companies were answerable to a regulatory body or any department of the government, they also fall within the purview of the law. The Commission also stated that the private bodies and companies are not under the obligation to appoint an Information Officer to deal with the right to information applications, unlike the public entities. For instance, if a person wants any information about the telecom companies, they can access the information through the Telecom Regulatory Authority of India, [8] and any information relating to the banking sector can be accessed through the RBI.

The Commission opined that every citizen has the right to seek information from private bodies, as long as they reported to a government body. But it was also made clear by the Commission that only such information which served the public interest could be asked or, and not that information which disintegrated the competitive position of the company in the market. For example, a company who is manufacturing soft drinks may be asked to provide how much water they used in their soft drinks and what is the source of the water used, but they can’t be asked to disclose the formulae of the soft drink. It can be said that the RTI Act is underutilized when it comes to seeking information from private entities, because of the misconception among the public, but nevertheless, the provision exists in the act.

Purview of the RTI Act with regards to the Private Sector

While the RTI Act states that only those private entities can be compelled to disclose information which are funded substantially by the government, those companies who are in partnership with any public body can also be asked to disclose any information, if such information is essential. In today’s world, when many public and private bodies are entering into collaboration for the development of the society, private bodies can use the provisions of the RTI Act as a shield. In such a scenario, transparency could be hampered. The Act states that only private bodies which take substantial funding from the government can be considered to fall under the RTI Act, but nowhere has been “substantial funding” defined. Who decide what is substantial funding?

Taking advantage of this loophole, private bodies refuse to give information to people those who are seeking it. For instance, the case of Ideal Road Builders (IRB) can be mentioned here. The IRB is a private body which collects toll on most of the highways in the state of Maharashtra. But it is not possible to get information from them about the amount of toll collected by them. But since they are in partnership with the government body, a citizen can get the required information from the concerned Government Department, which the Maharashtra State Road Development Corporation (MSRDC) in this case. Earlier, citizens asked for information from the IRB, but were they refused. The applicants then approached the MSRDC, and they were compelled to request IRB to provide the information to the applicants.

Similarly, in the case of Delhi Metro Rail Corporation, the DMRC is also considered as a private entity and any query under the RTI from the DMRC is denied.

But in a public-private partnership, where both types of entities are there, the applicants can get access to information and public documents by approaching the public partner.

The Delhi High Court has stated[9] that even in those companies and private entities, where funding by the government is not substantial, can be brought under the purview of the RTI Act.  Interpreting the Act, Justice S. Muralidhar said there is no need to have deep or pervasive government control over an institution to bring it under the ambit of the transparency law.[10]

Extension of RTI Laws on Private Sector

With regards to the private sector, it is important to maintain a balance between information and trade secrets. To make it easier for both the information seekers and the private entities, the exceptions should be narrowed down so that there is clarity.

Many times, private bodies resist providing information because it may reveal some wrongdoing on their part, which will spoil their reputation, ruin their business, and provide an opportunity to its competitors an opportunity to overtake them. One of the criticisms which is leveled against the extension of the law to the private sector is that it’ll increase their operating cost as they’ll have to create a separate database for collecting and storing the data.

Concluding Remarks

The RTI has developed as a tool for maintaining transparency in the overall functioning and governance of the nation. While the right to seek information from public information can’t be questioned, the right to seek information from private bodies have been a difficult issue to the vagueness of the law. Specific rules should be made with regards to the application of RTI to private entities. The law should also specify that which kind of information can be demanded from a private entity. With rapid globalization and deregulation, private bodies also play public functions. Private Banks, private telecom companies, and healthcare sector can be given as examples of public entities who play a public role in the society. Bringing such private entities under the law is necessary to maintain a certain level of transparency.

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[1] This Act never came into effective force

[2] Article 19 of the Universal Declaration of Human Rights (United Nations, 1948)

[3] (Banisar, 2006: 6) ; http://www.freedominfo.org/documents/global_survey2006.pdf

[4] ibid

[5] Application No: CIC/WB/A/2006/00011 (Right to Information Act – Section 19). 2006

[6] https://indiankanoon.org/doc/223928/

[7] Oversees the implementation of the Right to Information Act, 2005

[8] Established under Telecom Regulatory Authority of India Act, 1997

[9] http://rtiact.hpage.co.in/private-orgs_38455804.html

[10] http://www.lawctopus.com/academike/extension-right-information-private-sector/#_edn26