Escrow Arrangement, is a private contract only

• Introduction

Escrow Arrangements, are generally private arrangements between the parties as there is a shift of trust from Licensing Party to neutral person for commercial or non-commercial reasons. Such arrangements could be to safeguard interest of Licensee whose interest would get affected in circumstances not within control of the Licensor or Licensee as the case may be, like business or regulatory compulsions.

• At least 3 parties are needed to have an escrow arrangement

Before we move on to understand escrow arrangement we need to know that such arrangements requires at least 3 parties, hence it is generally a tripartite arrangement.

There is a must to at least have an owner, a beneficiary and an agent. An Agent is generally an “Agent in Trust” or called as “Escrow Agent”. Such Agent has to be neutral and reliable in eyes of other parties. The Owner is person who owns the escrow material/money, under law or any other contract pursuant to which this agreement is getting executed. The Beneficiary is the person who would be finally benefited by such arrangements or receiver of escrow material or money upon the trigger of release events. There can be more than one beneficiary or more than one owner but there has to one agent to complete an escrow arrangement.

If the concern of Beneficiary is to comply with regulations then it may even enter into an arrangement with “Owner” to become an “Agent” by taking the obligations of agent or look for economical means like locker facility to ensure the copies of source code are stored. Such arrangement brings in the element of bias and/or flaws in the control over the escrow material. While such arrangement is convenient and economical but the person acting in place of Agent has onus to prove that his actions are not bias and has to take utmost care to create evidences in his favour to prove his diligence and legitimacy.

• Escrow Arrangements can be done for

Generally the escrow arrangements are for the following:-

1. Distribution or apportionment of Money, which is expected to be received by one party (a person, legally or contractually, entitled to receive it, for the purpose of this paper, can be referred to as “Owner”) but need to be distributed or shared with others as they are acting as a partners, subcontractors or beneficiary under a fiduciary relationship or any contractual arrangement with precondition to have escrow account as the only means of receipt of the payment. Eg. collection of rent, collection of payment against the bills already discounted privately or performance or scope been subcontracted, etc
2. Release of Source Code of software and access thereto; free of infringement or charges or fees for such access. Under such arrangement the Author or Owner enters into an agreement with Beneficiary to allow access to source code of the software, in such a manner that the Beneficiary can integrate, channelize, rectify, modify or improvise the software by making use of the source code. Generally it is permitted for internal and non-commercial purpose only. Such changes are installed as patches and updates that are necessary for smooth functioning of the software.
3. There can be escrow arrangement of anything as long as one party (“Beneficiary”) believes that such material or thing is very crucial and necessary to protect its interest and the other party (“Owner”) consents for it.

• Release Conditions and usage thereof

Owner and Beneficiary can decide the terms and conditions of release. Generally, person getting benefitted from this arrangement has to initiate for such request to the Owner or this can be an expectations set at the time of procuring license for the software. Owner by executing this agreement binds himself to release the escrow material or money on happening of such events. The release events can be recurring in nature during the tenure of the escrow arrangement or it can be a single event after which the escrow arrangement shall terminate. Release conditions can be like (a) multiple or single instance for type 1 (“Payment of Money”) immediately upon receipt of the payment in the proportion agreed after deduction of charges of escrow arrangement or (b) single instance for type 2 (“Source Code of Software”) release the source code if (i) business line of the software is shutdown (ii) Owner [or Owner Company] has been declared insolvent as per prevailing Insolvency Law or Bankrupt as per prevailing Bankruptcy Law or  winds up as per prevailing Companies Law depending upon the jurisdiction that deals with his/her citizenship or its registration.

Parties may generally agree to link the terms of usage to ensure fair & just use of the escrow money or material but it is purely dependent on the nature of escrow material or money which is getting released. To quote an example for first type (“Payment of Money”), release of rent money is to be first utilized for paying of legal dues and charges attached to the rented property and then for its maintenance and may be thereafter for development, expansion or extension.  To quote an example for second type (“Source code of software”), use of the source code for correcting or improvising the software, for internal purpose only, no commercial exploitation, limiting the access to employees or beneficiary itself, and so on.

• Legal Positions

While I can understand that escrow agreements shall be governed by the agreed substantial law therein but then what governs the release events/conditions esp the events which has to have sanctity of local authority like insolvency, bankruptcy, winding-up, etc? In my view, before we can answer the same we need to assess the facts of such events by passing it through (a) the substantial law agreed; and (b) the law that would govern the agreed release events. In my view, the substantial law shall govern the interpretation of the provisions of escrow agreement but if law governing the release event is different from the agreed substantial law then possibility of conflict of interpretation can delay the trigger for release of escrow material or money. This can lead to absurd meaning at time and to be fair and keep the law close to the facts especially when the sanctity of local authority is necessary to ascertain at the trigger event. (It dealt in brief through an example in following paragraph captioned as “What should be the substantial law and jurisdiction? Why?”)

   

This escrow agreement is not different from other agreements hence all elements of valid and enforceable contract under agreed substantial law shall apply to this agreement. Rights under escrow arrangements are rights in personam and not in rem, hence the enforceability is dependent on the articulation of intention of the parties therein and not otherwise.

Talking specifically on type 2 “source code of software”, the owners right is a right in rem hence protected in absolute terms under prevailing copyrights law, but with the change and strong intervention of authority, legislatures and governing bodies by way of anti-trust laws or competition laws or establishment of commissions, which have tried to carve out or plug in exceptions or concessions by having overriding effect of such laws over the copyright laws. This has been done to help the striving competitors to allow them to compete with similar, compatible or comparable products and ensure free and fair market for customers.   

Business Reality speaks, irrespective of legal position of the Owner, the competitive environment compels the owner to compromise to sign an escrow arrangement as there is threat to lose the business if the customer decides to switch or discontinue or continue without any improvements. Especially after the entry of open source software providers the need of developed software and its source code has considerably reduced. The market share and price of proprietary software has gone down. The trend of use of software is further undergoing change by having Software as a Service (SaaS) model, it will have its own challenges besides the custody of versions of source code, as expectation of client can fall within the ‘S’-expectation i.e. speed, safety, security, smooth-transit, sole (exclusive), severable and sailable (smooth migration) outcome of their apprehension of high latency, poor data management and protection, migration difficulty from one platform to other and most important the cost of such work. (I will cover this in my cloud computing and various kind of sharing/outsourcing services like SaaS, IaaS, etc)

The software under escrow are generally the customizable software (not the off-the-shelf software) i.e. development over the base product or bespoke kind of software, to suit the customers operational and dynamic market expectation. Such expectations can be single client centric or industry specific at large hence constant development to incorporate regulatory and operational changes by way of modification to base source code becomes a crucial and core for business sustainability to both i.e. the Beneficiary and Owner. While development continues the protection from theft, piracy and expunge of latest version of the source code, is on the highest raider of the Beneficiary’s concern. On the other hand, such development generates revenue to the Owner, in addition to license and maintenance revenue, hence such escrow arrangement are result of business compulsion.

• What should be the substantial law and jurisdiction? Why?

To explain I would like to take you through one of my negotiation experience, wherein Owner and Beneficiary were registered in India whereas Agent was registered in UK. The legal cell of Beneficiary was also controlled from UK. The comfort of both beneficiary and Agent was to have English Law with UK as an exclusive jurisdiction but I being the Attorney for the Owner, it was not in Owner’s interest to agree to UK jurisdiction for many reasons, few of them are listed hereunder:-

• 1.     First Apprehension for the Owner was ‘Unknown Place and Unknown Law’, which would mean that the Owner needs to hire a highly paid lawyer/arbitrator(s) in UK to get any relief through court or arbitration. This would definitely pinch the pocket of the Owner heavily and contractually balance of inconvenience would burden the Owner more than the other two. Especially, in absence of any consideration to incentivize the Owner, agreeing to UK would be unreasonable and unfair. No doubt, as an attorney advising on the English law was within my control but handling litigation or arbitration was commercially beyond my reach. In other words, having English Law and UK jurisdiction would increase the cost of litigation as well as could create vicious circle of interpretation where reference of Indian Law would have to be made in ascertaining the release events.
• 2.     The difference of exchange currency rate, between the two countries was approx 69 times higher than Indian Rupee.
• 3.     Most important, the issues between the Owner and Beneficiary under the Contract though both being from India would have to be settled as per English Laws to arrive at breach or no breach situation.
• 4.     The law that governs the License, maintenance, or development contract pursuant to which this escrow arrangement is proposed, was also to be considered which both the Beneficiary and Agent were completely ignoring it.
• 5.     It was necessary to assess the process of enforcement of award or order. Further, the nature of disputes and it’s impact on Owner. Further, it had to be enforced against Indian entity (“Beneficiary”) or foreign entity (“Agent”) or against assets of these entities? In case if UK is considered as exclusive jurisdiction or seat of arbitration then all the order and award have to go through the civil proceedings to be enforced and executable against Indian Entity which means following of dual process causing inconvenience to both Owner and Beneficiary.
• 6.     Theft, piracy or breach of trust by Agent, were some of the apprehension of Owner which was adequately protected by the Owner’s right in rem over the copyrighted material i.e. source code of software. Further, there were adequate law in UK to govern and protect the transfer of proprietary information and copyrighted material. Hence in my view the probability of enforcing the contractual right in any proceeding against the Agent and Beneficiary was rare to happen but with the Beneficiary could not be avoided and as the governing law was Indian law under the licensing contract hence accepting any other countries law was absurd thought when we know that escrow agreement is supplement agreement to License Agreement.
• 7.     Concern of Agent was also of similar nature so finding a balance to move forward was necessary. In my view, when the Agent had decided to do business with Indian client then the Agent need to be aware and abide by the law of the land and apprehension of been unaware of Indian Law would in my view be called as an argument with fiction.
• 8.     I was thinking loud, can a single contract be governed by laws of two different nations? When various disputes under contract could stem out to be exclusive to the affecting party under the contract then by crafting the disputes which are exclusively between the Beneficiary and Agent can a law which is acceptable by two parties in a tripartite be applied to govern their relationship like in this case English Law for disputes between the Beneficiary and Agent. If so then all the other disputes could be governed by Indian Law. This would have a win-win situation to some extent as some concerns of each party were getting addressed. To quote some relevant examples in escrow arrangement, the disputes arising due to non-payments and any reciprocal obligations between Agent and Beneficiary could be settled in UK under English Law.
• 9.     Further, in an escrow arrangement where Owner is not getting any direct financial benefit what incentive would propel Owner to put his hand under the stone.

So to conclude, we have to make holistic assessment of all the questions, probability of happenings, and financial burden in exchange of return expected pursuant to this arrangement.

It would be interesting to know various provisions of laws in India that would safeguard the interest of Owner. In other words offences, violations and infringements with respect to source code (as a copyrighted material) is well covered under Sections 409, 420 and 120B of Indian Penal Code, 1860, Section 65 of the Information Technology Act, 2000 (and and other applicable provisions and amendment thereof) and Section 63 of the Copyright Act, 1957. 

History Of The Right To Information Act - Excerpts for Reference

It has taken India 82 years to transition from an opaque system of governance, legitimized by the colonial Official Secrets Act, to one where citizens can demand the right to information. The recent enactment of the Right to Information Act 2005 marks a significant shift for Indian democracy, for the greater the access of citizens to information, the greater will be the responsiveness of government to community needs.

Right To Information is derived from our fundamental right of freedom of speech and expression under Article 19 of the Constitution. If we do not have information on how our Government and Public Institutions function, we cannot express any informed opinion on it. Democracy revolves around the basic idea of Citizens being at the center of governance. And the freedom of the press is an essential element for a democracy to function. It is thus obvious that the main reason for a free press is to ensure that Citizens are informed. Thus it clearly flows from this, that the Citizens Right To Know is paramount.

The Act and its rules define a format for requisitioning information, a time period within which information must be provided, a method of giving the information, some charges for applying and some exemptions of information which will not be given.

The Need For The Right To Information
In recent years, there has been an almost unstoppable global trend towards recognition of the right to information by countries, intergovernmental organizations, civil society and the people. The right to information has been recognized as a fundamental human right, which upholds the inherent dignity of all human beings. The right to information forms the crucial underpinning of participatory democracy - it is essential to ensure accountability and good governance. The greater the access of the citizen to information, the greater the responsiveness of government to community needs. Alternatively, the more restrictions that are placed on access, the greater will be the feelings of 'powerlessness' and 'alienation'. Without information, people cannot adequately exercise their rights as citizens or make informed choices.

The free flow of information in India remains severely restricted by three factors:
a. The legislative framework includes several pieces of restrictive legislation, such as the Official Secrets Act, 1923;
b. The pervasive culture of secrecy and arrogance within the bureaucracy; and
c. The low levels of literacy and rights awareness amongst India's people.
The primary power of RTI is the fact that it empowers individual Citizens to requisition information. Hence without necessarily forming pressure groups or associations, it puts power directly into the hands of the foundation of democracy- the Citizen.

Applicability
The Act applies both to Central and State Governments and all public authorities. A public authority (sec. 2(h)) which is bound to furnish information 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, (c) by any other law made by State Legislature, (d) by a 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 - which, in clauses (a) to (d) are all, directly or indirectly funded by the appropriate Government.

Definition: Information
The Act defines information in sec. 2(f) as any material in any form, including the records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, log books, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any law for the time being in force. Sec. 2(i) defines the word ‘record’ as including (a) any document, manuscript and file, (b) any microfilm, microfiche and facsimile copy of a document, (c) any reproduction of image or images embodied in such microfilm and (d) any other material produced by a computer or any other device.

Definition: Right To Information
The right to information is defined in sec. 2(j) as a right to information accessible under the Act which is held by or under the control of any public authority and includes a right to (i) inspection of work, documents, records, (ii) taking notes, extracts or certified copies of documents or records, (iii) taking separate samples of material, (iv) obtaining information in the form of diskettes, floppies, tapes, video cassettes or in any other electronic mode or through printouts where such information is stored in a computer or in any other device.

Maintenance And Publication Of Records
Sec. 4 makes it a duty of public authorities to maintain records for easy access and to publish within 120 days the name of the particular officers who should give the information and in regard to the framing of the rules, regulations etc. Subsection (3) of sec. 4 states that for the performance of subsection (1), all information shall be disseminated widely and in such form and manner, which is easily accessible to the public.

Sec. 6 permits persons to obtain information in English or Hindi or in the official language of the area from the designated officers. The person need not give any reason for the request or any personal details. Sec. 7 requires the request to be disposed of within 30 days provided that where information sought for concerns the life or liberty of a person, the same shall be provided within 48 hours. Under sec. 7(7) before any decision is taken for furnishing the information, the designated officer shall take into consideration the representation, if any, made by a third party under sec. 11.

A request rejected shall be communicated under sec. 7(8) giving reasons and specifying the procedure for appeal and the designation of the appellate authority. Sec. 7(9) exempts granting information where it would disproportionately divert the resources of the public authority or would be detrimental to the safety and preservation of the record in question.

Exemptions
Sec. 8 exempts from disclosure certain information and contents as stated in Sub-clauses (a) to (j) thereof. Sub-clause (b) exempts information, which is expressly forbidden by any court of law or tribunal or the dispute of which may constitute contempt of court. Sub-clause (g) exempts information the disclosure of which would endanger life, or physical safety of any person or identify the source of information or assistance given in confidence for law enforcement or security purpose. Sub-clause (h) exempts information, which could impede the process of investigation or apprehension or prosecution of offenders. Sub-clause (i) exempts Cabinet papers.

It is important to note that the Act specifies that intelligence and security organizations are exempted from the application of the Act. However, it is provided that in case the demand for information pertains to allegations of corruption and human rights violations, the Act shall apply even to such institutions.

Constitutional Avenues Remain Open
Under the Act, where a citizen has exhausted the remedy of appeal or second appeal, the finality given to the orders of the commissioners and appellate authorities is only for the purposes of the Act and the citizen has a right to approach the High Court under Art. 226 or where it refers to a fundamental right, he may even approach the Supreme Court under Art. 32.

Right To Information As A Fundamental Right:
Supreme Court On The Right To Information
The right to information is a fundamental right flowing from Art. 19(1)(a) of the Constitution is now a well-settled proposition. Over the years, the Supreme Court has consistently ruled in favor of the citizen’s right to know. The nature of this right and the relevant restrictions thereto, has been discussed by the Supreme Court in a number of cases:

In Bennett Coleman, the right to information was held to be included within the right to freedom of speech and expression guaranteed by Art. 19 (1) (a).

In Raj Narain, the Court explicitly stated that it is not in the interest of the public to ‘cover with a veil of secrecy the common routine business - the responsibility of officials to explain and to justify their acts is the chief safeguard against oppression and corruption.’

In S.P. Gupta, the right of the people to know about every public act, and the details of every public transaction undertaken by public functionaries was described.

Comparison With The USA Act
The United States enacted a Freedom of Information Act (FOIA) in 1966 and introduced amendments in 1974 and 1986. This Act is applicable to government agencies. ‘Agencies’ under the act include the whole executive arm of the state as well as military department, government corporations and government controlled corporations and any independent regulatory agency.

The Act begins with the obligation on the government agencies to publish (in the Federal Register) information about the organization of the agency; functions; procedure; the persons/officials from whom information can be collected; the availability of forms; the scope of information available; the substantive rules and statements of general policy or interpretations of general applicability adopted by the agency and amendments thereof.

The agencies are obligated to provide records not included in the above categories, upon request, which reasonably describes the record. The right to make a request lies with ‘ any person’, i.e., any legal entity like an individual, private corporation etc. The request has to be in accordance with the rules in place regarding time, place, fees and procedure to be followed. The regulations have to be made by each agency and framed pursuant to notice and receipt of public comments thereon. It must include a schedule of the fees and the guidelines to determine the waiver or reduction of the fees.

The Act contains minimum tests for fees. Fees have to be limited to reasonable standard charged for search, duplication and review when requested for commercial use. This is limited to reasonable charges for duplication only when request is by educational or scientific institution, for scholarly or scientific research; or by representative of the news media. For any other kind of request, reasonable standard charges for document search and duplication is the norm.

Time period for compliance with a request is ten (10) days from receipt of the request. Decision will be notified immediately to the requestor with reasons. In case of refusal, it must mention the right to the requester to appeal to the head of the agency and the names and titles/positions of the person responsible for the denial. The time limit is extendable with notice and reason but only for a maximum of 10 more days. Such extension is allowed for search and consultation time.

The first appeal lies to the head of the agency and has to be determined within twenty (20) days from the date of receipt of the appeal. From this departmental appeal lies the right of judicial review by the District Court. The court can be approached directly, in case of no response on the request within twenty days or if the decision of the departmental appeal is not given within twenty days. Additional time is given for review of the request by the court after retaining jurisdiction if the government can show existence of exceptional circumstance and due diligence of the agency in responding to the request.

The United States like other developed countries enacted laws such as the Freedom of Information Act 1966,which allow individuals to access records of government agencies in order to ascertain the proper functioning of such agencies. The Freedom of Information Act like our own Right to Information Act provides for a specific time period within which applications made under the act must be complied with. The Freedom of Information of Act provides that only a reasonable fee for compiling with the request for information shall be levied on the citizen. Similarly the Right to Information Act also provides for a prescribed fee that will be levied on the citizen making an application for information.

Freedom of Information Act, which expressly provides for the District courts in the US to exercise the power of judicial review in case of non-response from the authorities established under the act or by way of appeal from such authority. The power of judicial review though not expressly provided under the Act is inherent, as this power has been given to them by the Constitution.

Impact Of The New Law
Now that the statute requires information about the pendency of the applications, reasons as to why they are not disposed of or the reasons behind the rejection of an application, there is bound to be improvement in the efficiency of the departments. As of now, the only supervision of efficiency is supervision that is made by the superior officers at the time of reviewing the employees’ work and while recording comments in the annual confidential reports or ACRs. This process has not proved successful and though it may be continued, still the threat of a Designated official calling for the relevant information at the instance of a citizen will be a salutary check on the inefficiency of officers. It also checks lethargy or bad faith or corrupt motives.

Another important aspect is that in India we have not given respect and prominence to the rights of the individual Citizen. True democracy is impossible until we recognize the majesty of the individual Citizen. If individual Citizens are empowered to ensure greater accountability and transparency in governance, it can bring about a major change. There has been no vehicle available for individual citizens to impact the governance structure. In a system reeking with corruption and becoming increasingly insensitive to the problems of the disadvantaged Citizenry, the Right To Information has shown promise of empowering Citizens to get accountability and act as an enforcer of good governance.

The overall impact of these decisions has been to establish clearly that the right to freedom of information, or the public's right to know, is embedded in the provisions guaranteeing fundamental rights in the Constitution. Various Indian laws provide for the right to access information in specific contexts. Section 76 of the Indian Evidence Act, 1872, contains what has been termed a 'Freedom of Information Act in embryonic form'. This provision requires public officials to provide copies of public documents to anyone who has a right to inspect them.

The Factories Act, 1948, provides for compulsory disclosure of information to factory workers "regarding dangers including health hazards and the measures to overcome such hazards", arising from their exposure to dangerous materials. While this is an excellent provision, in practice it is violated with impunity. The Environment (Protection) Act 1986, and the Environmental Impact Assessment Regulations provide for public consultation and disclosure in various circumstances.

Example Of Use Of The Act
One of the simple and yet very powerful examples of use of the Right To Information (RTI) I have heard is of a slum dweller that had learnt the use of the Right To Information. When he applied for a new ration card, he was told that he would have to give a bribe of Rs. 2000 to the officials to obtain it. Our friend, -a RTI-empowered Citizen, - smiled, and applied for the ration card without offering any bribes or groveling in front of the officials for pity. Our common Citizen had decided to personally become the enforcer of good governance. He found out that the bribe-givers got their ration cards in about four weeks. He waited for an extra four weeks, and then applied for information under RTI. Using the simple format with an application fee of Rs. 10, he delivered it to the Public Information Officer of the Food and Supply office. He had asked up to, which date applications for ration cards had been cleared, and the daily progress report of his application. This shook up the corrupt officials, since the answer would reveal that they had given ration cards to others who had applied after him, which would be conclusive evidence that they had no justification for delaying his card. Happy ending: The Ration card was given to him immediately. Our RTI-empowered Citizen had been able to enforce the majesty of the Citizen by using RTI. This story has been repeated many thousand times in getting a road repaired, getting an electricity connection, admissions in educational institutions and so on.

Criticisms
The Act has been criticized on several grounds. It provides for information on demand, so to speak, but does not sufficiently stress information on matters related to food, water, environment and other survival needs that must be given pro-actively, or suo moto, by public authorities. The Act does not emphasize active intervention in educating people about their right to access information -- vital in a country with high levels of illiteracy and poverty -- or the promotion of a culture of openness within official structures. Without widespread education and awareness about the possibilities under the new Act, it could just remain on paper. The Act also reinforces the controlling role of the government official, who retains wide discretionary powers to withhold information.

The most scathing indictment of the Bill has come from critics who focus on the sweeping exemptions it permits. Restrictions on information relating to security, foreign policy, defence, law enforcement and public safety are standard. But the Right to Information Act also excludes Cabinet papers, including records of the council of ministers, secretaries and other officials, this effectively shields the whole process of decision-making from mandatory disclosure.

Another stringent criticism of the Act is the recent amendment that was to be made allowing for file notings except those related to social and development projects to be exempted from the purview of the Act. File notings are very important when it comes to the policy making of the government. It is these notes that hold the rationale behind actions or the change in certain policy, why a certain contract is given or why a sanction was withheld to prosecute a corrupt official. Therefore the government’s intention to exempt the file notings from the purview of the Act has come in for stringent criticisms.

Conclusion
By enacting the Right to Information Act India has moved from an opaque and arbitrary system of government to the beginning of an era where there will be greater transparency and to a system where the citizen will be empowered and the true center of power. Only by empowering the ordinary citizen can any nation progress towards greatness and by enacting the Right to Information Act 2005 India has taken a small but significant step towards that goal. The real Swaraj will come not by the acquisition of authority by a few but by the acquisition of capacity by all to resist authority when abused. Thus with the enactment of this Act India has taken a small step towards achieving real Swaraj.

Guide For the Information Seekers Under the Right to Information Act, 2005

Object of the Right to Information Act

The basic object of the Right to Information Act is to empower the citizens, promote transparency and accountability in the working of the Government, contain corruption, and make our democracy work for the people in real sense. An informed citizenry will be better equipped to keep necessary vigil on the instruments of government and make the government more accountable to the governed. The Act has created a practical regime through which the citizens of the country may have access to information under the control of public authorities.

What is 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.

Right to Information under the Act

1. 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 copied of documents or records; taking certified samples of material held by the public authority or held under the control of the public authority.

2. The public authority under the RIT Act 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. Only such information can be had under the Act which already exists with the public authority.

3. A citizen has a right to obtain information in the form of diskettes, floppies, tapes, video cassettes or in any other electronic mode or through print-out provided information is already stored in a computer or in any other device from which the information may be transferred to diskettes.

4. The information to the applicant shall 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.

5. The Act gives the right to information only to the citizens of India. It does not make provision for giving information to Corporations, Associations, Companies etc. which are legal entities/persons, but not citizens. However, if an application is made by an employee or office-bearer of any Corporation, Association, Company, NOG etc. who is also a citizen of India, information shall be supplied to him/her, provided the applicant given his/her full name. In such cases, it will be presumed that a citizen has sought information at the address of the Corporation etc.

Exemptions from Disclosure

The right to seek information from a public authority is not absolute. Sections 8 and 9 of the Act enumerate the categories of information which are exempt from disclosure. At the same time Schedule II of the Act contains the names of the Intelligence and Security Organisations which are exempt from the purview of the Act. The exemption of the organization, however, does not cover supply of information relating to allegations of corruption and human rights violations.

The applicants should abstain from seeking information which is exempt under Section 8 and 9 and also from the organizations included in the Second Schedule except information relating to allegations of corruption and human right violations.

Central Public Information Officers

Application for seeking information should be made to an officer of the public authority who is designated as Central Public Information Officer (CPIO). All the public authorities have designated their Central Public Information Officer and have posted their particulars on their respective web-sites. This information is also available on the ‘RTI PORTAL’ (www.rti.gov.in). Persons seeking information are advised to refer to the web-site of the concerned public authority of the ‘RIT PORTAL’ for ascertaining the name of the concerned CPIO. If it is found difficult to identify or locate the concerned Central Public Information Officer of a public authority, application may be sent to the Central Public Information Officer without specifying the name of the CPOI at the address of the public authority.

Assistance Available From CPIOs

The Central Public Information Officer shall render reasonable assistance to the persons seeking information. If a person is unable to make a request in writing, he may seek the help of the CPIO to write his application. Where a decision is taken to give access to a sensorily disabled person to any document, the Central Public Information Officer, shall provided such assistance to enable access to information, including providing such assistance to the person as may be appropriate for the inspection.

Suo Motu Disclosure

The Act makes it obligatory for every public authority to make suo-motu disclosure in respect of the particulars of its organization, functions, duties etc. as provided in section 4 of the Act. Besides, some public authorities under the Central Government have published other information and have posted them on their websites.

Method of Seeking Information

A citizen who desires to obtain any information under the Act, should make an application to the Central Public Information Officer (CPIO) of the concerned public authority in writing in English or Hindi or in the official language of the area in which the application is made. The applicant can send the application by post or through electronic means or can deliver it personally in the office of the public authority. The application can also be sent through a Central Assistant Public Information Officer appointed by the Department of Post at sub-divisional level or other sub-district level.

Fee for Seeking Information

The applicant, along with the application, should send a demand draft or a banker’s cheque or an Indian Postal Order of Rs10/- (Rupees ten), payable to the Accounts Office of the public authority as fee prescribed for seeking information. The payment of fee can also be made by way of cash to the Account Officer of the Public authority or to the Central Assistant Public Information Officer against proper receipt.

The applicant may also be required to pay further fee towards the cost of providing the information, details of which shall be intimated to the applicant by the CPIO as prescribed by the Right 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 large size paper;

c. actual cost or price for samples or models;

d. for inspection of records, no fee for the first hour; and a fee of rupees five (Rs.5/-) for each subsequent hour (or fraction thereof);

e. for information provided in diskette or floppy rupees fifty (Rs.50/-) per diskette or floppy; and

f. 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.

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 and therefore, does not entitle the applicant to get information.

Format of Application

There is no prescribed form of application for seeking information. the application can be made or plain paper. The application should, however, have the name and complete postal address of the applicant. Even in cases where the information is sought electronically, the application should contain name and postal address of the applicant.

The information seeker is not required to give reasons for seeking information.

Disposal of the Request

1. The CPIO is required to provided information to the applicant within thirty days of the receipt of a valid application. If the information sought for concerns the life or liberty of a person, the information shall be provided within forty-eight hours of the receipt of the request. If the CPIO is of the view that the information sought for cannot be supplied under the provisions of the Act, the would reject the application. However, while rejecting the application, he shall inform the applicant the reasons for such rejection and the particulars of the appellate authority. He would also inform the applicant the period with which appeal may be preferred.

2. If an applicant is required to make payment for obtaining information, in addition to the application fee, the Central Public Information Officer would inform the applicant about the details of further fees alongwith the calculation made to arrive at the amount payable by the applicant. After receiving such a communication from the CPIO, the applicant may deposit the amount by way of cash against proper receipt or by Demand Draft or by Banker’s cheque or by Indian Postal Order in favour of the Accounts Officer of the concerned public authority. The CPIO is under no obligation to make available the information if the additional fee intimated by him is not deposited by the applicant.

3. Where an additional fee is required to be paid, the period intervening between the dispatch of the intimation regarding payment of additional fee and payment of fee by the applicant shall be excluded for the purpose of computing the period of thirty days within which the CPIO is required to furnish the information.

4. If the CPIO fails to send decision on the request on the information within the period of thirty days or forty-eight hours, as the case may be, the information may be deemend to have been refused.

First Appeal

If an applicant is not supplied information within the prescribed time thirty days or 48 hours, as the case may be, is not satisfied with the information furnished to him, be may prefer an appeal to the first appellate authority who is an officer senior in rank to the CPIO. Such an appeal, should be filed within a period or thirty days from the date on which the limit of 30 days of supply of information is expired or from the data on which the information or decision of the CPIO is received.

The appellate authority of the public authority shall dispose of the appeal within a period of thirty days or in exceptional cases with 45 days of the receipt of the appeal.

Second Appeal

If the appellate authority fails to pass an order on the appeal within the prescribed period or if the appellant is not satisfied with the order of the first appellate authority, he may prefer a second appeal with the Central Informational Commission within ninety days from the date on which the decision should have bee made by the first appellate authority or was actually received by the appellant. The appeal made to the Central Informational Commission should contain the following information:-

i. Name and address of the appellant;

ii. Name and address of the Central Public Information Officer against the decision of whom the appeal is preferred;

iii. Particulars of the order including number, if any, against which the appeal is preferred;

iv. Brief facts leading to the appeal;

v. If the appeal is preferred against deemed refusal, particulars of the application including number and date and name and address of the Central Public Information Officer to whom the application was made; Prayer or relief sought;

vi. Grounds for prayer or relief;

vii. Verification by the appellant; and

viii. Any other information, which the Commission may deem necessary for deciding the appeal.

The appeal made to the Central Informational Commission should be accompanied by the following documents:

i. Self-attested copies of the order or documents against which appeal is made;

ii. Copies of the documents relied upon by the appellant and referred to in the appeal; and

iii. An index of the documents referred to in the appeal.

Complaints

If any person is unable to submit a request to a Central Public information Officer either by reason that such an officer has not been appointed by the concerned public authority; or the Central Assistant Central Public information Officer has refused to accept his or her application or appeal for forwarding the same to the Central Public information Officer or the appellate authority, as the case may be; or he has been refused access to any information requested by him under the RTI Act; or he has not been given a response to a request for information within the time limit specified in the Act; or he has been required to pay an amount of fee which he considers unreasonable; or he believes that he has been given incomplete, misleading or false information, he can make a complaint to the Central information Commission.

Disposal of Appeals and Complaints by the CIC

The Central information Commission decided the appeals and complaints and conveys its decision to the appellant/complainant and first appellate authority/CPIO. The Commission may decide an appeal/complaint after hearing the parties to the appeal/complaint or by inspection of documents produced by the appeal/complaint and CPIO or such senior officer of the public authority who decided the first appeal. If the Commission will inform of the date of hearing to the applicant or the complainant at least seven clear days before the date of hearing. The appeal/complaint has the discretion to be present in person or through his authorized representative at the time of hearing or may opt not to be present.

Important Web-sites

Given below are the addresses of some important web-sites which contain substantial information relevant to the right to information:

i. Portal of the Government of India (http://indiaimage.nic.in).

ii. Portal on the Right to Information (www.rti.gov.in).

iii. Website of the Central Information Commission (http://cic.gov.in)