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LATEST NEWS UPDATES | How to use the existing RTI Act of India to query the private sector by Veeresh Malik

How to use the existing RTI Act of India to query the private sector by Veeresh Malik

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published Published on Dec 18, 2011   modified Modified on Dec 18, 2011

Chances of a single answer to two opposing questions on the RTI Act means there is something to it which the rule-books don’t tell you about—but you can bowl googlies to them, too, when the system expects you to hold a straight bat to their bouncers

Here is a single answer to two diametrically opposite questions—“Yes, you can file an application under the Right to Information Act of India 2005 (RTI Act), if the entity is substantially financed or in any other way subject to the above Act”. What to do after that, if a reply is not sent or received, is another matter altogether—and one that can have consequences which cannot be predicted, for the said entity. All it costs you is Rs10 plus Re1 service charges—total Rs11.

The questions to this answer are either from private companies and entities which consider themselves above and beyond the RTI Act—or from people who wish to get responses under the RTI Act from suchprivate companies or entities. Whether they are schools, sports associations, companies working under PPP (public-private partnership) or joint-venture projects, private airport operators, large or small corporates funded heavily by public sector banks and financial institutions (FIs), or similar—filing and sending an RTI application is your birthright, even if they have not made provisions for receiving them.

As always, anecdotal experiences used as actual case studies. The most important, for this writer, of course, goes back to 2006 when an RTIapplication on the Indian Olympics Association was initially refused—thrown away and out, as a matter of fact, along with the undersigned. The result, after filing the application subsequently by post, by way of a judgement at the Central Information Commission (CIC) as well as Delhi High Court, became a citation, became a citation—which can be seen here.

http://www.indiankanoon.org/doc/465885/.

Briefly, it defines who is a “public authority”, the entities that come under the RTI Act of India, 2005.

But of late, there have been a few applications which go here and there, and then around some more, with the entity being quizzed using every trick in the book to evade providing responses. Prominent here are companies like the Delhi International Airport (DIAL) which operates the Delhi Airport, some sports associations like BCCI (cricket) and FMSCI (motorsports), SEBI and the stock exchanges.

But where there is a will, there is a way, and it is always important to remember that most private companies in India of any large size, whether home-grown or international or foreign, have some amount of “substantial financing” from the Indian government in their books, hidden away in the fine-print somewhere. The big thing is to file the RTI application in such a way that it stays on their records as well as on the records of the known public authorities that they come under. As a strategy, to achieve something by commencing an organic process that winds its way up slowly and surely, this is unbeatable.

A few months ago I came across a few media reports, here is one:http://www.telegraphindia.com/1110420/jsp/orissa/story_13877351.jsp...  and the relevant part that caught my eye was this: “Posco India has so far spent Rs3,000 crore in its proposed steel plant near Paradip”... but the other interesting part was here—“Sources said Posco India has so far given direct employment to 53 persons and indirect employment to 20. The state has got Rs4.41 crore as taxes from the project”.

Some more searching, and it turns out that this number was also being used in context with the state visit of South Korea’s president Lee Meung Bak and the potential $19 billion investment in Odisha for iron ore mining and transport onwards, a figure which kept varying with different reports. All these big numbers, of course, were placing pressure on the central and state government to move rapidly in a direction—the export of natural resources which could better be used internally for domestic production—which was eminently flawed.

But who does one send an RTI query to in such cases?

The answer is simple.

1) An opening RTI application of a general sort, where more details for information of the real numbers behind the project, are sought from the office of the prime minister of India.

2) The next RTI application of a specific sort, seeking information on taxes paid in the course of spending so much money, ongoing and proposed, are sought from the office of the Central Board of Direct Taxes (CBDT).

3) And finally, the really tricky one, is two separate RTI applications containing the same queries for more specific and detailed information, are sought from the office of the Planning Commission and directly from the office of the Indian subsidiary of the company itself, in this case, Posco-India Private Limited, 116, Park Centra (1st floor) Tower-B, Opposite 32nd Milestone, NH-8, Sector-30, Gurgaon-122001.

Here is a copy of the RTI application that I sent to Posco.

Requesting information under the RTI Act of India, 2005, please provide me with the following information. THIS INFORMATION IS SOUGHT IN THE PUBLIC INTEREST, AND THERE IS OVER-RIDING PARAMOUNT LARGER PUBLIC INTEREST TO BE GIVEN THE INFORMATION I HAVE ASKED FOR.

INFORMATION REQUIRED:-

a) Please provide me with full information pertaining to adherence of Posco-India Pvt Ltd to the RTI Act of India 2005.

b) Please provide me with full information pertaining to the various taxation adherences and status of Posco and/or their Indian subsidiary Posco India Pvt Ltd claiming that they have spent Rs3000 crore in India so far and if CBDT has any information on this heavy expense. (Source: Media report per:http://www.telegraphindia.com/1110420/jsp/orissa/story_13877351.jspquote:

“Bhubaneswar, April 19: Posco India has so far spent Rs3,000 crore in its proposed steel plant near Paradip though the project still remains stuck with the company yet to take possession of even an inch of land at the site. The company’s investments came to light during an ongoing review meeting chaired by steel and mines minister Raghunath Mohanty.”

c) Please provide me with full information on expenses incurred by Posco and/or their Indian subsidiary Posco India Pvt Ltd on any travel/junket or other expenses on Indian officials, journalists and other people not connected with the day-to-day regular work of Posco and/or their Indian subsidiary Posco India Pvt Ltd.

d) If any of the above said statutory records are not available, the complete details of how it was destroyed/weeded out in each case.

e) Electronic access to the catalogue (or catalogues) of all records of your public authority duly indexed in a manner and the form to facilitate right to information, either over the computer networks or in the form of a diskette or other electronic media at the prescribed fees.

Sent by e-mail and signed hard copy, self-verified, (signed) and humbly submitted,

From: V Malik,

D-61, Defence Colony,

New Delhi - 110024

Note 1. Application fee of Rs10 in cash shall be submitted within 30 days as per procedure laid down by DoP&T at PIO, Posco India Pvt Ltd, New Delhi, or at any one of the nominated APIOs located at the specified Post Offices in India, and a copy of this application along with receipt shall be sent to you co-terminus. Interim, you are requested to commence processing this RTI application as per the RTI Act, 2005 with effect from date of submission of this electronic copy, also as per the RTI Act, 2005.

Note 2. The public authority, Posco India Pvt Ltd, Gurgaon, has not yet published their arrangements to accept/accompany electronic paymentsfor e-filings as per Section 6 of the Information Technology Act, 2000, is requested to do same,  and hence I am constrained to go to extra expense/trouble to file a routine email request by Postal Department also.

Note 3. I wish to specify that you may please not provide to me that information (or particular portion thereof) which would impede the prosecution of offenders under any law of India, and also any personal information which is unconnected with any public activity/interest or which invades the privacy of any person. THIS INFORMATION IS SOUGHT IN THE LARGER PUBLIC INTEREST, AND THERE IS OVER-RIDING PARAMOUNT LARGER PUBLIC INTEREST TO BE GIVEN THE INFORMATION I HAVE ASKED FOR.

Note 4: Humbly also submitted that section 8(2) of RTI Act clearly mentions that “A public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests”. In present case even section 8(1) (j) is applicable for the information sought. Also it leaves no scope to invoke section 11 of RTI Act for seeking ‘third party’ comments. However since various CIC verdicts allow protection in form of hiding certain information likely to be misused, bank details etc in the sought information may be hidden by putting a whitener on the relevant portions of the documents to be provided.  In case RTI petition relates to some other public authority, please transfer this RTI petition to CPIO there under section 6(3) of RTI Act.

(Postal-order number __________________ _______________ for rupees ten is enclosed with signed hard-copy towards RTI fees in name of “Accounts Officer” as per DoPT circular-number No.F.10/9/2008-IR dated 05.12.2008.)

In essence, there is no way that Posco could not accept this RTI application, because it was sent by registered post using the “via Post Office” and transfer under Section 6(3) method, and that is step-1. The parallel application to the Planning Commission and PMO and CBDT is step two, and was done so that the information sought comes on record, and also if at a later date if a scam is uncovered, then it will be fairly correct to assume that the Planning Commission, PMO and CBDT would have by then further moved the application to ALL the public authorities concerned. The Planning Commission and PMO also have enough information on record pertaining to not just about the central government, but also the state governments and other entities which do not come under the central act, but come under their own state acts—which makes things difficult for us.

This has the effect of putting everybody on their guard, flags come up at every point along the line where anything wrong may even remotely have been done, and all questions lead back to the company—in this case, Posco India. By the end of it, even Posco knows that it would be in their interest to provide a response to the application, either directly or through any of the central government public authorities, as not providing one will certainly lead to even more complications with the various government public authorities now asking the same questions.

Which is what happened. After all the RTI applications went around, the eventual result was that Posco as well as other entities involved in this episode declared that the Rs3,000 crore figure was an incorrect one, and the real figure was only Rs300-odd crore. Maybe not even that much.

What did one achieve by this?

Perception is often used to confuse the truth. By throwing around huge numbers as promised foreign investment and benefit to the nation, a situation is created where any opposition to these projects is considered to be anti-national, and the complete public relation exercise swings into play. The repeated tom-tomming of the Rs3,000 crore number had the result that the promoters wanted—it motivated all sorts of dynamics to help the project along. The reality was that a pittance had actually been spent by the company, more had probably been spent by various arms of the government using our taxes to prop this game along, and what was essentially in some ways a hoax became truth by repetition.

If you are faced with a similar situation, where a wall of denials is placed in front of you by assorted entities including private companies which have been suitably financed by the government or state/city governments think of this tactic. File RTIs on the PMO and Planning Commission, and wait for results. There is no large project in this country by the private sector which can say it has not received substantial government aid in some form or the other. Remember, subsidies, waivers of tax, loans from government sector financial institutions like insurance companies and PSU banks—make a private company come under the “substantially financed” category for RTI purposes.

MoneyLife.in, 17 December, 2011, http://moneylife.in/article/how-to-use-the-existing-rti-act-of-india-to-query-the-private-sector/22247.html


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