Open Government and Right to Information: USA, UK and India

Open government is the doctrine that the business of government should be open to public scrutiny, based on transparency, participation and accountability. Secrecy should be the exception, not the rule. The idea rests on democratic theory: citizens cannot hold government accountable without information.

• Justice Louis Brandeis (USA): "Sunlight is said to be the best of disinfectants" (Other People's Money, 1914) – the most quoted line on transparency.

• James Madison: a popular government without popular information is a prologue to a farce or a tragedy.

• Sweden: the Freedom of the Press Act, 1766 is the world's first law giving public access to official documents (offentlighetsprincipen).

• Pillars of open government: (1) proactive disclosure; (2) right to request information; (3) open meetings and participation; (4) open data; (5) protection of whistleblowers; (6) independent oversight of disclosure disputes.

• Open Government Partnership (OGP), launched in 2011 by eight founding governments (including the USA, UK, Brazil, Indonesia, Mexico, Norway, Philippines and South Africa). India has not joined the OGP.

• Limits: national security, privacy, commercial secrets, law enforcement, deliberative processes of government and international relations.

Freedom of Information Act (FOIA), 1966

• Enacted in 1966 (signed by President Lyndon B. Johnson, effective from 1967), replacing the weak disclosure provision of the Administrative Procedure Act, 1946. Principle: presumption of disclosure; the burden of justifying refusal rests on the agency.

• Amendments: 1974 (after Watergate: judicial review of classification, time limits, fee waivers); 1996 (Electronic FOIA); OPEN Government Act, 2007 (created the Office of Government Information Services, OGIS, as FOIA mediator/ombudsman); FOIA Improvement Act, 2016 (a "foreseeable harm" standard: an agency may withhold exempt material only if disclosure would harm an interest protected by the exemption, or if disclosure is prohibited by law).

• Coverage: federal executive agencies (including independent agencies and government corporations). It does not cover Congress, the federal courts, and the President's immediate staff (the White House Office); State governments have their own laws.

• Procedure: a request to the agency; a decision within 20 working days; administrative appeal; then judicial review in a federal district court, de novo, where the agency has the burden. Vaughn v Rosen (1973) led to the "Vaughn index" (the agency's itemised justification for withholding documents). Courts can order production and award attorney fees.

The Nine Exemptions (Memory List)

1. Classified national defence or foreign policy information.

2. Internal personnel rules and practices of an agency.

3. Information exempted by other statutes.

4. Trade secrets and confidential commercial or financial information.

5. Inter-agency or intra-agency memoranda that would be privileged in litigation (deliberative process privilege, attorney–client, work product).

6. Personnel and medical files where disclosure would be a "clearly unwarranted invasion of personal privacy".

7. Law enforcement records (with specified harms).

8. Records on the regulation or supervision of financial institutions.

9. Geological and geophysical information concerning wells.

(Also, there are special exclusions for certain law enforcement and national security records.)

Related Statutes

• Privacy Act, 1974 (protects personal records held by federal agencies; individuals can access and correct their records).

• Government in the Sunshine Act, 1976 (open meetings of multi-member federal agencies).

• Federal Advisory Committee Act, 1972 (open advisory committees).

• Presidential Records Act, 1978 (presidential records are public property; released after a period).

• Whistleblower Protection Act, 1989.

• Obama Memorandum on Transparency and Open Government (2009) and the Open Government Directive (2009); Data.gov.

Leading FOIA Cases

• EPA v Mink (1973): national security exemption and classification; led to the 1974 amendments.

• NLRB v Robbins Tire (1978): exemption 7 and the law enforcement process.

• Department of Justice v Reporters Committee for Freedom of the Press (1989): privacy exemption; compiled "rap sheets" protected as practical obscurity.

• National Archives and Records Administration v Favish (2004): privacy interests of family members.

• Milner v Department of the Navy (2011): narrow reading of exemption 2.

• Constitutional basis: the US Constitution contains no express right to information; the right is statutory (the First Amendment does not guarantee a general right of access to government information). Some cases (e.g., Richmond Newspapers v Virginia, 1980) recognise a right of access to criminal trials.

Freedom of Information Act, 2000 (FOIA 2000)

• Passed in 2000; the right of access came fully into force on 1 January 2005. Earlier, the UK relied on a culture of secrecy: the Official Secrets Act 1911 (section 2), replaced by the Official Secrets Act 1989; the non-statutory Code of Practice on Access to Government Information (1994). The Labour Government's White Paper Your Right to Know (1997) preceded the Act.

• Scope: covers public authorities listed in Schedule 1 (government departments, local authorities, NHS, police, schools, universities, etc.). The Scottish FOI Act, 2002 applies to Scottish public bodies. Environmental Information Regulations 2004 cover environmental information.

• Two main duties (section 1): (1) the duty to confirm or deny whether the authority holds the information; (2) the duty to communicate the information. Section 19: every authority must adopt a publication scheme (proactive disclosure).

• Timing and cost: 20 working days; no fee for requests but an authority can refuse requests that exceed an appropriate cost limit (£600 for central government and £450 for other authorities); vexatious or repeated requests can be refused (section 14).

• Exemptions (Part II): about two dozen, divided into:

  • Absolute exemptions: no public interest test applies – e.g., section 21 (information accessible by other means), section 23 (security bodies), section 32 (court records), section 34 (parliamentary privilege), section 36 (prejudice to effective conduct of public affairs, as regards the House of Commons/Lords), section 37 (communications with the Sovereign, heir and second in line – absolute since the 2010 amendment), section 40 (personal information of the applicant; and personal data of third parties in some cases), section 41 (information provided in confidence), section 44 (statutory prohibitions).

  • Qualified exemptions: subject to the public interest test (public interest in maintaining the exemption must outweigh the public interest in disclosure) – e.g., section 24 (national security), section 26 (defence), section 27 (international relations), section 29 (economy), section 30 (investigations), section 31 (law enforcement), section 35 (formulation of government policy), section 36 (effective conduct of public affairs), section 38 (health and safety), section 42 (legal professional privilege), section 43 (commercial interests).

• Enforcement: the Information Commissioner (ICO) (independent; also oversees data protection); appeals lie to the First-tier Tribunal (Information Rights), then the Upper Tribunal and the courts on points of law.

• Ministerial veto (section 53): a cabinet minister can issue a certificate overriding the Commissioner's decision. R (Evans) v Attorney General (2015, UK Supreme Court): the "black spider memos" of Prince Charles; the Court held that the Attorney General could not override the court's decision merely because he disagreed, and the certificate was unlawful, upholding the rule of law and the finality of judicial decisions.

• Historic significance: the MPs' expenses scandal (2009) was uncovered through FOI requests; it advanced the transparency agenda.

• Open government agenda: the UK was a founding member of the OGP; data.gov.uk and the transparency agenda from 2010.

• Related laws: Data Protection Act 2018 and UK GDPR; Public Records Act 1958 (30-year rule, reduced to 20 years by the Constitutional Reform and Governance Act 2010); Official Secrets Act 1989.

Constitutional Foundations

• No express provision, but the Supreme Court has read the right to know and to receive information into Article 19(1)(a) (freedom of speech and expression) and Article 21.

• State of Uttar Pradesh v Raj Narain (1975): the Court rejected the government's claim of privilege under Section 123 of the Evidence Act, saying that the people have a right to know every public act, done in a public way; Justice K.K. Mathew said that in a government of responsibility, secrecy can only be for a few, and publicity is the rule.

• S.P. Gupta v Union of India (1981): the right to know is implicit in the right to free speech; open government is the new democratic culture; disclosure is the rule, secrecy the exception.

• Secretary, Ministry of I&B v Cricket Association of Bengal (1995): airwaves are public property; the right to receive information.

• Dinesh Trivedi v Union of India (1997): in a modern democracy, the citizen must have the right to know about the affairs of government.

• Association for Democratic Reforms v Union of India (2002) and PUCL v Union of India (2003): voters have the right to know about the antecedents and assets of candidates; ADR v Union of India (2024) struck down the Electoral Bond Scheme, holding that voters' right to information about political funding is protected under Article 19(1)(a).

• Pre-RTI secrecy framework: the Official Secrets Act, 1923 (Section 5), Indian Evidence Act (Sections 123, 124), and the Civil Service Conduct Rules.

Road to the RTI Act

• Grassroots movement: Mazdoor Kisan Shakti Sangathan (MKSS) in Rajasthan (Aruna Roy, Nikhil Dey, Shankar Singh) in the 1990s, which demanded public access to muster rolls and expenditure details (jan sunwai – public hearings). The National Campaign for People's Right to Information (NCPRI) (1996).

• Press Council of India draft (1996) and the Shourie Committee (1997) drafted bills.

• State laws: Tamil Nadu (1997), Goa (1997), Rajasthan (2000), Karnataka (2000), Delhi (2001), Maharashtra (2002), and others.

• Freedom of Information Act, 2002 (passed by Parliament but never brought into force; criticised as weak).

• Right to Information Act, 2005: passed in June 2005 (assent 15 June 2005); came fully into force on 12 October 2005 (the National Advisory Council under the UPA government helped to strengthen it).

Key Provisions of the RTI Act, 2005

• Section 2(h): "public authority" (government bodies, and bodies owned, controlled or substantially financed by the government; NGOs substantially financed by the government). Thalappalam Service Cooperative Bank v State of Kerala (2013) discussed "substantially financed".

• Section 2(j): the "right to information" includes inspection of work, documents and records; taking notes, extracts or certified copies; taking samples; and obtaining information in electronic form.

• Section 3: all citizens have the right to information (not non-citizens or companies as such).

• Section 4: proactive disclosure – Section 4(1)(b) requires publication of 17 categories of information (organisation, functions, duties, powers, decision-making procedures, norms, budget, subsidies and so on).

• Sections 5–7: Public Information Officers (PIOs) and Assistant PIOs; application with a prescribed fee (typically Rs. 10) – BPL applicants are exempt; decision within 30 days; 48 hours where the information concerns the life or liberty of a person.

• Section 8 – Exemptions:

  • 8(1)(a): information prejudicial to sovereignty and integrity of India, security, strategic, scientific or economic interests, relations with foreign States, or incitement to an offence.

  • 8(1)(b): information expressly forbidden to be published by a court or tribunal, or the disclosure of which may constitute contempt of court.

  • 8(1)(c): breach of privilege of Parliament or State Legislature.

  • 8(1)(d): commercial confidence, trade secrets, intellectual property (unless larger public interest).

  • 8(1)(e): information available to a person in a fiduciary relationship (unless larger public interest).

  • 8(1)(f): information received in confidence from a foreign government.

  • 8(1)(g): information that would endanger the life or physical safety of any person or identify a confidential source.

  • 8(1)(h): information that would impede investigation or prosecution of offenders.

  • 8(1)(i): Cabinet papers, including records of deliberations of the Council of Ministers, Secretaries and other officers (after the decision is taken, and the matter is complete or over, the material is open).

  • 8(1)(j): personal information that has no relationship with any public activity or interest, or that would cause an unwarranted invasion of privacy, unless a larger public interest justifies disclosure. The proviso says that information that cannot be denied to Parliament or a State Legislature cannot be denied to a person. (The Digital Personal Data Protection Act, 2023, section 44(3), amends Section 8(1)(j) to exempt personal information more broadly and to omit the existing qualification, a change criticised by transparency advocates; verify its current commencement status.)

  • 8(2): a public interest override – information may be disclosed if the public interest in disclosure outweighs the harm to protected interests.

  • 8(3): the exemptions do not apply to information relating to events that occurred 20 years before the request (except for 8(1)(a), (c) and (i)).

• Section 9: rejection for infringement of copyright; Section 10: severability; Section 11: third-party information.

• Section 22: the RTI Act overrides the Official Secrets Act, 1923 and other inconsistent laws.

• Section 24 and Second Schedule: intelligence and security organisations (e.g., IB, RAW, CBI is not exempt but CBI is not listed... check); the exemption does not apply to allegations of corruption and human rights violations (for human rights information, the Information Commission's approval is needed, and the response must be within 45 days).

• Section 23: the jurisdiction of courts is barred (but the constitutional writ jurisdiction under Articles 32, 226 and 136 remains).

Appeals and Information Commissions

• First appeal: to an officer senior to the PIO within the same authority (within 30 days).

• Second appeal (Section 19(3)): to the Central Information Commission (CIC) or State Information Commission (SIC) within 90 days.

• Complaints (Section 18): directly to the Commission for refusal to accept an application and similar matters.

• Penalty (Section 20): Rs. 250 per day of delay, up to a maximum of Rs. 25,000, on the PIO; disciplinary action recommended; compensation (Section 19(8)(b)) to the applicant.

• Composition: CIC – Chief Information Commissioner and up to 10 Information Commissioners; appointed by the President on the recommendation of a committee: Prime Minister (Chair), Leader of Opposition in the Lok Sabha, and a Union Cabinet Minister nominated by the PM. For SICs: the Chief Minister, the Leader of Opposition and a Cabinet Minister nominated by the CM; appointed by the Governor.

• RTI (Amendment) Act, 2019: removed the statutory tenure (five years or until 65) and the status of Election Commissioners/Chief Election Commissioner, with the Central Government now empowered to prescribe the terms, salaries and tenure by rules. It was criticised as weakening the independence of the commissions.

• Leading RTI cases:

  • CBSE v Aditya Bandopadhyay (2011): examinees' right to inspect evaluated answer-books; also warned against using the RTI Act to disrupt administration or for impractical demands.

  • Girish Ramchandra Deshpande v Central Information Commissioner (2012): personal information such as income tax returns and service records is exempt under section 8(1)(j) unless there is a larger public interest.

  • Reserve Bank of India v Jayantilal N. Mistry (2015): RBI cannot withhold inspection reports and other documents on banks under the "fiduciary" exemption; transparency in financial regulation.

  • Namit Sharma v Union of India (2012/2013): the earlier decision that Information Commissions should have judicial members was clarified in the review (2013).

  • Central Public Information Officer, Supreme Court of India v Subhash Chandra Agarwal (2019): the office of the CJI is a public authority under the RTI Act; the collegium's information is subject to exemptions and a balancing test; RTI is not a tool for surveillance of the judiciary.

  • Anjali Bhardwaj v Union of India (2019): the Court directed timely appointments to Information Commissions.

• Related law: the Whistle Blowers Protection Act, 2014 (not fully operationalised).