Question – Explain the concept of right to information, publication of

information and preservation of information, under the right to information act

2009, mention the categories of information which the authorities under the act
will publish and which they are not bound to publish under this act. Discuss the
procedure of gathering information by the public under this act. Who can apply
for information under the act? Critically evaluate the reasons when authority
may refuse to provide information.

Answer-

The concept of right to information, publication of information and

preservation of information, under the right to information act 2009/ what
is right to information –

The freedom of expression is guaranteed in the Article 39 of the Constitution of

Bangladesh as a fundamental right. Though right to seek and receive
information is not cited explicitly in the constitution, the Preamble of the Right
to Information (hereinafter RTI) Act declares this right as a part of freedom of
expression. Without being properly informed citizens may not be able to
properly express their opinion. Therefore, in its true spirit, right to information
is part of citizen’s fundamental right to expression. The Right to Information
Act, 2009 was promulgated in 2009 considering the right to information as a
precondition to this fundamental right. The main purpose of this law is to ensure
transparency and accountability of government/NGO authorities run by peoples’
money, reduce corruption and establish good governance. Subject to the
provisions of this law, any citizen of the country has the right to obtain
information (with a few exceptions) from the authority under the purview of the
law; and the authority is bound to provide such information on request. The RTI
Act gives the citizen the right to ask for information from the government, non-
government and other institutions, while it also creates the opportunity for those
in positions of power to devolve it through sharing of information.

The application for information is the main spirit and strength of the law. Thus,
this Act can be a key legal instrument to support, protect and facilitate
democracy in Bangladesh. Information is indispensable for transparency and
accountability of any government. The right to information shall ensure that
transparency and accountability in all public, autonomous and statutory
organisations and in private organisations run on government or foreign funding
shall increase, corruption shall decrease and good governance shall be
established. The Act includes a provision whereby laws that create an
impediment to the right to information are superseded by the RTI Act in case of
a conflict of laws. Right to information is laid down as a principle underlying
the functioning of the government and “no authority shall conceal any
information or limit its easy access” (Section 6(2)).

Only citizens have the right to demand and receive access to information from
public bodies. The scope of the RTI Act in relation to bodies liable to provide
information extends to the executive, legislative branch and organisations that
undertake public functions. Private organisations with government or foreign
funding are included, which applies to NGOs, international organisations and
other private bodies. However, the Act excludes state security and intelligence
agencies, unless information sought pertains to corruption and violation of
human rights in these institutions. The definition of “information” is broad: any
documentary material relating to the constitution, structure and official activities
of any authority regardless of its physical form or characteristics (including
machine readable records) fall within this definition.

The categories of information which the authorities under the Act will
publish and which they are not bound to publish under this act

What type of Information the Authority is bound to publish-

The RTI Act includes a long list of information that should be proactively
published, although it does not explicitly mention that such information should
be available online. This includes information on decisions, activities, policy
related documents and reasons for their adoption. On an annual basis, every
authority shall publish a report containing information about its structure and
activities, rules and regulations, conditions on accessing services and
information on freedom of information officers.

What is not open?/ What type of information the authority is not bound to
publish – Section 7

Publication or providing certain types of information is not mandatory. There is

a list of 20 exemptions about which the authority is not bound to provide
information.

This list is as follows

1) Information disclosure of which would be a threat to the security, integrity

and sovereignty of Bangladesh;
2) Information related to any foreign policy, the disclosure of which would lead
to harming existing relationships with any foreign state, or international
institution or any regional bloc or organization;

3) Information received in confidence from a foreign government;

4) Information related to commercial or business confidence, copyright or

intellectual property right, the disclosure of which would harm the intellectual
property rights of any third party;

5) Information the disclosure of which would either benefit or harm an

individual or institution, such as :

a) any advance information regarding income tax, customs, VAT and law
relating to excise, budget or change in the tax rate;

b) any advance information regarding changes related to exchange rate and

interest rate ;

c) any advance information regarding the management and supervision of

financial institutions including banks;

6) Information the disclosure of which would obstruct the enforcement of law or

incite any offence;

7) Information the disclosure of which would endanger the security of the

people or would impede the due judicial process of a pending case;

8) Information the disclosure of which would harm the privacy of the personal
life of an individual;

9) Information, the disclosure of which would endanger the life or physical

safety of any person;

10) Information given in confidence by a person to help a law enforcement

institution;

11) Information related to any matter pending in any court of law and which has
been expressly forbidden to be published by any court of law or tribunal or the
disclosure of which may constitute contempt of court;

12) Information related to any matter which is under investigation whose

disclosure might impede the investigation process;
13)Information, the disclosure of which would affect any criminal investigation
process and the arrest and prosecution of the offenders;

14) Information, which according to law is liable to be published only for a

specified time period;

15) Information obtained through technical or scientific experiments which is

expedient to be kept secret for strategic and commercial reasons;

16)Information related to any purchase processes before it is complete or before

any decision is taken regarding the purchase or the processes involved;

17)Information whose release may lead to breach of privileges of National

Parliament (Jatiya Sansad);

18) Information regarding any person which is to be kept in confidence by law;

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19)Advance information regarding question papers of an examination or the

marks obtained;

20) Documents including summaries to be placed before the Cabinet or as the

case may be, in the meetings of the Council of Advisors and information
relating to deliberations and decisions made, provided that the decisions of the
Cabinet or the Council of Advisors, the reasons and material basis upon which
the decisions were taken shall be made public,

Provided as per this section if information is not to be disclosed then the related
authority must take prior approval from the Information Commission.

Summary of what type of information the authority is not bound to publish

The access to information regime put forward by the RTI Act takes supremacy
over any impediments laid down in other laws. There is a list of 20 exemptions
which broadly protect the following interests: state security; international
relations; commercial secrets and intellectual property rights; tax and budget
information; law enforcement; judicial activities; investigations; privacy;
“secret information” of a person; life or physical safety of individuals; and
others. Some of these exemptions are subject to a harm test, but there is no
public interest override. The only similar provision relates to information on
human rights breaches or corruption held by security and intelligence services,
which are otherwise excluded from the scope of the law, but in this case fall
inside the scope.

Partial access is provided by the law; no request may be fully rejected if it is

reasonably possible to allow access to non-exempt portions of requested
information.

The authority must inform the requester of the reasons for refusal. The RTI Act
also states that information may be refused only with a “prior approval from
Information Commission” (Section 7).}

Critical analysis of the list of what can’t be published- Section 7 of the RTI
Act contains a list of 20 circumstances in which disclosure is not mandatory.
Although the section is accompanied by a proviso that prior approval shall be
obtained from the Information Commission for refusing information under this
section. Studies conducted by the World Bank shows that about 27 percent of
information falling under the section was refused. Therefore, the compliance of
the RTI framework with the principle of maximum disclosure is dubious.
Moreover, the interplay of RTI Act 2009 and other laws, particularly the
Official Secrets Act 1923, Digital Security Act 2018 etc. are crucial in
determining its effective implementation.

Process of gathering information

Application Procedure and time limits for providing information has been
mentioned in Section 8 and 9 of the RTI Act. The process is as follows –

Application process ( section 8)

1) A citizen should apply in writing or electronically or by e-mail to the

Responsible Officer;

2) In the application, the following information must be given:

o Name, address, and where applicable fax number and e-mail

address of the applicant;
o Correct and clear description of the information sought;
o Any other useful and related information that might help in
locating the requested

information;
 o Description of the method by which information is sought, namely
by inspecting, taking photo copies, taking notes or any other
approved method.

3) The information request can be made either in the form printed by the
authority or in the prescribed format. However, if the forms are not
printed or are not easily available or the format has not been prescribed,
then the application can be written on a plain white paper by giving all
the information mentioned above or can be sent through electronically or
by e-mail;

4) The applicant will have to pay reasonable fees as may be prescribed

by the Responsible Officer;

5) The government may in consultation with the Information

Commission prescribe the application fees and if necessary the cost of
information by notification in the official gazette. The government may
also exempt an individual or class of individuals or any other class from
paying the fees.

Procedure and Time Limits for providing information: Section 9

1) Responsible Officer shall provide information within 20 working days from

the date of receipt of application;

2) In case more than one “information providing unit” or authority is

involved with the information requested, then information shall be given
in 30 working days from the date of application;

3) In case the Responsible Officer rejects a request, then he must inform

the applicant the decision and reasons for rejection within 10 working
days from the date of application;

4) In case basic information concerning any person’s life or death, arrest

and release from jail is sought then it must be given within 24 hours from
receiving the request;

5) In case the requested information is available with the Responsible

Officer then he must calculate the reasonable fee and inform the applicant
to pay the fees within 5 working days. The fees for printed publications,
information in electronic format or photocopies or print outs shall not be
more than the actual costs;
6) No action on application within the specified time limits of 20 and 30
working days and 24 hours as mentioned above is a deemed refusal.

Who can apply for information – only a citizen of Bangladesh.