Official Secrets Act v/s Right to Information Act.

It’s a secret

“Confidential” is for information that might cause “damage” to national security, be prejudicial to national interest, might embarrass the government.

The government has set up a panel to look into the Official Secrets Act in the light of the Right to Information Act. The Indian Express explains the process by which the government classifies information, and the relationship between the two laws.

How are official documents classified?

Depending on the level of sensitivity of the information and the implications of its disclosure for national security — which could be to cause “exceptionally grave damage” to simply “damage” — they are (i) Top Secret, (ii) Secret, (iii) Confidential and (iv) Restricted.

“Top Secret” is for information whose unauthorised disclosure could be expected to cause “exceptionally grave damage” to national security or national Interest. This category is reserved for the nation’s closest secrets.

“Secret” is for information whose disclosure may cause “serious damage” to national security or national interest, or serious embarrassment to the government. It is used for “highly important matters”; is the highest classification normally used.

“Confidential” is for information that might cause “damage” to national security, be prejudicial to national interest, might embarrass the government.

“Restricted” is applied to information meant only for official use, which is not to be published or communicated to any person except for official purposes.

Documents that do not require security classification are regarded as “Unclassified”.

What are the criteria for classification?

They are decided in accordance with Departmental Security Instructions issued by the Ministry of Home Affairs. Despite requests for information under the Right toInformation (RTI) Act from activists, the MHA has not disclosed the criteria for classification. The Central Secretariat Manual of Office Procedure (Thirteenth edition), published in September 2010, has details of how classified documents will be treated, but makes no mention of the criteria for classification of documents. “Top Secret” files do not travel below the Joint Secretary level; “Secret” files do not go below the Under Secretary level.

What is declassification?

It’s a continuous process. According to the Public Records Act, 1993 and the Public Records Rules, 1997, “The records creating agency shall by an office order authorise an officer not below the rank of Under Secretary to the Government of India to evaluate and downgrade the classified records being maintained by it.” A declassified file considered fit for permanent preservation will be transferred to the National Archives. A review of documents is undertaken every five years and, normally, files more than 25 years old are transferred to the National Archives. Some files are not sent — for example, while hundreds of files related to the Prime Minister’s Office and Cabinet Secretariat have been transferred to National Archives, files related to issues like “Nuclear Test at Pokhran, 1974” were retained by the PMO. The union government recently said it was going to review the Public Records Act.

How do the Official Secrets Act and the Right to Information Act square up? The RTI Act, 2005 clearly says that in case of a clash with the OSA, the public interest will prevail. Section 8(2) of the RTI Act says, “Notwithstanding anything in the Official Secrets Act, 1923, nor any of the exemptions permissible in accordance with subsection 8(1) of RTI Act, a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests.”

During the tenure of UPA-I, the M Veerappa Moily-headed second administrative reforms commission submitted the report “Right to Information: Master Key to Good Governance”, which said that “The Official Secrets Act, 1923 should be repealed.” But the government rejected the recommendation, saying “The OSA is the only law todeal with cases of espionage, wrongful possession and communication of sensitive information detrimental to the security of the State.”

The ARC also recommended that Departmental Security Instructions should be amended, and “ordinarily, only such information should be given a security classification which would qualify for exemption from disclosure under the RTI Act.” But the government said that it was “not possible to classify documents on the basis of various Sections of the RTI Act”.

So, where do things stand now?

The implementation of the transparency law has been facing roadblocks. Queries under the RTI Act often receive stereotypical responses such as, “The requisite document is sensitive in nature and no public interest is going to be served by the disclosure of this document.” At times, government authorities have claimed exemption under Section 7(9) of the RTI Act, pleading that collecting information would require extraordinary manpower. On other occasions, they have claimed that the information sought is too old.