RTI Act definitions: information, record, right to information and public authority - Right to Information

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On this page

1. The right: section 3
2. Information, record and right to information
3. Other definitions to know
4. Public authority: the definition
5. Thalappalam (2013): the test
6. Problem
How this is examined

Cases checked to exist. Read the judgment before quoting a holding.

Every case cited here has been checked to exist — the citation resolves and names the right parties. The propositions attributed to each case have not been verified line by line against the judgment. Case names link through to the full judgment: read it before quoting a holding in an examination answer, and never carry a proposition from notes into court on trust.

The examinable core. Most RTI disputes turn on two definitions. Is the body a public authority under section 2(h)? Is what is asked for information under section 2(f) that the authority holds or controls? Learn both definitions word for word, and learn the Thalappalam test for “controlled” and “substantially financed”. The problem on a private society refusing information is answered from this note.

1. The right: section 3

Section 3: subject to the provisions of the Act, all citizens shall have the right to information. Three points follow. The right is a citizen’s right; a foreigner or a company as such cannot claim it, though a citizen who is an officer of a company may apply. It is “subject to the provisions of this Act”, so it is limited by the exemptions and by the exclusion of organisations in section 24. And it is a right against public authorities only, not against private persons.

2. Information, record and right to information

Information, section 2(f), means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, 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 other law for the time being in force. The last limb matters: a private company is not a public authority, but what a regulator can lawfully call for from it is information which the regulator can be asked for.

Record, section 2(i), includes any document, manuscript and file; microfilm, microfiche and facsimile copies; reproductions of images on microfilm; and any other material produced by a computer or other device.

Right to information, section 2(j), means the right to information accessible under the Act which is held by or under the control of any public authority, and includes the right to inspect works, documents and records; take notes, extracts or certified copies; take certified samples of material; and obtain information on diskettes, tapes, in any electronic mode or through printouts.

In Central Board of Secondary Education v. Aditya Bandopadhyay, 2011 INSC 557, (2011) 8 SCC 497, the Court held that an evaluated answer book is a “record” and therefore “information”. It also settled the outer limit of the definition: the Act gives access to information that exists and is held by the authority. It does not oblige the authority to create information that is not there, to collect or collate data it does not keep, or to give opinions, advice or answers to hypothetical questions.

3. Other definitions to know

Appropriate Government, section 2(a): for a public authority established, constituted, owned, controlled or substantially financed by the Central Government or a Union territory administration, the Central Government; for one so related to a State Government, the State Government. It decides which Commission and which rules apply.
Competent authority, section 2(e): the Speaker or Chairman for the Houses of Parliament and State Legislatures; the Chief Justice of India for the Supreme Court; the Chief Justice of the High Court for a High Court; the President or Governor for other constitutional authorities; the administrator under Article 239. The competent authority makes its own rules on fees under section 28. The April 2021 paper set this as a short note.
Public Information Officer, sections 2(c) and 2(m): the Central or State PIO designated under section 5(1), including the Assistant PIO designated under section 5(2).
Third party, section 2(n): a person other than the citizen making the request, and includes a public authority.

4. Public authority: the definition

Section 2(h) defines public authority as 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 a State Legislature;
(d) by notification issued or order made by the appropriate Government;

and includes any (i) body owned, controlled or substantially financed, and (ii) non-Government organisation substantially financed, directly or indirectly by funds provided by the appropriate Government.

So there are two routes. The first four clauses catch bodies by their origin: ministries, statutory corporations, universities established by statute, panchayats and municipalities, public service commissions. The inclusive part catches bodies by their relationship with Government: ownership, control or substantial financing.

5. Thalappalam (2013): the test

In Thalappalam Service Co-operative Bank Ltd. v. State of Kerala, 2013 INSC 684, (2013) 16 SCC 82, co-operative societies registered under the Kerala Co-operative Societies Act contested a Government circular treating them as public authorities. The Supreme Court held:

A society registered under a State co-operative law is not “established or constituted by law”. It is formed by its members and merely registered under the Act. Clauses (a) to (d) therefore do not apply.
The question is whether it is owned, controlled or substantially financed by the Government. Control means substantial control over the management and affairs of the body, of a kind that goes beyond the ordinary regulatory supervision the Registrar exercises over all societies. General supervision under a regulatory statute is not control.
Substantially financed means financing so substantial that the body would struggle to exist without it. It is a question of fact in each case, and need not be shown to be a majority of the body’s funds; but a small or incidental grant is not enough.
The societies in that case were not shown to be controlled or substantially financed, and so were not public authorities.
The citizen is not left without remedy. Under section 2(f), information about a society that the Registrar can lawfully obtain under the co-operative law is information that may be sought from the Registrar, who is a public authority, subject to the exemptions.

The test was applied to private colleges and schools in D.A.V. College Trust and Management Society v. Director of Public Instructions, 2019 INSC 1042, (2019) 9 SCC 185. The Court held that the bodies were non-Government organisations within clause (ii), and that whether they were substantially financed was a question of fact which it sent back to the High Court. The Court explained that substantial financing need not mean more than half the expenditure, and that indirect financing can be counted.

The trap. Do not say a body is a public authority because it does public work or is regulated by the Government. That is the Article 12 “State” test, and it is wider in some ways and narrower in others. Under section 2(h) the question is origin by law, or ownership, control or substantial financing by the appropriate Government.

6. Problem

The Karnataka State Cricket Association rejected a request for information on the ground that it is a society registered under the Societies Registration Act and not a public authority. Advise the applicant. (April 2021)

Issue. Whether a cricket association registered as a society is a public authority under section 2(h) of the RTI Act.

Law. A society formed by its members and registered under a societies law is not established or constituted by law, so clauses (a) to (d) do not apply: Thalappalam. It is a public authority only if it is owned, controlled or substantially financed, directly or indirectly, by funds provided by the appropriate Government, or, as a non-Government organisation, substantially financed. Indirect financing counts and substantial does not mean a majority share: D.A.V. College Trust. Information about a private body that a public authority can obtain under another law is itself information under section 2(f).

Application. Registration alone settles nothing either way. The applicant must show facts: for example, that the State granted it land or a stadium at nominal rent, gave it grants without which it could not function, or has nominees controlling its governing body. If such financing or control is substantial, the Association is a public authority and must appoint a PIO and answer. If it is not, the applicant can still apply to the Registrar of Societies, or to any department that has given the Association land or money, for whatever information those authorities hold or can obtain about it under the law that governs them.

Conclusion. The refusal is right only if the Association is neither controlled nor substantially financed by the State. The applicant should file a first appeal and, if needed, a second appeal or complaint before the Karnataka Information Commission, placing on record the material showing State financing; the burden of justifying the refusal lies on the body that refused (section 19(5)). Alternatively he should route his request through the Registrar.

How this is examined

Expect the cricket association problem or a variant (a private school, a co-operative bank, a club given Government land). Short notes on “competent authority” and the definition of information are also set. In an essay on the Act’s definitions, give section 2(f), 2(h), 2(i) and 2(j) in full and then Thalappalam and Aditya Bandopadhyay.