//How Rafale has turned the spotlight on file notings

How Rafale has turned the spotlight on file notings

A recent report in The Hindu revealed a November 2015 note by a deputy secretary in the Defence Ministry that alluded to parallel negotiations by the Prime Minister’s Office with the French government for procurement of
Rafale fighter jets, and how it weakened the negotiating position of the Ministry of Defence. The note carried a file noting by the defence secretary, who wrote, “It is desirable that such discussions be avoided by the PMO as it undermines our negotiating position seriously.” The opposition parties used this as further evidence of everything not being kosher with the Rafale deal.

Then news agency ANI revealed a file noting by the then defence minister Manohar Parrikar: “It appears that PMO and French president’s office are monitoring the progress of the issue… Para 5 [in which the deputy defence secretary talks of the PMO’s negotiations] appears to be an overreaction.” What are file notings and why are they such a big deal? Here is an explainer:

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What are file notings?

They are usually short handwritten observations by bureaucrats on the contents of a document as it moves up the chain of command. “File notings indicate the thought process within the government. They give one an idea of the inputs on the basis of which decisions are taken by civil servants at different levels,” says EAS.

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Why are they crucial?

Notings tell you the chronology of decisions taken regarding a file, as notings carry the date on which they were written. They also indicate who all have seen the document and how a decision was arrived at and whether the decision took into account legitimate concerns of officials, if any.

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Does every document have notings?

Not necessarily. According to NC Saxena, a former bureaucrat and secretary of the erstwhile planning commission, in some instances, especially to speed up decisions, the secretary of a ministry may call all the bureaucrats concerned and listen to their opinions. “Here the final decision is recorded and not the deliberations,” says Saxena.

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Can the public access file notings?
Yes. Under the Right to Information Act, 2005, file notings should be made available to the public when sought. According to section 2(f ) of the act, information 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” that can be accessed by a public authority. But some file notings are be exempted under section 8(1) of the act, which includes information, disclosure of which “would prejudicially affect the sovereignty and integrity of India”; information received in confidence from a foreign government; information, disclosure of which has been prohibited by a court or would cause breach of parliament or a state legislature, etc.

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Have there been attempts to not disclose file notings under RTI?
Yes. Less than a year after the RTI Act came into force in 2005, the Congress-led United Progressive Alliance tried to amend the law to exclude all file notings except those related to social and developmental issues. Following an outcry by RTI activists, the government decided against introducing the proposal in parliament. “If you have made a decision in good faith, why should you hide the file notings?” asks Saxena. In February 2018, the Delhi High Court ruled in favour of an RTI applicant who had not been given the file notings on a report sent by the Karnataka governor to the Union home ministry, recommending President’s rule in the state in 2010. The Central Public Information Officer had said the notings could not be disclosed as they were made by one official for the benefit of another and hence were protected as third party information under section 8(1)(e) and section 11(1). But the court did not agree. “ …none of the provisions of section 8 provide for blanket exemption that entitles the respondent to withhold all notings on a file,” it said.

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What about voluntary disclosures of file notings?

Section 4 of the RTI Act requires public authorities to publish information suo motu at regular intervals “so that the public have minimum resort to the use of this act to obtain information.” This could include file notings, as in the recent disclosure made by the department of personnel and training on appointments to the Central Information Commission.

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