Professional Documents
Culture Documents
INFORMATION
1
Section I
STEPS TOWARDS
THE FREEDOM OF INFORMATION IN INDIA
The Official Secrets Act, 1923, modeled on the 1911 Official Secret Act of
England, is very restrictive of the use and dissemination of governmental
information. It prohibits disclosure of information indiscriminately. What aggravates
secrecy is indiscriminate classification of information as ‘Secret’.
Sections 123 and124 of the Indian Evidence Act, 1872, Atomic Energy Act ,
1962, The Commission of Inquiry Act, 1952, as amended in 1986 , The Public
Records Act, 1993 are some examples of laws breeding, protecting and promoting
secrecy. Additionally, plethora of subordinate legislation remains inaccessible.
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Yet The Commitment
India had the unique distinction of being original member of the United
Nations (UN) even before becoming independent. The UN, in its first session itself
adopted a resolution proclaiming “Freedom of Information” as a fundamental human
right, a touchstone of all the freedoms to which the UN is consecrated. Such
unequivocal and strong commitment of UN was reflected in the Universal
Declaration of Human Rights (UDHR), adopted by UN General Assembly in 1948.
Article 19 of the UDHR embodies the concept of information as a ‘right’. Article
19(2) of the International Covenant on Civil and Political Rights (ICCPR), adopted by
UN General Assembly in 1966, guarantees the right to seek, receive and impart
information. India is a State, party to the Covenant. Article 13 of American
Convention on Human Rights, Article 10 of European Convention on Human Rights,
Article 9 of the African Charter of Human and People’s Right also contain provisions
guaranteeing this. Apart from above international as well as regional legal
instruments, all modern human right instruments are categorical in recognition of
freedom of information. Recently for the first time International tribunal, namely, the
Inter American Court of Human Rights in Marcel Claude Reyes and Others v Chile
held that access to information is a basic human right.
The right to information has traveled a long journey in India. Unlike some
countries, the Indian Constitution does not make an explicit mention of it in Chapter
III as a fundamental right but it does indirectly underpins the citizen’s right to
information. The right has it’s root in Article 19, encompassing the freedom of
speech and expression, which received liberal interpretation by the courts.
Though the first access legislation, namely, Access to Public Records Act,
1766 of Sweden is 240 years old, it was the collapse of the Cold war that saw a
spurt in access legislations. Freedominfo.org records in its New Global Survey of
Freedom of Information Laws for 2006 that now 68 countries have access
frameworks, generally formal legislations. Last decade accounts for half of them.
The list includes democratic giants like India, United Kingdom, Uganda and
Germany. Among the strong access legislations are the American Freedom of
Information Act, 1966, South African law and the Right to Information Act of India.
However , China is at present the only major country which is by and large
untouched by the movement though signs of change are emerging.
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The demand for making the right enforceable in India
The credit for the pioneer legislation on the matter goes to the State of Tamil
Nadu and Goa. At the Central level, the need to enact a law on right to information
was recognized unanimously by the Chief Ministers Conference on “Effective and
Responsive Government”, held on 24th May, 1997 at New Delhi. The Government of
India introduced the Freedom of Information Bill in 2000 but the Freedom of
Information Act, 2002 could not see the light of the day as it was never notified.
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Section II
The Right to Information Act came completely into force on the 12th October,
2005. It applies to whole of India except the State of Jammu and Kashmir. The gap,
however, is covered as the State of Jammu and Kashmir has its own access law.
Thus, the entire country is under the information régime.
Section 22 of the Act mandates that the provisions of the Act , in case of
conflict, overrides the Official Secrets Act, 1923, and any legal instrument. By
inclusion of the word ‘instrument’, there is an obligation to bring all the rules,
guidelines, manuals etc in conformity with the Act.
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Ambit of applicability
The Act says that the information can be obtained from Public Authority, which
is defined under Section 2 (h) of the Act. Under the Act all constitutional, statutory
bodies, bodies created by government notifications and local self-government bodies
are Public Authorities. In addition, bodies owned, controlled or substantially financed
directly or indirectly by government are Public Authorities. This takes care of Public
Sector units. Finally non-Government Organisation substantially financed by
government are also within the definition of Public Authorities.
The Act , thus covers, important institutions like the two Houses of
Parliament, the State Legislatures, the Supreme Court, High Court and subordinate
courts , constitutional authorities like the Election Commission, Comptroller and
Auditor General of India and the Union Public Service Commission.
The term substantially financed has not been defined but some of the CIC
decisions have given the indication that wherever there is decisive government
funding, concessional land or tax benefit, the body can be deemed to be a Public
Authority.
Funding could be both direct and indirect. In Sarbajit Roy v Delhi Electricity
Regulatory Commission, the CIC held that DISCOMs ( private power supply
companies in Delhi ) are Public Authorities because as per the agreement, they are
created by Government notification, Government has 49% equity stake,
Government has afforded them concessions and the Government has final say in
many matters.
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However domestic and foreign private bodies working within the country have
been excluded from the purview of the Act. It is of concern as with the opening of
economy and consequent liberalization, the government is withdrawing and the
private sector is increasingly assuming important public functions like electricity
supply, communication and public transport. The South African Promotion of Access
to Information Act provides for information from private bodies when it is necessary
to enforce people’s rights. Eventually, similar provisions will have to be introduced in
India.
• 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
PA under any other law for the time being in force.”
It is important to note that the information must exist in a material form and
hence personal opinions, which are not on record, cannot be asked for as they do
not exist in a material form. The applicant, therefore, cannot ask PIO to interpret the
Acts, Rules, give opinions, answer Interrogatories or rely on memory. In R L Kain v
Department of Posts, CIC said that PIO is not supposed to give commitment as to
when a stamp on Dr. Ambedkar will be released if there is nothing on record to that
effect.
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If a record has been destroyed as per the record management policy of the
Public Authority or it has been stolen or is untraceable despite best efforts put in ,
the PIO cannot possibly provide them. Of late, CIC has been asking PIOs to file
affidavit that record is not available, that Public Authority file FIR in case of missing
record and fix responsibility. Further PIO is responsible to a citizen only for that
information which is available or ought to be available. He does not have to create or
generate fresh information.
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Such an elaborate definition of ‘information’, ‘record’ and ‘right to information’
covers virtually the entire written record of the Public Authority contained in files and
electronic devices . Putting a rest to the confusion and the controversy about the
noting in a file, the CIC, by way of series of decisions, has held that a combined
reading of Sections 2(f), (i) & (j) would indicate that a citizen has the right of access
to the file notings unless it relates to matters covered under Section 8 of the Act.
Sections 4 of the Act calls for a regime of maximum disclosure on the part of
the Public Authority. The law stipulates that every Public Authority shall -
• maintain all its records duly catalogued and indexed in a manner and the
form which facilitates the right to information under the Act;
Section 4(1) (b) of the Act lays down a detailed list of information which
should be published by the Public Authority. The list, however, is only illustrative and
Public Authorities are free to publish more. By and large, it mandates the Public
Authority to publish the following: -
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• Details of budget of the Organisation, subsidy scheme and details of
recipients
Section 4 (1) (c) of the Act requires that every Public Authority shall publish all
relevant facts while formulating important policies or announcing the decisions
which affect the public. Section 4 (1) (d) requires that it shall provide reasons for
administrative or quasi-judicial decisions to affected persons. It is, therefore,
incumbent on the Public Authorities to publish Court orders affecting people. (CIC in
Geeta Dewan Verma v DDA).
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To facilitate disclosure of various categories of information listed out in
Section 4(1) (b) of the Act, sets of templates or guidelines have been prepared and
circulated by many State Governments for all concerned. There is a need to
continuously update them. User’s Guide, to be prepared by Government by
December 2006, under the provisions of Section 26(2), should be a convenient
publication to meet the requirements of effective awareness and publicity.
Delivery of Information
Section 5, 6 and 7 of the Act deals with the mechanism for grant of access to
information. Section 5 (1) of the Act requires a Public Authority to designate
sufficient officers as PIO in all administrative units and offices under it, as may be
necessary, to provide information to persons requesting the same.
The Act obliges other officers to assist the PIO, if he seeks their assistance.
Other Officers whose assistance is sought, will be treated as a PIO for the purpose
of any contravention of the provisions of the Act. So if an officer, despite reference
from PIO, does not give information of his desk, penalty will visit him and not the
PIO.
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Under Section 6 of the Act, the request for information can be made in writing
or through electronic means in English or Hindi or in the official language of the area
in which the application is being made. There is no requirement that application
should be on a Particular format or that it should be typed. The applicant must
always be polite while asking for information. Once system of online payment
becomes acceptable, emails are likely to be the largest mode of application in urban
India.
Keeping in view the wide diversity of conditions of Indian people, the PIO has
been given a facilitative function. The PIO, therefore, is obliged to get an oral
request reduced in writing, where such request cannot be made in writing. A duty
has also being cast on the PIO to provide all assistance to obtain information and
inspection to a sensorily disabled applicant. Hence helping the requestor is no more
a matter of courtesy, it is an obligation in law and its breach will attract penalty
provisions.
The applicant is not required to give reason for requesting the information or
any other personal details except those that may be necessary for the purpose of
contacting him/her.
It may happen that applicant may apply to the PIO in a Particular Public
Authority but the information is either held by another Public Authority or the subject
matter is more closely connected with the functions of another Public Authority, in
full or part. The PIO to whom the application is made cannot return it but has to,
under Section 6 (3) of the Act, transfer it to the concerned Public Authority, within 5
days of receipt of application, under intimation to applicant. The other Public
Authority will be subject to time limit for disposal from the date of receipt of the
application.
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However it has been clarified that no transfer is involved between PIOs of the
same Public Authority, meaning thereby, that the application can be to any PIO of
the Public Authority. However, it is in the interest of expeditious disposal that
applicant should try to give it to the PIO who is dealing with the matter.
The PIO shall receive requests from persons seeking information after
payment of the fee prescribed in the Act. Such requests shall be disposed of either
by providing the information as requested or by rejecting the request for reasons to
be specified within the time period stipulated under the Act.
Section 7 (1) of the Act requires that the information requested shall be
furnished “as expeditiously as possible” but the maximum time limit is as under: -
• 48 hours of receipt in cases where the information sought for concerns the
life or liberty of a person. Such situations may relate to information
pertaining to electricity disconnection or about an unsafe building
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As per Section 7 (3) of the Act, the period intervening between the dispatch of
Intimation to the applicant and the deposit of further fees representing the cost of
providing the information shall be excluded from the stipulated time limit. Further,
where information is to be provided, PIO has to intimate the amount of fees to be
paid, the details of fees levied and that the decision of levying a certain amount of
fee can be appealed against. It may be noted that the Act talks about calendar days
and not working days.
If decision on the request for information is not given within the period
specified as above, it is deemed to have been refused and the applicant can than
either file the first appeal to AA or file a complaint before IC.
Where a request has been rejected, the PIO. by a written order, has to
communicate to the person making the request
• the reasons for such rejection, ( mere quoting of section is not sufficient)
Section 7 (9) of the Act provides that information shall ordinarily be provided
in the form in which it is sought unless it would disproportionately divert the
resources of the Public Authority or would be detrimental to the safety or
preservation of the record in question. Hence, in a case where the applicant wanted
to know the details of all transfers made in 10 years, the CIC held that the request is
hit by Section 7(9).
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The information provided to an applicant, to the extent possible, has to be in
the form, which is easily understandable to him or her. However, where the
information was not kept in a tabular form, it was held that there is no obligation to
give it in that form.
Fees
Fees are prescribed for grant of access to information under the rule making
powers of the government and the competent authorities. The Act only prescribes
that: -
The Central Government has framed the RTI (Regulation of Fee and Cost)
Rules 2005. It prescribes the following rates
Nothing but the prescribed fee can be charged. Attempts by some PIOs to
include the salary of persons engaged in providing information and other handling
charges have been struck down.
Severability
17
Third Party is defined under the Act to mean a person other than the
requestor and the Public Authority to whom the request is made. Section 11 of the
Act provides for calling of representation if any, from the Third Party against
furnishing of any information supplied by and treated by it as confidential.
In such circumstances, PIO gives a written notice to the Third Party, within 5
days of receipt of the application inviting his objection to disclosure, if any. The Third
Party has 10 days to respond. The maximum time limit to supply information in such
cases stretches from 30 days to 40 days. The Third Party is entitled to prefer an
appeal against the decision of the PIO.
The CIC has expanded the scope of Third Party consultation by holding that
Sections 7(7), 11 and 7(1) of the Act have to be read together and hence Third Party
is to be consulted both in the case of ordinary and confidential information (Praveen
Bhatt v Western Command). The PIO, despite objection of Third Party, can disclose
the information if he thinks, for reasons to be recorded, that public interest prevails
over the interest of Third Party.
Exemptions
The Act not only lays down the principles of sharing the information, it also
specifies the information which can not be disclosed. Section 8 of the Act provides a
list of 10 categories of exempted information, as follows:
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Section 8(1)(a) - Strategic Interests of the State
19
Section 8(1)(e) - The Fiduciary Relationship
It was held in another service matter appeal that since ACRs themselves are
barred from disclosure, by inference the DPC proceedings are also barred. However
Karnataka and Tripura ICs have allowed access to one’s own ACR and Annual
Property Returns of others. This is because State IC is not administratively and
judicially subordinate to CIC.
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Section 8(1)(f) - Diplomatic Correspondence
Information, the disclosure of which would endanger the life or physical safety
of any person or identity the source of information or assistance given in confidence
for law enforcement or security purposes, is exempted from disclosure. Hence
Source Reports or Investigation reports having information about witnesses or
officers examined can only be disclosed without identifying them.
The Information - (i) which would impede the process of investigation or (ii)
pertains to apprehension or prosecution of offenders is protected from disclosure.
In the case of Farangi Mal Muteja v Medical Council of India it was held that if
a complaint is under enquiry, information/document connected with the enquiry
could be withheld till the enquiry is completed. However it is incumbent on the PIO
to disclose what action has been taken on complaint of a person to the Police even
if the investigation is pending. After the investigation is over, the report can be
shared blacking out identity of those who deposed against to protect their security
as provided u/s 8(1)(g) of the Act.
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of the above mentioned clauses of Section 8, than they remain protected even after
the decision is taken.
Section 8(1)(j)-Privacy
But where a person avails public fund, there is nothing confidential about it. In
a case CIC said that applicant is entitled to know about LTC claim of an individual
but names, addresses and age of passengers should not be given. However, leave
record is personal information which should only be given if there is a public interest
in disclosure.
In the A.P. Sharma v MOD case, CIC had held that noting in a file classified
as confidential attract the exemption of Section 8(1)(j); and if in a given case it is
decided to disclose noting of a such a confidential file, it has to be done only after
Third party consultation with the officers who have recorded the same on the file.
But the exemptions under Section 8 of the Act are further diluted by the
following provisions
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3. all information about any occurrence, free event or matter which has taken
place, occurred or happened 20 years before the date on which any
request is made, shall become free. In case of dispute about calculation of
the said period, the decision of the Central Government shall be final,
subject to the usual appeals provided for in the Act. This concession does
not hold good in case of exemptions relating to information linked to
sovereignty, integrity and security matters, breach of privilege of
legislature, or cabinet papers, i.e. clauses (a), (c) and (i) of Section 8(1),
Section 24 (1) provides that the Act shall not apply to the following
intelligence and security organisations established by the Central Government. The
Organizations are:
1. Intelligence Bureau.
2. Research and Analysis Wing of the Cabinet Secretariat.
3. Directorate of Revenue Intelligence.
4. Central Economic Intelligence Bureau.
5. Directorate of Enforcement.
6. Narcotics Control Bureau.
7. Aviation Research Centre.
8. Special Frontier Force.
9. Border Security Force.
10. Central Reserve Police Force.
11. Indo-Tibetan Border Police.
12. Central Industrial Security Force.
13. National Security Guards.
14. Assam Rifles.
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15. Shastra Seema Bal
16. Special Branch (CID), Andaman and Nicobar.
17. The Crime Branch-C.I.D.-CB, Dadra and Nagar Haveli.
18. Special Branch, Lakshadweep Police.
19. Special Protection Group
20. Defense Research and Development Organisation
21. Border Road Development Board
22. Financial Intelligence Unit, India
Appeals
The Act provides two channels of appeals against the decision of a PIO– an
internal or ‘first’ appeal to a designated “officer senior in rank’ to the PIO – the
Appellate Authority (AA) and a ‘second’ appeal to the IC.
The AA hears appeals both against the order of PIO and deemed refusal.
Appeals can be preferred within 30 days from the receipt of such a decision or from
the expiry of stipulated time limit in case of deemed refusal. The AA may admit the
appeal after the expiry of the period of 30 days if the appellant was prevented by
sufficient cause from filing the appeal in time. The AA should dispose of the appeal
within 30 days of the receipt of the appeal. Where appeal cannot be decided within
30 days, AA must record the decision for the delay, and decide it within 45 days from
the date of filing of appeal.
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AA cannot entertain any fresh request for information in the appeal
proceedings. For any additional information, not contained in the original request,
the requestor should be advised to file a separate application before the PIO.
Second appeal against the decision of the AA shall lie with the IC, within 90
days from the date on which the decision should have been made or was actually
received. However, the IC may admit the appeal after the expiry of the period of 90
Days, if the appellant was prevented by sufficient cause from filing the appeal in
time. No time limit for disposal has been prescribed for IC.
The IC has the power to require the Public Authority to take any such steps
as may be necessary to secure compliance with the provisions of the Act, including
The decisions of the IC are binding. Section 23 of the Act bars the jurisdiction
of the lower courts. Only the writ jurisdiction of High Court and Supreme Court can
be invoked by parties aggrieved by the decision of the IC.
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Penalty
Penalty can be imposed against the erring PIO in cases where the PIO has,
without any reasonable cause
The PIO is personally liable to pay penalty. The IC however, is legally bound
to give the PIO a reasonable opportunity of being heard. The scale of the penalty to
be imposed is Rs.250 each day till application is received or information is furnished
subject to the total amount of such penalty not exceeding Rs.25,000/-.
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While Penalty can be imposed only against PIO, compensation and damage
can be ordered against AA also. Penalty goes into the account of Commission but
compensation and damages are Payable to the complainant or the appellant.
Information Commissions
a) who could not submit a request to a PIO because no PIO has been
appointed, or because the APIO has refused to accept application or
appeal for forwarding to the appropriate authority
d) who has been required to pay an amount of fee which he or she considers
unreasonable
Section 18 of the Act further stipulates that while inquiring into a complaint,
the Commission shall have the same powers as are vested in a civil court while
trying a suit under the Code of Civil Procedure, 1908. These powers are with
respect of summoning and enforcing the attendance of persons, compelling them to
give evidence on oath, producing the documents or things, receiving evidence on
affidavit, requisitioning public record etc. No public record can be withheld from it on
any grounds.
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In fact a very interesting feature of the Act is to produce statistics with specific
responsibility on Public Authorities, Government and the IC to do so. The annual
report of the Commission has to be laid before the appropriate legislature.
The Commission also has the power to issue directions to Public Authority. In
the famous case of Dhananjay Tripathi v BHU (the first case where the CIC imposed
the maximum penalty of Rs.25,000/-), it also issued direction regarding moderation
and admission policy of the University. It also directed the University to admit the
applicant, condone his absence and ensure that applicant is not victimized on
account of using the Act.
In the case of R S Chaudhry v UPSC, CIC ruled that silence of the Act on the
power of review to the Commission does not debar IC to exercise it to prevent
miscarriage of justice in procedural matters. The CIC has called itself unique as it is
not just the last court of appeal but has all the powers to see that the right to
information is real. This is because these Commissions are not merely final
adjudicators but are also responsible for the monitoring of all the provisions of the
Act.
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Section III
Access legislations, all over the world, have brought discomfiture to the
powers that be. The Act has empowered the weak and the vulnerable. Act has been
an important tool in opening doors and discovering information that would otherwise
have remained outside the public domain. It has helped to uphold the spirit of
openness, transparency and accountability in public life.
Success stories are far too many. It was found out that Tony Blair, Prime
Minister of UK, had series of breakfast meetings with a Party donor before a vaccine
contract was awarded without bidding. US was compelled to disclose that 558 men
from 41 countries are in detention at Guantanamo Bay.
The Indian experience is no different. It has given a billion people the right
enjoyed so far by few thousand legislators. The scandals of misuse of PDS ration
have corrected the systems in the exposed places. Ordinary citizens have been able
to secure long delayed pensions, house allotment letters and passports. It has to be
appreciated that the Act is not a redress law but information culled out has
tremendous correcting influence.
a) Did the wife of MD accompany him to Triputi for Board meeting and
expenses thereof?
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c) Items (like furniture, ACs, TVs, carpets, curtains etc) for offices/residences
of the past Ministers/officials given by the PSU and were they taken back
after these ministers and officers left the ministry?
So strong is the Act that even legislators are using it. They know that they do
not have to wait for a Session to ask a question and the same has to receive a reply
in a specified time limit.
The Act is also the first legislation which obliges government to introduce
Information Technology in its working. Another remarkable development is that in the
first year of working itself, the High and the Mighty like President Secretariat, PMO,
Supreme Court, CIC, Election Commission, UPSC and other constitutional and
powerful government offices are being made to divulge huge information which was
earlier outside the reach of ordinary citizen.
On the negative side, though too early to say, yet the emerging trend of usage
of the law is not exactly very happy. The Act is frequently being used by government
servants, mostly disgruntled, under disciplinary proceedings and even dismissed to
settle their service matters and by people interested in gathering evidence in their
litigation cases or in finding out whether the property they intend to purchase is free
from encumbrances. The CIC is at pains, in decision after decision, to explain that
the Act is not a mechanism to redress grievances. The public interest, which the Act,
intended to secure, is missing in good number of applications. There are very few
instances where applicants seek policy related information. Such a selfish and
unintelligent use of the Act will defeated the high objectives of the Act.
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Section iv
CONCLUSION
Law is not an end in itself. The implementation has been partial and
inconsistent even in some of the countries with strong legislation and practices .
While in developed countries adequate time to prepare before operationalisation of
the Act was given (Canada -12 months, Australia and New Zealand 9 months, UK-
more than 4 years, Jamaica and Mexico up to 5 years), we straightway plunged into
it despite major handicaps like huge population, tight delivery schedule, absence of
systematic record keeping, lack of training and awfully poor electronic governance.
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