Public Records Law and Archives
This chapter covers public archives including the National Archives of India, State Archives, and the Right to Information Act and the Public Records Act. It also covers access to public records, and government records.
Scenario: An archive at a government institute holds records in its capacity as a government-run or government-aided institution, without a separate legal status. Although the archive’s repository includes largely ‘private’ records, it also holds records considered to be created by the government, or those that are considered ‘public’ records. Moreover, as a government-affiliated institution, many of its functions are regulated by the conditions for record-keeping of public (i.e. government) archives. This raises a host of questions for archives. To what extent are the functions of archives that hold private as well as public records regulated by laws that apply to government records? Do archives need to comply with mandates for records management and information access established for public records?
The laws pertaining to documents of the state, for obvious reasons, have always been of particular importance to archives and archival practice. And it is important to briefly outline the coverage and scope of laws that apply to the archival activities of the state, and where they might intersect with the functioning of ostensibly ‘private’ archives.
The Public Records Act and Archival Legislation
The Public Records Act, 1993, regulates the domain of ‘public’ archives, namely, the ‘administration, management, preservation, selection, disposal and retirement’ of public records. At the outset, it is necessary to understand the scope of such regulation.
The Public Records Act applies to the ‘public records’ of any ‘records creating agency’. The term ‘public record’ is wide and includes almost any material form of a record, including any document, manuscript or file, as well as any digital record, microfilm, etc., of any records creating agency. Importantly, the scope of the law is limited in its application to ‘records creating agencies’. According to Section 2(f) of this Act, these agencies include only:
any ministry, department or office of the Central Government or Union Territory Administration;
the offices of any statutory body or corporation wholly or substantially controlled or financed by the Central Government or Union Territory administration, or commission or any committee constituted by that Government or administration.
The Public Records Act therefore clearly limits itself to government entities that are ministries, departments or offices of the Central Government, or corporate bodies or other bodies established by statute, provided that such bodies are also substantially controlled or financed by the Central Government.
The question of if a statutory body or corporation is ‘substantially controlled or financed’ by the Government is a question of fact and depends on the nature of the corporation, whether it was established by a specific law, and the manner in which the government exercises control over it. A body may be considered ‘substantially controlled’ by the Government if the government exercises control over its management and functioning (apart from mere regulation or supervision of its activities). Similarly, for a body to be ‘substantially financed’ by the Government, such financing must be intrinsic to its functioning. According to the Supreme Court of India, ‘merely providing subsidiaries, grants, exemptions, privileges etc., as such, cannot be said to be providing funding to a substantial extent’, and the funding should be of a nature where the body would not be able to operate without such support.1
The Public Records Act allows records creating agencies to submit records of a permanent nature (after 25 years from creation of the record) for appraisal to the National Archives, for preservation. All unclassified public records that have been transferred to the National Archives and are more than 30 years old, may be made available for access to ‘bona fide research scholars’, subject to restrictions prescribed by the government, which may be made through rules made under the Act. Further, any records creating agency is empowered under Section 11(2) of the Public Records Act to grant any person access to any public record in its custody in such manner and subject to such conditions as may be prescribed.
The Public Records Act also allows the National Archives or the Archives of Union Territories to accept private records of ‘historical or national importance’ by way of gift or purchase, which may be a consideration for private archives looking to dispose of an archival collection by donating or selling these to the National Archives or the archives of Union Territories. Further conditions regulating the functioning of records creating agencies and National Archives are present in the Public Records Rules, 1997.2 Rules include, for example, a prohibition on the destruction of any public record without being recorded and reviewed as per the records retention schedule of the records creating agency.
Apart from the Public Records Act, which applies to entities at the level of the central government, some state governments like Karnataka and Maharashtra also have enacted legislation applicable to public archives at the local or regional level. These legislations largely emulate the Public Records Act, but apply to entities controlled or financed by the state government. It is important to note that not all state governments have such legislation.
If an archive falls under the definition of a ‘records creating agency’, it must comply with various provisions of the Public Records Act, which includes nominating a ‘records officer’, complying with the directions of the Central Government and the Director General of Archives (Union) and other rules and regulations for archives made under the Public Records Act (a fuller discussion of which is outside the scope of this guide). To understand whether an archive falls under this definition, please follow the checklist in the section below.
The Right to Information Act, 2005
The Right to Information (RTI) Act, 2005, requires ‘public authorities’ to disclose all ‘information’ under their control. The ambit of information under the RTI Act is very broad and includes all materials of all forms, including digital records, which is ‘held by’ or ‘under the control of’, a public authority, including information relating to private bodies that can be accessed by a public authority. The scope of the RTI Act is broad enough to cover the collections of archives whether or not they relate directly to the current functioning of the institution which they may be a part of.
The RTI Act is applicable to ‘public authorities’, which is similar to the scope of the Public Records Act, but slightly broader, and includes any authority constituted by the Government, as well as non-government organisations substantially financed by the Government.
Public authorities that fall under the scope of the law have to comply with regulations on the manner and form in which their records (current or archived) are maintained, as well as in the manner in which they are to provide information both proactively and upon receipt of a Right to Information Request under the Act (subject to exemptions under Section 8 of the RTI Act, which includes information kept under a fiduciary relationship information that contains personal information and causes unwarranted intrusion into privacy of an individual, etc.). Section 4 of the RTI Act lists the obligations of public authorities in maintaining and proactively disclosing certain kinds of information available with them.
Archives may be impacted by the RTI Act in two ways.
First, they may fall under the definition of ‘public authority’, and be required to comply with the provisions for making its archival collections available through records requests under the RTI Act.
Determining whether a particular archive falls within the ambit of the RTI Act is a contextual and factual determination on a case by case basis. Courts have held that aided private colleges,3 any body established by a statute or government notification, or joint ventures between governments and private corporations,4 fall within the ambit of being ‘substantially controlled or financed’ by the government. The Indian Institutes of Technology, for example, are established by government statute through the Institutes of Technology Act, 1961, and would fall under the ambit of ‘public authorities’.5
The scope of ‘public authority’ under the RTI Act is much wider than the scope of ‘records creating agencies’ under the Public Records Act. To assess whether an archive is a public authority, the following questions are important6:
Is the archive part of a government ministry, department or office, or an institution established by statute?
Is the archive or the institution under which the archive operates substantially controlled by the Government? (For example, does the Government have the power to manage its affairs, through control of the board of directors?)
Is the archive a non-government organisation which relies entirely or substantially upon government funding for its sustainability?
If the answers to any of the above are in the affirmative, the archive may fall under the definition of a ‘public authority’.
Second, certain archives may also hold ‘information’ or records temporarily deposited by public authorities as part of their archival collections. Such records would continue to be ‘under the control’ of the public authority, and upon receipt of an inspection request, the public authority may be required to provide access to such records or copies of such records.
For instance, the archives of an institution that is substantially supported and financed by the Central Government or any state government or instrumentality will be considered to be a ‘public authority’ for the purpose of the RTI Act, 2005 (an archive that keeps the records of a government institution). It must comply with the conditions for access of records under the RTI Act, including responding to RTI queries and proactively disclosing certain records, subject to the restrictions under the Act. The nature of the institution – for example, whether it was established by statute of the Central Government or any state government – will determine whether it also must comply with the requirements of the Public Records Act, 1993.
- Thalappalam Ser. Coop. Bank Ltd. v. State of Kerala  16 SCC 82. Retrieved from https://indiankanoon.org/doc/37517217↩
- Public Record Rules 1997. Retrieved from http://nationalarchives.nic.in/content/public-record-rules-1997-0↩
- MP Varghese vs The Mahatma Gandhi University  3 KLT 486. Retrieved from https://indiankanoon.org/doc/1189278↩
- Tamil Nadu Road Development Co. Ltd v. Tamil Nadu Information Commission and Anr.  8 MLJ 17. Retrieved from https://indiankanoon.org/doc/454066↩
- For a more detailed overview of what constitutes a ‘public authority’ under the RTI Act, see http://accountabilityindia.in/sites/default/files/rti_brief_no._5-_who_is_a_public_authority_0.pdf↩
- To understand if an archive falls within the scope of the Public Records Act or certain state public records legislations, refer only to the first question.↩