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Monday 11 July 2011

Frequently Asked Questions on RTI



(1) Are "file notings" included in the definition of information?
Section 2 of the RTI Act defines a 'record'. S. 2 (i) (a) states that a 'record' includes any document, manuscript and file. The operative definition of a 'file' is given in the Manual of Office Procedure prepared by the Central Secretariat, Government of India. The definition of 'file' in the Manual includes 'notes' and 'appendices to notes'. Therefore, technically and legally, the term 'file' as understood in Section 2 (i) (a) of the RTI Act includes file notings. Thus, 'notings' are also included within the definition of 'information'.
(2) If the law under which a Public Sector Unit (PSU) has been constituted does not allow access to information to the people such as agendas of board meetings etc. will such information have to be given under the RTI Act?
Even PSUs fall within the category of public authorities. But if an applicant seeks
information about trade secrets or Intellectual Property Rights (IPRs) the disclosure of which will affect the competitive position of that PSU, such information may not be given unless thee is a larger public interest involved. Even if the law constituting the PSU does not allow disclosure of certain categories of information, the RTI Act, 2005 overrides any such law in existence. Hence the designated PIO for the organisation under question, has to provide the information.
(3) Government Offices have been providing information to people on the basis of their verbal requests in the past. Does the RTI Act require that such informal practices be ended?
No, there is no need to discontinue the conventional and informal practice of giving information upon verbal request. The RTI Act does not put an end to such practices. If information can be given without delay upon verbal request it is better to give such information to the requestor rather than require him/her to put in a formal application. This helps reduce paper work for the public authority and increases confidence of citizens in the administration.
(4) Can Government officers get access to their Annual Confidential Rolls
(ACRs) under the RTI Act?
This is an areas that requires clarification from Government. Ordinarily ACRs are secret documents but if the senior officer records an adverse remark against an officer the same must be communicated to such officer. Opinion is divided as to whether an officer may be given a copy of his/her ACR upon request under the RTI Act with some officers maintaining that ACRs will also become open documents. However some others believe that ACRs are personal documents and therefore enjoy the protection of exemptions to RTI under sec. 8 (I) (j) unless it is shown that public interest is better served by disclosing the ACR. However this is likely to be a public interest is better served by disclosing the ACR. However it is likely to be a matter for the Information Commission to decide on a case by case basis.
(5) Can students ask for copies or inspection of their answer scripts if they are unhappy with the marks awarded by the examiner in public examinations?
The Central Information Commission has rules on an appeal submitted to it that students cannot have access to answer scripts/supplements.
(6) Every department performs different kinds of functions at different levels of operation from the Secretariat to the Taluk Level. Will disclosure under Section 4 have to be designed for everyone of these levels separately?
Yes. In States like Uttaranchal, Meghalaya, Madhya Pradesh and Gujarat more than one public authority are notified within every department from the Secretariat level to the district and sub-district level. Every such public authority will have to develop its own proactive disclosure documents also known an Public Information Directories/Handbooks unique to its powers, functions and area of operation. Section 4 is designed to ensure that public authorities give certain information which is important to the public voluntarily at every level of operation. If implemented properly, Section 4 will reduce the workload of officials and public authorities because it will mean that information which is regularly needed by the public can be accessed by them without the need for a specific request.
(7) The production of 17 manuals under Section 4 (I)- will it be very difficult and burdensome?
The idea or producing 'manuals' does not properly reflect the objective of Section 4 for proactive disclosure, which is simply to publish and disseminate key information routinely in a manner and form which is easily accessible and understood by the public [Sections 4 (3) and 4 (4) of the RTI Act which specifically require this]; The 17 subsections of Section 4 are 17 categories of information that a public authority is required to prepare and disseminate proactively through books, notice boards, print and electronic media. Most of the information required to be published proactively under this section may already be available within the public authority albeit in a scatter manner. These will need to be collected and collated to fulfill the requirement of Section 4. Several officials are pleased within Section 4 as it will help them streamline their own housekeeping procedures. Furthermore not every public authority may be required to collate information under all categories of Section 4. For example, the Finance Department in a State may not be issuing any permits or concessions. As it does not perform such functions the Finance Department will not be held at fault for not including this category of information in its Public Information Directory.
(8) Is it enough to disseminate information under Section 4 on the Internet?
Proactive disclosure of information could be made possible through various print and electronic means. It may be disseminated in one or a series of documents in print. They could all be uploaded on the website of the concerned department. Certain categories of information such as the name and designation of the officers concerned in each office, broad norms of service etc, may be put up on notice boards. Information regarding beneficiaries of various development schemes, concessions and permits may be published from time to time in leading newspapers. As the proportion of people to have a regular access to the Internet is very small, it is better to print Public Information Directories or publish variable information like that of beneficiaries of schemes and recipients of concessions etc. through newspapers. Further, such documents should be made easily accessible to people through Media/Information Centres established at the taluk/tehsil or district level. Similarly such Directories should be made available to people in all public labraries established, financed or supported by the Government.
(9) Is it enough to publish information under Section 4 once at the time of the commencement of the RTI Act?
Updating of information is very important under Section 4 of the RTI Act. This is a
statutory requirement. The State Government will have to come out with general
instructions for time bound updating of all categories of information. Every public
authority may in turn issue detailed instructions for updating information that is specific to its functions. For example, information on subsidy schemes (see Sec.4(xii)) needs to be published and updated regularly if it is to be useful in terms of enabling the public to check hat they are receiving proper subsidies and even as levels of corruption are being minimised. Whenever officers are transferred, the public authority will have to update its website and notice board for the benefit of public.
(10) What will be the penalty if a department is not able to meet the deadline for proactive disclosure (120 days)?
There is no penalty for not meeting this deadline. But it is advisable to publish as much information as possible within the deadline and give it wide media publicity so that people know that Government is earnest about implementing the law. This will reduce the level of criticism from the media and other quarters, as they will understand that the Government is doing its best and will continue to do so. The Public Information Directories and the websites may be refined and updated later. It must be noted that the Information Commission has the power [Sec.19(8)(a)(vi)] to receive from a public authority an annual compliance report in relation to Sec.4. This reporting mechanism will technically make the public authority answerable to the Information Commission for all acts of commission and omission in relation to proactive disclosure.
(11) If the salaries and emoluments of officers are disclosed proactively as
required by Section 4 they may be targeted by anti-social elements and terrorists for extortion. Does this not expose the officers to danger?
Most officers in the States believe that honest and upright officers will not be targeted by such elements. Only those officers who are corrupt or those who violate lawful procedures and make illegal gains need fear extortion. Honest officers have nothing to hide and will have no objection to making information about their salaries and emoluments known to the public. But the task of compiling this kind of information and updating it on a regular basis is likely to be tedious. Therefore it might be a good idea to display the salary slips of all officers on the notice boards of the officers where they work once a year. The requirement of proactive disclosure is met with. Alternatively, all such information may be displayed on the Internet.
(12) Can a request be denied if it is too big? If not, how can such requests be handled best? How much information can a citizen request in one application? If he/she asks 20-30 kinds of information in one application should it be given? Or should the citizen be asked to put in fresh applications for each point of information requested and also be asked to pay application fees every time?
The Act does not permit rejection of an application simply because it relates to a large number of documents. In any case, in practice officials should consider the processing of applications as a cooperative activity, such that the official should work with the applicant to assist them to get the information they need. If a large number of records are involved in relation to a request, the PIO can contact the requestor and clarify their request to see if they can reach a mediated solution that will give the requestor what they want without unnecessarily burdening the PIO. This recognizes that in some cases at least, a broad application may be submitted simply because the requestor was not sure what was available. If the applicant is not easily reachable except by post then the PIO may give detailed
reasons in writing for not being able to meet the information request. This will indicate to the DAA or the SIC that the PIO had take action in good faith and had done all that was possible to honour the citizen's right to seek information if the applicant files an appeal. No penalty will be imposed on the PIO if it is shown that he/she has taken action in good faith (Section 21) If some of the information requested relates to the work of another public authority within the same department or in another department, the PIO has the power to transfer those part of the application to such public authority under Section 6(3).
(13) If in a single application the applicant requests information that relates to the work of several departments, is the PIO responsible for giving all that information within the deadline? The PIO will not be able to do any other work in such cases.
No, the RTI Act makes it clear that the PIO has the power to transfer an application or parts of it if it relates to information held by another public authority or relates more closely to the activities of that other public authority [Section 6(3)]. The PIO is not responsible for collecting information from other public authorities especially if it is likely to take more than 30 days to secure such information, It is better to transfer the application to the concerned PIO and inform the applicant about the transfer in writing immediately. This amounts to action taken in good faith and will not attract any penalty to the PIO.
(14) Previous experience has shown that some elements may misuse this law and use information to blackmail honest officers. Should the PIO not be given the power to verify the intentions of the applicant?
While it is possible that some elements may misuse the RTI Act, there is very little opportunity for the PIO to verify the intentions of the applicant. While personal contact details of the applicant are amenable to verification it is near impossible to verify his/her intention in seeking information. Furthermore Section 6(2) makes it clear that the applicant will not be required to give reasons for seeking information. An honest and sincere officer need not fear blackmail. The best way to avoid blackmail is to make available as much information as possible proactively. As far as possible upload all information disclosed upon request on the website. When information is accessible by a large number of people the possibility of blackmail diminishes considerably.
(15) Some unscrupulous elements may tamper the copies of documents they access under the RTI Act and misuse them. How does one prevent such misuse of information released under the RTI Act?
The Government will have to devise a means of authenticating documents released under the RTI Act to ensure that they are not misused. One suggestion is to mark every page of a document accessed under the RTI Act with a rubber stamp impressions saying – "Documents released under the RTI Act contains XX pages". If electronic files are requested the same may be provided in pdf or tif format on floppies or CDs. This will also obviate the need for certifying the documents separately if the requestor wishes to use the same in some litigation.
(16) If there is a flood of applications for inspection of records how will the PIO provide access to all applicants and also do justice to his/her other designated duties? What if one such applicant mutilates or destroys a record during inspection?
The Government needs to make rules and guidelines for PIOs regarding the procedure to be followed for allowing inspection of records. Specific timings will have to be notified for allowing public inspection of records. If there is a high demand for the inspection of certain categories of records it is advisable to digitalise such records as far as possible and upload it on the internet to facilitate easy access to the public. This will reduce the workload of the PIO as well. The Government will have to issue clear guidelines relating to the manner in which inspection of records will be allowed. The carrying of sharp edged instruments or inflammable material to the place of inspection may have to be prohibited.
(17) If the same kind of information is sought by more than one person should it be made available to all such requestors?
Every public authority should assess the information needs of people who contact it from time to time. This will help the public authority ascertain what kinds of information are requested by people frequently. All such information which has been requested by more than one citizen should be uploaded on the internet and updated from time to time. Requestors who have access to Internet facilities may be directed to access the information on the concerned website thereby saving PIOs valuable time to devote to other applications or office matters. If such frequently requested information can be made available to the PIO in the Public Information Directory/ Handbook required to be published under Section 4, a lot of time, energy and resources can be saved in the process of satisfying the information needs of citizens.
(18) If the information requested by a citizen has already been proactively
disclosed can a PIO refuse to accept the request?
There is nothing in the RTI Act that states that information disclosed proactively should not be provided to a citizen on request. Section 4(4) requires that all materials disseminated under this Act should be available with the PIO and as far as possible in electronic format. The purpose behind this requirement is that the citizen need not wait for 30 days to get access to information that is already being proactively disseminated. If available in printed format the PIO may make copies of the same or provide photocopies of the relevant pages to the citizen. If such information is available only in electronic format the same may be provided on floppies, diskettes, CDs or in the form of printouts upon payment of fees at rates prescribed by the Government.
(19) Is the Assistant Public Information Officer (APIO) as assistant to the Public Information Officer (PIO)?
No, the APIO is not an assistant to the PIO. An APIO may be appointed at the subdistrict or sub-divisional level where a public authority may not have an office or administrative unit. This is particularly useful for Departments of the Government of India which are rarely found below the district level. Appointment of APIOs may also be useful in States which have human habitats situated in difficult, remote and inaccessible terrain. An(y) APIO, like the PO is an independent information officer in an administrative jurisdiction / office and will have all the powers (and be responsible for all the functions) as ordained for a PIO, under the RTI, 2005 Act.
(20) What are responsibilities of the APIO?
The APIO has only two responsibilities under the RTI Act –Receive applications for information from citizens and forward them to the concerned PIO immediately or within five days (if he is not in possession of the requested information); Receive appeals from citizens and forward them to the departmental Appellate Authority or the Information Commission (as indicated in the appeal letter) immediately or within five days.
An APIO is liable for penalty if he/she refuses to receive applications or appeals. He/she is also liable for penalty if he/she does not forward them same to the appropriate authorities within the 5 day deadline.
(21) If the information requested by the applicant is in the possession of the APIO should he/she not give that information to the applicant?
The RTI Act is meant for giving citizens easy access to information held by public
authorities. There is nothing in this law to stop the APIO from giving information under his/her possession to the information requestor. There is no need to follow the usual process of forwarding the application to the PIO if the APIO can adequately meet the information needs of the applicant.
(22) If a PIO has touring duties as well, then he will not be physically present to receive application in the office. Will his absence amount to refusal to accept information request?
The best solution for such difficult situations is for the PIO to authorize a subordinate/colleague within the same public authority to receive applications and put this in writing for the sake of avoiding confusion in his/her absence. This will ensure that citizens' applications are received even in the PIO's absence and action is taken on the same. By putting the request for assistance in writing, the PIO will also protect him/herself against any action for penalties if the processing of the application is delayed.
(23) In states like Uttaranchal, Panchayats are the first public authorities that the public comes in contact with. With more than 7,000 Panchayats existing already will they have to appoint as many PIOs?
As all records relating to Panchayats are in the possession of the Gram Pradhan, it does not make much sense to ask the resident of a village to go to the taluka headquarters to apply for records of his/her Panchayat. It is better to appoint the Pradhan as the PIO. The Panchayati Raj may declare the Gram Paradhan as PIO for the purposes of this Act, thereby bringing him/her within the ambit of this law and making him liable for penalties and disciplinary action. It may also be necessary to specify in the Rules that a Pradhan shall be considered an "officer" for the purposes of the RTI Act.
(24) If the Gram Pradhan who is the PIO of the Gram Panchayat (in Uttaranchal) does not know how to read or write how will he/she be able to meet the information requests of citizens?
If the Gram Pradhan is unable to read and write he/she may take the assistance of the Secretary of the Panchayat or the Village Development Officer for providing the requested information to the applicant.
(25) What is the procedure to be followed for giving samples of materials?
The Government will have to issue detailed guidelines as regards the procedure to be followed for collecting samples. Witnesses may be required to be present for the purpose of certifying the samples collected.
(26) If the process of taking samples results in substantial damage to the public work concerned can the PIO issue a rejection order?
This is another area where detailed guidelines are required for the PIO to take action. If taking samples from a public work results in damage to the structure the PIO may mention the same in his rejection order. The SIC will give the PIO a reasonable opportunity to justify denial of the sample. If action is taken in good faith the PIO will not attract any penalty.
(27) Should BPL applicants be charged the additional cost of providing
information requested?
In regard issue of charging other/ additional fees for applications received from people below poverty line it is appropriate that the public authority, in question, frame the rules which its PIOs will have to follow.
(28) Why should the PIO not use the BPL list available in the district for
determining the identity of applicants claiming fee waiver?
BPL list may be used for verifying the identity of a person claiming fee waiver if he/sheis ordinarily a resident of the same district. However BPL lists will differ from district to district. A citizen should not be denied fee waiver just because his/her name does not appear in the list of the district where he/she has submitted an information request. In order to implement the law in its spirit the PIO is better advised to accept as proof a photocopy of the BPL/Antyodaya ration card or some other similar documentation of BPL identity prescribed by the Government.
(29) Should the PIO give information if the applicant does not submit proof of payment of application fees nor is proof of BPL identity attached to the application? Should the APIO forward such applications to the PIO?
The PIO is required to take a decision about giving or not giving information only if the application is complete in all respects. An application is complete only if it has all contact details about the applicant and the nature of information requested along with proof of payment of application fees or proof of BPL identity if claiming fee waiver. An APIO may forward only complete applications to the PIO. If the applicant has submitted an incomplete application it is the duty of the PIO or the APIO, as the case may be, to request the applicant to complete the application in all respects to facilitate the commencement of processing of the information request by the PIO.
(30) How will PIOs collect application fees and additional fees for providing
information if the request if received by email?
The Government should specify the mode of fee payment for applications received by email. They could provide for online payment options. Or the applicant may be sent an email asking him/her to pay fees in cash or send proof of payment by any other means prescribed by Government in the rules.
(31) The RTI Act states that information must be provided free of cost if it is not given within the time limit specified. What is the process for refunding the money to the applicant?
Yes, the applicant is entitled to information free of cost if it is provided after the lapse of the deadline stipulated in the Act. The State Government should prescribe the process for refunding the additional fees paid by the applicant. It should also specify whether the application fee will also be refunded to the applicant in such cases. This process of refund must take the convenience of the applicant into consideration.
(32) If the applicant does not pay the additional fees towards cost of providing information within the 30 day deadline will the PIO be penalized for failing to provide information to the applicant?
No. The PIO will not invite any penalty in such cases. The 30-day clock stops ticking from the date of dispatching the intimation order issued by the PIO and restarts on the date on which the applicant pays the additional fee. For example, if the PIO dispatches the intimation latter on the 5th day format he date of receipt for the complete application only 5 days would have elapsed form the 30 day limit. The clock will restart on the date on which the applicant pays the additional fees. The PIO will have to provide the information within 25 days form the date of payment of additional fees. If the applicant chooses to seek a review of the additional fee from the DAA or the SIC the period taken for giving a decision on this matter will not be included in the 30 day limit.
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(33) If the applicant does not respond to the intimation letter of the PIO
requesting payment of additional fee will the PIO be duty bound to provide
information to the applicant? Is the PIO duty bound to provide information within 30 days even in such cases?

No. The PIO does not have a duty to provide information to the applicant in such cases. The RI Act states very clearly that the PIO will provide access to information only upon payment of additional fee as may be determined [Sec. 7(1)] by him/her (for non-BPL cases). However if the PIO does not receive a response to his/her intimation letter from the applicant he may send a reminder after 2-3 weeks. If the applicant does not deposit the additional fee within 2 months (allowing a grace period for filing a review of the additional fees and 30 days for the appellate authority to give its decision in such cases) then the PIO may issue a rejection order citing non-payment of additional fees as the reason. This action of the PIO will not amount to unreasonable denial of information and
will therefore not invite any penalty. It is advisable for the Government to specify
limitation on the time period for such cases in the rues or in the guidelines.
(34) How can additional fees be collected for providing information regarding the life and liberty of a person considering the fact that such information should be provided within 48 hours?
The Concerned Authorities will have to issue clear guidelines regarding the procedure for providing information in such cases as there may not be enough time available for completing such procedures.
(35) How does a PIO decide whether the information requested relates to the life and liberty of the individual? If the requestor threatens suicide in the event of being denied access to information should it be given within 48 hours?
This category of information usually related to the work of law enforcement and security agencies, government hospitals, health sector officials and so on. Detailed guidelines are available in other jurisdictions in the world for dealing with such applications. The State Government will have to come up with guidelines for treating such information requests with due diligence and urgency. However information requests made under suicide threats must be dealt with due concern and the applicant must be reassured that action will be taken in good faith while dealing with his/her information request. Nothing reassures such a person as a few words of calm headed wisdom and treatment with due compassion.
(36) Officials are required to give information about themselves and their families under the law. Can the public request this kind of information? Should it be given?
Not necessarily so. This may be private or personal information which is exempted under Section 8(1)(j). Again, this must be decided on a case by case basis. If public interest is served by disclosing such information then it must be given.
(37) Does the 20-year limit mentioned in Sec 8(2) apply only to the exempt
categories of information? Can any citizen ask any information that is 20 years old even if it does not fall within the category of exemptions? Will the PIO be penalized if he/she is unable to provide such information?
The time limit for seeking information (ie. How old?) is not mentioned in any part of the RTI Act except Sec. 8. Ordinarily this limit should apply to every information. In other words any citizen should be able to access information about any event, matter or occurrence after 20 years even if it falls within the categories of exempt information [except 8(1)(a), (c) & (i)]. However the Government is yet to clarify this aspect of the limitation on the accessibility of old records or provide for a separate itemisation and treatment of such information.
(38) Some of the exemptions are difficult to interpret. How will ambiguities be clarified and what can be done to support officials to apply exemptions properly?
It is important for the Government to prepare detailed guidance notes for PIOs and DAAs explaining each of the exemptions in section 8 and giving practical examples to assist them to apply these exemptions property. Ideally, a master set of guidance notes should be produced by all public authorities concerned, to ensure consistent interpretation of the exemptions across the country. State Governments and Information Commissioners should also be involved in the process. Nevertheless it is not possible to provide for guidelines on exemptions applicable to all situations. It is important for Information Commissions and the Courts to publish their judgments to provide additional guidance to officials and the public which will become part of the developing case law on RTI. International experience supports the production of an 'annotated Act' incorporating the explanatory and interpretative portions of judgments explaining every provision. In Canada and Queensland, Australia for example, their information access case law is uploaded on-line and every provision then has links to relevant judgments.
(39) In cases where building plans and designs of bridges or other important public structures have been requested and if the PIO has reasonable suspicion that the applicant will use those plans for commercial purposes and make a profit out of it, should such information be given?
The Government should come out with detailed guidelines regarding the protection available for copyrighted materials and intellectual property rights held by public authorities. If disclosure of building plans and designs affects the economic or security interests of the State in a prejudicial manner then such information falls under Section 8(1)(a). But if the PIO is able to justify before the concerned appellate authority that he/she had provided reasons for denying access to such plans no penalty will be imposed. The appellate authority is appointed precisely to give quasi-judicial decisions on the finer points of the law. Therefore if the PIO has taken action in good faith the appellate authority may not impose a penalty even if it decides in favour of disclosing such plans and designs.
(40) If a case is still under consideration (ie., 'live' or 'current file) for final
decision can that file be made available to the requestor before the decision has been taken?
Aspects of the file which are pending decision need not be disclosed until the matter is complete. But if there is factual information attached to that file whose disclosure will not affect decision making then such information can be disclosed under the provision for partial access.
(41) What if existing departmental manuals prevent disclosure of information to the people?
All such manuals were drawn up before the RTI Act came into place. These manuals will have to be reviewed in light of the new law and all unreasonable procedures for denying access to information will have to be done away with unless they relate to the exempt categories of information. Even in the case of exempt information the manuals should be so designed as to facilitate complete or partial access in the public interest. All new departmental manuals likely to be drawn up in future must conform to the new regime of transparency set up under the RTI Act, 2005.
(42) Periodic weeding of files results in destruction of many documents which are not important enough to maintain for as long as 20 years or more. Sop it will not be possible to give such information after they have been destroyed. Will the PIO be penalized for this?
If a record has been destroyed legally the question of penalisation does not arise. The PIO cannot create a record in order to meet a request. But this Act will require a review of all weeding practices in existence to ensure that information which could be requested under the Act is not destroyed. More generally, it is necessary to consider a review of current records management processes.
(43) What is the process for taking a decision on granting partial access to a record? Who is the authority to make this decision within a public authority?
Section 10(2)(b) of the RTI Act makes it clear that the PIO is not always the deciding authority for granting partial access to records that may contain exempt information. The PIO is required to give the name and designation of the person giving the decision of partial access while intimating the same to the applicant. With the exception of cases where information requested belongs to the category of personal information where the PIO has the authority to decide whether disclosure is in public interest [Section 8(1)(j)], it is the public authority or the competent authority which has the power to grant full access or partial access in public interest. The Government should specify in the rules the level at which the decision to grant complete or partial access to exempt records must be taken
within the public authority. Care must be taken to ensure that decision in such cases must be taken within the time limit stipulated in the law as there is no grace period provided for this process.
(44) Will the APIO be punished for giving wrong or misleading information just as a PIO can be penalized under this Act?
If the information requested for is under the control of the APIO, he/she must provide such information upon payment of the prescribed fees (if any). The APIO is also liable for penalty for providing wrong or misleading information or for any undue delay in providing the information available with him/her, that would have been requested for.
(45) Will a PIO be penalized if the senior officer verbally orders him not to
release information to the requestor?
No. All officers must assist PIOs to process applications and provide information, if requested by the PIO to help. All such officers will be considered to be PIOs for the purpose of contravention of this Act. If a PIO is not given information by a senior when he requests their assistance, accordingly it is the senior, who will be penalized and not the PIO. To protect against a penalty, it is advisable that PIOs note in writing
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