Right to Information and Freedom of Speech

By : A Romenkumar Singh, IPS

“Truth, fact, is the life of all things;
falsity, “fiction” or whatever it may call
itself, is certain to be the death.” – CARLYLE
‘Lead us from untruth to truth’, is a spiritual message to Vedic vintage, for, without realizing Truth, humanity never rises to its due diversity and soon descends to the Status of Slave.

No democratic Government can survive without accountability and the basic postulate of accountability is that the people should have information about the functioning of the Government . . . that an open society is the new democratic culture towards which every liberal democracy is moving and our society should be no exception. The concept of the open Government is the direct emanation from the right to know which seems to be implicit in the right of free speech and expression guaranteed under Article 19(1)(a). Therefore, disclosure of information in regard to the functioning of the Government must be the rule, and secrecy an exception, justified only where the strictest requirement of public interest so demands.

Justice V.R. Krishna Iyer in S.P. Gupta v. Union of India, 1981 Supp SCC 86 observed that the right to express one’s thought is meaningless if it is not accompanied by a related right to secure all information on matters of public concern from relevant public authorities. However, to ensure that there is no misinterpretation, there may be no harm in inserting freedom of information as a specific corollary to Article 19 of the Constitution.

2. Right To Information Gaining Momentum
Right to information was recognized by international documents such as, Universal Declaration of Human Rights, 1948, International Covenant on Civil and Political Rights, 1966, and European Convention on Human Rights and Fundamental Freedoms. Following the judgment of the Supreme Court in a case as reported in Dinesh Trivedi v. Union of India, 1977 (4) SCC 306 in which it has been held that the right to information is as much a fundamental right as the freedom of speech, the right to information is gaining momentum. Realising the importance of this right as emphasized by the Supreme Court giving new perspective of this right and need to provide transparent and accountable governance, the Government of India passed the Right to Information Act, 2005. The basic premise is that the informed citizenry and transparency of information is necessary to contain corruption and make the government accountable.

3. Legislative History
A conference of Chief Ministers was held on 24th May 1997 at New Delhi on “Effective and Responsive Government”. It was unanimously felt in the conference that time has come to enact a law on ‘right to information’ so as to make the government more transparent and accountable to the public. The Parliamentary Standing Committee on Home Affairs in its 38th report also recommended for the enactment of such a legislation. Finally, the Government of India appointed a working group to examine the feasibility and need for a full-fledged Right to Information Act in order to promote open and responsive government. The working group submitted its report along with a draft Freedom of Information Bill to the Government. The draft bill was subsequently deliberated upon by the group of ministers, the final outcome of which was introduced in the Parliament and became Freedom of Information Act, 2002. This Act is enacted to provide for freedom to every citizen to secure access to information under the control of public authorities, consistent with public interest. It aims to promote openness, transparency and accountability in administration.

The Freedom of Information Act, 2002 could not come into force for want of notification by the Central Government. This Act only provided for freedom to access information but did not provide any rightful entitlement with respect to securing information. This Act is, therefore, repealed and replaced by Right to Information Act, 2005. This Act is an attempt in the direction of achieving the goal of promoting transparency and accountability in the working of every public authority. This Act turns into reality the right of citizens to secure access to information under the control of public authorities.

4. Important Features Of The Act

Right under the Act.

The preamble of the Act delineates the extent to which information could be made available or withheld. It recognizes the conflict inherent in providing information to the public as it may, at times, be at odds with other public interest including efficient operation of the government, optimum use of limited fiscal resources and the preservation of confidentiality of sensitive information. This recognition of conflict, however, does not undermine the importance of democratic ideal of ensuring transparent and accountable government. In view of this, the Act seeks to provide for furnishing ‘certain’ information.

5. The Act Contains 30 Sections And 6 Chapters

This Act supplies the statutory basis for right to information, which means all the citizens have a right to information accessible under this Act, held by or under the control of any public authority. This right includes the right to inspection of work, documents, records, taking notes, extracts, or certified copies of documents or records, taking certified samples of material and obtaining information in the form of floppies and diskettes or any other electronic mode. This right is limited to only individual citizens of India, which excludes the foreigners and the companies. Companies or corporations, however, can avail this right only through individuals who constitute their management.

6. Definition Of Information

The Act defines information as 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 definition of information and Section 4 of the Act shows that the information relating to administration, third party information and information about an individual relating to public activity while not invading privacy may be obtained as a matter of right. However, information relating to personal information having no relation to any public activity or interest that causes unwarranted invasion of privacy of individual cannot be sought if the information officer feels that the larger public interest justifies the disclosure of such information. It may be submitted that the information regarding third party and the private institutions so far as it affects the public and which concerns the government may be sought. For instance, one may seek information regarding enforcement of labour laws by private institutes or compliance with environmental laws, etc. in such cases, the information officer is liable to procure the information from the institution concerned and supply the same to the applicant. The matters already known or notified cannot be sought as a right. The information sought may relate to present as well as up to 20 years in the past.

7. Applicability Of The Act

The preamble of the Act does not indicate that purpose of the Act is to confine its applicability to government and instrumentalities of government. Applicability of the Act is to be determined based on provisions of statute also. Applicability is not confined to bodies answering definition of “State” under Article 12 of the Constitution of India. In a case as reported in M.P. Varghese v. Mahatma Gandhi University, AIR 2007 Kerala 230, the Kerala High Court held that for coming within the definition of ‘public authority’ either control or financing by Government need be satisfied. In this case, both the conditions are satisfied. The aided private colleges are bodies controlled and substantially financed directly or indirectly by the funds provided by appropriate Government. Further, these colleges deal with information relating to educational activities pertaining to students who pay fees to the Government and teachers and staff whose salaries are paid by the Government. When these colleges are financed and controlled by the Government and Universities and they are privy to information relating to students and staff, those informations do not have the character of private or sensitive information, the public have a right of access to such information so as to ensure transparency in the conduct of the management of the colleges in which the public are vitally interested. Denial of such information would be against the very object of the statute. Essentially much of these informations relate to students, teachers, and staff of these colleges, and not to any information to any private activities of the managements of the colleges. That being so, these colleges certainly answer the definition of “public authority” under section 2(h) of the Act.

The Court further held that when the Act makes the same applicable to “public authorities” as defined therein there is no need to give a restricted meaning to the expression “public authorities” strait-jacketing the same within the four corners of “State” as defined in Article 12 of the Constitution, especially keeping in mind the object behind the Act. The definition of “public authority” has a much wider meaning than that of “State” under Article 12. Further, the definition of “State” under Article 12 is primarily in relation to enforcement of fundamental rights through Courts, whereas the Act is intended at achieving the object of providing an effective framework for effectuating the right to information recognized under Article 19 of the Constitution of India.

8. Information To Be Supplied Not Confined To The Information Mentioned In Section 4
Information to be supplied under this Act is not confined to those mentioned under section 4. Apart from those mentioned in section 4, information can also be supplied by public authority, nationalized bank in respect of employees of that public authority. In a case as reported in Canara Bank v. Central Information Commission, Delhi, AIR 2007 Kerala 225, the Kerala High Court held that the information required to be supplied by a public authority to a citizen on request are not confined to the information mentioned in section 4. That section only casts certain obligations on public authorities for maintaining records and publishing the particulars mentioned therein. That does not amount to laying down that only those information which the public authority are required to publish under section 4(b) alone need be supplied to the citizens on request. The information mentioned in section 3 is not circumscribed by section 4 at all. Obligations laid down under section 4 are to be compulsorily performed apart from the other liability on the part of the public authority to supply information available with them as defined under the Act subject of course to the exceptions laid down in the Act. The information detailed in section 4 has to be compulsorily published by the public authority on its own without any request from anybody. Further, there is no indication anywhere in the Act to the effect that the ‘information’ as defined in section 2(f) is confined to those mentioned in section 4 of the Act. Therefore, it cannot be held that only information mentioned in section 4 need be supplied to citizens on request.

9. Public Authorities To Supply Information

Section 5 mandates the public authorities to designate some of its officers as Central/State Public Information Officers and Assistant Information Officer as the case may be at each sub-divisional or sub-district level within 100 days of the enactment of this Act. The assistant officers are to receive application for information or appeals under this Act to forward it to the Central/State Information Officers. The information officers are designated from the existing officers in the public authorities.

The right to information would not become a reality if the information officers were left without any aid and assistance. The information officers may seek assistance of any other officer for proper discharge of his/her duties, who is under an obligation to render all assistance. For the purposes of any contravention of the provisions of this Act, such officer shall be treated as a Central/State Public Information Officer.

10. Entitlement To Information

In a case as reported in B. Bindhu v. Secretary, Tamilnadu Circle Postal Co-op. Bank Ltd., Chennai, AIR 2007 Mad 13, where the petitioner submitted an application for post of Clerk in respondent Bank, being not reached within stipulated time, was not considered by Bank for appointment. The same was communicated to the petitioner. Petitioner never challenged the said communication. In such case, the Madras High Court held that she was not entitled to details of recruitment of clerical post as sought for by her under provisions of Right to Information Act.

11. Persons Seeking Information Is Not Required To Give Reason For Information He Seeks

The provision of section 6 of the Act does not obligate the person seeking information to give reason. In a case as reported in Surupsingh Hrya Naik v. State of Maharashtra, AIR 2007 Bom 121, the Bombay High Court held that a consideration of provisions of Act would indicate that ordinarily the information sought for by a person must be made available and such person need not give reasons for the information he seeks. Another important aspect of the matter is that in respect of information relating to a third party the concerned Public Information Officer must give notice to the third party and if such third party makes submissions then to consider the said submissions. The test always in such matter is between private rights of a citizen and the right of third person to be informed. The third person need not give any reason for his information. Considering that, it can be said that the object of the Act, leans in favour of making available the records in the custody or control of the public authorities.

12. Exemption From Disclosure

The Act provides for around ten exemptions against the disclosure of information out of which six are absolute where there is no option for the public information officer but to refuse to make information available. However, in other instances, the information officers have the powers to assess the comparative weight of the public interest in disclosing and withholding of information. Where the disclosure of information prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign State or lead to incitement of an offence or is expressly forbidden to be published by any Court of law or tribunal or the disclosure constitutes contempt of Court or causes a breach of privilege of Parliament or State Legislature or impede process of investigation or endangers the life or physical safety of any person. Beside information received in confidence from foreign government or that identifies the source of information of assistance given in confidence for law enforcement or security purpose shall be exempted from the disclosure. Whereas the information relating to commercial confidence, trade secrets or intellectual property, the disclosure of which will harm the competitive position of a third party or made available in a fiduciary relationship or relating to personal information having no relationship to any public activity or interest but causes invasion of the privacy may not be disclosed unless the authority is satisfied that larger interest warrants the disclosure of such information. There is a third kind or clause wherein the cabinet papers including records of the Council of Ministers, Secretaries and other officers cannot be disclosed but the decisions of the cabinet may be disclosed after the decision is taken along with reasons and material on the basis of which decision is taken.

There is proviso after clause (j) of sub-section (1) of section 8, which says that the information, which cannot be denied to the Parliament or a State Legislature, shall not be denied to any person. By virtue of the peculiar place of the proviso, it is slightly confusing whether the proviso is for the entire sub-section (1) or only for clause (j). Considering the generality of proviso, it may be submitted that it is applicable to the entire sub-section. Moreover, it makes sense not to distinguish between an ordinary citizen and his representation in Parliament or State Legislature as far as supply of information is concerned. It may, however, be argued that if the Parliament wanted this provision to be applicable to the entire section rather than clause (j), it may put this provision in the next sub-section as is the case with another rider in sub-section (2).

This renders the entire exemption clause subject to two important riders – (i) all the information that can be communicated to the Parliament and Legislature cannot be denied to the applicant by the information officer and (ii) notwithstanding anything in the Official Secrets Act, 1923 and all these exemptions, the public authority may allow access to information if the public interest in disclosure outweights the harm to the protected interests.

13. Right To Information Act Prevails Upon The Indian Medical Council (Professional Conduct, Etiquette And Ethics) Regulations, 2002

In a case as reported in Surupsingh Hrya Naik v. State of Maharashtra, AIR 2007 Bom 121 where one MLA of the State of Maharashtra was sentenced to one month’s imprisonment in contempt proceeding. He was spending most of the period of imprisonment in air conditioned comfort in hospital. Application was filed by private citizen seeking information regarding medical report of the MLA during the period of imprisonment. The public authority refused to give information based on the provision under regulation 2.2 of the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 providing for secrecy of medical report of patient. In this case Bombay High Court held that Right to Information Act being an enactment by Parliament would prevail over the regulations framed under the Indian Medical Council Act, 2005. Thus, it is within competence of Public Information Officer to disclose such information.

14. Geneva Convention 1948 Cannot Be Enforced In The Absence Of Enactment
In the instant case information regarding medical report of convict admitted to hospital during period of imprisonment was sought under Right to Information Act. Said information was sought to be refused by placing reliance on the Declaration of Geneva Convention (1948) adopted by the 2nd General Assembly of the World Medical Association, Geneva, Switzerland, September, 1948 and as amended thereafter. Under this convention, there is a provision pertaining to right to confidentiality of information about the patient’s health status, medical condition, diagnosis, prognosis and treatment and all other information of a personal kind with the exception that descendants may have a right of access to information that would inform them of their health risk. Otherwise the confidential information can only be disclosed if the patient gives explicit consent or as expressly provided in the law. Clause 10 refers to right to dignity. Even if India is a signatory to the said declaration, Parliament has not enacted any law making the declaration a part of the Municipal Law. It is well settled that in the absence of Parliament enacting any law adopting the convention, the convention by itself cannot be enforced. It is only in the area of Private International Law, in jurisdictions like Admiralty/Maritime, that international conventions are enforced based on customary usage and practice. That, however, will be subject to the Municipal Law if there be any. In the absence of the convention being recognized by law duly enacted, the provisions of the convention cannot really be enforced. The only other way the convention can be enforced is, if it can be read into Article 21 of the Constitution. Similar view was also taken by the Supreme Court as reported in Union of India v. Azadi Bachao Andolan, (2004) 10 SCC 1 in which the Supreme Court held that treaty should have been translated into an Act of Parliament to enforce it in a court of law.

15. Information Relating To Posting, Transfer And Promotion Cannot Be Within The Ken Of Exemption In Canara Bank v. Central Information Commission, Delhi, AIR 2007 Kerala 225, where the information requested for by the employee of Nationalised Bank relates to transfer and promotion of employees of the bank. Such information does not pertain to any fiduciary relationship of the petitioner bank with anybody coming within the purview of section 8(1)(e). The information relating to posting, transfer and promotion of clerical staff of a bank do not pertain to any fiduciary relationship of the bank with its employees within the dictionary meaning of word ‘fiduciary’, such information cannot be said to be held in trust by the Bank on behalf of its employees and therefore, cannot be exempted under this section 8(1)(e). In fact, without knowing this information, one employee cannot know his rights vis-à-vis other employees. In this connection, it has to be noted that one of the information requested for is transfer guidelines pertaining to clerical staff. Any member of the staff of the bank is, as of right, entitled to know what are those guidelines, even apart from the Right to Information Act. Further, these informations have necessarily to be divulged if we are to have an informed citizenry and transparency of information which are vital to the functioning of the bank and to contain corruption so as to hold the bank which is an instrumentality of the State, accountable to the people, which are the avowed objects of the Act, as proclaimed in the preamble to the Act.

16. Disclosure Of Information Relating To Transfer Of Employee Of Bank Does Not Cause Unwarranted Invasion Of Privacy To Other Employees

The Court further held that the information mentioned in section 8(1)(j) is personal information which are so intimately private in nature that the disclosure of the same would not benefit any other person, but would result in the invasion of the privacy of that person. In the instant case, without the information requested for the employee of nationalized bank would not be in a position to effectively pursue his claim for transfer in preference to others. On the other hand, the disclosure of information relating to transfer of employees of bank would not cause unwarranted invasion of privacy of the other employees in any manner insofar as that information is not one which those employees can keep to themselves. If the employee seeking information is to contest that the transfers made are in violation of his rights for preferential transfer, he necessarily should have the information which cannot be withheld from him by resort to section 8(1)(j). More importantly, the proviso to the section qualifies the section by stating that information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person. By no stretch of imagination can it be held that the information requested for relating to transfer of employees of bank are information which can be denied to the Parliament and a State Legislature. In fact that proviso effectively nullifies the impact of the main provision to a great extent.

17. Section 8 Of The Act Does Not Exempt Voluminous Information From Disclosure
The Court further held that it is not as if every day the bank transfers clerical staff. At the most transfers would be only once in a year. In a request made by the employee of nationalized bank for information, he has specifically stated that the information which he requires is in respect of clerical staff transferred to particular District of the Canara Bank for the period from 2002 to 2006. Such information for a period of five years cannot be said to be that voluminous requiring tremendous manpower and time. In any event, when the act does not exempt voluminous information from disclosure, the Bank cannot deny such information on that ground.

18. Disclosing Information Relating To Third Party Under Section 11
Public Information Officer should give opportunity of personal hearing to third party before disclosing information relating to him. In a case as reported in Reliance Industries Ltd. v. Gujarat State Information Commission, AIR 2007 Guj 203, the Gujarat High Court held that it is duty vested in the Public Information Officer to give an opportunity of personal hearing to the third party, to get his submission whether he treats the information as confidential and whether information should be disclosed, if the information is relating to or is supplied by the third party.
When public body collects the information relating to or given by third party, it might not have been treated as confidential but third party can make a submission that now it is treating the said information as confidential. More so, when information is relating to third party it may not even be known to that third party, when and what information relating to third party, was collected by public body. Therefore, section 11(1) of the Act, 2005 gives mandate to Public Information Officer to give written notice to third party if he intends to disclose information relating to third party.

The Court further held that time bound schedule given under the Act does not oust right of hearing vested in third party before imparting information to the applicant. Principles of Natural Justice are not diluted by time bound schedule given under the Act.

19. Disclosure Of Annual Confidential Report Under The R.t.i. Act, 2005
The issue of disclosure of Annual Confidential Report of Government servant is engaging the attention of Central and State Governments for quite long time. The Central Government in consultation with Department of Legal Affairs has issued office memorandum vide order No. 10/20/2006-IR dt. 21/9/2007, (Department of Personnel and Training) which is reproduced as below:-

The undersigned is directed to say that a number of applications are received under the Right to Information Act, 2005 requesting for supply of copies of Annual Confidential Reports (ACRs) of employees. The matter regarding disclosure of the ACRs under the Act has been examined in consultation with the Department of Legal Affairs.

Clause (j) of Sub-section (1) of Section 8 of the R.T.I. Act provides that there is no obligation to give any citizen an information which relates to personal information and disclosure of which has no relationship to any public activity or interest, or which would cause un-warranted invasion of privacy of the individual unless the Public Information Officer or the Appellate Authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information. An ACR contains information about the character, capability and other attributes of the official reported upon, disclosure of which to any other person amounts to cause unwarranted invasion of the privacy of the individual. Besides, an ACR, as its name suggests, is a confidential document. The Official Secrets Act, 1923 is not completely superseded by the Right to Information Act. Sub-section (2) of Section 8 of the 2005 Act gives a discretion to the public authority to disclose or not to disclose the ACRs of an officer to himself or to any other applicant.

It is clear from the above discussion that the public authority is not under obligation to disclose ACRs of any employee to the employee himself or to any other person inasmuch as disclosure of ACRs is protected by Clause (j) of sub-section (1) of Section 8 of the R.T.I. Act, and an ACR is a confidential document, disclosure of which is protected by the Official Secrets Act, 1923. However, the public authority has a discretion to disclose the Annual Confidential Reports of an employee to the employee himself or to any other person, if the public authority is satisfied that the public interest in disclosure outweighs the harm to the protected interests. If it is felt that public interest in disclosure of ACR of any employee outweighs the protected interests, decision to disclose the ACRs should be taken with the approval of the competent authority. Competent authority in the matter may be decided by the concerned public authority.

20. State Information Commission Constituted Under Section 15(2) Of The Act Should Be Multi Member Body And Not Single Member Body. It Has To Consist Of Chief Information Commissioner And At Least One State Information Commissioner.

In a case as reported in Virender Kumar v. P.S. Rana, AIR 2007 H.P. 63, the Division Bench of the High Court held that the way section 15(2) has been worded shows that legislature intended and the Act provides that the State Information Commission should be a multi Member Body consisting of one State Chief Information Commissioner and at least one State Information Commissioner. In case the intention of the State was otherwise, the section could have been worded in a different manner altogether. No doubt, the State has been given the discretion to appoint as many State Information Commissioners as it deem necessary, but this number cannot be less than one and cannot exceed ten. The State has no discretion not to appoint any State Information Commissioners. The State Information Commission has to consist of the Chief Information Commissioner and at least one other member.

Further, if under the provisions of the Act it is the mandate of Parliament that the State Information Commission should be a multi member body then the State cannot be allowed to plead that it be permitted to have a single member Commission on the ground that the work is less or that it would lead to unnecessary expenses.

21. Power Of The Information Commission

In a case as reported in Reliance Industries Ltd. v. Gujarat State Information Commission, AIR 2007 Guj. 203, the Gujarat High Court held that power of the Information Commission under section 18 is limited to hold enquiry into complaint and if necessary, to impose penalty. Information Commission has no jurisdiction to pass order directing authority to part with information.

22. The Order Of Such Information Commission Is Amenable To Certiorari Jurisdiction Of High Court

Such Information Commission is exercising judicial powers and as such, it is a tribunal. The order of Commission is amenable to certiorari jurisdiction of High Court under Article 226 of the Constitution of India. In a case as reported in Poornaprajna House Building Co-operative Society Ltd. v. Karnataka Information Commission, AIR 2007 Kar. 136, the Karnataka High Court held the Commission while exercising the power u/s 19(3) of the RTI Act is provided with the judicial powers to deal with the dispute between the parties and determine them on merits fairly and objectively. Judicial power is defined as the power to examine questions submitted for determination with a view to the pronouncement of an authoritative decision as to the rights and liabilities of one or more parties. The Commission is a Tribunal entrusted with the task of adjudicating upon special matters and disputes between the parties. It is clear from the various provisions of RTI Act that the Commission is a tribunal vested with appellate power to decide the appeals. An appeal in legal parlance is held to mean the removal of cause from an inferior subordinate to a superior tribunal or forum in order to test and scrutinize the correctness of the impugned decision. It is settled that any authority or body of persons constituted by law or having legal authority to adjudicate upon questions affecting the rights of a subject and enjoined with a duty to act judicially or quasi judicially is amenable to the certiorari jurisdiction of the High Court. Similarly, Article 227 of the Constitution confers on every High Court the power of superintendence over all Courts and tribunals throughout the territories in relation to which it exercises jurisdiction excepting any Court or tribunal constituted by or under any law relating to armed forces. Thus, the orders of the Commission are amenable to the jurisdiction of the High Court.

23. The State Information Commission Is Not Directly Subordinate To The High Court
The Court further held that the Commission cannot be equated to a civil Court. The Commission is neither directly subordinate to the High Court not its orders are subject to appellate or revisional jurisdiction of the High Court. The Commission is not even under the administrative control of the High Court. Therefore, Commission is a necessary party to the writ proceedings because in its absence, an effective order cannot be made. The presence of the Commission is necessary for a complete and final decision on the question involved in the proceedings and cannot seek deletion of its name from the array of the parties in writ petition.

In case of a writ petition, a writ of certiorari is issued to quash the order of tribunal, which is ordinarily outside the appellate or the revisional jurisdiction of the Court and the order is set aside on the ground that the tribunal or authority acted without or in excess of jurisdiction. If such a tribunal or authority is not made a party to the writ, it can easily ignore the order of the High Court quashing its order, for not being a party, it will not be liable to contempt.

24. Conclusion

No nation can live in isolation and informational invasion can easily generate social tension and even pressurize the shaping of policies in support of multinationals to the detriment of self-government. Therefore, we must beware of transitional communication empires and create mechanism of informational swaraj committed to truth, equality and justice.

The writer is Addl. Director General of Police (Int), Manipur, Imphal.

Source: The Imphal Free Press

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About Zou Sangnaupang Pawlpi Delhi

Zou Students' Association Delhi Branch
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