This article is written by Vipasha Verma, a student currently pursuing B.B.A.LL.B (Hons.) at National Law University, Odisha. This article deals with Section 8 of the Right To Information Act, 2005 and the landmark judgments relating to it.
Citizens have the right to know about the government and the way it functions while making decisions, this is what the Right to Information Act endeavours. However, the right is not absolute and it can be legitimately restricted on certain grounds. The judiciary is also applying law related to Right to Information on a case to case basis approach.This article deals with the issue of exemptions from disclosure of information under the Right to Information Act, 2005.
Section 8 of the RTI Act, 2005
The Right to Information Act is not unqualified. It is understood that not all government information is releasable for the public eye. If the government and the public should agree on something, it is that some confidential information is of such sensitive nature that there is a potential of serious harm or threat to paramount interest, and it cannot be released under the circumstances present at the time of such request for information.
A simplified example, to better gather this qualification, is that if someone desires information of the number of troops being deployed by the country during the war, it is the job of the government to ensure that these details are kept safe and not released because such a divulsion can give rise to risks to national security. However, if someone filed an application to release the same information a whole two years after the war, it would become hard for the government to justify why the information should still be kept a secret because the threat does not exist anymore.
Almost all laws related to Right to Information contain provisions creating parameters to keep certain information out of public bounds. These are called ‘exemption provisions’ or ‘exclusion clauses’. Although exemptions have the capacity to serve a function for public welfare, cases have illustrated that these provisions are mostly abused by officials to keep information regarding them hidden from the public. This is unacceptable. Withholding information because it embarrasses the government, or in fear of the public holding them accountable for their actions, is not the reason this provision was introduced into this salient piece of legislation.
Realizing that exemption provisions are often misapplied for protecting their own interests, it is necessary to have a good understanding of the provisions to be able to differentiate proper application from illegitimate concerns.
Section 8(1) of The RTI Act, 2005
In the Central Act, Section 8(1) has listed all the exemptions. Following is a general discussion of the exemption provisions:
- National Security/Sovereignty: Referring to the explanation above, there are some pieces of information that are related to the country’s national security which would have the potential to be the reason for harm if they are released to the public. For example, secrets and information related to a conflict, detailing particulars about the troops, the strategy, the resource will count as information protected under this section. However, to use this provision to keep a contract with a country or company detailing the purchase of a fighter jet secret will not be appropriate. This will count as commercial information and can be released to the public to keep in check the process of procurement, reducing the risk of corruption. It cannot be held on the ground of ‘defence’.
- National Economic Interests: Information about exchange rates, currency, interest rates, the regulation of banking, taxes, proposals for expenditure or borrowing, could, in a few cases, be a threat to the national economy. However, economic and financial information at the lower level, like budget allocated to departments and contracts cannot be withheld.
- Relations with the Foreign States: Countries’ relationships with each other can be a sensitive issue, given that forthright assessment of their policies and behaviour could be public and could cause offence and harm India’s international interests. However, using this provision to withhold political deals in the name of relations cannot be used to justify non-disclosure.
- Law Enforcement and the Judicial Process: During an investigation, information such as the witness’ identities or case being put together against a suspect needs to be protected. The case could be jeopardized if released. Information such as the discussion between Attorney-Client needs to be kept private, wherein, the Attorney is the Attorney-General and the Client is India. However, these provisions cannot be used to secure information of police and judicial offers, especially if the information is asked by the victim.
- Cabinet and Other Decision-Making Documents: Papers relating to discussions and deliberations of cabinet meetings are excluded but after the decision is made, it must be followed by a release of the documents responsible for such a decision and the reasons behind the decisions itself. During the process, a level of confidentiality needs to be maintained but once made, the public has the right to access relevant information.
- Trade Secrets and Commercial Confidentiality: Information with private companies must be accessible to the general public, for example, if it is related to the public service or is necessary for the exercise or protection of a right. But, harm should not be caused to the company’s commercial interests.
- Individual Safety: Information that puts a specific person’s safety or liberty at risk should not be disclosed. For example, the person who ‘blows the whistle’ on corruption in an organization should be protected because he may be discriminated against or face violence.
- Personal Privacy: Individual information is kept with the government. The Right to Privacy requires the government to withhold private information unless there exists an overriding need to disclose it. However, officials must not use this provision to secure their own conduct from public scrutiny.
Section 8(2) of The RTI Act, 2005
This Section states that an official will have to disclose information requested, notwithstanding that an exemption provision or the Official Secrets Act applies if the disclosure in the public interest outweighs the threats that may exist.
Public interest is intentionally not defined in the RTI Act. Due to this, public authorities such as Public Information Officers, Appellate Authorities, and Information Commissioners have to decide on a case-by-case basis on the basis of its merits. It is important to note that what may be considered to be withheld in the public interest will change over time and depend on the facts of each case.
During the application of the public interest override in this Section, officials should be aware of the Act’s purpose and apply their discretion as far as possible to promote the release of information. Officials should identify, in writing, all different cases that differentiated kinds of public interests. It should not be generalized. When applying the public interest override test, three questions should be kept in mind:
- Is the concern or use of exemption provision legitimate?
- Will it lead to harm in a substantial manner?
- Does public interest outweigh the harm?
Central Board of Secondary Education v. Aditya Bandopadhyay
The question, in this case, was whether a student’s right to information under The Act involves the right to request and evaluate his answer sheets and take certified copies with him? The Central Board of Secondary Education stated that the reason it held the information is that there existed a fiduciary relationship and hence, came under the exemption provisions of Section 8(1)(e) of the RTI Act.
Fiduciary Relationship is defined as one party having confidence in the other party with regards to his affairs, business, and or transactions. An examining body cannot be in a fiduciary relationship with reference to students who take the exam. Therefore, there existed no exemption under the Section, and answer books had to be provided to the student.
Girish Ramchandra Deshpande v. Central Information Commission & Ors
In this case, the petitioner requested copies of all memos, show cause notices, and penalizations on the third party, i.e., a public officer from his employer. The application also requested details of his investments, credit, and loans from banks, etc. He also demanded the details of gifts he received at the marriage of his son by him and his family. The information sought was detailed in the respondent’s income tax returns.
Whether the information sought comes under the criteria of ‘personal information’ as stipulated in Section 8(1)(j) of the RTI Act?
It was held that all the details sought by the petitioner came under the ambit of the Section. In an organisation, the acts and performance of an employee are between him and his employer and these aspects are under the definition of ‘personal information’. Its disclosure has no benefit for the public interest and harms the privacy of such employees.
R. Rajagopal & Anr. v. State of Tamil Nadu
In this case, petitioners were the employees of a Tamil magazine, Nakkeeran. The demand of the employees was to stop the respondents from interfering in their publication of the autobiography of a prisoner. The petitioners initially brought this under the violation of Freedom of Expression. However, a judgment pertaining to Section 8(1)(j) was given in the ratio of the judgment.
The respondents were claiming the Right to Privacy of the prisoner but it was stipulated that for information already present in the government will be the textbook definition of a Public Record. The Right to Privacy can only be evoked in rare cases in such circumstances. This was stipulated to be similar to Section 8(1)(j) as it does not protect information that is of public interest. It further states certain information not being disclosed for it has the capacity to invade a person’s privacy. However, the judgment also stated that public officials Right to Privacy cannot be invoked in respect of their duties in that capacity.
In this case, Association for Democratic Reforms had filed a petition with the Delhi High Court to pressure authorities to implement certain recommendations stipulating ways to make the electoral process more transparent, fair, and equitable. Upon the request of the government, the Law Commission had provided recommendations that required the Election Commission to make it mandatory for candidates to release their personal background information such as criminal history, financial details, qualifications, and information to judge the candidate’s capacity.
After the Union of India filed an appeal in the Supreme Court, it ordered the Election Commission to formulate necessary orders to require all candidates to furnish information on the following aspects of their background:
- Criminal charges and convictions
- Pending cases where the candidate is an accused
- All assets including those of her spouse
- All liabilities
- Educational qualifications
Citing Section 8(1)(j), the Court also stated that any information which will not be denied to the Parliament or the State Legislature should not be denied to any person.
R.K. Jain v. Union of India
In this case, the petitioner applied to the Information Officer to produce copies of all sheets and correspondence pages of a file regarding Ms. Jyoti Balasundram, a Judicial Member of the Customs, Excise and Service Tax Appellate Tribunal, under the RTI Act. The Central Information Officer denied the file on the grounds that personal information was exempt under Section 8(1)(j). The petitioner filed an appeal in the Supreme Court.
- Whether the ACR of an officer comes under personal information?
- Does public interest override the privacy of the person?
The Court held that information regarding charges, penalties, or sanctions of an employee and records of such nature was necessarily a matter between the employee and his employer and the disclosure of which has no public interest but would result in a threat to the privacy of a person. The Court also upheld that if the Information Officer or the appellate authority feels that the public interest is justified the disclosure of such information but the petitioner cannot claim those details as a matter of right.
Pinki Ganirewal v. Union Public Service Commission
In this case, information was sought by the petitioner about the selection list of eleven Deputy Director of Mines Safety by the Service Commission. The information was released with the seniority-cum-merit list but the personal information of the selected candidates was rejected on the grounds of exemption provisions under Section 8.
The court held that the Commission had committed error in ordering the Service Commission to not provide the information as requested. It held that the information sought after is necessary for the larger public interest and therefore, the request and the release does not come under Section 8. The Court directed that information regarding the year of graduating, institution, caste, and date of birth can be released in the greater public interest as the benefits outweigh the harms.
The RTI Act has had a pan-India success, as empowered citizens deepen the roots of democracy. Citizens have become the vigilance monitors of the government and thereby, bring greater transparency to the system. They have uncovered scams and corruption scandals. This moves the country from an elective democracy to a more participative one. It is, therefore, of paramount importance that the judiciary and the public officers do not use exemptions in this Act to withhold information and blindside the public. It is the judiciary’s responsibility to always analyse the cases on the basis of it being for the public good and not endeavour to protect public officials from accountability. Only then, the RTI Act will serve its purpose.
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