Exemptions from Disclosure of Information Under RTI Act

 Article

 

Exemptions from Disclosure of Information Under RTI Act

 

The Right to Information Act, 2005 places reasonable restrictions on provision of the information exempted under sections 8 & 9 of the Act. It indicated that the citizens do not have absolute right to every type of information. Sections 8 and 9 of the Act define the areas where the information can be restricted. 

The Act also provides specific exemption to Intelligence and Security Agencies notified by Central or State governments under section 24 of the Act. Such agencies are not required to provide any information about their core functions but they have to provide information about human right violations or corruption, if any, where required.

Out of ten areas defined under section 8 the Public Information Officer may share some of the information where the disclosure of information is in larger pubic interest or it over weighs in favor of the public interest. Such a decision to provide information has to be supported by the public authority or the competent authority, in such cases.

The Public Information Officer has to perform a quasi-judicial function in deciding such matters and give cogent reasons for withholding the information, while adjudicating upon such requests. The basic principle is ‘what cannot be denied to the legislature cannot be denied to the public’. As such it can be inferred that the Act empowers the citizen’s equitant to elected legislatures, in the matter of seeking information.

Areas exempted from disclosure:  Section 8 of the Act provides that the following ten types of information stands covered under exemptions:

(a)  Concerning Sovereignty and Integrity of India: Information, disclosure of which would 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. [Section 8(1)(a)]

Vital information such as deployment of forces, purchase of defence material/equipments, telephone tapping, and religion based information that may lead to incitement etc. are some of the examples where information could be refused by the Public Information Officers.

(b)  Expressly forbidden by Court or Tribunal: Information, which has been expressly forbidden to be published by any court of law or tribunal or the disclosure of which may constitute contempt of court. [Section 8(1)(b)]

In the case of Godra Kand an enquiry was instituted by the Railway Ministry but its report was not allowed to be publish or placed in Parliament by the High Court. As such it cannot be supplied under RTI too.

(c)  Concerning breach of privilege of Parliament or Assembly: Information, the disclosure of which would cause a breach of privilege of Parliament or the State Legislature. [Section 8(1)(c)]

In such cases the Public Information Officers too will withhold such an information.

(d)  Trade & Commerce Secrets and Intellectual Property: Information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information. [Section 8(1)(d)]

In such cases the Public Information Officer will generally withhold the information. However, he may refer the matters where disclosure of information is in public interest overweighs, to the Competent Authority who has been empowered under this sub section to take a different view/decision.

In case the Competent Authority is satisfied that larger public interest warrants the disclosure of the information then the PIO may provide the information to the applicant, otherwise not.

• Examples of cases where information can be withheld under this sub-section are:
• Information relating to import/export,
• Banking transactions,
• GTO,
• Income tax related information such as PAN/TAN number,
• Trade agreements where a clause for confidentiality is there in agreement, etc. 

Contracts on completion do not remain confidential. A contract with a public authority cannot be categorised as ‘confidential’ after completion.

(e)  Information given in Fiduciary Relationship: Information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information. [Section 8(1)(e)]. 

In such cases too, the Public Information Officer will generally withhold the information. However, he may refer the matters where disclosure of information is in public interest overweighs, to the Competent Authority who has been empowered under this sub section to take a different view/decision.

In case the Competent Authority is satisfied that larger public interest warrants the disclosure of the information then the PIO may provide the information to the applicant otherwise not.

The relationship between the doctor and patient, lawyer and client, examiner and the examinee are some of the examples of fiduciary relationship. Examples of cases where information can be withheld are:

• Furnishing enquiry report where evidence has been given in confidence.
• Evaluated answer sheets.
• Conduct of examinations.
• Marks awarded in interviews/examinations.
• Personal assessment forms.
• Borrowers documents available with Banks/ Company, etc.

(f)   Information given by Foreign Government: Information received in confidence from foreign Government [Section 8(1)(f)]

The Public Information Officers enjoys no discretion in such cases and has to withhold the information.

(g)  Leads to endanger Life or Physical Safety: Information, the disclosure of which would endanger the life or physical safety of any person or identify the source of information or assistance given in confidence for law enforcement or security purposes. [Section 8(1)(g)]

 The Public Information Officers enjoys no discretion in such cases and has to withhold the information. Providing information relating to where about of a prisoner to his opponent may endanger his life or physical safety.

(h)  Impedes the process of Investigation: Information, which would impede the process of investigation or apprehension or prosecution of offenders. [Section 8(1)(h)] 

 The Public Information Officer needs to examine and evaluate on the basis of material before him whether the information asked for will impede the process of investigation or prosecution or not. While deciding the cases the Commission has been taking into account the stage at which the investigations or court proceedings have reached.

Supply of information during advance stage of court proceedings may impede the process of prosecution. In sub-judice matters the applicant may be advised to obtain information through court. Information about investigation in crime cases may be decided on case to case basis.

(i)    Cabinet Papers: Cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers. [Section 8(1)(i)]

The material on the basis of which the decision has been taken can be given when the matter is complete and over.

However, the matters, which come under the exemptions specified in this section, shall not be disclosed. [Proviso to Section 8(1)(i)].  

(j)    Personal Information Warranting unwanted Invasion of Privacy: Information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the 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 justified the disclosure of such information. [Section 8(1)(j)]

In such cases the Public Information Officer may evaluate whether larger public interest justifies the disclosure of information or not and decide the case on merits. The Central Information Commission has taken the following decisions:

 

• Information about lodgment in jail not covered under privacy and such information may be provided.
• Annual immovable property returns may be provided.
• Annual performance appraisal reports of third party stand covered under this sub-section.
• Bio data of applicants may be shared.
• Information about appointment to public office can be provided.
• Agreed List for promotion could be disclosed.
• Personal information containing business detail may not be provided.
• Merit list could be shown.
• Procedure of appointment can be told.
• Qualifications of public servants may be given.
• Tax returns of third party cannot be disclosed.
• GPF Account can be shown.
• Medical reports of others cannot to be given.
• Tour Programme of officers may be provided, after tours have been undertaken.

Infringement of Copyright: The Public Information Officer may reject a request for information where such a request for providing access would involve an infringement of copyright subsisting in a person other than the State. [Section 9]

The Public Information Officer has to evaluate whether providing access to the information or documents etc. would involve an infringement of copyright or not. If it involves infringement subsisting in a person then it should not be given. Thesis of Ph. D students not provided to other applicants by some Universities.

Disclose what can be given to Legislature: The information, which cannot be denied to the Parliament or a State Legislature, shall not be denied to any person. [Proviso to Section 8(1)(j)]. It lays down the basic principle for deciding the cases on merits. 

Public Interest to be weighed in taking a decision: Notwithstanding anything in the Official Secrets Act, 1923 nor any of the exemptions permissible in accordance with sub section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests. [Section 8(2)]

It indicates that the public authority has over whelming powers to decide the matter. It may allow access to information if he finds that public interest in disclosure outweighs the harm to the protected interests.

Disclosure after 20 years: In some cases   information can be disclosed after completion of 20 years of the occurrence, event or matter.  It stipulates that subject to the provisions of clauses (a), (c) and (i) of sub-section (1), any information relating to any occurrence, event or matter which has taken place, occurred or happened twenty years before the date on which any request is made shall be provided.  [Section 8(3)]. 

It is a provisions that favours the information seeker.  Even if the information sought is exempt in terms of other sub clauses of sub-section (1) of Section 8, and if the same relates to period 20 years prior to the date of application, then the same shall be provided. The Central Information Commission has given the following important decisions:

What Section 8(3) stipulates is that, the exemption under section 8(1) cannot be applied if the information sought related to a period prior to 20 years except those covered in Section clauses (a), (c) and (i) of sub-section 8(1).  In other words, even if the information sought is exempt in terms of other sub clauses of sub-section (1) of Section 8, and if the same relates to a period 20 years prior to the date of application, then the same shall be provided.

Destruction of old record as per policy: The CPIO also stated that information sought has been provided, except those information which, being more than five year old like salary slip, have been destroyed as per the policy in vogue.

Computation of Age Factor Central Government decision final: The decision of the Central Government shall be final if any question arises as to the date from which the said period of twenty years has to be computed. [Proviso to Section 8 (3)]

In the light of the above, barring above exceptions most of the other information may not be denied. 

FAQs

Q.1 Can an applicant get information regarding medical treatment of third party?

Ans. 1 No

Q.2 Can an applicant get information regarding expenditure incurred on road repairs?

Ans. 2 Yes