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RTI Act, 2005: Exemptions, Refusal to Provide Information & Third-Party Information

The Right to Information Act, 2005, is a crucial law that enables citizens to access information held by public authorities. It promotes transparency and accountability in governance. However, within this law, there are exceptions and cases where information can be withheld.

Some information is like hidden treasures, protected from disclosure under this Act. These exceptions are necessary to safeguard the nation's core interests, security, and the balance between freedom of information and privacy.

Central intelligence and security agencies, listed in the Second Schedule, such as the Intelligence Bureau (IB), Research and Analysis Wing (R&AW), and Directorate of Revenue Intelligence, are like guardians protecting the nation from threats. Their secretive work is shielded from RTI requests to ensure national security.

State Governments can also designate certain agencies as exempt from the Act, providing flexibility to protect investigations, public order, and intelligence sources' confidentiality.

While the Right to Information Act promotes open governance and citizens' right to know, it also acknowledges the need to protect national interests, security, and individual privacy. Exemptions and refusals to provide information serve as protectors of a nation's secrets, securing its core interests while embracing transparency and accountability.

Exemptions:
Exemptions under the Right to Information (RTI) Act 2005 are necessary to balance the right to information with other important interests and considerations. Exemptions are intended to protect certain types of information that, if disclosed, could potentially harm national security, privacy, commercial interests, or other vital concerns.

Section 8 (1) of the RTI Act outlines specific categories of information exempted from disclosure. Here's an elaborate explanation of each of the exemptions mentioned:

Prejudice to Sovereignty and Integrity of India, Security, etc. [Section 8(1)(a)]: This exemption covers information whose disclosure could harm the sovereignty and integrity of India, its security, strategic, scientific, or economic interests, or its relations with foreign states. It also includes information that might incite an offence. The rationale is to protect critical national interests and security.

Contempt of Court [Section 8(1)(b)]: Information that has been expressly forbidden to be published by any court of law or tribunal or whose disclosure may constitute contempt of court is exempted. This ensures respect for the authority and decisions of the judiciary.

Breach of Parliamentary Privilege [Section 8(1)(c)]: Information, the disclosure of which would cause a breach of privilege of Parliament or the State Legislature, is exempted. This maintains the separation of powers and preserves the integrity of legislative processes.

Commercial Confidence, Trade Secrets, Intellectual Property [Section 8(1)(d)]: Information related to commercial confidence, trade secrets, or intellectual property that, if disclosed, would harm the competitive position of a third party is exempt. However, it can be disclosed if the competent authority determines that there is a larger public interest in its release.

Fiduciary Relationship [Section 8(1)(e)]: Information available to a person in his fiduciary relationship is exempt, unless the competent authority justifies that a larger public interest warrants its disclosure. This protects confidential relationships.

Information Received in Confidence from Foreign Government [Section 8(1)(f)]: Information received in confidence from a foreign government is exempt to maintain diplomatic relations and international cooperation.

Endangering Life or Physical Safety [Section 8(1)(g)]: Information that, if disclosed, could pose a risk to the safety of individuals or reveal confidential sources of information or assistance provided for law enforcement or security purposes.

Impeding Investigation or Prosecution [Section 8(1)(h)]: Information that would impede the process of investigation, apprehension, or prosecution of offenders is exempt to ensure the effectiveness of law enforcement.

Cabinet Papers and Deliberations [Section 8(1)(i)]: Cabinet papers, including records of deliberations of the Council of Ministers, Secretaries, and other officers, are exempted to protect the decision-making process within the government.

Personal Information and Privacy [Section 8(1)(j)]: Information related to an individual's personal life or privacy, which is not connected to any public activity or interest and would cause unwarranted invasion of the individual's privacy, is exempted.

Public Interest Override: Importantly, the RTI Act includes a provision that allows a public authority to disclose information even if it falls under the aforementioned exemptions if there is a greater public interest in its disclosure that outweighs the harm to the protected interests.

(2) Public Interest Exception: Regardless of the Official Secrets Act or any other exceptions mentioned earlier, if disclosing information is more important for the public good than keeping it secret, a public authority can choose to share that information.

(3) Access to Old Information: In general, information about events or matters that happened twenty years ago must be provided to anyone who asks for it under section 6 of the RTI Act. If there's any question about how to calculate this twenty-year period, the Central Government's decision is final, but you can still appeal this decision as provided by this Act.

Who is excluded?
The entities listed in the Second Schedule, such as the Intelligence Bureau (IB), Research and Analysis Wing (R&AW), Directorate of Revenue Intelligence, Central Economic Intelligence Bureau, Directorate of Enforcement, Narcotics Control Bureau, Aviation Research Centre, Special Frontier Force, Border Security Force (BSF), Central Reserve Police Force (CRPF), Indo-Tibetan Border Police (ITBP), Central Industrial Security Force (CISF), National Security Guard (NSG), Assam Rifles, Special Service Bureau, Special Branch (CID) in Andaman and Nicobar, The Crime Branch-CID-CB, Dadra and Nagar Haveli, and Special Branch in Lakshadweep Police, are excluded from the provisions of this Act. Additionally, any agency specified by the State Governments through an official Notification will also be exempted from the Act's requirements. The exclusion, however, is not absolute; these organizations have an obligation to provide information pertaining to allegations of corruption and human rights violations. Further, information relating to allegations of human rights violations could be given but only with the approval of the Central or State Information Commission, as the case may be [Section 24].

Personal Information not to be disclosed
Another exception to the right to information pertains to personal information. Section 8(1)(j) deals with this right, stating that if someone requests information about an individual's personal life that is unrelated to any public activity or interest, and disclosing such information would invade that individual's privacy, then it cannot be provided. However, if the Public Information Officer or the appellate authority believes that revealing such information is necessary for the greater public good, then they can share it. Information that cannot be denied to Parliament or a State Legislature is also accessible to the public without restrictions.

For example, if someone seeks information to clarify doubts about the integrity of a person in a public position, their financial assets and liabilities may need to be disclosed. Similarly, if there are allegations regarding someone's appointment to a public post, an inquiry into their qualifications, experience, and related matters may be necessary. These examples represent exceptions to the exception, which can be confusing. But understanding the provisions correctly helps avoid mistakes when making an application.

Personal information, in this context, includes details like a person's address, physical and mental health, financial status, hobbies, and interests. These details are considered confidential when they have no bearing on public matters. Here, "public interest" refers to the welfare of the community at large.

In conclusion, these exceptions are crucial in safeguarding confidential or sensitive information that is unrelated to public affairs. It's essential to be aware of these exceptions when filing an application to access public information. The right to information is limited to ensure it doesn't infringe upon an individual's privacy, and it comes with a corresponding responsibility to use it judiciously.

Jurisdiction of Courts
Lower Courts are barred from entertaining suits or applications against any order made under this Act (Section 23). However, the writ jurisdiction of the Supreme Court and High Courts under Article 32 and 226 of the Constitution of Indian remains unaffected.

Questions which shall not be put to Public Information Officer

The Public Information Officer may be asked for recorded information contained in the files of the Public Authority.

He shall not:
  1. Be asked to supply what was not contained in the records of the public authority.
  2. Be asked for material which is already published.
  3. Be asked for his opinions and to answer such as when, what, whether and how.
  4. Be asked to comment upon any matter.
  5. Be asked to supply any matter or asked to answer any question with motives found to be or discovered to be highly motivated, self-serving and damaging to the reputation and interests of the officers or third parties in a revengeful manner.
  6. Be asked to take any further action on any matter disclosed by him.
  7. Be asked for any advice.
  8. Be asked to reconstruct the information contained in several files and furnish the substance of it.

Disclosure of Office Notes
Though, Central Information Commission has clarified that the Public Information Officer shall disclose and make available what is called "office notes', it has issued several further clarifications in furnishing such papers, notes in the file. If any of the notes are marked as confidential as between the Officer who writes the notes and his superiors or contain such adverse remarks against any third person, the disclosure of which may expose him to any danger or the disclosure of which may impede any investigation or trial of any person or officer, such office notes or parts of it may not be disclosed. While applying his discretion to supply or not to supply the office notes the Public Information Officer notwithstanding his obligations to disclose is required to examine the matter whether such disclosure will secure public interest or will prejudice the public interest.

Cabinet papers, Governor's Advice, Correspondence between Prime Minister and President

Section 8(1)(i) of the RTI Act exempts from disclosure information that relates to the decisions of the Council of Ministers, including Cabinet papers. Cabinet papers typically contain discussions, deliberations, and decisions made by the government's highest decision-making body. These are considered privileged and are generally not subject to disclosure under the Act.

Section 8(1)(e) of the RTI Act exempts information that has been expressly forbidden to be published by any court of law or tribunal or the disclosure of which may constitute contempt of court. While the Act doesn't explicitly mention Governor's advice, it is generally considered confidential advice to the President or Governor and is often not disclosed.

Correspondence between the Prime Minister and the President typically falls under the exemption clause of Section 8(1)(i) of the RTI Act, as it pertains to the functioning of the government, its decision-making processes, and communication between top government officials.

It's important to note that while these categories of information are generally exempt from disclosure, there may be exceptions in specific cases or circumstances where the public interest in disclosure outweighs the need for confidentiality. The final decision regarding the disclosure of such information is typically made by the relevant public authorities or government departments, subject to the provisions and guidelines established by the RTI Act. The correspondence between the then President of India, Shri R.K. Narayanan and the then Prime Minister Shri A.B. Vajpayee was not disclosed on the grounds of public interest.

Information which the Public Information Officer shall not disclose
The Public Information Officer shall disclose all the information readily available with him and also all the information he may secure from the other Public Information Officers functioning under the same public authority.

But not:
  1. Such information the disclosure of which according to him is not in public interest;
  2. All that information which damages reputation or business interest of third parties without the consent of such party.
  3. Any information which impedes the investigation, inquiry and trial of any criminal matter or in any disciplinary proceedings, until such investigation, inquiry and trial are completed.
  4. Any matter in relation to which any civil or criminal proceedings are pending without the permission of the Court.
  5. Any matter relating to intelligence and security organizations specified in the 2nd Schedule and the bar being absolute he has no discretion of weighing the information in the balance whether the disclosure of such information will serve public interest or otherwise.

In certain cases, information may be rejected

Apart from what's mentioned in Section 8, a Central Public Information Officer or a State Public Information Officer can turn down a request for information if granting access would violate someone else's copyright, not owned by the government. [Section 9].

Third-Party Information
The provisions related to third-party information under the Right to Information (RTI) Act, 2005 are primarily covered in Section 11 of the Act. Section 11 outlines the procedure to be followed when a request for information involves third-party information.

Third-party information under the RTI (Right to Information) Act, 2005 refers to data or records held by a public authority that pertain to individuals, entities, or organizations other than the individual who initiated the RTI request or the public authority itself. Essentially, it encompasses information that concerns someone or something external to the requestor or the government body.

Under Section 11:
When a Public Information Officer (PIO) receives an RTI application seeking information that may affect the rights or interests of a third party, the PIO is required to give a written notice to that third party. This notice should include details of the requested information and invite the third party to make a submission or an objection regarding the disclosure of the information.

The third party is given a reasonable opportunity to present their views and objections within a specified time frame, typically within 10 days from the date of receiving the notice.

After considering the third party's objections, if any, the PIO makes a decision regarding the disclosure of the information. If the PIO decides to disclose the information despite the objections, they must provide reasons for their decision.

The PIO then communicates the decision to both the RTI applicant and the third party.

Both the RTI applicant and the third party have the right to appeal against the PIO's decision. If either party is dissatisfied with the decision, they can file an appeal with a higher authority within the same public authority.

Section 11 is crucial in ensuring that the right to information is balanced with the protection of third-party interests, including privacy, commercial interests, and other legitimate concerns. It establishes a structured process for handling situations where the disclosure of information may affect a third party, allowing for a fair and just resolution of such requests.

CIC Order/WBIC Order/Government Order/Court Judgment:
  • Charge sheets and final reports not equivalent to FIRs can't be published on State Websites for public access. In a plea seeking free public access to charge sheets and final reports filed as per Section 173 of CrPC, the bench of MR Shah and CT Ravikumar, JJ, has held that the States cannot be directed to put such information on their websites. [Saurav Das v. Union of India, 2023 SCC OnLine SC 58]
  • All collegiums' discussions can't be in public domain; only final decisions are to be uploaded on SC website. In a matter seeking disclosure of details of the Supreme Court Collegium meeting dated 12.12.2018, the bench of MR Shah and CT Ravikumar, JJ has held that unless any Collegium's discussion culminates into a final decision, the discussion shall not be disclosed to the public. According to a resolution dated October 3, 2017, only the final resolution and the ultimate decision are required to be posted on the Supreme Court's website. This information comes from the case Anjali Bhardwaj v. CPIO, Supreme Court of India (RTI Cell), 2022 SCC OnLine SC 1698.
  • In the case Central Public Information Officer v. Subhash Chandra Agarwal, 2019 SCC Online SC 1459, a 5-judge Constitution Bench, led by Chief Justice Ranjan Gogoi and including Justices NV Ramana, Dr DY Chandrachud, Deepak Gupta, and Sanjiv Khanna, determined that the office of the Chief Justice of India falls within the scope of the Right to Information.
  • The Supreme Court of India has not declared the Right to Information (RTI) as a fundamental right. However, in the case of State of U.P. v. Raj Narain (1975), the court recognized the right to information as an integral part of the fundamental right to freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution of India. The court held that citizens have a right to know about the activities of the government, which is necessary for a functioning democracy.
  • Source of Information, on the basis of which the proceeding has been initiated against the applicant, is exempted. J.P. Sharma v. Arun Kumar, Commissioner of Income Tax decided on 17.03.2008 (CIC)
  • The vigilance related information being confidential in their very nature need not be disclosed lest it impeded the extant proceedings. Since such proceedings assume the characteristics of an 'investigation', it attracts Section 8 (1) (h) of the Act. R.K. Singh v. D.G. Vigilance, Customs and Central Excise decided on 30.06.2008
  • Denial of information is unjustified, if the public authority has not indicated the provisions, under which exemption has been claimed. J.C. Udavant v. Airport Authority of India, decided on 26.03.2008 (CIC)
  • Information pertaining to rights and obligations between the insurer and insured is in the nature of commercial and hence such information cannot be given. B.K. Modi v. Export Credit Guarantee Corporation of India Ltd, decided on 18.03.2008 (CIC)
  • The report of lower public officers to their seniors can be shared with an employee, and is not barred from disclosure under any of the exemptions provided in Section 8 (1) and the information held in the nature of a report is clearly 'information' in terms of Section 2 (j) of the Act. The public authority can protect the interests of witnesses or other persons whose names appear in the report by not providing them to the applicant, and ordered the concerned public authority to provide the applicant with the relevant information. Nahar Singh v. Deputy Commissioner of Police & PIO, Delhi Police, decided on 28.12.2006 (CIC)
  • Entire process of consultation between the President and the Supreme Court cannot be disclosed and such a process of consultation is exempted under Sections 8 (1) (e) and 11 (1) and also under Article 124 (2) of the Constitution of India and is barred from disclosure. Mukesh Kumar v. Addl. Registrar of the Supreme Court, decided on 10.07.2006 (CIC)
  • Filing of application through an advocate not in accordance with Section 3.
Niranjan Lal Todi v. Joint Municipal Commissioner (Revenue), Kolkata Municipal Commissioner, decided on 02.02.2009 (WBIC)
  • Exemption under Section 8 (1) cannot be applied if the information sought is older than 20 years. In other words, even if the information sought is exempted in terms of sub-section (1) of Section 8, but the same relates to a period 20 years prior to the date of application, then the same shall be provided to an applicant, if the same is available with the concerned public authority. S.R. Parshad v. Director General of Supplies & Disposals, decided on 26.06.2006 (CIC)
  • The right to information extends to only such information as is held or under the control of the concerned public authority. Prabhat Kumar v. Central Administrative Tribunal, decided on 06.07.2009 (CIC)
  • General Secretary of employees' association not a citizen. M.D.N. Panicker v. Rourkela Steel Plant, decided on 27.09.2006 (CIC)
  • Under this section, only a citizen can seek information and not a company which is body corporate. M/s. Madhumilan Syntex Ltd. V. State Bank of Hyderabad, decided on 07.01.2009 (CIC)
  • Letters of support by political parties given to the President pledging their support for forming a government at the Centre has been brought under the ambit of RTI by the CIC.
  • The Central Information Commission (CIC) denied a man access to information about his fianc´┐Że's health and the treatment she had undergone at a psychiatric centre, claiming that a patient-doctor relationship was based on trust, which could not be breached.
  • Information on MLA local area development funds to be made public. CIC
  • Political parties are not covered under RTI. CIC
  • State Bar Council comes under RTI. CIC
  • Office Memorandum No. 1.7/2009-IR, Government of India, Ministry of Personnel, Public Grievances & Pensions, Department of Personnel & Training, North Block, New Delhi, Dated the 20th May, 2011
Gist: The definition of information does not include answers to the question "why," which means explaining the reason or justification for something. Public information authorities are not obliged to provide justifications when a citizen requests information. Justifications are the responsibility of adjudicating authorities and are not considered as part of the information that can be requested.

The Kolkata Gazette
The Governor is pleased, on the recommendation of the committee constituted vide Notification No. III-PAR (AR) O/3M-29/2005 Pt, VILLA Dated 20.02.2006, to identify the following organizations, Branches and Sections of Government of West Bengal to which the provisions of "The Right to Information Act, 20045" shall not apply under section 24(4) of the said Act (Notification No. 541-PAR (AR)/O/3M-29/2005 Pt, VILLA dated, Kolkata- the 29th August, 2006, Kolkata Gazette):

  1. Home Department
    1. Political Branch
      1. Security arrangements and related matters of VIPs and VVIPs.
      2. Interceptions of mails and other person communications including phones/mobiles under Indian Post Office Act, 1898 and Indian Telegraph Act, 1885.
      3. Sanction of Prosecution.
      4. CBI investigation-handing over of cases.
      5. Verification of antecedents.
      6. Preparation of bills and rules.
    2. Police Branch
      1. 1. Information relating to the mobilization and deployment of police force.
      2. 2. All police reports (except under orders of the Courts of Law).
    3. Special Branch
      1. 1. Proceeding under the special preventive Acts of the State Govt/Govt. of India.
         
  2. Police Directorate
    1. Intelligence Branch including District IBs.
    2. Eastern Frontier Rifles.
    3. State Armed Police.
    4. Indian Reserve Battalion.
    5. Enforcement Branch.
    6. Secret Source Fund.
    7. Reserve Force.
    8. Secret Section including Secret Source Fund.
       
  3. Kolkata Police
    1. Special Branch.
    2. Detective Department.
    3. Security Control Organization.
    4. Enforcement Branch.
    5. Kolkata Armed Police including Reserve Force.
    6. Secret Source Fund.
    7. Confidential Section.
The Governor is further pleased to state that the information pertaining to allegations of corruptions and human rights violations in respect of the above organization of Police Directorate and Kolkata Police will not be kept beyond purview of the "Right to Information Act, 2005" under Section 24(4) of the Act.

Conclusion

It's crucial to strike the right balance between transparency and protecting legitimate interests. Exemptions should be narrowly defined and should not be used to hide corruption, inefficiency, or wrongdoing. They should be subject to strict scrutiny, and public authorities should not misuse them to withhold information that should rightfully be disclosed.

The RTI Act, 2005 does provide for exemptions, and these exemptions are periodically reviewed and revised to ensure they align with the principles of transparency and accountability. Striking the right balance between access to information and exemptions is an ongoing challenge, and it requires continuous evaluation and improvement to ensure that the Act serves its intended purpose effectively.

References:
  1. https://www.scconline.com/blog/post/2023/05/09/latest-judgments-of-supreme-court-and-high-courts-on-right-to-information-act/
  2. Notification No. 541-PAR (AR)/O/3M-29/2005 Pt, VILLA dated, Kolkata- the 29th August, 2006, Kolkata Gazette
  3. Commentary on The Right to Information Act, 2005, N.K. Acharya
  4. The Right to Information Act, Usha Jaganath Law Series

Written By: Md. Imran Wahab
, IPS, IGP, Provisioning, West Bengal
Email: [email protected], Ph no: 9836576565

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