Right to Information Act, 2005

EXEMPTIONS from Disclosure

of Information
&
Case Law
 Universal Declaration of
Human Rights
Art-19
Freedom of opinion and expression
includes –
• Right to seek and receive information
Art-12
No one shall be subjected to –
• arbitrary interference with privacy,
family, home, attack upon honour and
reputation.
 Constitution of India
• Art 19 (1) (a)
Guarantees Fundamental Right to Freedom of
Speech and Expression, subject to reasonable
restrictions imposed in the interests of or on
grounds of –
• The sovereignty and integrity of India
• The security of the State
• Friendly relations with foreign states
• Public order
• Decency or morality
• Contempt of Court
• Defamation
• Incitement of an offence
Right to Information Act

EXEMPTIONS
SECTION 8 AND 9
 Exemptions from Disclosure of
Information

There shall be no obligation to give any citizen-

(a) 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.

s.8 (1)(a)
Exemptions from Disclosure of
Information

(b) 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.
S.8(1)(b)
 Exemptions from Disclosure of
Information

(c) information, the disclosure of which would

cause a breach of privilege of Parliament or
the State Legislature.

S.8(1)(c)
 Exemptions from Disclosure of
Information
(d) 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;
S.8(1)(d)
 Exemptions from Disclosure of
Information

(e) 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
S.8(1)(d)
Exemptions from Disclosure of
Information

(f) information received in confidence

from foreign Government.

s.8(1)(f)
 Exemptions from Disclosure of
Information

(g) 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.
S.8(1)(g)
 Exemptions from Disclosure of
Information

(h) information which would impede the

process of investigation or
apprehension or prosecution of
offenders;
S.8(1)(h)
 Exemptions from Disclosure of
Information

(i) cabinet papers including records of

deliberations of the Council of
Ministers, Secretaries and other
officers.
S.8(1)(h)
 Exemptions from Disclosure of
Information

…but the decisions of Council of

Ministers, the reasons thereof, and the
material on the basis of which the
decisions were taken shall be made
public after the decision has been taken,
and the matter is complete, or over.
 Exemptions from Disclosure of
Information
(j) 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 PIO is satisfied
that the larger public interest justifies
the disclosure of such information:
S.8(1)(j)
Exemptions from Disclosure of
Information

The information which cannot be

denied to the Parliament or a State
Legislature shall not be denied to any
person.
 Information to Parliament / State Legislature
Non-admissibility of Questions / Motions
ф Seeking opinion on abstract legal question or
hypothetical proposition
ф Character or conduct of a person except in
his / her official/public capacity
ф Primarily not a concern of Govt
ф Proceedings of Parliamentary Committee not
placed before Parliament
ф Imply charge of a personal character
ф About bodies not primarily responsible to
Govt
ф Under adjudication
ф Matters of secret nature such as Cabinet
discussion / advice given to President
 Exemptions from Disclosure of
Information
Notwithstanding anything in the Official Secrets
Act nor any of the exemptions permissible in
accordance with s.8 (1), a public authority may
allow access to information, if public interest in
disclosure outweighs the harm to the protected
interests.
s.8(2)
 Exemptions from Disclosure of
Information
Subject to the provisions of clauses (a), (c)
and (i) of s.8(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 to the requester…
 Exemptions from Disclosure of
Information

…the decision of the Central Government shall

be final on questions as to the date from
which the said period of twenty years has to
be computed, subject to the usual appeals.
s.8(3)
 Absolute Exemptions

• Exemptions which are not subject to

Public Interest Test –

Section 9 is the only absolute

exemption
 Qualified Exemptions
• Exemptions which are subject to Public
Interest Test –

All Ten Exemptions under Section -8(1)

are qualified exemptions.
 Class Exemptions
Disclosure is assumed as harmful as a class.
No requirement to show what that harm
might be.
Section 8 (1) (b)
Section 8 (1) (e)
Section 8 (1) (f)
Section 8 (1) (i)
No requirement to demonstrate any harm.
But simply show that the information is
exempted under these sub-sections.
 Prejudice-based Exemptions
The exemptions contain the phrase “would”,
“would prejudicially”

• Section 8(1) (a), Section 8(1) (c)

• Section 8(1) (d), Section 8(1) (g)
• Section 8(1) (h), Section 8(1) (j)

Prejudice / harm caused by disclosure to be

established on case by case basis. Less
significant the prejudice/harm, higher the
chance of Public Interest falling in favour of
the Disclosure.
 Time Limited Exemptions

• Section 8(3) imposes time limits.

Section 8(1) b, d, e, f, g, h, j
not valid exemptions after 20
years.

• Section 8 (1) a, c, i are not time

limited.
 Exemptions (for easy reference)
Section 8(1) (a) National Security
(b) Contempt of Court
(c) Parliamentary Privilege
(d) Trade Secrecy
(e) Fiduciary relationship
(f) Foreign government
(g) Safety of informer in law enforcement

(h) Investigation
(i) Cabinet papers
(j) Privacy

Section 9 Copy right

 Exemptions (for easy reference)
Section 8(1) (a) National Security
(b) Contempt of Court
(c) Parliamentary Privilege
(d) Trade Secrecy
(e) Fiduciary relationship
(f) Foreign government
(g) Safety of informer in law enforcement

(h) Investigation
(i) Cabinet papers
(j) Privacy

Section 9 Copy right

 Communicating Rejection

PIO 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.
S.9
 Communicating Rejection
Where a request has been rejected , the PIO shall
communicate to the requester-

(i) the reasons for such rejection;

(ii) the period within which an appeal against such

rejection may be preferred; and

(iii) the particulars of the appellate authority.

s.7(8)
Scoping: Adjustment of the Form

An information shall be ordinarily

provided in the form in which it is
sought unless it would
disproportionately divert the
resources of the public authority
or would be detrimental to the
safety or preservation of the
record in question.
s.7(9)
Severability (Partial Disclosure)

Access may be provided to a part of the

record which does not contain any
information which is exempt from disclosure
under this Act and which can reasonably be
severed from any part that contains exempt
information.
s.10(1)
 Severability (Partial Disclosure)

…partial disclosure

The PIO shall give a notice to the

applicant informing reasons for partial
disclosure, fees, appellate authority
details.

s.10(2)
 Third Party Information
Third party information

Where the PIO intends to disclose any

information, which relates to or has been
supplied by a third party and has been
treated as confidential by that third party…

s.11
 Third Party Information
…the PIO shall, within five days from the
receipt of the request give a written
notice to such third party and
invite the third party to make a
submission in writing or orally,
and such submission shall be kept in
view while taking a decision.

s.11
 Exemptions

Except in the case of trade or

commercial secrets protected by law,
disclosure may be allowed if the public
interest in disclosure outweighs in
importance any possible harm or injury
to the interests of such third party.

Proviso to s.11(1)
 Third Party

the third party shall, within ten

days from the date of receipt of
such notice, be given the
opportunity to make
representation against the
proposed disclosure.
s.11(2)
 Third Party
The PIO shall, within 40 days
after receipt of the request,
make a decision and give in
writing the notice of his decision
to the third party.

The third party to whom the

notice is given is entitled to
prefer an appeal.
s.11(3) & (4)
The Right to Information Act,
2005

Understanding –

Public Interest

Fiduciary relationship
 What is meant by public interest?
Undefined concept – used but not defined in legislation

Amorphous concept – not explained in legislation

Multifaceted concept - left to the discretion of decision-

makers

“The categories of public

interest are not closed”

Quintin Hogg, Lord Hailsham

of St. Marylebone, UK (1978)
 Public interest in transparency
 RTI Act –

 presumption and requirement of law – openness

 conditions of secrecy narrowly defined

 secrecy may be waived in public interest

 Seven of ten exemptions – time-barred – 20 yrs

Information that cannot be denied to

Parliament or State Legislature
cannot be denied to a citizen
 Who has the burden of proof?
 Under Sec. 6(2) of the RTI Act citizen need
not give reasons for seeking information

 Under Sec. 19(5) of the RTI Act onus of

justifying denial of access is on the PIO
 So PIO may make a decision after
considering all public interests involved
 It helps if citizen shows the public interest
in disclosure – no bar on citizen
volunteering arguments based on public
interest
 PIO should give these arguments due
consideration
 The Supreme Court of India on
Public Interest
1998
 Bonded labour
 Neglected children
 Minimum wages/exploitation/violations of
labour laws
 Petitions from jails / against Police
 Torture
 Pollution
 Heritage
 Forest / Wildlife
 Riot victims
 Family Pension
 Decisions of the Supreme Court of
India covering Public Interest

• Janta Dal V/s V.H.S. Chowdhary [1992] 4 SCC

305

• S.P. Gupta V/s President of India AIR

AIR 1982 SC 149

• State of Gujarat V/s Mirzapur Moti Kureshi

Kasab Jamat & others, AIR 2006 SC 212
 Principles for determining public
interest
 Will it promote / protect public health and safety?

 Securing fair protection for the legitimate interests of

the individual/corporation

 Promoting the right of an individual to pursue a

remedy guaranteed by law

 Establishing accountability –

 for spending of public funds

 in decision making within government / public

authority
 Promote Directive Principles given in Part IV of
the Constitution.
 Fiduciary relationship
 It is a special kind of unequal relationship based
on trust where one party is legally empowered to
look after the best interests of another party
Examples –
 Board of a company and its shareholders
 Investors in mutual fund companies and
fund managers
 Attorney and client / doctor and patient
 Banker and customer – esp. safe deposit
vaults
 Trustees and beneficiaries of a trust
 Legal guardians and their wards
Fiduciary relationship - characteristics

‘Fiduciary’ and ‘beneficiary’ are the two involved parties

 It is an unequal power relationship – Fiduciary has
enormous power and influence on the beneficiary

 The fiduciary can unilaterally exercise this power /

discretion so as to affect the legal or practical
interests of the beneficiary – vulnerability

 Fiduciary is obliged to act in the best interests of the

beneficiary

 The fiduciary may charge a fee for services but

cannot use his/her power to unduly profit at the cost
of the beneficiary
 Fiduciary relationship
 Information obtained in fiduciary
relationship is confidential – privileged
communication
But
 All confidential information / privileged
communication is not obtained in fiduciary
capacity

The strongest and most obvious fiduciary

relationship in society exists between

Government and citizens

DECISIONS OF CIC

DISCLOSABLE
&
NOT DISCLOSABLE
DOCUMENTS OF GENERAL
PUBLIC INTEREST
• DOCUMENTS RLEATING TO THE
GOVERNEMENT’S PROCUREMENT OF
GOODS AND SERVICES
• GOVERNMENT LOANS, GRANTS AND
AWARDS
• EXPENSES OF GOVERNMENT OFFICIALS
• EXPENDITURE ON WORKS AND SERVICES
• INTERNAL GUIDELINES, POLICIES AND
PRACTICES
• FUNCTIONS, TARGETS, ACHIEVEMENTS
• AUDIT REPORTS
• DOCUMENTS RELATING TO PERSONAL
MATTERS
 CASE LAW
DISCLOSABLE INFORMATION
• CRITERIA, NORMS AND GUIDELINES FOR
PROMOTION
• THRESHOLD MARKS FIXED BY THE BOARD
FOR PROMOTION
• MARKS AWARDED BY COMMITTEE
MEMBERS
• PROPERTY RETURNS
• ACRs
• ASSESSMENT REPORTS / ACRs
• DPC PROCEEDINGS
 CASE LAW
DISCLOSABLE INFORMATION

• LEAVE ACOUNT (Except Grounds)

• RECOMMENDATION OF SEARCH
• COMMITTEE FOR APPOINTMENT
• FILE NOTING
• PROCEEDINGS OF THE SUGGESTION
COMMITTEE AND INCENTIVES
CALCULATIONS THEREUNDER.
 CASE LAW
DISCLOSABLE INFORMATION

• GROUNDS OF RE-EMPLOYMENTS AND

GUIDELINES FOR RE-EMPLOYMENT
• INVESTIGATION REPORT AFTER ACTION
IS COMPLETE IN EVERY RESPECT
• PROCEEDINGS OF THE GRIEVANCE
REDRESSED AND SETTLEMENT OF
DISPUTES COMMITTEE
• ANSWER SHEETS
 CASE LAW
DISCLOSABLE INFORMATION

• COPY OF THE PRELIMINARY (FACT FINDING)

ENQUIRY REPORT AFTER APPLYING
SEVERABLITY REQUIRED
• TOUR PORGRAMME AND TRAVEL EXPENSES
• LTC CLAIM DETAILS EXCEPT PERSONAL
DETAILS
• INFO RELATING TO DONATIONS ETC.
• DETAILS OF EXPENDITURE ON TRANSPORT
• SALARY DRAWN BY EMPLOYEES
 CASE LAW
DISCLOSABLE INFORMATION
• CABINET NOTE FOR ACC AFTER THE
MATTER IS COMPLETE

• CBI REPORTS/CVC REPORTS ON

COMPLETION / FILING OF CHARGE SHEET

• DETAILS OF POSTINGS / COMPLAINTS

RECEIVED/VIGILANCE ENQUIRY SET UP/ DEs
AND FINDINGS THEREOF/ STRICTURES BY
COURTS IN RESPECT OF SPECIFIC
OFFICERS
 CASE LAW
DISCLOSABLE INFORMATION
• EMPANELMENT/PICKING UP FOR
APPOINTMENTS
• DETAILS OF CARS USED AND OTHER
FACILITIES
• ALLOTMENTS/ LICENCES
• MERIT LISTS
• STATUS OF CLAIMS
• STATUTORY INSPECTION REPORTS UNDER
EXISTING REGULATIONS UNLESS IT CAN BE
ESTABLISHED THAT DISCLOSURE IS
EXEMPTED U/S 8(1).
• WORK ORDERS, SCHEDULE OF WORKS,
MEASUREMENT BOOKS, ETC.
 CASE LAW
NOT DISCLOSABLE INFORMATION
(EXEMPTED)

• PERSONAL DETAILS, INCOME TAX

RETURNS, PAN, SOURCES OF FUNDS,
PARTNERSHIP DETAILS

• MARKS AWARDED BY INDIVIDUAL

PANEL EXPERTS UNDER DIFFERENT
PARAMETERS
 CASE LAW
NOT DISCLOSABLE INFORMATION
(EXEMPTED)
• MEDICAL REPORT

• LEGAL ADVISE

• FAMILY DETAILS, GPF / CGEIS

NOMINATIONS
 CASE LAW
NOT DISCLOSABLE INFORMATION
(EXEMPTED)

• AGREED LIST

• DETAILS OF THE BANK ACCOUNTS

• ANSWER SHEETS
CASE LAW - MISCELLANEOUS
• QUESTIONS/QUERRIES ABOUT THE
NATURE AND QUALITY OF ACTIONS –
WHY, WHAT, WHEN AND WHETHER
• CONTESTING ACTIONS OF THE
DEPARTMENT
• FUTURE COURSE OF ACTION
• PRESCRIBING REMEDY FOR THE
GRIEVANCE
• INTERPRETATION OF A LAW/RULE
NOT COVERED
 CASE LAW - MISCELLANEOUS

• SECTION 6(3) NOT APPLICABLE FOR

DIFFERENT DEPARTMENTS IN THE
SAME PUBLIC AUTHORITY
• INFORMATION TO BE SUPPLIED
FREE OF CHARGE AFTER THE
EXPIRY OF THE STIPULATED TIME
• DEEMED CPIO LIABLE FOR
CONSEQUENCES
 CASE LAW - MISCELLANEOUS
• INFORMATION DESTROYED AS PER
RETENTION SCHEDULES IS NON-
EXISTENT
• REASONS FOR DECISIONS TO BE
SPECIFICALLY RECORDED
• FRESH ISSUES NOT ADMISSIBLE AT
APPELLATE LEVEL
• CPIO HAS TO PROVIDE INFORMATION NOT
OPINION
• THIRD PARTY INCLUDING CPIO AND
PUBLIC AUTHORITY MAY FILE 2ND APPEAL
UNDER SEC 19(3)
CASE LAW - MISCELLANEOUS
• COST OF WAGES OF MANPOWER NOT
TO BE COMPUTED FOR REMITTANCE
BY APPLICANT
• ALL INFORMATIONS MORE THAN 20
YEARS DISCLOSABLE EXCEPT UNDER
CLAUSES a, c & i OF SUB-SECTION
8(1)
• PROVISIONS OF THIRD PARTY AND
EXEMPTIONS OF PERSONAL
INFORMATION MAY BE WAIVED ON
ACCOUNT OF PUBLIC INTEREST
 CASE LAW - MISCELLANEOUS
• CPIOs TO SIGN REPLY
• APPELLATE AUTHROITY’S DECISIONS
TO BEAR HIS SIGNATURES
• UNTRACEABILITY OF INFORMATION
IS ACCEPTABLE WHERE DILIGENT
SEARCH TO TRACE IS EVIDENT
• INFORMATION TO BE COLLECTED
FROM MANY SOURCES/ KEEP THE
APPLICANT INFORMED AND BUILT
AIR OF CONFIDENCE ABOUT DELAY
 CASE LAW -MISCELLANEOUS
• PERIOD OF DEFAULT FOR PENALTY
NOT DETERMINED MECHANICALLY
• INFORMATIONS SOUGHT SHOULD BE
RELATED TO FUNCTIONING OF
PUBLIC AUTHORITY
• RESPONSES TO REQUEST SHOULD
BE FORMULATED ON EACH SPECIFIC
QUERRY
• CASE BEING SUB-JUDICE IS NOT
SPECIFIED GROUND FOR EXEMPTION
 CASE LAW -MISCELLANEOUS

• EXEMPTIONS UNDER SEC- 8(1) MAY

BE WAIVED ON ACCOUNT OF PUBLIC
INTEREST U/S- 8(2)

• REFUND FEE REMITTED BY MISTAKE

• COMPENSATION TO THE APPLICANT

U/S 19(8)(b)
Thank You