Right to Information Act (RTI), 2005
All human beings have three lives: public, private, secret – Gabriel García Márquez
1. Right to Information:
The Constitution of India does not explicitly guarantee Right to Information. It is by means of Honorable Supreme Court cases that right to information has been read into Article 14, Article 19 and Article 21, which guarantee right to equality, right to freedom of speech and expression and right to life and liberty. The right to freedom of opinion and expression under Article 19 also includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media regardless of frontiers.
State of U.P. v. Raj Narain was one of the first Supreme Court rulings on Right to Information where it was held that government documents could be revealed if public interest through disclosure outweighs that of secrecy.
While there were no immediate steps taken by the Central or State Governments to implement an effective regime for access to information, there were plenty of campaigns held for freedom of information by civil societies. The Mazdoor Kisan Shakti Sangathan is one of the most well known campaigns for freedom of information held in Rajasthan in 1990s. It is with this that the need for right to information law gained impetus.
Therefore, the Indian Freedom of Information Act was passed in 2002 but after much criticism, it was replaced by Right to Information Act, 2005. It is said that RTI is a requisite for the very exercise of democracy. However, this right also brings about issues of privacy.
2. Privacy under RTI Act, 2005:
Just like Right to Information, Right to Privacy is not explicitly mentioned under the Constitution but it has been recognized as being implicit in the Indian Constitution under Article 21.
Often, government stores a myriad of information concerning individuals such as their licenses, income tax returns or census data. Naturally, when there is an application for disclosure of information concerning an identifiable individual, it gives rise to a clash between right to information and right to privacy. To make matters worse, right to information and right to privacy are two of the most ambiguous areas of law. The information can be denied if it interferes with one’s privacy. This is an exemption in every RTI statute.
In India, Section 8(1)(j) of the Right to Information Act deals with privacy. According to this Section, if the information is personal causing unwarranted invasion of privacy and serves no public interest, then the information cannot be disclosed unless the Central Public Information Officer (CPIO) or State Public Information Officer (SPIO) or the appellate authority is of the opinion that the disclosure of information serves a larger public interest.
When this Section is read as a whole, it is lucid that ‘personal information’ means information regarding ‘third party.’ It does not apply if the information seeker wants information about himself or his case, as the question of privacy does not arise in such cases. Therefore, information can be denied only if the information seeker is seeking information about a third party and such information invades the privacy of the individual. It is also to be noted that the Public Information Officer (PIO) and not the individual whose information is asked to be disclosed can deny information. Also, this section is specifically concerned with individual privacy and does not consider any other body.
Another important Section with respect to privacy under RTI is Section 11. Three conditions have to be fulfilled for the application of this Section. They are:
(i) If PIO is considering disclosing the information;
(ii) If the information relates to a third party or was given by a third party in confidence;
(iii) Third party considers the information to be confidential.
In order to fulfil the third part, the PIO has to send a notice to the third party within 5 days of the request made to him requesting the third party to reply within ten days as to whether the information should be disclosed or not. Section 11 has to be read keeping in mind the exceptions mentioned in Section 8 of the RTI Act.
3. Section 8(1)(j) of RTI Act, 2005:
An interesting point about Section 8(1)(j) is that this exception itself has an exception in the form of a proviso. According to the proviso, any information that cannot be denied to the central and state legislature shall not be denied to any person as well.
The question that arose in everyone’s mind regarding this proviso is whether it applies to entire Section 8(1) or just Section 8(1)(j). The Bombay High Court put this doubt to rest when it held that since the proviso was mentioned only after Section 8(1)(j) and not after every clause, it applies only to Section 8(1)(j).
The privacy exception also faces some level of obscurity, as the RTI Act does not define ‘personal information’ or ‘larger public interest.’ These terms have been interpreted through various case laws.
4. Case Laws:
Personal Information:
Vijay Prakash v. Union of India:
Personal Information has also been interpreted to mean identity details of public servants like date of birth, identification numbers etc. Personal information has also been held to include information like medical records, tax returns etc., as these documents do not have any relation with public activity or interest. However, the same can be disclosed if the applicant can show sufficient public interest in disclosure.
Public Interest:
Babu Ram Verma v. State of Uttar Pradesh:
The Supreme Court in its judgement has interpreted the expression ‘public interest’ to mean an act beneficial to general public and an action taken for public purpose. However, it stated that it is impossible to define what ‘public purpose’ is as it differs from case to case. In each case, all facts and circumstances would have to be examined in order to determine whether the information fulfils public interest or public purpose.
5. Challenges:
Apart from ambivalent definitions, a few years after the RTI Act was passed, the PIO faced a multitude of frivolous applications, which led to vexatious use of RTI. It also led to various conflicts between right to privacy and information. Therefore, in order to balance the rights of information and privacy, a separate legislation for privacy was being considered by an expert group under Justice A.P.Shah, former Chief Justice of Delhi High Court.
The bill protected one’s privacy in certain cases and sanctioned the establishment of Data Protection Authority of India, which shall monitor the development of data processing, examine and evaluate law relating to data protection and shall also exercise supervision over private parties which will engage in the collection and storage of personal data.
Certain changes were made and Privacy Bill, 2014 was drafted and at present, the Centre has revealed that it is giving final touches to the bill.[19] However, the Privacy Bill is also criticized for having various loopholes.
6. Conclusion:
It now remains to be seen how Privacy law would affect the Right to Information Act, 2005. However, Privacy law alone is not enough. It is very clear from the language of RTI Act with reference to Section 8 and 11 that even though certain information is excluded from disclosure including privacy reasons, the same can be disregarded if greater public interest is served on disclosure.
However, the exceptions mentioned in the RTI Act, 2005 are so wide that often Central Information Commissions have taken opposing stands with the final decision taken by the court. While, it is quite understandable that there is no simple solution to balancing the two rights of information and privacy but the conflict can be diminished a little through enactment of clear definitions, guidelines, illustration of certain situations that would allow disclosures would be constructive much like the ‘illustrations’ part mentioned in the IPC. An appropriate public interest test is needed which mentions certain factors or conditions that would substantiate what information would serve public interest.
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