Layman’s Guide to RTI Act 2005 Part 3: How to avoid refusal by Public Information officer?
Can
government give every information that is requested by a citizen? No.
The country cannot run unless some information is secret or
confidential in government organizations.
For
example, information that is of strategic importance (such as the
latest missile being developed by Indian Space Research Organization
(ISRO), cannot be shared with the public. Similarly, if peace talks
are being held between Indian and its neighbouring country, such
details cannot be disclosed until the talks are concluded.
Intelligence
and national security organizations of the government are generally
exempted from the ambit of the RTI Act.
For example:
Intelligence
Bureau.
Research
and Analysis Wing (RAW)
Directorate
of Revenue Intelligence
Central
Economic Intelligence Bureau
Directorate
of Enforcement
Narcotics
Control Bureau…
A
complete and updated list of these exempted organizations is available in Second Schedule of RTI Act.
Generally, all the types of
information that you may not get under RTI are specifically mentioned
in Section 8, 9 and 11 of RTI Act. Please read these sections
carefully, and word your RTI application in such a way that it
does not attract the provisions of these sections.
Section
8:
8(1) There
shall be no obligation to give any citizen,—
- Information which would 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;
- 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;
- Information which would cause a breach of privilege of Parliament or the State Legislature;
- 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 disclosure;
- information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants disclosure
- information received in confidence from foreign Government;
- 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;
- information which would impede the process of investigation or apprehension or prosecution of offenders;
- cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers:
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.
- 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 PIO or the appellate authority is satisfied that the larger public interest justifies the disclosure.
The information which cannot be denied to the Parliament or a
State Legislature shall not be denied to any person.
Section 8(2) says:
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(3) says: 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 under section 6 shall be
provided to any person making a request under that section:
Where any question
arises as to the date from which the said period of twenty years has
to be computed, the decision of the Central Government shall be
final, subject to the usual appeals provided for in this Act.
Confidential papers
What happens if the
information that you have requested directly pertains to a third
party?
Section
9 says: 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.
In cases other than
copyrights, the PIO will probably have to seek the opinion of that
third party and take their opinion into consideration. However, by
cleverly framing your RTI application as a request for a generic
class of information i.e. not relating to any particular individual
or commercial entity, it is usually possible to get around this
obstacle.
Section
11 says: “Where a PIO intends to disclose any information or
record, or part thereof on a request made under this Act, which
relates to or has been supplied by a third party and has been treated
as confidential by that third party, the PIO shall, within five days
from the receipt of the request, give a written notice to such third
party of the request and of the fact that the PIO intends to
disclose the information or record, or part thereof, and invite the
third party to make a submission in writing or orally, regarding
whether the information should be disclosed, and such submission of
the third party shall be kept in view while taking a decision about
disclosure of information:
Provided that 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.
Where
a notice is served by the PIO under sub-section (1) to a third party
in respect of any information or record or part thereof, 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.
PIO shall,
within forty days after receipt of the request, if the
third party has been given an opportunity to make representation
under sub-section (2), make a decision as to whether or not to
disclose the information or record or part thereof and give in
writing the notice of his decision to the third party.
There is a slim chance
that the third party will not object to the PIO giving you the
papers. There is an even slimmer chance the PIO will overrule the
objections of the third party and give you the papers. The odds are
you will not get confidential documents.
Protection of
confidentiality is also covered under Sections 8(1) (d) and (e),
mentioned in the previous chapter i.e.
(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 disclosure;
(e)
information available to a person in his fiduciary relationship,
unless the competent authority is satisfied that the larger
public interest warrants disclosure.
However, if you are able
to convince the PIO and his bosses (i.e. the competent authority)
that it is necessary to disclose this information in the larger
public interest, then you can indeed get access to even information
that is identified as third-party, confidential or given to the
public authority in fiduciary capacity. Choose your words carefully while drafting your RTI application. Prominently mention
public interest so that it becomes difficult for the PIO to refuse at
the initial stage itself.
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