RTI Judgement Series
RTI Judgement Series: Exemption under Section 8(1)(e) cannot apply to information held by a client

Exemption under Section 8(1)(e) of the RTI Act cannot apply to information held by a client in a lawyer-client relationship or with the patient in a doctor-patient relationship. This is the 37th in a series of important judgements given by former Central Information Commissioner Shailesh Gandhi that can be used or quoted in an RTI application

The Central Information Commission (CIC) said exemption under Section 8(1)(e) of the Right to Information (RTI) Act cannot apply to the information held by a client in a lawyer-client relationship or with the patient in a doctor-patient relationship. While giving this important judgement, Shailesh Gandhi, former Central Information Commissioner, said the relationship of trust in that relationship is one way and it is only the lawyer who holds the information in a fiduciary capacity and not the University.

 

Allowing the appeal, the CIC in its order issued on 30 December 2009, said, “The Commission finds that in the present case, the disclosure of the legal opinion does not harm the lawyer who has given this opinion”.

 

Delhi resident Aman Kumar sought information about Guru Gobind Singh Indraprastha University (GGSIPU) and Maharaja Agrasen College (MAC). Below are the points on which he sought information and the replies provided by the PIO...

 

1. Details of action taken on letter no. PGC/09/GGSIP/01/21968 dated 10/02/2009.

PIO- University has forwarded a letter to the legal counsel for legal opinion in the light of the PGC's letter No.PGC/09/GGSIP/01/21968 dated 10/02/2009 (copy enclosed)

 

2. Relevant record of the case i.e. entire orders/comments/proceeding/application/annexure

PIO- Concerned records and proceedings may be inspected with prior appointment of PIO

 

3. Action taken report on recommendations of PGC which it passed against Maharaja Agrasen College, Rohini, Delhi - 110087 acting on the complaint of Mr Aman Kumar PIO- Legal opinion has been sought and the legal counsel has been called for a meeting by the competent authority so that matter could be placed before the Board of Affiliation

 

4. Details of letter dated 02/03/2009 vide letter no. IPU/JR/ARP/IC/2009/1415 issued to Jr Dr Suchitra Kumar on behalf of GGSIPU        

PIO- Same as for Point 1

 

5. Details of legal opinion obtained from Mr GD Goel, legal counsel   

PIO- Same as for Point 3

 

6. Complete guideline for applying for Technical College from University  

PIO- Information available on the website of the University www.ipu.ac.in 

 

7. Complete data of the students of Maharaja Agrasen College, Rohini, Delhi, admitted in the year of 2008-09 on the basis of application with GGSIPU        

PIO- Information enclosed

 

Kumar, not satisfied with the reply given by the PIO, then filed his first appeal before the First Appellate Authority (FAA). On 10 July 2009, the FAA in his order said, “Information with regard to Points 1 and 2 has been provided. Some of the queries raised in the First Appeal were not part of the original RTI Application. However, this is contested by the applicant. Therefore, the PIO may call the applicant and get them to reconcile on the basis of the original application and wherever the information has not been provided. Request for inspection of the relevant documents may be entertained.”

 

After the order from the FAA, the PIO allowed Kumar to undertake inspection of the documents. The PIO asked Kumar to deposit Rs1,468 (@Rs2 per page for 734 pages) for the papers identified by him. The PIO further informed that the information to query no5 was related to third party and permission was sought from it and said that the information will be provided as per the comments of third party.

 

When Kumar failed to receive a reply from the PIO about his query no5, he filed his Second Appeal before the CIC. During a hearing on 27 October 2009, the PIO stated that the information not provided by him is the legal opinion obtained from the legal counsel in the matter of affiliation of Maharaja Agrasen Institute of Technology (MAIT) in respect to Auburn University. He also sought exemption under Section 8(1)(e) claiming that the information provided by the legal counsel is available in the fiduciary relationship.

 

Mr Gandhi, the CIC, directed the PIO to give his written submissions justifying how he was claiming a fiduciary relationship in this matter before 5 November 2009. The matter was then adjourned for 27 October 2009.

 

The PIO submitted that it has to be determined whether there is any public interest in disclosing the information sought by the appellant. “Opinion provided by the University’s legal counsel is of trust and good faith. If the same is disclosed, it would amount to breach of trust or faith and may harm the interest of third party if the same has any bearing on the third party. Certain advice rendered by the legal counsel is intellectual property of the professional/ legal consultant,” the PIO stated.

 

The Commission then issued a notice to the third party, M/s GD Goel and Company along with the appellant and respondent for a hearing on 30 December 2009.

 

During the hearing, the third party was absent. Kumar, in his submission stated that there is no breach of trust as the information is required from the client and not the Advocate. The client must disclose the information received as legal advice as it is public interest as the client, GGSIP University, is a public body.

 

He said, “...the issue which had been referred for legal opinion was in reference to imposing penalty on MAIT on similar lines as it was imposed on Jagan Institute of Management Studies (JIMS), Rohini. Penalty was finally not imposed on MAIT causing financial loss to the University.”

 

The Commission said, for Section 8(1)(e) of the RTI Act to apply there must be a fiduciary relationship and holder of information must hold the information in his fiduciary capacity.

Section 8(1)(e) of the RTI Act provides-

8(1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,-
 (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;

The client-lawyer relationship has always been considered a fiduciary relationship as the client reposes trust in the lawyer to act in his interest. The exemption under Section 8(1)(e) exempts the disclosure of this information which is being held by the lawyer in his fiduciary capacity unless the disclosure serves a larger public interest, Mr Gandhi said.
 

“In the present case, the information the appellant is seeking a copy of the legal opinion from the GGSIP University which the University has received from its legal counsel. The University had to seek a legal opinion and it chose a particular legal counsel for this purpose thereby trusting this counsel to act on behalf of the University and protect its interests. As the opinion had been sought by the University, the opinion could only be given to the University and no other entity,” he noted.

 

Mr Gandhi said, “The relationship of trust in that way is one way and it is only the lawyer who holds the information in a fiduciary capacity and not the University. Section 8(1)(e) exemption applies to information that is held that by the information holder in his fiduciary capacity i.e. another person has chosen to trust the information holder with that information and the information holder is expected to act in the interest of the information provided. Therefore, the exemption under Section 8(1)(e) cannot apply to the information held by a client in a lawyer-client relationship or with the patient in a doctor-patient relationship.”

 

The University then stated that certain opinion provided by the lawyer is the intellectual property of the lawyer. However, this ground had not been relied on by the PIO in his reply to the appellant and nor was it raised during the hearing before the Commission. Therefore, Mr Gandhi said, the Commission will not accept this ground at such a late stage.

 

The CIC said, mere fact that a copyright exists in a literary work does not mean that its disclosure under the RTI Act would lead to its infringement. Therefore, the Commission finds no merit in the argument raised by the PIO, it added.

Section 9 of the RTI Act provides that
9. Without prejudice to the provisions of section 8, a Central Public Information Officer or a State Public Information Officer, as the case may be, 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 51 of the Copyright Act, 1957, provides the scenarios in which a copyright can be considered to be infringed-
51. When copyright infringed. -Copyright in a work shall be deemed to be infringed-
(a) when any person, without a licence granted by the owner of the copyright or the Registrar of     Copyrights under this Act or in contravention of the conditions of a licence so granted or of any condition imposed by a competent authority under this Act-
(i) does anything, the exclusive right to do which is by this Act conferred upon the owner of the copyright, or
(ii) permits for profit any place to be used for the communication of the work to the public where such communication constitutes an infringement of the copyright in the work, unless he was not aware and had no reasonable ground for believing that such communication to the public would be     an infringement of copyright; or
(b) when any person-
(i) makes for sale or hire, or sells or lets for hire, or by way of trade displays or offers for sale or hire, or
(ii) distributes either for the purpose of trade or to such an extent as to affect prejudicially the owner of the copyright, or
(iii) by way of trade exhibits in public, or
iv) imports into India, any infringing copies of the work
Provided that nothing in sub-clause (iv) shall apply to the import of one copy of any work for the private and domestic use of the importer
 

Mr Gandhi said, for a copyright to be infringed, the person holding the copyright must be affected prejudicially for there to be an infringement of the copyright. “There must be a reason to believe that the reproduction of the work would be used in a manner that would harm the copyright holder. The Commission finds that in the present case, the disclosure of the legal opinion does not harm the lawyer who has given this opinion,” the CIC said in its order.

 

CENTRAL INFORMATION COMMISSION

 

Decision No. CIC/SG/A/2009/002100+001167/6139

http://www.rti.india.gov.in/cic_decisions/SG-30122009-14.pdf

Appeal No. CIC/SG/A/2009/002100+001167

 

Appellant                                            : Aman Kumar

                                                            New Delhi - 110064.

 

Respondent                                        : Pankaj Agarwal

                                                            Public Information Officer

                                                            Guru Gobind Singh Indraprastha University

                                                            Kashmere Gate, Delhi.

 

Third Party                                       : M/s GD Goel & Company

                                                            D-14, 2nd Floor, Marg no. 13,

                                                            Saket, New Delhi - 110017

 

User

RTI Judgement Series: CVC does not follow its own guidelines

The appellant was understandably agitated about the fact that the combination of vigilance and enquiry set-ups in India does not lead to any deterrent action for the wrong doing. This is the 36th in a series of important judgements given by former Central Information Commissioner Shailesh Gandhi that can be used or quoted in an RTI application

The Central Information Commission (CIC) while agreeing with the applicant asked the Public Information Officer (PIO) of vigilance department of the Municipal Corporation of Delhi (MCD) to provide information sought under the Right to Information (RTI) Act. While giving this important judgement, Shailesh Gandhi, former Central Information Commissioner, said this was an important issue and the information given by the PIO clearly shows that instructions of Central Vigilance Commission (CVC) are not even circulated or shown.

 

“The Commission finds that whereas the CVC has given timelines for enquiries and investigations it is apparent that these timelines are not followed, which is the main contention of the appellant,” the CIC said in its order issued on 31 July 2009.

 

Delhi resident Kamal Singh sought information about functioning of the vigilance department in MCD. Below are the information he sought and the replies provided by the PIO...

 

1. How many officials of the MCD have been ordered to be charge-sheeted during the last three years (from 11/01/2006 to 31/11/2008) for minor and major penalties? How many charge-sheets have actually been issued during the above period? 

PIO- Total officials charge-sheeted w.e.f. 1/1/2006 to 30/11/2008 are 1,595. Out of these officials 1,350 officials were charge-sheeted for major penalties while 245 officials were charge-sheeted for minor penalties. In this period 1,472 charge-sheets were issued.

 

2. How many departmental inquiries were pending and what were the steps taken to ensure early conclusion of departmental inquiries?

PIO-This Para has already been referred to Director of Inquiries vide letter No. PIO(Vig.) /CRIA/HC/1493 /2008/5853 dated 26/12/2008 for providing information directly.

 

3. Did the vigilance department of the MCD actually consider and process the defence statements/representations received from the charged officers and put up the same to the concerned disciplinary authorities for their consideration for obtaining their specific orders on the same for accepting or rejecting them as required under the relevant rules i.e. DMC Services (Control and Appeal) Regulations, 1959? In how many cases charges during the last three years had been dropped after considering the defence statements? If there is no practice to consider the defence statements received from the charged. What are the reasons thereof?  

PIO-Defence statements/representation of the charged officials along with entire record of the case is placed before the disciplinary authority for consideration and passing appropriate orders. In no case charges were dropped during last three years after considering defence statements. Defence statements/representation are properly considered.

 

4. What were the steps taken by the vigilance department to avoid delay in taking action on defence statement and processing vigilance cases? Have any instruction been issued in this regard? If yes, kindly supply copies of the instructions. If not, what are the reasons for not issuing necessary instructions to the officers and staff of Vigilance Department?      

PIO-In this regard CVC instructions are being followed (Copy has been provided).

 

5. Are officers of vigilance department including DOV and CVO conscious and alive to their responsibilities to dispose off the files and papers put up to them expeditiously to set the good examples of efficiency to the lower staff of vigilance department? How many files had been disposed off during the last three years by ADVOs, ADCDOV and COV and what was the time taken in respect of each file. Kindly give the relevant information.       

PIO-Yes, all the files and papers put up before CVO, DOV, ADC & ADOVs were disposed expeditiously taking necessary minimum time.

 

6. It has been seen that wrong charges have been framed against some officials of the MCD due to carelessness on the part of concerned officials/officers of the vigilance department. In how many such cases of framing wrong and factually incorrect charges, disciplinary action has been taken for dereliction of duty?       

PIO- None.

 

7. What is the policy with regard to posting of staff and officers to vigilance department? Is there any tenure limit of posting in vigilance department? If yes, what is the maximum period of posting in vigilance department? Are steps taken to ensure that staff and officers do not overstay in vigilance department and develop any personal interest in staying in vigilance department? Give the number of such officers who had been in this department for more than five years.      

PIO-As per CVC instructions posting and transfer in the vigilance department is required to be done with the approval of CVO. Four Officers are continuing in the vigilance department for more than five years.

 

Mr Singh then filed the first appeal with the First Appellate Authority (FAA) due to unsatisfactory and incomplete information provided by the PIO. The FAA, in his order issued on 2 March 2009, said, “In view of fact arose during the hearing of the case, the PIO of vigilance dept of the MCD is directed to inform the appellant within 15 days as to whether the CVC's instructions in question have been circulated or not. So far information regarding number of files disposed off by various officers of the department and time taken in respect of each file is concerned, the appellant is requested to inspect the relevant registers of various officers within 10 days as the information is bulky in nature which will divert the entire resources of the department, if collected.”

 

However, the PIO did not comply with the order issued by the FAA. Mr Singh then approached the CIC with his second appeal. During a hearing, Mr Gandhi, the CIC, noted that the appellant has raised a fairly important issue about instructions from the CVC.

 

The PIO claimed that “...many times files are sent to CVCs for obtaining first stage advise or second advise which takes three to four months hence it is not possible to maintain any timelines.”

 

When asked by Mr Gandhi about the delay in providing the information, the PIO stated that this was due to the concerned officer having an illness in his family. The PIO was then warned that if the timelines are not observed, then penalties under Section 20(1) will be imposed upon him by the CIC.

 

The CIC noted that the respondent’s statement only indicates that if CVC which issues these guidelines itself does not follow any time discipline; organizations like vigilance department are also likely to follow the bad example being set.

 

Mr Gandhi while allowing the appeal directed the PIO to provide the information sought by Mr Kumar.

 

CENTRAL INFORMATION COMMISSION

 

Decision No. CIC/SG/A/2009/001500/4335

http://www.rti.india.gov.in/cic_decisions/SG-31072009-09.pdf

Appeal No. CIC/SG/A/2009/001500

 

 

Appellant                                            : Kamal Singh

                                                            Delhi-110009.

 

Respondent                                        : AK Verma

                                                            Public Information Officer

                                                            Municipal Corporation of Delhi

                                                            Vigilance Department,

                                                            16, Rajpur Road, Civil Lines,

                                                            Delhi-110054

User

COMMENTS

DEEPAK DANG

4 years ago

RTI ACT-2005

RTI Judgement Series: Information must be displayed at the Fair Price Shops and the Circle Offices

Fair Price Shops and the Circle Offices must display information in compliance with the Department’s own orders as well as requirements of Section 4 of the RTI Act. This is the 35th in a series of important judgements given by former Central Information Commissioner Shailesh Gandhi that can be used or quoted in an RTI application

The Central Information Commission (CIC) after discussing the issue of displaying information asked the Department of Food, Supplies and Consumer Affairs of Government of National Capital Territory of Delhi (GNCTD) to comply with its own orders as well as requirements of Section 4 of the Right to Information (RTI) Act. While giving this important judgement, Shailesh Gandhi, former Central Information Commissioner, said the information should have been displayed as part of obligations to make suo moto disclosures under the RTI Act.

 

“The Department will ensure that the afore-mentioned information is displayed in the Circle Offices and Fair Price Shops before 31 January 2010. A compliance report will be sent to the Commission before 05 February 2010,” the CIC said in its order issued on 22 December 2009.

 

Delhi resident Rajiv Kumar filed four complaints about the Department of Food, Supplies and Consumer Affairs of GNCTD not meeting certain obligations under the Public Distribution System (PDS) Control Order.

 

According to the PDS Control Order 2001, it is the duty of every Fair Price shopkeeper to display information on a notice board at a prominent place in the Fair Price shop on a daily basis regarding a) list of BPL and Antodaya beneficiaries, b) entitlements of essential commodities, c) scale of issue, d) retail issue prices, e) timings of opening and closing of Fair Price shops, f) stock of essential commodities received during the month, g) opening and closing stock of essential commodities and h) the name of authorities for redressal of grievances/lodging complaints with respect to quality and quantity of essential commodities under the Public Distribution System.

 

In one of his complaint, Mr Kumar stated that many of the Fair Price Shops especially in Circle 63 have not complied with the PDS Control Order 2001 and the disclosures have not been displayed.

 

Shailesh Gandhi, the Central Information Commissioner, called a meeting on 21 December 2009 at the Commission’s office on this matter to discuss issues relating to disclosure of information on the PDS in Delhi.

 

During the hearing on 21 December 2009, the Commission informed the Food Commissioner that complaints had been received from some citizen groups particularly Pardarshita, Satark Nagrik Sangathan and Sajha Manch that information should be available suo moto at the Circle Offices and the Fair Price Shops is not available.

 

After consulting with the Food Commissioner as well as others present, the Commission directed that the following information should be displayed at every Circle Office of the Department:

 

i) Copy of all ration cards along with photographs of individual card holders in the Circle Offices of the Food and Supply Department.

ii) All citizens should have access to daily sale register, and stock register under suo moto disclosure of the RTI Act.

iii) Name and designation of each official in the Circle office along with their stated roles and responsibilities.

iv) Names and contact details of the PIOs and FAA.

v) Procedure to apply for new ration cards and the list of documents required.

vi) Time-frame for disposal of various applications (new cards, renewal, change of address, etc).

vii) Date of the next Vigilance Committee meeting and names of the members of the Committee.

viii) Rights and privileges of ration card holders as per Section 6(7) of Annexe to PDS Control Order 2001.

ix) List of documents present in the Circle Offices.

 

During the hearing, Mr Kumar showed a sample display print that can be displayed outside every Fair Price Shop. After discussing the sample display, the Commission, directed that the following information will be displayed at the Fair Price Shops under the Department:

 

i) Entitlement of essential commodities for all types of ration cards.

ii) Scale of issue of each essential commodity for all types of ration cards.

iii) Retail prices of each essential commodity for all types of ration cards.

iv) Working hours of Fair Price Shops.

v) Stock of essential items received during the month.

vi) Opening and closing stock of essential commodities.

vii) Name, designation and contact numbers of officials for redressal of grievances with respect to quality and quantity of essential commodities.

viii) Daily updation of stock position information

ix) Information about inspection of records by any citizen on every Saturday except for second Saturday as per the PDS Control Order dated 15/06/2006.

x) Display of samples of food grains being supplied through Fair Price Shops.

 

The Food Commissioner then gave a commitment to the Commission that she will ensure that the afore-mentioned information will be displayed before 31 January 2010.

 

CENTRAL INFORMATION COMMISSION

 

Decision No. CIC/SG/C/2009/001619; 001621; 001622/6047

http://www.rti.india.gov.in/cic_decisions/SG-22122009-22.pdf

Complaint No. CIC/SG/C/2009/001619; 001621; 001622

 

Complainant                                                : Rajiv Kumar

                                                            Delhi 110095

 

Respondent                                       : 1. The Food Commissioner

                                                            Department of Food & Supplies

                                                            Govt. of NCT Delhi, K-Block,

                                                            Vikas Bhawan, New Delhi 110002   

                                                            2. Assistant Commissioner (HQ/RTI),

                                                            GNCTD, Deptt. of Food, Supplies and Consumer Affairs,

                                                           K Block, Vikas Bhawan, IP Estate, New Delhi.

                                                            3. Assistant Commissioner (North East),

                                                            GNCTD, Deptt. of Food, Supplies and Consumer Affairs,

                                                            Weavers Complex, Nand Nagari, Delhi.

                                                            4. Assistant Commissioner (West),

                                                            GNCTD, Deptt. of Food, Supplies and Consumer Affairs,

                                                            152 C Block, Janakpuri, Delhi.

                                                            5. Assistant Commissioner (North West),

                                                            GNCTD, Deptt. of Food, Supplies and Consumer Affairs,

                                                            C Block, Pocket C, Shalimar Bagh, Delhi.

                                                            6. Assistant Commissioner (New Delhi),

                                                            GNCTD, Deptt. of Food, Supplies and Consumer Affairs,

                                                            M Block Vikas Bhawan, IP Estate, Delhi.

                                                            7. Assistant Commissioner (South),

                                                            GNCTD, Deptt. of Food, Supplies and Consumer Affairs,

                                                            Asian Market, Sector 3, Pushp Vihar, New Delhi.

                                                            8. Assistant Commissioner (Central),

                                                            GNCTD, Deptt. of Food, Supplies and Consumer Affairs,

                                                            K Block, Vikas Bhawan, IP Estate, New Delhi.

                                                            9. Assistant Commissioner (East),

                                                            GNCTD, Deptt. of Food, Supplies and Consumer Affairs,

                                                            DDA Shopping Complex, Dayanand Vihar, Delhi.

                                                            10. Assistant Commissioner (North),

                                                            GNCTD, Deptt. of Food, Supplies and Consumer Affairs,

                                                            23/26, Shopping Complex, Gulabi Bagh, Delhi.

                                                            11. Assistant Commissioner (South West),

                                                            GNCTD, Deptt. of Food, Supplies and Consumer Affairs,

                                                            C22/23, Behind Qutb Hotel, Mehrauli, Delhi.

User

We are listening!

Solve the equation and enter in the Captcha field.
  Loading...
Close

To continue


Please
Sign Up or Sign In
with

Email
Close

To continue


Please
Sign Up or Sign In
with

Email

BUY NOW

The Scam
24 Year Of The Scam: The Perennial Bestseller, reads like a Thriller!
Moneylife Online Magazine
Fiercely independent and pro-consumer information on personal finance
Stockletters in 3 Flavours
Outstanding research that beats mutual funds year after year
MAS: Complete Online Financial Advisory
(Includes Moneylife Magazine)