Third party clause of the RTI Act: Should denial of information be accepted by the PIO?
Under Section 11 of the RTI Act, the PIO is required to get back to the person (third party) whose confidential records like I-T returns or passport details are being sought. Does that mean the PIO can take the ‘objection’ of this third party as an excuse to refuse information?
Early this year in January, V Gopalkrishnan, a Chennai-based Right to Information (RTI) activist had sought details of Congress chief Sonia Gandhi's income tax returns from 2000 to 2011. The Public Information Officer (PIO), Income tax, New Delhi wrote to Sonia Gandhi asking her to respond to the request made by Mr Gopalkrishnan. She flatly refused the information stating it is an intrusion into personal freedom and does not involve public interest. She also stated that it involves a security risk. The PIO in turn declined information to Mr Gopalkrishnan.
In May this year, Anil Galgali, a Mumbai-based RTI activist had sought details of the penalty that cricket legend Sachin Tendulkar had paid for occupying his new bungalow in Bandra in September 2011 without possessing the required occupancy certificate. The Brihan Mumbai Municipal Corporation (BMC) reverted to Sachin Tendulkar under Section 11 which requires the PIO to seek opinion of the person whose personal information is being sought. Mr Tendulkar too declined making this information public. The BMC in turn denied information to Mr Galgali who said that the PIO has violated the RTI Act as he had asked for details of fine collected by the BMC and that is public information.
Did the PIOs err in their decisions? Considering that Section 11 is "a procedural requirement that gives third party an opportunity to voice an objection in releasing the information", there have been several orders by the Central Information Commissions which have overruled rejection of information by PIOs after the "third party" declined making it public. These include decisions against denial of information of 'net' income tax details of individuals. A CIC order in case of passport details explains the larger picture indicating that Sonia Gandhi's and Sachin Tendulkar's denial to the PIO to make information public need not have been taken as the last word by the PIO.
The case relates to that of Dehradun-based Anita Singh who had sought details of Ajit Singh's passport details from the PIO, passport office, Bareilly in August 2011. After she was denied information due to objection by the "third party" the PIO took the shelter of Section 8 (1) (j) of the RTI Act to deny information. She then filed a second appeal with Central Information Commissioner Shailesh Gandhi in March 2012.
In May 2012, Shailesh Gandhi argued that:
• PIO uses Section 11 when he intends to provide information and not deny it: "The PIO is expected to follow the procedure of Section 11 when he "intends to disclose any information or record". This means that the PIO has come to the conclusion that the information is not exempt as per the provisions of the RTI Act."
• Section 11 gives only an 'opportunity' to the third party to voice its objections to disclosing information: "Section 11 (1) clearly states that submission of third party shall be kept in view while taking a decision about disclosure of information."
• The PIO will weigh the situation and make his own decision: "The PIO will keep these in mind and denial of information can only be on the basis of exemption under Section 8 (1) of the RTI Act. As per Section 11 (3), the PIO has to determine the whether the information is exempt or not and inform the appellant and the third party of his decision. If the third party wishes to appeal against the decision of the PIO, he can file an appeal under Section 19 of the Act as per the provision of Section 11 (4)."
• The third party's denial cannot be the last word: "Section 11 does not give a third party an unrestrained veto to refuse disclosing information. It clearly anticipates situations where the PIO will not agree with the claim for non-disclosure by a third party and provides for an appeal to be made by the third party against disclosure, which would have been unnecessary, if the third party had been given a veto against disclosure. Thus the PIO is expected to follow the procedure of Section 11, when he intends to disclose the information but has some reason to believe that the third party treats it as confidential. If the third party sends an objection, the PIO has to determine whether the information is exempt under the provisions of the Act."
• PIO can take the shelter of Section 8 (1) (j) for declining information only if it is a purely personal information. States Mr Gandhi's order: "To qualify for this exemption the information must satisfy the following criteria: 1. It must be personal information… In common language we would ascribe the adjective 'personal' to an attribute which applies to an individual and not to an institution or a corporate. From this it flows that 'personal' cannot be related to institutions, organisations or corporates. Hence Section 8 (1) (j) cannot be applied when the information concerns institutions, organisations or corporates."
• Public authorities in routine course take personal information of citizens: "The phrase 'disclosure of which has no relationship to any public activity or interest' means that the information must have been given in the course of a public activity. Various public authorities in performing their functions routinely ask for 'personal' information from citizens, and this is clearly a public activity. When a person applies for a job, or gives information about himself to a public authority as an employee, or asks for a permission, licence or authorization or passport, all these are public activities. Also when a citizen provides information in discharge of a statutory obligation this too is a public activity."
• Citizen's right to information is given priority with regard to privacy: "The Supreme Court of India has ruled that citizens have a right to know about charges against candidates for elections as well as details of their assets, since they desire to offer themselves for public service. It is obvious then that those who are public servants cannot claim exemption from disclosure of charges against them or details of their assets. Given our dismal record of mis-governance and rampant corruption which colludes to deny citizens their essential rights and dignity, it is in the fitness of things that the citizen's right to information is given greater primacy with regard to privacy."
• In extraordinary situations there are other laws which apply to secure privacy of information: "We can also look at this from another aspect. The State has no right to invade the privacy of an individual. There are some extraordinary situations where the State may be allowed to invade the privacy of a citizen. In those circumstances special provisions of the law apply; usually with certain safeguards. Therefore where the State routinely obtains information from citizens, this information is in relationship to a public activity and will not be an intrusion on privacy. "
Shailesh Gandhi, while passing the order that Ameeta Singh has every right to get information about Ajit Singh's passport details, he concludes that, "Certain human rights such as liberty, freedom of expression or right to life are universal and therefore would apply uniformly to all human beings worldwide. However, the concept of 'privacy' is a cultural notion, related to social norms, and different societies would look at these differently. Therefore referring to the UK Data Protection Act or the laws of other countries to define 'privacy' cannot be considered a valid exercise to constrain the citizen's fundamental right to information in India."
What does exemption of information under Section 8(1) (j) of the RTI Act mean?
Under Section 8 (1) (j) information which has been exempted is defined as:
"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 Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information"
What is Section 11?
Section 11 of the RTI act, which is the basis on which the information is sought to be denied to the appellant in the present case, lays down:
"11. (1) Where a Central Public Information Officer or the State Public Information Officer, as the case may be, 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 Central Public Information Officer or State Public Information Officer, as the case may be, 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 Central Public Information Officer or State Public Information Officer, as the case may be, 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.
(2) Where a notice is served by the Central Public Information Officer or State Public Information Officer, as the case may be, 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.
(3) Notwithstanding anything contained in Section 7, the Central Public Information Officer or State Public Information Officer, as the case may be, shall, within forty days after receipt of the request under Section 6, 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.
(4) A notice given under sub-section (3) shall include a statement that the third party to whom the notice is given is entitled to prefer an appeal under section 19 against the decision."
Do you have a RTI experience to narrate?
YASHADA, Pune, has organised an innovative contest for all citizens in the state of Maharashtra -"RTI Use Experience Writing Contest 2012". For details click here: http://www.yashada.org/pdfs/rti_week_pressnote_august_2012.pdf
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