In this part, we will see possible solution in a situation when information has been denied on the grounds that it is of a personal nature and that no larger public interest has been established.
Grounds for Appeal:
Section 8 (1) (j) of the right to information (RTI) Act exempts
“information which relates to personal matters, 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:
Provided that the information, which cannot be denied to the Parliament or a State Legislature shall not be denied to any person.”
To qualify for this exemption, 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.
Therefore, it suggests that 'personal' cannot be related to institutions, organisations, or corporates. Also, since the provision talks about invasion of privacy of the individual, Section 8(1) (j) of the RTI Act cannot be applied when the information concerns institutions, organisations or corporates.
A clear reading of the law shows that the information requested may be denied under section 8(1)(j), under the following two circumstances –
a) Where the information requested is of a personal nature and as such has apparently no relationship to any public activity or interest; or
b) Where the information requested is of a personal nature and the disclosure of the said information would cause unwarranted invasion of the privacy of the individual.
If the information is of a personal nature, it must be examined whether the information came to the public authority because of a public activity. Generally, most of the information in public records arises from a public activity.
Even if the information has arisen out of a public activity, it could still be exempt if disclosing it would be an unwarranted invasion on the privacy of an individual. Privacy is to do with matters within a home, a person’s body, and sexual preferences as per the Kharak Singh and the R Rajagopal judgements of the Supreme Court.
This is in line with Article 19 (2) which permits placing restrictions on Article 19 (1) (a) in the interest of ‘decency or morality.’ Article 19 (2) permits “reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of the sovereignty and integrity of India, the security of the state, friendly relations with foreign states, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.”
The only words, which could apply to the issue of violation of privacy are ‘decency or morality’.
Even if it is felt that the information is not the result of any public activity or disclosing it would be an unwarranted invasion on the privacy of an individual, before denying information it must be subjected to the acid test of the proviso: ‘Provided that the information, which cannot be denied to the Parliament or a state legislature shall not be denied to any person.’
The proviso is meant as a test which must be applied before denying information claiming exemption under Section 8 (1) (j).
Hence, when a public information officer (PIO), first appellate authority (FAA), information commissioner or judge invokes the exemption under Section 8 (1)(j), they must first come to the subjective conclusion that they would not provide the information to members of Parliament (MPs) and members of legislative assembly (MLAs) and record this when denying information to citizens.
Such an authority must first determine whether the information sought is a result of a private activity; secondly, whether it relates to the privacy of the individual and would violate ‘decency or morality’.
Even if one of these applies, your subjective assessment must be recorded and that that the information would also be denied to Parliament or state legislature. Otherwise, the denial will not be in consonance with the RTI Act or the Constitution.
I quote the ratio decidendi (the rule of law on which a judicial decision is based) of the Supreme Court judgement in R Rajagopal and Anr v state of Tamil Nadu (1994), which states:
“26. We may now summarise the broad principles flowing from the above discussion:
1. The right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21. It is a "right to be let alone." A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education among other matters. None can publish anything concerning the above matters without his consent - whether truthful or otherwise and whether laudatory or critical. If he does so, he would be violating the right to privacy of the person concerned and would be liable in an action for damages. Position may, however, be different, if a person voluntarily thrusts himself into controversy or voluntarily invites or raises a controversy.
2. The rule aforesaid is subject to the exception, that any publication concerning the aforesaid aspects becomes unobjectionable if such publication is based upon public records including court records. This is for the reason that once a matter becomes a matter of public record, the right to privacy no longer subsists and it becomes a legitimate subject for comment by press and media among others. We are, however, of the opinion that in the interests of decency [Article 19(2)] an exception must be carved out to this rule, viz., a female who is the victim of a sexual assault, kidnap, abduction or a like offence should not further be subjected to the indignity of her name and the incident being publicised in press/media.
3. There is yet another exception to the rule in (1) above - indeed, this is not an exception but an independent rule. In the case of public officials, it is obvious that the right to privacy, or for that matter, the remedy of action for damages is simply not available with respect to their acts and conduct relevant to the discharge of their official duties. This is so even where the publication is based upon facts and statements which are not true, unless the official establishes that the publication was made (by the defendant) with reckless disregard for truth. In such a case, it would be enough for the defendant (member of the press or media) to prove that he acted after a reasonable verification of the facts; it is not necessary for him to prove that what he has written is true. Of course, where the publication is proved to be false and actuated by malice or personal animosity, the defendant would have no defence and would be liable for damages. It is equally obvious that in matters not relevant to the discharge of his duties, the public official enjoys the same protection as any other citizen, as explained in (1) and (2) above. It needs no reiteration that the judiciary, which is protected by the power to punish for contempt of court and Parliament and legislatures, protected as their privileges are by Articles 105 and 104 respectively of the Constitution of India, represent exceptions to this rule.”
This judgement effectively lays down that matters of public records cannot claim privacy, unless it relates to violation of 'decency or morality'. This reiterates the principle in Article 19 (2) of the constitution.
If the denial is based on the Girish Ramchandra Deshpande judgement of the Supreme Court, I would like to point out that it was given in a special leave petition (SLP) and, hence, does not give any reasoning and cannot lay down the law. Besides, the R Rajagopal judgement precedes the Girish Deshpande judgement. It also has a clear ratio decidendi and, hence, forms a precedent laying down the law. The Girish Deshpande judgement being a subsequent judgement cannot contradict or override the R Rajagopal judgement.
All personal information is not exempt from disclosure by law; hence, there is no reason to establish a larger public interest. This would be necessary only when the information is exempt.
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(Shailesh Gandhi served as Central Information Commissioner under the RTI Act, 2005, during 18 September 2008 to 6 July 2012. He is a graduate in Civil Engineering from IIT-Bombay. Before becoming a full time RTI activist in 2003, he sold his packaging business. In 2008, he was conferred the Nani Palkhivala Memorial Award for civil liberties.