A quick look at the annual report of 2020-21 of the central information commission (CIC) shows that 25,367 applications (47.38%) were rejected under Section 8 (1) of Right to Information (RTI) Act, which spells out exemptions from disclosure of information in its 10 sub-sections.
Quite predictably, Section 8(1)(j) of the RTI Act, which protects personal information of an individual and prohibits disclosure that may cause unwarranted invasion of the individual’s privacy, is the most frequently used of permissible exemptions during the pandemic year. Central-level public authorities invoked this clause to reject 34.44% of the RTI applications in 2020-21 - a marginal increase over the 2019-20 figure of 34.01%.
However, Venkatesh Nayak, transparency advocator, in his analysis of rejections listed in the CIC’s annual report, states that, “Most ministries reported a major decline in the use of Section 8(1)(j) during the pandemic year. It was to the tune of 50% in the case of the prime public authority, Supreme Court of India (from 142 cases in 2019-20 to 72 cases in 2020-21).”
Nevertheless, Shailesh Gandhi, former central information commissioner (CIC) and RTI activist, who has been campaigning against the prolific use of Section 8 (1) (j) under the garb of protecting private information from being disseminated, says it is due to the misinterpretation of this clause, which continues without a halt and this lesser percentage is serious enough to threaten the power of this transparency law.
He fears that, “the RTI Act will lose its teeth as public information officers (PIOs), appellate authorities (AAs) and information commissioners (ICs) consistently deny personal information to applicants because they perceive that it does not satisfy the larger public interest criteria.”
If there is some solace that there is a decline in rejections, Mr Nayak provides some interesting figures. According to him, “The ministry of finance, which accounts for the most frequent use of this exemption year after year, also reported a drastic reduction in usage - from 7,528 cases in 2019-20 to 5,210 cases in 2020-21. Delhi Police also reported a major reduction in the employment of this exemption - from 641 cases in 2019-20 to only 470 cases in 2020-21. The use of this exemption halved in the ministry of petroleum and natural gas - from 415 cases in 2019-20 to 208 cases during the pandemic year.”
Those public authorities under various ministries which reported increase in rejection cases are: ministry of external affairs which reported a five-fold increase in the use of Section 8(1)(j) during the pandemic year. It rose to 681 cases from 107 in 2019-20. Similarly, the ministry of steel had invoked this exemption in two cases only in 2019-20; but, in the pandemic year it was invoked in 199 cases.
The use of this exemption went up to 576 cases in 2020-21 in the ministry of railways, whereas it was used only in 20 cases during the previous year. The ministry of consumer affairs and public distribution also reported use of this exemption in 142 cases during the pandemic year as compared to only 18 cases in 2019-20. The ministry of health and family welfare used this exemption in 184 cases during the pandemic year, whereas it was used in only 107 cases in 2019-20.
For the recall, what are all the exemption clauses under Section 8 of the RTI Act? They include information that would threaten national integrity, security or economic interests; would amount to contempt of court; would hamper police investigations; would affect commercial interests like trade secrets; would affect 'fiduciary' relationships; would harm the person physically (like asking for details of VIP security, for example).
This Section also protects information pertaining to deliberations of the council of ministers and secretaries while the process is underway. (Information can be given after a Cabinet decision, though).
Mr Gandhi blames certain court judgements too, beginning from the Girish Ramchandra Deshpande vs Central Information Commissioner & others (2012) case, which have also given orders of exempting personal information from being provided.
“Such judgments demean the spirit of the Section 8 1(j) exemption clause. In this clause, there is also a proviso, which says that information that cannot be denied to an elected representative, cannot be denied to the common man either. However, this vital proviso is totally ignored, thus diluting the transparency, slowly and steadily,’’ the former CIC says.
Mr Nayak observes in his findings of this annual report that key ministries, incharge of COVID-19 related issues, used the exemption clauses under Section 8, the most.
Elaborating further he says, “Key ministries at the frontline of the efforts to combat the COVID-19 pandemic reported a major increase in rejections. Some of them used exemptions clauses which they used in earlier years to deny access to information. The ministry of health and family welfare, the ministry of consumer affairs and public distribution are notable illustrations of this trend. The latter invoked the national security exemption in hundreds of cases during the pandemic year. The Delhi government reported a massive increase in the number of rejections during the pandemic year as compared with 2019-20.”
Is he hopeful that the CIC will take any action for continuous rejections, which have become a routine? Mr Nayak says, “It is not possible to predict whether even a significant fraction of these cases will land up at the CIC in the form of appeals and complaints. Therefore, there is a strong reason for the CIC to hold consultations with such ministries, and also public authorities under their jurisdiction, to examine this trend and explore the correctness of such decisions to deny access to information.”
(Vinita Deshmukh is consulting editor of Moneylife. She is also the convener of the Pune Metro Jagruti Abhiyaan. She is the recipient of prestigious awards like the Statesman Award for Rural Reporting, which she won twice in 1998 and 2005 and the Chameli Devi Jain award for outstanding media person for her investigation series on Dow Chemicals. She co-authored the book “To The Last Bullet - The Inspiring Story of A Braveheart - Ashok Kamte” with Vinita Kamte and is the author of “The Mighty Fall”.)