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

https://ciconline.nic.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