MEANING OF THE TERM ‘PUBLIC INTEREST

CENTRAL PUBLIC INFORMATION OFFICER, SUPREME COURT OF INDIA VERSUS SUBHASH CHANDRA AGARWAL , CIVIL APPEAL NO. 10044 OF 2010 IN THE SUPREME COURT OF INDIA 1.    FACTS
9.    The case involves three appeals which arose from separate orders denying access to information under the RTI Act. Through the first of the appeals, respondent sought the complete correspondence of the Chief Justice of India regarding an alleged attempt to influence a judicial decision. The second appeal involved an RTI application request to furnish a copy of documents available with the Supreme Court. This included a correspondence between the relevant constitutional authorities relating to the appointment of various Supreme Court judges. The third appeal involved an RTI application seeking information on a declaration made by judges to the Chief Justice of the Supreme Court and the Chief Justices in the States regarding the assets held by them, their spouses or any person dependent on them.
2.    DECISION OVERVIEW
FIDUCIARY RELATIONSHIP
10.    To understand the meaning of fiduciary relationship under section 8(1)(e), the Court referred to Aditya Bandopadhyay case. The court in the case had observed that the expression is used in its normal and well-recognised sense, that is, to refer to persons who act in a fiduciary capacity, with reference to a specific beneficiary or beneficiaries who are to be expected to be protected or benefited by the actions of the fiduciary. [p. 41] The Court concluded that the exemption under section 8(1)(e) of the RTI Act does not apply to beneficiaries regarding whom the fiduciary holds information.

11.    Thereafter, the Court referred to the RBI case, in which the court highlighted four principles required to classify a relationship as a fiduciary relationship. These are: (1) no conflict rule; (2) no profit rule; (3) undivided loyalty rule, and; (4) duty of confidentiality. The court observed that the fiduciary relationship casts positive obligations on the fiduciary and requires it to protect the interests of the beneficiary. Accordingly, obligations of the fiduciary are stricter than non-fiduciary relationships and the judicial scrutiny is higher.

12.    The Court held that the relationship between the Chief Justice and judges is not generally that of a fiduciary and a beneficiary. However, it is not an absolute rule as in certain situations and acts, a fiduciary relationship may arise. Whether or not such a relationship arises in a particular situation would have to be dealt with based on the tests and parameters expressed above.
MEANING OF PUBLIC INTEREST
13.    The Court observed that the public interest test often applied in the right to information legislation to balance right to access and protection of the conflicting right to deny access. Section 8(1)(j) and Section 11 also require balancing of competing public interests. The Court noted that the test prescribed in Section 8(1)(j) is broader than the one in Section 11, as the latter requires comparison between disclosure of information relating to a third person or information supplied and treated as confidential by the third party and possible harm or injury to the third party on disclosure, which would include all kinds of possible harm and injury to the third party on disclosure.
14.    For the purpose of understanding public interest in the context of the RTI Act, the Court relied on a Supreme Court judgment (Bihar Public Service Commission v. Saiyed Hussain Abbas Rizwi and Another, (2012) 13 SCC 61) for it to mean the general welfare of the public warranting the disclosure and the protection applicable, in which the public as a whole has a stake. Differentiating between information in public interest and information which is of interest to the public, the Court held that the public interest test in the context of the RTI Act would mean reflecting upon the object and purpose behind the right to information, the right to privacy and consequences of invasion, and breach of confidentiality and possible harm and injury that would be caused to the third party, with reference to particular information and the person.
15.    The Court also observed that the Act does not specify factors which should be taken into consideration for determining public interest. To determine these factors, the Court referred to an article published in the Oxford University Commonwealth Law Journal (Freedom of Information and the Public Interest: the Commonwealth experience). The article determined that there are certain factors which weigh in favor of disclosure (accountability of officials, openness in the expenditure of public funds, the performance by a public authority of its regulatory functions, public health and safety, etc.), some against (the likelihood of damage to security or international relations, the likelihood of damage to the integrity or viability of decision-making processes, etc.), and lastly those which are irrelevant (the information might be misunderstood, embarrassing, that the requested information is overly technical in nature, etc.).
16.    The last aspect in the public interest test which the Court suggested may factor in is the motive and purpose for making the request for information. In the words of the Court:
Clearly, motive and purpose for making the request for information is irrelevant, and being extraneous cannot be a ground for refusing the information. However, this is not to state that motive and purpose may not be relevant factor while applying the public interest test in case of qualified exemptions governed by the public interest test Similarly, in other cases, public interest may weigh in favour of the disclosure when the information sought may be of special interest or special significance to the applicant. It could equally be a negative factor when the motive and purpose is vexatious or it is a case of clear abuse of law. [p. 79]

NEED FOR REASONED ORDER
17.    When rendering a decision, the Public Information Officers must clearly state their reasoning. Accordingly, the Court held:
The delicate balance requires identification of public interest behind each exemption and then cumulatively weighing the public interest in accepting or maintaining the exemption(s) to deny information in a particular case against the public interest in disclosure in that particular case. Further, under Section 11(1), reference is made to the possible harm and injury to the third party which will also have to be factored in when determining disclosure of confidential information relating to the third parties. [p. 78]
MEANING OF THE TERM PUBLIC INTEREST
71. In Union of India v. Association for Democratic Reforms and
Another48 recognising the voters right to know the antecedents of
the candidates and the right to information which stems from
Article 19(1)(a) of the Constitution, it was held that directions could
48 (2002) 5 SCC 294
Civil Appeal No. 10044 of 2010 & Ors. Page 84 of 108
be issued by the Court to subserve public interest in creating an
informed citizenry, observing:
46. [] The right to get information in democracy is
recognised all throughout and it is natural right flowing
from the concept of democracy. At this stage, we would
refer to Article 19(1) and (2) of the International
Covenant of Civil and Political Rights which is as
under:
(1) Everyone shall have the right to hold opinions
without interference.
(2) Everyone shall have the right to freedom of
expression; this right shall include freedom to seek,
receive and impart information and ideas of all kinds,
regardless of frontiers, either orally, in writing or in
print, in the form of art, or through any other media of
his choice.
6. Cumulative reading of plethora of decisions of this
Court as referred to, it is clear that if the field meant for
legislature and executive is left unoccupied detrimental
to the public interest, this Court would have ample
jurisdiction under Article 32 read with Article 141 and
142 of the Constitution to issue necessary directions to
the Executive to subserve public interest.
Clearly, the larger public interest in having an informed
electorate, fair elections and creating a dialectical democracy had
outweighed and compelled this Court to issue the directions
notwithstanding disclosure of information relating to the personal
assets, educational qualifications and antecedents including
previous involvement in a criminal case of the contesting
candidate.
Civil Appeal No. 10044 of 2010 & Ors. Page 85 of 108
72. Public interest, sometimes criticised as inherently amorphous and
incapable of a precise definition, is a time tested and historical
conflict of rights test which is often applied in the right to
information legislation to balance right to access and protection of
the conflicting right to deny access. In Mosley v. News Group
Papers Ltd.49 it has been observed:
130 It is not simply a matter of personal privacy
versus the public interest. The modern perception is
that there is a public interest in respecting personal
privacy. It is thus a question of taking account of
conflicting public interest considerations and evaluating
them according to increasingly well recognized
criteria.
The RTI Act is no exception. Section 8(1)(j) of the RTI Act
prescribes the requirement of satisfaction of larger public interest
for access to information when the information relates to personal
information having no relationship with any public activity or
interest, or would cause unwarranted invasion of privacy of the
individual. Proviso to Section 11(1) states that except in 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 interest of the third party. The
words possible harm or injury to the interest of the third party is
preceded by the word importance for the purpose of comparison.
49 2008 EWHC 1777 (QB)
Civil Appeal No. 10044 of 2010 & Ors. Page 86 of 108
Possible in the context of the proviso does not mean something
remote, far-fetched or hypothetical, but a calculable, foreseeable
and substantial possibility of harm and injury to the third party.
73. Comparison or balancing exercise of competing public interests
has to be undertaken in both sections, albeit under Section 8(1)(j)
the comparison is between public interest behind the exemption,
that is personal information or invasion of privacy of the individual
and public interest behind access to information, whereas the test
prescribed by the proviso to Section 11(1) is somewhat broader
and wider as it requires comparison between disclosure of
information relating to a third person or information supplied and
treated as confidential by the third party and possible harm or
injury to the third party on disclosure, which would include all kinds
of possible harm and injury to the third party on disclosure.
74. This Court in Bihar Public Service Commission v. Saiyed
Hussain Abbas Rizwi and Another50 has held that the phrase
public interest in Section 8(1)(j) has to be understood in its true
connotation to give complete meaning to the relevant provisions of
the RTI Act. However, the RTI Act does not specifically identify
factors to be taken into account in determining where the public
50 (2012) 13 SCC 61
Civil Appeal No. 10044 of 2010 & Ors. Page 87 of 108
interest lies. Therefore, it is important to understand the meaning
of the expression public interest in the context of the RTI Act.
This Court held public interest to mean the general welfare of the
public warranting the disclosure and the protection applicable, in
which the public as a whole has a stake, and observed:
23. The satisfaction has to be arrived at by the
authorities objectively and the consequences of such
disclosure have to be weighed with regard to the
circumstances of a given case. The decision has to be
based on objective satisfaction recorded for ensuring
that larger public interest outweighs unwarranted
invasion of privacy or other factors stated in the
provision. Certain matters, particularly in relation to
appointment, are required to be dealt with great
confidentiality. The information may come to
knowledge of the authority as a result of disclosure by
others who give that information in confidence and with
complete faith, integrity and fidelity. Secrecy of such
information shall be maintained, thus, bringing it within
the ambit of fiduciary capacity. Similarly, there may be
cases where the disclosure has no relationship to any
public activity or interest or it may even cause
unwarranted invasion of privacy of the individual. All
these protections have to be given their due
implementation as they spring from statutory
exemptions. It is not a decision simpliciter between
private interest and public interest. It is a matter where
a constitutional protection is available to a person with
regard to the right to privacy. Thus, the public interest
has to be construed while keeping in mind the balance
factor between right to privacy and right to information
with the purpose sought to be achieved and the
purpose that would be served in the larger public
interest, particularly when both these rights emerge
from the constitutional values under the Constitution of
India.
Civil Appeal No. 10044 of 2010 & Ors. Page 88 of 108
75. Public interest in access to information refers to something that is
in the interest of the public welfare to know. Public welfare is
widely different from what is of interest to the public. Something
which is of interest to the public and something which is in the
public interest are two separate and different parameters. For
example, the public may be interested in private matters with
which the public may have no concern and pressing need to
know. However, such interest of the public in private matters
would repudiate and directly traverse the protection of privacy.
The object and purpose behind the specific exemption vide clause
(j) to Section 8(1) is to protect and shield oneself from
unwarranted access to personal information and to protect facets
like reputation, honour, etc. associated with the right to privacy.
Similarly, there is a public interest in the maintenance of
confidentiality in the case of private individuals and even
government, an aspect we have already discussed.
76. The public interest test in the context of the RTI Act would mean
reflecting upon the object and purpose behind the right to
information, the right to privacy and consequences of invasion,
and breach of confidentiality and possible harm and injury that
would be caused to the third party, with reference to a particular
information and the person. In an article Freedom of Information
Civil Appeal No. 10044 of 2010 & Ors. Page 89 of 108
and the Public Interest: the Commonwealth experience published
in the Oxford University Commonwealth Law Journal,51 the factors
identified as favouring disclosure, those against disclosure and
lastly those irrelevant for consideration of public interest have
been elucidated as under:
it is generally accepted that the public interest is not
synonymous with what is of interest to the public, in the
sense of satisfying public curiosity about some matter.
For example, the UK Information Tribunal has drawn a
distinction between matters which were in the interests
of the public to know and matters which were merely
interesting to the public (i.e. which the public would like
to know about, and which sell newspapers, but... are
not relevant).
Factors identified as favouring disclosure include
the public interest in: contributing to a debate on a
matter of public importance; accountability of officials;
openness in the expenditure of public funds, the
performance by a public authority of its regulatory
functions, the handling of complaints by public
authorities; exposure of wrongdoing, inefficiency or
unfairness; individuals being able to refute allegations
made against them; enhancement of scrutiny of
decision-making; and protecting against danger to
public health or safety.
Factors that have been found to weigh against
disclosure include: the likelihood of damage to security
or international relations; the likelihood of damage to
the integrity or viability of decision-making processes:
the public interest in public bodies being able to
perform their functions effectively; the public interest in
preserving the privacy of individuals and the public
interest in the preservation of confidences.
51 Published online on 28th August, 2017
Civil Appeal No. 10044 of 2010 & Ors. Page 90 of 108
Factors irrelevant to the consideration of the public
interest have also been identified. These include: that
the information might be misunderstood; that the
requested information in overly technical in nature; and
that disclosure would result in embarrassment to the
government or to officials.
77. In Campbell (supra), reference was made to the Press
Complaints Commission Code of Practice to further elucidate on
the test of public interest which stands at the intersection of
freedom of expression and the privacy rights of an individual to
hold that:
1. Public interest includes:
(i) Detecting or exposing crime or a serious
misdemeanour.
(ii) Protecting public health and safety.
(iii) Preventing the public from being misled by some
statement or action of an individual or organisation....
78. Public interest has no relationship and is not connected with the
number of individuals adversely affected by the disclosure which
may be small and insignificant in comparison to the substantial
number of individuals wanting disclosure. It will vary according to
the information sought and all circumstances of the case that bear
upon the public interest in maintaining the exemptions and those
in disclosing the information must be accounted for to judge the
right balance. Public interest is not immutable and even time-gap
Civil Appeal No. 10044 of 2010 & Ors. Page 91 of 108
may make a significant difference. The type and likelihood of harm
to the public interest behind the exemption and public interest in
disclosure would matter. The delicate balance requires
identification of public interest behind each exemption and then
cumulatively weighing the public interest in accepting or
maintaining the exemption(s) to deny information in a particular
case against the public interest in disclosure in that particular
case. Further, under Section 11(1), reference is made to the
possible harm and injury to the third party which will also have to
be factored in when determining disclosure of confidential
information relating to the third parties.
79. The last aspect in the context of public interest test would be in
the form of clarification as to the effect of sub-section (2) to
Section 6 of the RTI Act which does not require the information
seeker to give any reason for making a request for the
information. Clearly, motive and purpose for making the request
for information is irrelevant, and being extraneous cannot be a
ground for refusing the information. However, this is not to state
that motive and purpose may not be relevant factor while
applying the public interest test in case of qualified exemptions
governed by the public interest test. It is in this context that this
Court in Aditya Bandopadhyay (supra) has held that beneficiary
Civil Appeal No. 10044 of 2010 & Ors. Page 92 of 108
cannot be denied personal information relating to him. Similarly, in
other cases, public interest may weigh in favour of the disclosure
when the information sought may be of special interest or special
significance to the applicant. It could equally be a negative factor
when the motive and purpose is vexatious or it is a case of clear
abuse of law.
80. In the RTI Act, in the absence of any positive indication as to the
considerations which the PIO has to bear in mind while making a
decision, the legislature had intended to vest a general discretion
in the PIO to weigh the competing interests, which is to be limited
only by the object, scope and purpose of the protection and the
right to access information and in Section 11(1), the possible
harm and injury to the third party. It imports a discretionary value
judgment on the part of the PIO and the appellate forums as it
mandates that any conclusion arrived at must be fair and just by
protecting each right which is required to be upheld in public
interest. There is no requirement to take a fortiori view that one
trumps the other.