the scheme of RTI Act

CENTRAL PUBLIC INFORMATION OFFICER, SUPREME COURT OF INDIA VERSUS SUBHASH CHANDRA AGARWAL , CIVIL APPEAL NO. 10044 OF 2010 IN THE SUPREME COURT OF INDIA
Concurring J U D G M E N T by N.V. RAMANA, J

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]

11. Before we proceed any further we need to have a brief reference to
the scheme of RTI Act. The statement of objects and reasons
envisage a noble goal of creating a democracy which is consisting
of informed citizens and a transparent government. It also
provides for a balance between effective government, efficient
operations, expenditure of such transparent systems and
requirements of confidentiality for certain sensitive information.
It recognises that these principles are inevitable to create
friction inter se and there needs to be harmonisation of such
conflicting interests and there is further requirement to preserve
8
the supremacy of democratic ideal. The recognition of this
normative democratic ideal requires us to further expound upon
the optimum levels of accountability and transparency of efficient
operations of the government. Under Section 2(f), information is
defined as any material in any form including records, documents,
memos, e-mails, opinions, advises, press releases, circulars,
orders, logbooks, contracts, reports, papers, samples, models, data
material held in any electronic form and information relating to any
private body which can be accessed by a public authority under
any other law for the time being in force.
12. The purport of this section was to cover all types of information
contained in any format to be available under the ambit of the RTI
Act. The aforesaid definition is further broadened by the definition
of record provided under Section 2(i) of the RTI Act. Right to
Information as defined under Section 2(j) of the RTI Act means the
right to information accessible under this Act which is held by or
under the control of any public authority.
13. Chapter II of the RTI Act begins with a statement under Section 3
by proclaiming that all citizens shall have right to information
9
subject to the provisions of the RTI Act. Section 4 creates an
obligation on public authorities to maintain a minimum standard
of data which would be freely available for the citizens. Further
this section also mandates proactive dissemination of data for
informing the citizens by utilizing various modes and means of
communications. Section 5 requires every public authority to
designate concerned CPIO or SPIO, as the case may be for
providing information to those who seeks the same.
14. Section 6 of the RTI Act provides for procedure required to be
followed by a person who desires to obtain information under the
RTI Act. Section 7 further provides the time frame within such
designated officers are to decide the applications filed by the
information seeker. For our purposes Section 8 deems relevant
and is accordingly extracted hereunder
8. Exemption from disclosure of
information.
(1) Notwithstanding anything contained in this
Act, there shall be no obligation to give any citizen,

(d) information including commercial confidence,
trade secrets or intellectual property, the
disclosure of which would harm the competitive
10
position of a third party, unless the competent
authority is satisfied that larger public interest
warrants the disclosure of such information;
(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;
(j) information which relates to personal
information the disclosure of which has not
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.
15. It may be relevant to note Section 10 of the RTI Act which deals
with severability of the exempted information. The mandate of the
section is that where a request for access to information contains
both exempted as well as non-exempted parts, if the nonexempted parts could be revealed, such parts which could be
reasonably severed and can be provided as information under the
Act.
16. Section 11 which is material for the discussion involved herein
states as under -
11
11. Third party information.
(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
12
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.
17. The mandate under Section 11 of the RTI Act enshrines the
principles of natural justice, wherein, the third party is provided
with an opportunity to be heard and the authority needs to
consider whether the disclosure in public interest outweighs the
possible harm in disclosure to the third party. It must be noted
that the use of term confidential as occurring under Section 11,
subsumes commercial confidential information, other types of
confidential information and private information.
18. We may not concentrate on other procedural section provided
under the RTI Act as they do not have any bearing on the case
concerned.