balance privacy with 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
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]
.
33. Further, the appellants have contended that the information
sought herein relating to the third party are covered under
exemptions as provided in Section 8(1)(j) of the RTI Act i.e. private
information.
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34. The development from breach of confidence to misuse of private
information/privacy claim was gradual. There was shift from the
focus on relationship to whether the information itself had a
requisite confidential quality [refer to Her Majestys Attorney
General case (supra)]. This shift in focus resulted in the evolution
of misuse of private information or privacy claim, from its
predecessor of confidentiality. In the case of Campbell v. M.G.N.,
[2004] UKHL 22, wherein the breach of misuse of private
information evolved as cause of action. The modification which
happened in the new cause of action is that the initial confidential
relationship was not material, which was earlier required under
the breach of confidence action. The use of term confidential
information was replaced with more natural descriptive term
information in private. The change from breach of confidence
which was an action of equity, to misuse of private information,
which was a tort provided more structural definitiveness and
reduced the discretionary aspect.
35. The purport of the Section 8(1)(j) of the RTI Act is to balance
privacy with public interest. Under the provision a two steps test
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could be identified wherein the first step was: (i) whether there is
a reasonable expectation of privacy, and (ii) whether on an
ultimate balancing analysis, does privacy give way to freedom of
expression? We should acknowledge that these two tests are very
difficult to be kept separate analytically.
FIRST STEP
36. The first step for the adjudicating authority is to ascertain
whether the information is private and whether the information
relating the concerned party has a reasonable expectation of
privacy. In Murray v. Express Newspaper plc, [2009] Ch 481, it
was held as under
As we see it, the question whether there is a
reasonable expectation of privacy is a broad one,
which takes account of all the circumstances of the
case. They include the attributes of the claimant,
the nature of the activity in which the claimant was
engaged, the place at which it was happening, the
nature and purpose of the intrusion, the absence
of consent and whether it was known or could be
inferred, the effect on the claimant and the
circumstances in which and the purposes for which
the information came into the hands of the
publisher.
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37. From the aforesaid discussion we can note that there are certain
factors which needs to be considered before concluding whether
there was a reasonable expectation of privacy of the person
concerned. These non-exhaustive factors are;
1. The nature of information.
2. Impact on private life.
3. Improper conduct.
4. Criminality
5. Place where the activity occurred or the information
was found.
6. Attributes of claimants such as being a public figure, a
minor etc and their reputation.
7. Absence of consent.
8. Circumstances and purposes for which the information
came into the hands of the publishers.
9. Effect on the claimant.
10. Intrusions nature and purpose.
These non-exhaustive factors are to be considered in order to
come to a conclusion whether the information sought is private or
does the persons has a reasonable expectations of privacy. In
certain cases we may conclude that there could be certain
information which are inherently private and are presumptively
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protected under the privacy rights. These informations include
gender, age and sexual preferences etc. These instances need to
be kept in mind while assessing the first requirement under the
aforesaid test.
38. If the information is strictly covered under the aforesaid
formulation, then the person is exempted from the right to
information unless the public interest test requires to trump the
same.
SECOND STEP
39. Having ascertained whether the information is private or not, a
judge is required to adopt a balancing test to note whether the
public interest justifies discloser of such information under
Section 8(1)(j) of the RTI Act. The term larger public interest
needs to be understood in light of the above discussion which
points that a balancing test needs to be incorporated to see the
appropriateness of discloser. There are certain basic principles
which we need to keep in mind while balancing the rights which
are relevant herein.
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40. That the right to information and right to privacy are at an equal
footing. There is no requirement to take an a priori view that one
right trumps other. Although there are American cases, which
have taken the view that the freedom of speech and expression
trumps all other rights in every case. However, in India we cannot
accord any such priority to the rights.
41. The contextual balancing involves proportionality test. [See K
S Puttaswamy v. Union of India, (2017) 10 SCC 1]. The test is
to see whether the release of information would be necessary,
depends on the information seeker showing the pressing social
need or compelling requirement for upholding the democratic
values. We can easily conclude that the exemption of public
interest as occurring under Section 8(1)(j) requires a balancing
test to be adopted. We need to distinguish two separate concepts
i.e. interest of the public and something in the public interest.
Therefore, the material distinction between the aforesaid concepts
concern those matters which affect political, moral and material
welfare of the public need to be distinguished from those for
public entertainment, curiosity or amusement. Under Section
8(1)(j) of the RTI Act requires us to hold that only the former is an
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exception to the exemption. Although we must note that the
majority opinion in K S Puttaswamy (supra) has held that the
data privacy is part of the right to privacy, however, we need to
note that the concept of data protection is still developing
[refer Google Spain v. AEPD, C/131/12; Bavarian
Lager v Commission, [2007] ECR II-4523]. As we are not
concerned with the aforesaid aspects, we need not indulge any
more than to state that there is an urgent requirement for
integrating the principles of data protection into the right to
information jurisprudence.
42. Coming to the aspect of transparency, judicial independence and
the RTI Act, we need to note that there needs to be a balance
between the three equally important concepts. The whole bulwark
of preserving our Constitution, is trusted upon judiciary, when
other branches have not been able to do so. As a shield, the
judicial independence is the basis with which judiciary has
maintained its trust reposed by the citizens. In light of the same,
the judiciary needs to be protected from attempts to breach its
independence. Such interference requires calibration of
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appropriate amount of transparency in consonance with judicial
independence.
43. It must be kept in the mind that the transparency cannot be
allowed to run to its absolute, considering the fact that efficiency
is equally important principle to be taken into fold. We may note
that right to information should not be allowed to be used as a
tool of surveillance to scuttle effective functioning of judiciary.
While applying the second step the concerned authority needs to
balance these considerations as well.
44. In line with the aforesaid discussion, we need to note that
following non-exhaustive considerations needs to be considered
while assessing the public interest under Section 8 of the RTI
Acta. Nature and content of the information
b. Consequences of non-disclosure; dangers and benefits
to public
c. Type of confidential obligation.
d. Beliefs of the confidant; reasonable suspicion
e. Party to whom information is disclosed
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f. Manner in which information acquired
g. Public and private interests
h.Freedom of expression and proportionality.
45. Having ascertained the test which is required to be applied while
considering the exemption under Section 8(1)(j) of the RTI Act,