held by or under the control of any public authority and information accessible under this 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 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]
20. Full Bench of the Delhi High Court in its judgment dated 12th
January 2010 in LPA No. 501 of 2009 had rightly on the
interpretation of word held, referred to Philip Coppels work
Information Rights (2
nd Edition, Thomson, Sweet & Maxwell
Civil Appeal No. 10044 of 2010 & Ors. Page 24 of 108
2007)
12 interpreting the provisions of the Freedom of Information
Act, 2000 (United Kingdom) in which it has been observed:
When information is held by a public authority
For the purposes of the Freedom of Information Act 2000,
information is held by a public authority if it is held by the
authority otherwise than on behalf of another person, or if
it is held by another person on behalf of the authority. The
Act has avoided the technicalities associated with the law
of disclosure, which has conventionally drawn a
distinction between a document in the power, custody or
possession of a person. Putting to one side the effects of
s.3(2) (see para.9-009 below), the word held suggests a
relationship between a public authority and the
information akin to that of ownership or bailment of goods.
Information:
- that is, without request or arrangement, sent to or
deposited with a public authority which does not hold itself
out as willing to receive it and which does not
subsequently use it;
- that is accidentally left with a public authority;
- that just passes through a public authority; or
- that belongs to an employee or officer of a public
authority but which is brought by that employee or officer
onto the public authoritys premises,
will, it is suggested, lack the requisite assumption by the
public authority of responsibility for or dominion over the
information that is necessary before it can be said that the
public authority can be said to hold the information.
Thereafter, the Full Bench had observed:
59. Therefore, according to Coppel the word held
suggests a relationship between a public authority and
12 Also, see Philip Coppel, Information Rights (4th Edition, Hart Publishing 2014) P. 361-62
Civil Appeal No. 10044 of 2010 & Ors. Page 25 of 108
the information akin to that of an ownership or bailment
of goods. In the law of bailment, a slight assumption of
control of the chattel so deposited will render the
recipient a depository (see Newman v. Bourne and
Hollingsworth (1915) 31 T.L.R. 209). Where, therefore,
information has been created, sought, used or
consciously retained by a public authority will be
information held within the meaning of the Act.
However, if the information is sent to or deposited with
the public authority which does not hold itself out as
willing to receive it and which does not subsequently
use it or where it is accidentally left with a public
authority or just passes through a public authority or
where it belongs to an employee or officer of a public
authority but which is brought by that employee or
officer unto the public authoritys premises it will not be
information held by the public authority for the lack of
the requisite assumption by the public authority of
responsibility for or dominion over the information that
is necessary before the public authority can be said to
hold the information .
Therefore, the word hold is not purely a physical concept
but refers to the appropriate connection between the information
and the authority so that it can properly be said that the
information is held by the public authority.13
21. In Khanapuram Gandaiah v. Administrative Officer and
Others14, this Court on examining the definition clause 2(f) of the
RTI Act had held as under:
10. [] This definition shows that an applicant under
Section 6 of the RTI Act can get any information which
13 New Castle upon Tyne v. Information Commissioner and British Union for Abolition of Vivisection,
[2011] UKUT 185 AAC
14 (2010) 2 SCC 1
Civil Appeal No. 10044 of 2010 & Ors. Page 26 of 108
is already in existence and accessible to the public
authority under law. ...
xx xx xx
12. [] the Public Information Officer is not supposed
to have any material which is not before him; or any
information he could (sic not) have obtained under law.
Under Section 6 of the RTI Act, an applicant is entitled
to get only such information which can be accessed by
the public authority under any other law for the time
being in force.
The aforesaid observation emphasises on the mandatory
requirement of accessibility of information by the public authority
under any other law for the time being in force. This aspect was
again highlighted by another Division Bench in Aditya
Bandopadhyay (supra), wherein information was divided into
three categories in the following words:
59. The effect of the provisions and scheme of the RTI
Act is to divide information into three categories. They
are:
(i) Information which promotes transparency and
accountability in the working of every public authority,
disclosure of which may also help in containing or
discouraging corruption [enumerated in clauses (b) and
(c) of Section 4(1) of the RTI Act].
(ii) Other information held by public authority [that is, all
information other than those falling under clauses (b)
and (c) of Section 4(1) of the RTI Act].
(iii) Information which is not held by or under the
control of any public authority and which cannot be
accessed by a public authority under any law for the
time being in force.
Civil Appeal No. 10044 of 2010 & Ors. Page 27 of 108
Information under the third category does not fall within
the scope of the RTI Act. Section 3 of the RTI Act gives
every citizen, the right to information held by or under
the control of a public authority, which falls either under
the first or second category. In regard to the
information falling under the first category, there is also
a special responsibility upon the public authorities to
suo motu publish and disseminate such information so
that they will be easily and readily accessible to the
public without any need to access them by having
recourse to Section 6 of the RTI Act. There is no such
obligation to publish and disseminate the other
information which falls under the second category.
The first category refers to the information specified in
clause (b) to sub-section (1) to Section 4 which consists of as
many as seventeen sub-clauses on diverse subjects stated
therein. It also refers to clause (c) to sub-section (1) to Section 4
by which public authority is required to publish all relevant facts
while formulating important public policies or pronouncing its
decision which affects the public. The rationale behind these
clauses is to disseminate most of the information which is in the
public interest and promote openness and transparency in
government.
22. The expressions held by or under the control of any public
authority and information accessible under this Act are
restrictive15 and reflect the limits to the right to information
15 See Central Board of Secondary Education v. Aditya Bandopadhyay (2011) 8 SCC 497
Civil Appeal No. 10044 of 2010 & Ors. Page 28 of 108
conferred vide Section 3 of the RTI Act, which states that subject
to the provisions of the RTI Act, all citizens shall have the right to
information. The right to information is not absolute and is subject
to the conditions and exemptions under the RTI Act.
23. This aspect was again highlighted when the terms information
and right to information were interpreted in Thalappalam
Service Cooperative Bank Limited (supra) with the following
elucidation:
63. Section 8 begins with a non obstante clause,
which gives that section an overriding effect, in case of
conflict, over the other provisions of the Act. Even if,
there is any indication to the contrary, still there is no
obligation on the public authority to give information to
any citizen of what has been mentioned in clauses (a)
to (j). The public authority, as already indicated, cannot
access all the information from a private individual, but
only those information which he is legally obliged to
pass on to a public authority by law, and also only
those information to which the public authority can
have access in accordance with law. Even those
information, if personal in nature, can be made
available only subject to the limitations provided in
Section 8(j) of the RTI Act. Right to be left alone, as
propounded in Olmstead v. United States is the most
comprehensive of the rights and most valued by
civilised man.
xx xx xx
67. The Registrar of Cooperative Societies functioning
under the Cooperative Societies Act is a public
authority within the meaning of Section 2(h) of the Act.
As a public authority, the Registrar of Cooperative
Societies has been conferred with lot of statutory
powers under the respective Act under which he is
Civil Appeal No. 10044 of 2010 & Ors. Page 29 of 108
functioning. He is also duty-bound to comply with the
obligations under the RTI Act and furnish information to
a citizen under the RTI Act. Information which he is
expected to provide is the information enumerated
in Section 2(f) of the RTI Act subject to the limitations
provided under Section 8 of the Act. The Registrar can
also, to the extent law permits, gather information from
a Society, on which he has supervisory or
administrative control under the Cooperative Societies
Act. Consequently, apart from the information as is
available to him, under Section 2(f), he can also gather
those information from the society, to the extent
permitted by law. The Registrar is also not obliged to
disclose those information if those information fall
under Section 8(1)(j) of the Act. No provision has been
brought to our knowledge indicating that, under
the Cooperative Societies Act, a Registrar can call for
the details of the bank accounts maintained by the
citizens or members in a cooperative bank. Only those
information which a Registrar of Cooperative Societies
can have access under the Cooperative Societies
Act from a society could be said to be the information
which is held or under the control of public authority.
Even those information, the Registrar, as already
indicated, is not legally obliged to provide if those
information falls under the exempted category
mentioned in Section 8(j) of the Act. Apart from the
Registrar of Co-operative Societies, there may be other
public authorities who can access information from a
co-operative bank of a private account maintained by a
member of society under law, in the event of which, in
a given situation, the society will have to part with that
information. But the demand should have statutory
backing.
68. Consequently, if an information which has been
sought for relates to personal information, the
disclosure of which has no relationship to any public
activity or interest or which would cause unwarranted
invasion of the privacy of the individual, the Registrar of
Cooperative Societies, even if he has got that
information, is not bound to furnish the same to an
applicant, unless he is satisfied that the larger public
Civil Appeal No. 10044 of 2010 & Ors. Page 30 of 108
interest justifies the disclosure of such information, that
too, for reasons to be recorded in writing.
Thus, the scope of the expressions information and right to
information which can be accessed by a citizen under the RTI Act
have to be understood in light of the above discussion