SECTIONS 8, 9, 10 AND 11 OF THE 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 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]

POINT NO. 3: SECTIONS 8, 9, 10 AND 11 OF THE RTI ACT
24. To ensure transparency and accountability and to make Indian
democracy more participatory, the RTI Act sets out a practical and
pragmatic regime to enable citizens to secure greater access to
information available with public authorities by balancing diverse
interests including efficient governance, optimum use of limited
fiscal operations and preservation of confidentiality of sensitive
information. The preamble to the RTI Act appropriately
summarises the object of harmonising various conflicts in the
following words:
 xx xx xx
AND WHEREAS democracy requires an informed
citizenry and transparency of information which are
vital to its functioning and also to contain corruption
and to hold Governments and their instrumentalities
accountable to the governed;
AND WHEREAS revelation of information in actual
practice is likely to conflict with other public interests
including efficient operations of the Governments,
optimum use of limited fiscal resources and the
preservation of confidentiality of sensitive information;
Civil Appeal No. 10044 of 2010 & Ors. Page 31 of 108
AND WHEREAS it is necessary to harmonise these
conflicting interests while preserving the paramountcy
of the democratic ideal;
xx xx xx
25. An attempt to resolve conflict and disharmony between these
aspects is evident in the exceptions and conditions on access to
information set out in Sections 8 to 11 of the RTI Act. At the
outset, we would reproduce Section 8 of the RTI Act, which reads
as under:
8. (1) Notwithstanding anything contained in this Act,
there shall be no obligation to give any citizen,
(a) information, disclosure of which would prejudicially
affect the sovereignty and integrity of India, the
security, strategic, scientific or economic interests of
the State, relation with foreign State or lead to
incitement of an offence;
(b) information which has been expressly forbidden to
be published by any court of law or tribunal or the
disclosure of which may constitute contempt of court;
(c) information, the disclosure of which would cause a
breach of privilege of Parliament or the State
Legislature;
(d) information including commercial confidence, trade
secrets or intellectual property, the disclosure of which
would harm the competitive 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;
Civil Appeal No. 10044 of 2010 & Ors. Page 32 of 108
(f) information received in confidence from foreign
Government;
(g) information, the disclosure of which would endanger
the life or physical safety of any person or identify the
source of information or assistance given in confidence
for law enforcement or security purposes;
(h) information which would impede the process of
investigation or apprehension or prosecution of
offenders;
(i) cabinet papers including records of deliberations of
the Council of Ministers, Secretaries and other officers:
Provided that the decisions of Council of Ministers, the
reasons thereof, and the material on the basis of which
the decisions were taken shall be made public after the
decision has been taken, and the matter is complete,
or over:
Provided further that those matters which come under
the exemptions specified in this section shall not be
disclosed;
(j) information which 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 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.
(2) Notwithstanding anything in the Official Secrets Act,
1923 nor any of the exemptions permissible in
accordance with sub-section (1), a public authority may
allow access to information, if public interest in
Civil Appeal No. 10044 of 2010 & Ors. Page 33 of 108
disclosure outweighs the harm to the protected
interests.
(3) Subject to the provisions of clauses (a), (c) and (i)
of sub-section (1), any information relating to any
occurrence, event or matter which has taken place,
occurred or happened twenty years before the date on
which any request is made under section 6 shall be
provided to any person making a request under that
section:
Provided that where any question arises as to the date
from which the said period of twenty years has to be
computed, the decision of the Central Government
shall be final, subject to the usual appeals provided for
in this Act.
Sub-section (1) of Section 8 begins with a non-obstante
clause giving primacy and overriding legal effect to different
clauses under the sub-section in case of any conflict with other
provisions of the RTI Act. Section 8(1) without modifying or
amending the term information, carves out exceptions when
access to information, as defined in Section 2(f) of the RTI Act
would be denied. Consequently, the right to information is
available when information is accessible under the RTI Act, that is,
when the exceptions listed in Section 8(1) of the RTI Act are not
attracted. In terms of Section 3 of the RTI Act, all citizens have
right to information, subject to the provisions of the RTI Act, that
is, information held by or under the control of any public authority,
except when such information is exempt or excluded.
Civil Appeal No. 10044 of 2010 & Ors. Page 34 of 108
26. Clauses in sub-section (1) to Section 8 can be divided into two
categories: clauses (a), (b), (c), (f), (g), (h) and (i), and clauses (d),
(e) and (j). The latter clauses state that the prohibition specified
would not apply or operate when the competent authority in
clauses (d) and (e) and the PIO in clause (j) is satisfied that larger
public interest warrants disclosure of such information.16
Therefore, clauses (d), (e) and (j) of Section 8(1) of the RTI Act
incorporate qualified prohibitions and are conditional and not
absolute exemptions. Clauses (a), (b), (c), (f), (g), (h) and (i) do
not have any such stipulation. Prohibitory stipulations in these
clauses do not permit disclosure of information on satisfaction of
the larger public interest rule. These clauses, therefore,
incorporate absolute exclusions.
27. Sub-section (2) to Section 8 states that notwithstanding anything
contained in the Official Secrets Act, 1923 or any of the
exemptions permissible in accordance with sub-section (1), a
public authority may allow access to information if the public
interest in disclosure outweighs the harm to the protected
interests. The disclosure under Section 8(2) by the public authority
16 For the purpose of the present decision, we do not consider it appropriate to decide who would be
the competent authority in the case of other public authorities, if sub-clauses (i) to (v) to clause (e)
of Section 2 are inapplicable. This anomaly or question is not required to be decided in the present
case as the Chief Justice of India is a competent authority in the case of the Supreme Court of
India.
Civil Appeal No. 10044 of 2010 & Ors. Page 35 of 108
is not a mandate or compulsion but is in the form of discretionary
disclosure. Section 8(2) acknowledges and empowers the public
authority to lawfully disclose information held by them despite the
exemptions under sub-section (1) to Section 8 if the public
authority is of the opinion that the larger public interest warrants
disclosure. Such disclosure can be made notwithstanding the
provisions of the Official Secrets Act. Section 8(2) does not create
a vested or justiciable right that the citizens can enforce by an
application before the PIO seeking information under the RTI Act.
PIO is under no duty to disclose information covered by
exemptions under Section 8(1) of the RTI Act. Once the PIO
comes to the conclusion that any of the exemption clauses is
applicable, the PIO cannot pass an order directing disclosure
under Section 8(2) of the RTI Act as this discretionary power is
exclusively vested with the public authority.
28. Section 9 provides that without prejudice to the provisions of
Section 8, a request for information may be rejected if such a
request for providing access would involve an infringement of
copyright subsisting in a person other than the State.
29. Section 10 deals with severability of exempted information and
sub-section (1) thereof reads as under:
Civil Appeal No. 10044 of 2010 & Ors. Page 36 of 108
10. Severability. (1) Where a request for access to
information is rejected on the ground that it is in
relation to information which is exempt from disclosure,
then, notwithstanding anything contained in this Act,
access may be provided to that part of the record
which does not contain any information which is
exempt from disclosure under this Act and which can
reasonably be severed from any part that contains
exempt information.
30. Section 11, which deals with third party information, and
incorporates conditional exclusion based on breach of
confidentiality by applying public interest test, reads as under:
11. (1) Where a Central Public Information Officer or a
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
Civil Appeal No. 10044 of 2010 & Ors. Page 37 of 108
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 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.
We shall subsequently interpret and expound on Section 11
of the RTI Act.
31. At the present stage, we would like to quote from Aditya
Bandopadhyay (supra) wherein this Court, on the aspect of
general principles of interpretation while deciding the conflict
between the right to information and exclusions under Section 8 to
11 of the RTI Act, had observed:
61. Some High Courts have held that Section 8 of the
RTI Act is in the nature of an exception to Section 3
which empowers the citizens with the right to
information, which is a derivative from the freedom of
speech; and that, therefore, Section 8 should be
construed strictly, literally and narrowly. This may not
be the correct approach. The Act seeks to bring about
a balance between two conflicting interests, as
harmony between them is essential for preserving
democracy. One is to bring about transparency and
Civil Appeal No. 10044 of 2010 & Ors. Page 38 of 108
accountability by providing access to information under
the control of public authorities. The other is to ensure
that the revelation of information, in actual practice,
does not conflict with other public interests which
include efficient operation of the governments,
optimum use of limited fiscal resources and
preservation of confidentiality of sensitive information.
The Preamble to the Act specifically states that the
object of the Act is to harmonise these two conflicting
interests. While Sections 3 and 4 seek to achieve the
first objective, Sections 8, 9, 10 and 11 seek to achieve
the second objective. Therefore, when Section 8
exempts certain information from being disclosed, it
should not be considered to be a fetter on the right to
information, but as an equally important provision
protecting other public interests essential for the
fulfilment and preservation of democratic ideals.
62. When trying to ensure that the right to information
does not conflict with several other public interests
(which includes efficient operations of the
Governments, preservation of confidentiality of
sensitive information, optimum use of limited fiscal
resources, etc.), it is difficult to visualise and
enumerate all types of information which require to be
exempted from disclosure in public interest. The
legislature has however made an attempt to do so. The
enumeration of exemptions is more exhaustive than
the enumeration of exemptions attempted in the earlier
Act, that is, Section 8 of the Freedom to Information
Act, 2002. The courts and Information Commissions
enforcing the provisions of the RTI Act have to adopt a
purposive construction, involving a reasonable and
balanced approach which harmonises the two objects
of the Act, while interpreting Section 8 and the other
provisions of the Act.
63. At this juncture, it is necessary to clear some
misconceptions about the RTI Act. The RTI Act
provides access to all information that is available and
existing. This is clear from a combined reading of
Section 3 and the definitions of information and right
to information under clauses (f) and (j) of Section 2 of
the Act. If a public authority has any information in the
Civil Appeal No. 10044 of 2010 & Ors. Page 39 of 108
form of data or analysed data, or abstracts, or
statistics, an applicant may access such information,
subject to the exemptions in Section 8 of the Act. But
where the information sought is not a part of the record
of a public authority, and where such information is not
required to be maintained under any law or the rules or
regulations of the public authority, the Act does not
cast an obligation upon the public authority, to collect
or collate such non-available information and then
furnish it to an applicant. A public authority is also not
required to furnish information which require drawing of
inferences and/or making of assumptions. It is also not
required to provide advice or opinion to an
applicant, nor required to obtain and furnish any
opinion or advice to an applicant. The reference to
opinion or advice in the definition of information in
Section 2(f) of the Act, only refers to such material
available in the records of the public authority. Many
public authorities have, as a public relation exercise,
provide advice, guidance and opinion to the citizens.
But that is purely voluntary and should not be confused
with any obligation under the RTI Act.
Paragraph 63 quoted above has to be read with our
observations on the last portion of clause (f) to Section 2 defining
the word information, albeit, on the observations and findings
recorded, we respectfully concur. For the present decision, we are
required to primarily examine clauses (e) and (j) of sub-section (1)
to Section 8 and Section 11 of the RTI Act.