Right to Privacy under Section 8(1)(j) and Confidentiality under Section 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]

Right to Privacy under Section 8(1)(j) and Confidentiality under Section 11 of the RTI Act
36. If ones right to know is absolute, then the same may invade
anothers right to privacy and breach confidentiality, and,
therefore, the former right has to be harmonised with the need for
personal privacy, confidentiality of information and effective
governance. The RTI Act captures this interplay of the competing
rights under clause (j) to Section 8(1) and Section 11. While
clause (j) to Section 8(1) refers to personal information as distinct
from information relating to public activity or interest and seeks to
exempt disclosure of such information, as well as such information
which, if disclosed, would cause unwarranted invasion of privacy
Civil Appeal No. 10044 of 2010 & Ors. Page 47 of 108
of an individual, unless public interest warrants its disclosure,
Section 11 exempts the disclosure of information or
recordwhich relates to or has been supplied by a third party and
has been treated as confidential by that third party. By differently
wording and inditing the challenge that privacy and confidentiality
throw to information rights, the RTI Act also recognises the
interconnectedness, yet distinctiveness between the breach of
confidentiality and invasion of privacy, as the former is broader
than the latter, as will be noticed below.
37. Breach of confidentiality has an older conception and was
primarily an equitable remedy based on the principle that one
party is entitled to enforce equitable duty on the persons bound by
an obligation of confidentiality on account of the relationship they
share, with actual or constructive knowledge of the confidential
relationship. Conventionally a conception of equity, confidentiality
also arises in a contract, or by a statute.18 Contractually, an
obligation to keep certain information confidential can be
effectuated expressly or implicitly by an oral or written agreement,
whereas in statutes certain extant and defined relationships are
imposed with the duty to maintain details, communication
18 See Prince Albert v. Strange, (1849) 1 Mac.&G 25, and Lord Oliver of Aylmerton, Spycatcher:
Confidence, Copyright and Contempt, Israel Law Review (1989) 23(4), 407 [as also quoted in Philip
Coppel, Information Rights, Law and Practice (4
th Edition Hart Publishing 2014)].
Civil Appeal No. 10044 of 2010 & Ors. Page 48 of 108
exchanged and records confidential. Confidentiality referred to in
the phrase 'breach of confidentiality' was initially popularly
perceived and interpreted as confidentiality arising out of a preexisting confidential relationship, as the obligation to keep certain
information confidential was on account of the nature of the
relationship. The insistence of a pre-existing confidential
relationship did not conceive a possibility that a duty to keep
information confidential could arise even if a relationship, in which
such information is exchanged and held, is not pre-existing. This
created a distinction between confidential information obtained
through the violation of a confidential relationship and similar
confidential information obtained in some other way. With time,
courts and jurists, who recognised this anomaly, have diluted the
requirement of the existence of a confidential relationship and held
that three elements were essential for a case of breach of
confidentiality to succeed, namely  (a) information should be of
confidential nature; (b) information must be imparted in
circumstances importing an obligation of confidentiality; and (c)
that there must be unauthorised use of information (See Coco v.
AN Clark (Engineers) Ltd.19). The artificial20 distinction was
emphatically abrogated by the test adopted by Lord Goff of
19 [1969] RPC 41
20 Campbell v. Mirror Group Newspapers Limited (2004) UKHL 22
Civil Appeal No. 10044 of 2010 & Ors. Page 49 of 108
Chieveley in Attorney-General v. Guardian Newspaper Limited
(No. 2)21, who had observed:
a duty of confidence arises when confidential
information comes to the knowledge of a person... in
circumstances where he has notice, or is held to have
agreed, that the information is confidential, with the
effect that it would be just in all the circumstances that
he should be precluded from disclosing the information
to others.
Lord Goff, thus, lifted the limiting constraint of a need for
initial confidential relationship stating that a 'duty of confidence'
would apply whenever a person receives information he knows or
ought to know is fairly and reasonably to be regarded as
confidential. Therefore, confidential information must not be
something which is a public property and in public knowledge/
public domain as confidentiality necessarily attributes
inaccessibility, that is, the information must not be generally
accessible, otherwise it cannot be regarded as confidential.
However, self-clarification or certification will not be relevant
because whether or not the information is confidential has to be
determined as a matter of fact. The test to be applied is that of a
reasonable person, that is, information must be such that a
reasonable person would regard it as confidential. Confidentiality
of information also has reference to the quality of information
21 (1990) 1 AC 109
Civil Appeal No. 10044 of 2010 & Ors. Page 50 of 108
though it may apply even if the information is false or partly
incorrect. However, the information must not be trivial or useless.
38. While previously information that could be considered personal
would have been protected only if it were exchanged in a
confidential relationship or considered confidential by nature,
significant developments in jurisprudence since the 1990s have
posited the acceptance of privacy as a separate right and
something worthy of protection on its own as opposed to being
protected under an actionable claim for breach of confidentiality. A
claim to protect privacy is, in a sense, a claim for the preservation
of confidentiality of personal information. With progression of the
right to privacy, the underlying values of the law that protects
personal information came to be seen differently as the courts
recognised that unlike law of confidentiality that is based upon
duty of good faith, right to privacy focuses on the protection of
human autonomy and dignity by granting the right to control the
dissemination of information about ones private life and the right
to the esteem and respect of other people (See - Sedley LJ
in Douglas v. Hello! Ltd22). In PJS v. News Group Newspapers
Ltd.23, the Supreme Court of the United Kingdom had drawn a
22 (2001) QB 967
23 (2016) UKSC 26
Civil Appeal No. 10044 of 2010 & Ors. Page 51 of 108
distinction between the right to respect private and family life or
privacy and claims based upon confidentiality by observing that
the law extends greater protection to privacy rights than rights in
relation to confidential matters. In the former case, the claim for
misuse of private information can survive even when information
is in the public domain as its repetitive use itself leads to violation
of the said right. The right to privacy gets the benefit of both the
quantitative and the qualitative protection. The former refers to the
disclosure already made and what is yet undisclosed, whereas the
latter refers to the privateness of the material, invasion of which is
an illegal intrusion into the right to privacy. Claim for confidentiality
would generally fail when the information is in public domain. The
law of privacy is, therefore, not solely concerned with the
information, but more concerned with the intrusion and violation of
private rights. Citing an instance of how publishing of defamatory
material can be remedied by a trial establishing the falsity of such
material and award of damages, whereas invasion of privacy
cannot be similarly redressed, the Court had highlighted the
reason why truth or falsity of an allegation or information may be
irrelevant when it comes to invasion of privacy. Therefore, claims
for protection against invasion of private and family life do not
depend upon confidentiality alone. This distinction is important to
Civil Appeal No. 10044 of 2010 & Ors. Page 52 of 108
understand the protection given to two different rights vide Section
8(1)(j) and 11 of the RTI Act.
39. In District Registrar and Collector v. Canara Bank24 this Court
had referred to the judgment of the U.S. Supreme Court in United
States v. Miller25 on the question of voluntary parting with
information and under the heading Criticism of Miller had
observed:
48. ...(A) Criticism of Miller
(i) The majority in Miller laid down that a customer
who has conveyed his affairs to another had thereby
lost his privacy rights. Prof. Tribe states in his treatise
(see p. 1391) that this theory reveals alarming
tendencies because the Court has gone back to the
old theory that privacy is in relation to property while it
has laid down that the right is one attached to the
person rather than to property. If the right is to be held
to be not attached to the person, then we would not
shield our account balances, income figures and
personal telephone and address books from the public
eye, but might instead go about with the information
written on our foreheads or our bumper stickers. He
observes that the majority in Miller confused privacy
with secrecy and that even their notion of secrecy is
a strange one, for a secret remains a secret even when
shared with those whom one selects for one's
confidence. Our cheques are not merely negotiable
instruments but yet the world can learn a vast amount
about us by knowing how and with whom we have
spent our money. Same is the position when we use
the telephone or post a letter. To say that one assumes
great risks by opening a bank account appeared to be
a wrong conclusion. Prof. Tribe asks a very pertinent
question (p. 1392):
24 (2005) 1 SCC 496
25 425 US 435 (1976)
Civil Appeal No. 10044 of 2010 & Ors. Page 53 of 108
Yet one can hardly be said to have assumed a risk
of surveillance in a context where, as a practical
matter, one had no choice. Only the most committed
and perhaps civilly committable  hermit can live
without a telephone, without a bank account, without
mail. To say that one must take a bitter pill with the
sweet when one licks a stamp is to exact a high
constitutional price indeed for living in contemporary
society.
He concludes (p. 1400):
In our information-dense technological era, when
living inevitably entails leaving not just informational
footprints but parts of one's self in myriad directories,
files, records and computers, to hold that the
Fourteenth Amendment did not reserve to individuals
some power to say when and how and by whom that
information and those confidences were to be used,
would be to denigrate the central role that informational
autonomy must play in any developed concept of the
self.
(ii) Prof. Yale Kamisar (again quoted by Prof. Tribe) (p.
1392) says:
It is beginning to look as if the only way someone
living in our society can avoid assuming the risk that
various intermediate institutions will reveal information
to the police is by engaging in drastic discipline, the
kind of discipline of life under totalitarian regimes.
Thereafter, it was noticed that with the enactment of the
Right to Financial Privacy Act, 1978 the legal effect of Miller was
statutorily done away.
40. The right to privacy though not expressly guaranteed in the
Constitution of India is now recognized as a basic fundamental
Civil Appeal No. 10044 of 2010 & Ors. Page 54 of 108
right vide decision of the Constitutional Bench in K.S.
Puttaswamy and Another v. Union of India and Others26
holding that it is an intrinsic part of the right to life and liberty
guaranteed under Article 21 of the Constitution and recognised
under several international treaties, chief among them being
Article 12 of the Universal Declaration of Human Rights, 1948
which states that no one shall be subjected to arbitrary
interference with his privacy, family, home or correspondence, nor
to attacks upon his honour and reputation. The judgment
recognises that everyone has a right to the protection of laws
against such interference or attack.
41. In K.S. Puttaswamy (supra) the main judgment (authored by D.Y.
Chandrachud, J.) has referred to provisions of Section 8(1)(j) of
the RTI Act to highlight that the right to privacy is entrenched with
constitutional status in Part III of the Constitution, thus providing a
touchstone on which validity of executive decisions can be
assessed and validity of laws can be determined vide judicial
review exercised by the courts. This observation highlights the
status and importance of the right to privacy as a constitutional
right. The ratio as recorded in the two concurring judgments of
26 (2017) 10 SCC 1
Civil Appeal No. 10044 of 2010 & Ors. Page 55 of 108
the learned judges (R.F. Nariman and Sanjay Kishan Kaul, JJ.)
are similar. It is observed that privacy involves a persons right to
his physical body; right to informational privacy which deals with a
persons mind; and the right to privacy of choice which protects an
individuals autonomy over personal choices. While physical
privacy enjoys constitutional recognition in Article 19(1)(d) and (e)
read with Article 21, personal informational privacy is relatable to
Article 21 and right to privacy of choice is enshrined in Articles
19(1)(a) to (c), 20(3), 21 and 25 of the Constitution. In the
concurring opinion, there is a reference to The Right to Privacy
by Samuel Warren and Louis D. Brandeis on an individuals right
to control the dissemination of personal information and that an
individual has a right to limit access to such information/shield
such information from unwarranted access. Knowledge about a
person gives another power over that person, as personal data
collected is capable of effecting representations in his decision
making process and shaping behaviour which can have a
stultifying effect on the expression of dissent which is the
cornerstone of democracy. In the said concurring judgment, it has
been further held that the right to protection of reputation from
being unfairly harmed needs to be zealously guarded not only
against falsehood but also against certain truths by observing:
Civil Appeal No. 10044 of 2010 & Ors. Page 56 of 108
623. An individual has a right to protect his reputation
from being unfairly harmed and such protection of
reputation needs to exist not only against falsehood but
also certain truths. It cannot be said that a more
accurate judgment about people can be facilitated by
knowing private details about their lives  people judge
us badly, they judge us in haste, they judge out of
context, they judge without hearing the whole story and
they judge with hypocrisy. Privacy lets people protect
themselves from these troublesome judgments.27
42. Privacy, it is uniformly observed in K.S. Puttaswamy (supra), is
essential for liberty and dignity. Therefore, individuals have the
need to preserve an intrusion-free zone for their personality and
family. This facilitates individual freedom. On the question of
invasion of personal liberty, the main judgment has referred to a
three-fold requirement in the form of  (i) legality, which postulates
the existence of law (RTI Act in the present case); (ii) need,
defined in terms of a legitimate State aim; and (iii) proportionality,
which ensures a rational nexus between the objects and the
means to be adopted to achieve them. The third requirement, we
would observe, is achieved in the present case by Sections 8(1)(j)
and 11 of the RTI Act and the RTI Act cannot be faulted on this
ground. The RTI Act also defines the legitimate aim, that is a
public interest in the dissemination of information which can be
confidential or private (or held in a fiduciary relationship) when
27 Daniel Solove: 10 Reasons Why Privacy Matters published on 20th January 2014 and available at
https://www.teachprivacy.com/10-reasons-privacy-matters/
Civil Appeal No. 10044 of 2010 & Ors. Page 57 of 108
larger public interest or public interest in disclosure outweighs the
protection or any possible harm or injury to the interest of the third
party.
43. Privacy and confidentiality encompass a bundle of rights including
the right to protect identity and anonymity. Anonymity is where an
individual seeks freedom from identification, even when and
despite being in a public space. In K.S. Puttaswamy (supra)
reference is made to Spencer v. R.28 which had set out three key
elements of informational privacy: privacy as secrecy, privacy as
control, and privacy as anonymity, to observe:
214. [] anonymity may, depending on the totality of
the circumstances, be the foundation of a privacy
interest that engages constitutional protection against
unreasonable search and seizure.
xx xx xx
[] The disclosure of this information will often amount
to the identification of a user with intimate or sensitive
activities being carried out online, usually on the
understanding that these activities would be
anonymous. A request by a police officer that an ISP
voluntarily disclose such information amounts to a
search.
Privacy and confidentiality, therefore, include information about
ones identity.
28 2014 SCC Online Can SC 34: (2014) 2 SCR 212: 2014 SCC 43
Civil Appeal No. 10044 of 2010 & Ors. Page 58 of 108
44. In K.S. Puttaswamy (supra), it is observed that the Canadian
Supreme Court in Spencer (supra) had stopped short of
recognising an absolute right of anonymity, but had used the
provisions of Canadian Charter of Rights and Freedoms of 1982
to expand the scope of the right to privacy, used traditionally to
protect individuals from an invasion of their property rights, to an
individuals reasonable expectation of privacy. Yet the Court has
observed that there has to be a careful balancing of the
requirements of privacy with legitimate concerns of the State after
referring to an article29 wherein it was observed that:
Privacy is the terrorists best friend, and the terrorists
privacy has been enhanced by the same technological
developments that have both made data mining
feasible and elicited vast quantities of personal
information from innocents
45. Referring to an article titled Reasonable Expectations of
Anonymity
30 authored by Jeffrey M. Skopek, it is observed that
distinction has been drawn between anonymity on one hand and
privacy on the other as privacy involves hiding information
whereas anonymity involves hiding what makes it personal by
giving an example that furnishing of medical records of a patient
would amount to an invasion of privacy, whereas a State may
29 Richard A. Posner, Privacy, Surveillance, and Law, The University of Chicago Law Review
(2008), Vol. 75, 251.
30 Virginia Law Review (2015), Vol. 101, at pp. 691-762.
Civil Appeal No. 10044 of 2010 & Ors. Page 59 of 108
have legitimate interest in analysing data borne from hospital
records to understand and deal with a public health epidemic and
to obviate serious impact on the population. If the anonymity of the
individual/patient is preserved, it would legitimately assert a valid
State interest in the preservation of public health.
46. For the purpose of the present case, we are not concerned with
the specific connotations of the right to anonymity and the
restrictions/limitations appended to it. In the context of the RTI Act,
suffice would be to say that the right to protect identity and
anonymity would be identically subjected to the public interest
test.
47. Clause (j) to sub-section (1) of Section 8 of the RTI Act specifically
refers to invasion of the right to privacy of an individual and
excludes from disclosure information that would cause
unwarranted invasion of privacy of such individual, unless the
disclosure would satisfy the larger public interest test. This clause
also draws a distinction in its treatment of personal information,
whereby disclosure of such information is exempted if such
information has no relation to public activity or interest. We would
like to, however, clarify that in their treatment of this exemption,
this Court has treated the word information which if disclosed
Civil Appeal No. 10044 of 2010 & Ors. Page 60 of 108
would lead to invasion of privacy to mean personal information, as
distinct from public information. This aspect has been dealt with in
the succeeding paragraphs.
48. As per Blacks Law Dictionary, 8th Edition, the word personal
means of or affecting a person or of or constituting personal
property. In Collins Dictionary of the English Language, the word
personal has been defined as under:
1. Of or relating to the private aspects of a persons
life.
2. Of or relating to a persons body, its care or its
appearance.
3. Belonging to or intended for a particular person and
no one else.
4. Undertaken by an individual himself.
5. Referring to, concerning, or involving a persons
individual personality, intimate affairs, etc., esp. in an
offensive way.
6. Having the attributes of an individual conscious
being.
7. Of or arising from the personality.
8. Of or relating to, or denoting grammatical person.
9. Of or relating to movable property (Law).
10. An item of movable property (Law).
Civil Appeal No. 10044 of 2010 & Ors. Page 61 of 108
49. In Peck v. United Kingdom31, the European Court of Human
Rights had held that private life is a broad term not susceptible to
exhaustive definition but includes the right to establish and
develop relationships with other human beings such that there is a
zone of interaction of a person with others, even in a public
context, which may fall within the scope of private life.
Recognised facets of an individuals private life include a persons
health, ethnicity, personal relationships, sexual conduct; religious
or philosophical convictions and personal image. These facets
resemble what has been categorised as sensitive personal data
within the meaning of the Data Protection Act, 2018 as applicable
in the United Kingdom.
50. Gleeson CJ in Australian Broadcasting Corporation v. Lenah
Game Meats Pty Ltd32
 had distinguished between what is public
and private information in the following manner:
An activity is not private simply because it is not done
in public. It does not suffice to make an act private
that, because it occurs on private proper property, it
has such measure of protection from the public gaze
as the characteristics of the property, the property
owner combine to afford. Certain kinds of information
about a person, such as information relating to health,
personal relationships, or finances, may be easy to
identify as private, as may certain kinds of activity
which a reasonable person, applying contemporary
31 (2003) EMLR 15
32 (2001) 185 ALR 1
Civil Appeal No. 10044 of 2010 & Ors. Page 62 of 108
standards of morals and behaviour, would understand
to be meant to be unobserved. The requirement that
disclosure or observation of information or conduct
would be highly offensive to a reasonable person of
ordinary sensibilities is in many circumstances a useful
practical test of what is private.
51. This test had been adopted in several English decisions including
decision of the House of Lords in Campbell v. Mirror Group
Newspapers Limited33 wherein Lord Hope of Craighead had
further elucidated that the definition is taken from the definition of
privacy in the United States, where the right to privacy is invaded
if the matter which is publicised is of a kind that  (a) would be
highly offensive to a reasonable person and (b) not of legitimate
concern to the public. Law of privacy in Campbell (supra), it was
observed, was not intended for the protection of the unduly
sensitive and would cover matters which are offensive and
objectionable to a reasonable man of ordinary sensibilities who
must expect some reporting of his daily activities. The mind that
has to be examined is not that of a reader in general, but that of
the person who is affected by the publicising/dissemination of his
information. The question is what a reasonable person of ordinary
sensibilities would feel if he/she is subjected to such publicity.
Only when publicity is such that a reasonable person would feel
33 (2004) UKHL 22
Civil Appeal No. 10044 of 2010 & Ors. Page 63 of 108
justified in feeling seriously aggrieved that there would be an
invasion in the right to privacy which gives rise to a cause of
action.
52. In Douglas (supra), it was also held that there are different
degrees of privacy which would be equally true for information
given in confidentiality, and the potential for disclosure of the
information to cause harm is an important factor to be taken into
account in the assessment of the extent of the restriction to
protect the right to privacy.
53. While clause (j) exempts disclosure of two kinds of information, as
noted in paragraph 47 above, that is personal information with
no relation to public activity or interest and information that is
exempt from disclosure to prevent unwarranted invasion of
privacy, this Court has not underscored, as will be seen below,
such distinctiveness and treated personal information to be
exempt from disclosure if such disclosure invades on balance the
privacy rights, thereby linking the former kind of information with
the latter kind. This means that information, which if disclosed
could lead to an unwarranted invasion of privacy rights, would
mean personal information, that is, which is not having co-relation
with public information.
Civil Appeal No. 10044 of 2010 & Ors. Page 64 of 108
54. In Girish Ramchandra Deshpande v. Central Information
Commissioner and Others34
, the applicant had sought copies of
all memos, show-cause notices and censure/punishment awarded
to a Government employee from his employer and also details of
his movable/immovable properties, details of investment, loan and
borrowings from financial institutions, details of gifts accepted by
the employee from his family members and relatives at the time of
the marriage of his son. In this context, it was observed:
12. We are in agreement with the CIC and the courts
below that the details called for by the petitioner i.e.
copies of all memos issued to the third respondent,
show-cause notices and orders of censure/punishment,
etc. are qualified to be personal information as defined
in clause (j) of Section 8(1) of the RTI Act. The
performance of an employee/officer in an organisation
is primarily a matter between the employee and the
employer and normally those aspects are governed by
the service rules which fall under the expression
personal information, the disclosure of which has no
relationship to any public activity or public interest. On
the other hand, the disclosure of which would cause
unwarranted invasion of privacy of that individual. Of
course, in a given case, if the Central Public
Information Officer or the State Public Information
Officer or the appellate authority is satisfied that the
larger public interest justifies the disclosure of such
information, appropriate orders could be passed but
the petitioner cannot claim those details as a matter of
right.
13. The details disclosed by a person in his income tax
returns are personal information which stand
34 (2013) 1 SCC 212
Civil Appeal No. 10044 of 2010 & Ors. Page 65 of 108
exempted from disclosure under clause (j) of Section
8(1) of the RTI Act, unless involves a larger public
interest and the Central Public Information Officer or
the State Public Information Officer or the appellate
authority is satisfied that the larger public interest
justifies the disclosure of such information.
(emphasis supplied)
55. In Canara Bank v. C.S. Shyam and Another35
, the applicant had
sought information on parameters with regard to transfer of
clerical staff with details of individual employees, such as date of
their joining, promotion earned, date of their joining the branch,
the authorities who had posted the transfer letters, etc. The
information sought was declared to be personal in nature, which
was conditionally exempted from disclosure under Section 8(1)(j)
of the RTI Act.
56. In Subhash Chandra Agarwal v. Registrar, Supreme Court of
India and Others36, the applicant (who is also the respondent in
the present appeals) had sought information relating to details of
medical facilities availed by individual judges of the Supreme
Court and their family members, including information relating to
private treatment in India and abroad in last three years. This
Court had held that the information sought by the applicant was
35 (2018) 11 SCC 426
36 (2018) 11 SCC 634
Civil Appeal No. 10044 of 2010 & Ors. Page 66 of 108
personal information and was protected under Section 8(1)(j) of
the RTI Act, for disclosure would cause unwarranted invasion of
privacy which prohibition would not apply where larger public
interest justifies disclosure of such information.
57. In R.K. Jain v. Union of India and Another37, the applicant had
sought inspection of documents relating to Annual Confidential
Reports (ACRs) of a Member of Customs Excise and Service Tax
Appellate Tribunal (CESTAT) and follow up action taken by the
authorities based on the ACRs. The information sought was
treated as personal information, which, except in cases involving
overriding public interest, could not be disclosed. It was observed
that the procedure under Section 11 of the RTI Act in such cases
has to be followed. The matter was remitted to examine the
aspect of larger public interest and to follow the procedure
prescribed under Section 11 of the RTI Act which, it was held, was
mandatory.
58. Reference can also be made to Aditya Bandopadhyay (supra),
as discussed earlier in paragraph 32, where this Court has held
that while a fiduciary could not withhold information from the
beneficiary in whose benefit he holds such information, he/she
37 (2013) 14 SCC 794
Civil Appeal No. 10044 of 2010 & Ors. Page 67 of 108
owed a duty to the beneficiary to not disclose the same to anyone
else. This exposition of the Court equally reconciles the right to
know with the rights to privacy under clause (j) to Section 8(1) of
the RTI Act.
59. Reading of the aforesaid judicial precedents, in our opinion, would
indicate that personal records, including name, address, physical,
mental and psychological status, marks obtained, grades and
answer sheets, are all treated as personal information. Similarly,
professional records, including qualification, performance,
evaluation reports, ACRs, disciplinary proceedings, etc. are all
personal information. Medical records, treatment, choice of
medicine, list of hospitals and doctors visited, findings recorded,
including that of the family members, information relating to
assets, liabilities, income tax returns, details of investments,
lending and borrowing, etc. are personal information. Such
personal information is entitled to protection from unwarranted
invasion of privacy and conditional access is available when
stipulation of larger public interest is satisfied. This list is indicative
and not exhaustive.
Civil Appeal No. 10044 of 2010 & Ors. Page 68 of 108
60. In Arvind Kejriwal v. Central Public Information Officer and
Another38
, the Delhi High Court had examined and interpreted
Section 11 of the RTI Act in the following manner:
12. Section 11(1), (2), (3) and (4) are the procedural
provisions which have to be complied with by the
PIO/appellant authority, when they are required to
apply the said test and give a finding whether
information should be disclosed or not disclosed. If the
said aspect is kept in mind, we feel there would be no
difficulty in interpretin