confidential information
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]
24. At the cost of repetition we note that the exemption of right to
information for confidential information is covered under Section
8(1)(d), exemption from right to information under a fiduciary
relationship is covered under Section 8(1)(e) and the exemption
from private information is contained under Section 8(1)(j) of the
RTI Act.
25. The first contention raised by the appellants is that the aforesaid
information is confidential, therefore the same is covered under
the exemption as provided under Section 8(1)(d) of the RTI Act.
The aforesaid exemption originates from a long time of judge made
law concerning breach of confidence (which are recently termed
as misuse of private information).
26. Under the classic breach of confidence action, three requirements
were necessary for bringing an action under this head. These
conditions are clearly mentioned in the opinion of Megarry, J.,
in Coco vs. Clark, [1968] FSR 415; wherein, the conditions
are first, the information itself, i.e. information is required to have
necessary quality about confidence of the same; second, the
information must have been imparted in circumstances importing
18
an obligation of confidence; third, there must be unauthorized
use of information which will be detriment to the party
communicating.
27. Breach of confidence was not an absolute right and public
interest, incorporated from long time under the common law
jurisprudence. This defence of public interest can be traced to
initial case of Gartside v. Outram, (1856) 26 LJ Ch (NS) 113,
wherein it was held that there is no confidence as to disclosure in
iniquity. This iniquity was later expanded by Lord Denning
in Fraser v. Evans, [1969] 1 QB 349, wherein the iniquity was
referred as merely as an example of justice cause or excuse for a
breach of confidence. This iniquity was widened further in Initial
Service v. Putterill, [1968] 1 QB 396, wherein it was held that
iniquity covers any misconduct of nature that it ought to be
disclosed to others in the public interest. In this line of precedents
Thomas Ungoed, J., in Beloff v. Pressdram, [1973] 1 All ER 24,
noted that iniquity would cover any matter, carried out or
contemplated, in breach of countrys security or in breach of law
including statutory duty, fraud or otherwise destructive of the
19
country or its people and doubtless other misdeeds of similar
gravity.
28. Eventually the language of iniquity was shaken and discourse on
public interest took over as a defence for breach of confidence [See
Lion Laboratories v. Evans, [1985] QB 526]. It would be
necessary to quote Lord Goff in Her Majestys Attorney General
v. The Observer Ltd. & Ors., [1991] AC 109, wherein he noted
that it is now clear that the principle [of iniquity] extends to
matters of which disclosure is required in public interest.
29. The aforesaid expansion from the rule of iniquity to public interest
defence has not caught the attention of Australian courts wherein,
Justice Gummow, in Corrs Pavey Whiting and Byrne v.
Collector of Customs, (1987) 14 FCR 434 and Smith Kline and
French Laboratories [Australia] Ltd. v. Department of
Community Services and Health, (1990) 22 FCR 73, reasoned
that public interest was picturesque if somewhat imprecise and
not so much a rule of law as an invitation to judicial idiosyncrasy
by deciding each case on ad-hoc basis as to whether, on the facts
20
overall, it is better to respect or to override the obligation of
confidence.
30. Even in England there has been a shift of reasoning from an
absolute public interest defence to balancing of public interest. At
this point we may observe the case of Woodward v.
Hutchins,[1977] 1 WLR 760, wherein it was observed It is a
question of balancing the public interest in maintaining the
confidence against the public interest in knowing the truth.
31. Section 8(1)(d) of the RTI Act has limited the action of defence of
confidentiality to only commercial information, intellectual
property rights and those which are concerned with maintaining
the competitive superiority. Therefore, aforesaid section is only
relatable to breach of confidence of commercial information as
classically developed. Although there are examples wherein
commercial confidentiality are also expanded to other types of
breach of confidential information, however, under Section 8(1)(d)
does not take into its fold such breach of confidential information
actions.
21
32. Coming to other types of confidentiality, we need to note that the
confidentiality cannot be only restricted to commercial
confidentiality, rather needs to extend to other types of
confidentialities as well. [Duchess of Argyll v. Duke of Argyll,
1967 Ch 302] Under the RTI Scheme such other confidential
information are taken care under Section 11 of the RTI Act. The
language and purport under Section 11 extends to all types of
confidentialities, inclusive of both commercial and other types of
confidentialities. The purport of this Section is that an
opportunity should be provided to third party, who treats the
information as confidential. The test of balancing public interest
needs to be applied in cases of confidential information other than
commercial information as well, under Section 11 of the RTI Act,
as discussed. In this light, the concerned third parties need to be
heard and thereafter the authorities are required to pass order as
indicated herein