Information
What is Information?
Information is defined as data that has been processed or organized to provide meaning and context. It is derived from the Latin words ‘formation’ and ‘forma’ which means to give shape to something and form a pattern respectively. In the context of democratic governance, access to information plays an important role in enabling transparency in official functioning and fostering a well informed citizenry. It can be of several kinds, and usually pertains to the functioning of Public authorities including departments, ministries and various other government bodies and institutions. The RTI Act, 2005 is the flagship legislation to promote informational transparency in government institutions in India.
Official definition of “INFORMATION”
Section 2(f) of Right to Information Act, 2005[1] defines ‘information’ as:
“any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force.”
Where “Record” includes
(a) any document, manuscript and file; (b) any microfilm, microfiche and facsimile copy of a document; (c) any reproduction of image or images embodied in such microfilm (whether enlarged or not); and, (d) any other material produced by a computer or any other device.
Thus, information encompasses any record in any form available with a Public authority.
Examples of institutions/ bodies and the respective Public Authority
- Information about a private bank can be obtained from the regulator - RBI - if the law requires the information to be filed.
- Information about a private unaided school – from the Education Department.
- Information about a Public Limited Company – from the Registrar of Companies or SEBI if the law empowers them to ask for it.
- Information about a Cooperative Society – from the Registrar of Cooperative Societies.
- Information about Trusts – from the Charities Commissioner.
- Information about various banks, including private banks –from Reserve Bank of India.
Landmark Rulings on the scope of 'information' under Section 2(f)
In CBSE v Aditya Bandopadhyay [2011 (8) SCC 497][2], the complainant was dissatisfied with the information provided by the POI , he then filed a second appeal under section 19 of RTI on the grounds of disclosure of indirect information before 'the commission' in which the information commissioner, Heeralal samariya stated that 'information' as defined in section 2(f) of RTI Act, only refers to such material as is already available in the records of the public authority.
In UOI vs D.S Meena [W.P.(C) 4735/2011][3], the CIC ordered the petitioner to show the annual confidential reports (ACRS ) of the respondent which was challenged. The court held that the reasons provided by the respondent are not convincing enough to establish before this court that disclosure of ACR details of the said three person and the DPC proceedings Is important for larger public interest merely because the respondent wants to avail such information does not form h substantial reason so as to why this court should allow disclosure of such information. The impugned order passed by CIC was set aside.
Forms of Information
Information can be given/supplied in a form of Records, Documents, Memos, E-mails, Opinions, Advices, Press Releases, Circulars, Orders, Logbooks, Contracts, Reports, Papers, Samples, Models, Data Materials held in electronic form, relating to any private body.
Types of Information under RTI Act
Personal information:
Personal Information is generally exempt from disclosure under the RTI Act. As per Section 8(1)(j)[4], it includes information related to an individual, his family members, relatives, friends, or associates. This further includes his/her name, address, telephone number, email ID, or any other information that could lead to an individual's identification.
However, information can provided only under the following conditions as defined by Section8(1)(j)(5):
1. The Central Public Information Officer or State Public Information Officer is satisfied that the larger public interest justifies the disclosure.
2. The information is about someone who has been convicted of an offense, or
3. The information is about someone who has been accused of an offense and the disclosure is necessary for the investigation.
Information relating to third party:
Section-11[6] defines third-party data as any information collected by an entity that does not have a direct relationship with the user the data is being collected on. Third-party data is often generated on a variety of websites and platforms and is then aggregated together by a third-party data provider such as a Data Management Platform(DMP).
Section-8(1)(d) related to the exemption from disclosure of the Third Party‘s information. This includes information which would harm the position of a third party. (until the competent authority is satisfied to disclosure the information, Business interests and intellectual property, trade secret.
In R.K. Jain vs Union Of India & Anr on 16 April, 2013, the information sought by the appellant herein is the third party information. In such cases, the third party may plead a privacy defense and the proper question, according to the court, was as to whether divulging of such an information is in the public interest or not. Thus, the matter has been remitted back to Chief Information Commissioner to consider the issue after following the procedure under Section 11 of the Right to Information Act.
Time period for supply information
As per Section 7(1) of the Act, the Public information Officer must provide the information sought within 30 days of the application being filed. This can be extended by up to 5 days (35 days in total) where the application must be transferred to the designated public authority.
Section 7(3) extends the time period to 40 days in those cases where third-party representation is sought.
However, where the life or liberty of a person is threatened, the act provides for the disclosure of information within 48 hours of the application being received. This includes instances of a possible incarceration which are contingent on the disclosure of certain information.
Definition of Information in State RTI laws
According to Delhi Right to Information Act, 2001:-“Information" means any material or information relating to the affairs of the National Capital Territory of Delhi except matters with respect to entries 1, 2 and 18 of the State List and entries 64, 65 and 66 of that list in so far as they relate to the said entries 1, 2 and 18 embodied in the Seventh Schedule of the Constitution;
According to Jammu and Kashmir Right to Information Act, 2004:- Information refers to "any document or information relating to the affairs of the State or a public body.."
According to Orissa Right to Information Act, 2002:- Information refers to "any material or information relating to the affairs (decision, action or plan) of the public authorities, which may include on-the-spot verification of an office, interview with the concerned personnel, complete or partial copy of a file, complete or partial copy of a register or muster roll, samples and photo of construction materials, copy of and notes on the relevant correspondence and telephonic conversation, complete or partial copy of a video cassette, computer floppy, CD ROM or any other electronic medium in which information is stored."
EXEMPTIONS FROM DISCLOSURE OF INFORMATION
Confidential Information
The Right to Information Act enables citizens to request information in public interest. However, Public Authorities are exempted from the obligation to disclose certain kinds of information. Section 8 (1) of the RTI Act, 2005 lists at least 10 different instances where information can be kept confidential by the government:
1. Section 8 (1)(a) - Information related to national security, power and honor of India, the security, strategy, economic/scientific interests of the state and relation with foreign state. (The PIO must provide specific reasoning for denial in each case, and the law does not consider files or information merely labeled ‘confidential’ as exempt).
2. (1)(b)- Information forbidden to be published by any court or whose disclosure may constitute contempt of court. (The exemption will only apply when any matter/ information has been specifically and expressly forbidden to be made public by a court or tribunal. Even if an issue is sub-judice, the information has to be provided to prohibit disclosure.)
3. (1)(c) - information which could cause the breach of privilege of parliament or the state legislature. This will primarily apply where there is a legal stipulation to present some information like a report to Parliament or the Legislature. This provision will also apply when a specific order has been given by the Legislature to avoid disclosing some information in public domain or to prohibit some proceedings of the Parliament or Legislature from being made public.
4. (1)(d) - information which would harm the competitive position of a third party, including commercial confidence, trade secrets or intellectual property, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information; This doesn’t include denial of information relating to tender bids, specifications or guarantees given by bidders to the public authorities.
5. (1)(e) - Information which would related to a person's fiduciary relationship (until the component authority is satisfied that larger public interest warrants such disclosure). Fiduciary relationship is defined as “a relationship in which one person is under a duty to act for the benefit of the other on the matters within the scope of the relationship.” such as between a Trustee-Beneficiary, Board Member-Shareholder, etc.
6. (1)(f) - Information received in trust from foreign government. It is likely that this provision could be used to refuse most information provided by a foreign Government, unless it has been released in Public domain. Effectively, this means that most information received from a foreign government is unlikely to be given. This is the only provision where the mere claim of information having been received in confidence has been given exemption in this law.
7. (1)(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;. This clause would be invoked when somebody has given information about a wrongdoing or acted as a whistleblower, and disclosure of his identity would induce a reasonable probability of threat. This cannot be used to deny information about examiners, names of selectors or interviewers, or remarks by superior officers against their juniors. This would be the result of a hyperactive apprehension rather than a real threat.
z8. (1)(h) - Information which would interrupt the process of investigation or apprehension or prosecution of offenders. Hence, the PIO must consider whether there is a reasonable probability of the investigation being impeded before its completion if the information is provided.
9. (1)(i) - cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers. This does not impose a complete bar on providing information under RTI about cabinet papers and the cabinet deliberations. Once a decision is taken or the said matter has passed, the government is obligated to make public material on the basis of which the decision has been taken. For example, once a bill is presented in Parliament or Legislature, the matter relating to the purpose of the deliberations and cabinet related file nothings is clearly complete and cannot warrant the exemption.
10. (1)(j) - information which relates two personal information and violates the privacy of the individual. To qualify for this exemption, it must be personal information of individuals. 'Personal' here relates exclusively to individuals and not to institutions, organizations or corporates; the exemption does not apply to the latter.
Exceptions to Section 8(1)
Despite the above exemptions, the public authority is still obligated to disclose information in cases where public interest is said to outweigh the protected interest. Section 8(2) and Section 8(3) contain the following provisions.
- Section 8(2):- If the public interest is at greater stake than the protected information (national security, personal information, etc.), the public authority must disclose it. i.e. the public interest in disclosure is higher than the possible harm to the interest sought to be protected. The scope of public interest may include matters of public health and safety, corruption, malfeasance, etc. Public interest must only be proved if the information is protected under Section 8(1).
- Section 8(3):- Information that is older than 20 years from the date of application can be disclosed by the public authority. It is well accepted that after some years such harm will not occur or will be negligible with the release of such information. Specifically, this applies to information protected under clauses (a), (c) and (i) pertaining broadly to national security, breach of legislative privilege and cabinet papers, which maybe released after 20 years. Exemptions mentioned clauses (b), (d), (e), (f), (g), (h), and (j) cannot be sought to be released.
The information is older than 20 years. The information should already have been made public by the government
Infringement of Copyright
As per Section 9, a Central Public Information Officer or a State Public Information Officer can reject a request for information which would involve an infringement of copyright subsisting in a person other than the State.
If an applicant asks copies of a book in a library, or a work of art, or a film, whose copyright vests with somebody, then it would not be given. This exemption does not apply to copyrights owned by the state. To obviate the problem of citizens asking for copies of priced publications of the State, some State rules have stated that for priced publications, the fee to be paid will be the sale price of the publication. However, no information can be denied on the ground that the copyright vests with the State.
In PIO Commissioner of Police Vs V Choudhary W.P.(C)[1]The petitioner argued that the information sought by the respondent was third party information. However, the court ruled that the information was not third party information because it was not provided by a third party and was not treated as confidential.
Partial Disclosure
The important aspect of ‘severability’ must be considered by a PIO before denying information. If a certain part of the information asked by an applicant is exempted, that part of the information which is not exempt must be provided. If a part of the information is severed as per Section 10(1) the PIO must: a) Inform the applicant that a part of the information is being severed since it is exempt. b) provide reasons for denying certain information as per Section 8 (1) and reasoning how the section is applicable. c) The name and designation of the officer giving the decision to exempt some information. d) Details of the fees to be paid by the applicant showing the calculations e) Details of the first appellate authority including name, designation and address, and the time within which the first appeal should be made, i.e. 30 days.
In case Ram Chander vs Directorate Education AB/A/2016/001005, the Commission held that even after using the severability clause, some information was exempt from disclosure. The Commission said that the names, designation, activities, and remarks were all interlinked and identifying parts could not be excluded from disclosure.
Regarding Intelligence and Security Organizations
As per Section 24 of the RTI Act, 2005, the Act does not apply to intelligence and security organizations specified in the Second Schedule, i.e. organizations established by Central Government. Similar organizations established by the State Government are also exempted from the purview of the Right to Information Act. This prevents confidential information which threatens national security, sovereignty, strategy, etc from being released in the public domain.
Exception
However, any information possessed by the agencies regarding allegations of corruption and human rights violations cannot be refused under this section. Where the information request pertains to allegations of human rights violations, the information shall only be provided after the approval of the Central Information Commission. The information must be provided within forty five days from the date of the receipt of request.
In T.R Dagar vs Central Industrial Security Force New Delhi[2]the court upheld Section 24, that the CISF has been declared an exempt organization as it belonged to the Second Schedule. Hence, the provisions of the RTI Act are not applicable to the CISF except when the information associated to allegations of corruption or human rights violations.
The Delhi High Court in Union of Indian vs Adarsh Sharma,[3]had held that if an information of the nature required by the respondent is easily available with the Intelligence Bureau, the agency would be well advised in assisting a citizen, by providing such an information, despite the fact that it cannot be accessed as a matter of right under the provisions of Right to Information Act. It is clear that information of this nature cannot be requested as a matter of right and it would rest within the discretion of the intelligence agency whether to supply such information or not.
The aim of Parliament to get citizens to use RTI to curb corruption is evident from the fact that even security and intelligence agencies are required to provide information in cases where corruption is alleged. While this provision authorizes the government to reduce or add more intelligence agencies to the schedule, over the years, the list of agencies has only increased. There has been some misuse of this provision by governments by adding to this list agencies which do not qualify as ‘intelligence or security’ agencies.
INTERNATIONAL STANDARDS
International standards for public authorities emphasize transparency, accountability, and citizen participation in enabling civil and political action and fostering democratic cultures around the globe.
1. Universal Declaration of Human Rights (1948): The Universal Declaration of Human Rights (UDHR) is a document that acts like a global road map for freedom and equality – protecting the rights of every individual, everywhere. It was the first time countries agreed on the freedoms and rights that deserve universal protection in order for every individual to live their lives freely, equally and in dignity. The right to information is considered an integral component of ensuring human rights in free and fair democracies.
2. International Covenant on Civil and Political Rights (1966): Article 19 of the International Covenant on Civil and Political Rights (ICCPR) mentions the right to receive information. It is a multilateral treaty that protects the civil and political rights of individuals. The United Nations General Assembly adopted the ICCPR on December 16, 1966, and it came into force on March 23, 1976. 3. UN Convention Against Corruption (2003): The UN Convention Against Corruption (2003) aims to promote measures to combat corruption globally. It establishes a comprehensive framework for preventing corruption, criminalizing various corrupt practices, and enhancing international cooperation in investigations and prosecutions. The convention emphasizes transparency in public administration, accountability, and the importance of access to information. It encourages countries to adopt effective anti-corruption laws and promote integrity in both the public and private sectors, fostering sustainable development and good governance. Ensuring citizens access to information is a crucial facet of enabling civil and political action.
UNESCO Standards
1. UNESCO's Right to Information Guidelines (2015)-
UNESCO's Right to Information Guidelines (2015) promote transparency, accountability, and good governance.
They emphasize the importance of access to information as a fundamental human right, encouraging governments to adopt laws and practices that facilitate public access. The guidelines advocate for proactive dissemination of information, protection of whistleblowers, and the inclusion of marginalized groups in the information access process.
2. UNESCO's Model Law on Access to Information (2013)-
UNESCO's Model Law on Access to Information (2013) provides a framework for governments to establish effective access to information laws. It emphasizes the right to information as a fundamental human right and outlines key principles, including proactive disclosure, limited exemptions, and procedures for requesting information. It serves as a guide for countries to create or improve their own access to information legislation.
World Bank Standards
1. World Bank's Open Government Guide (2015)- The World Bank's Open Government Guide (2015) provides practical recommendations for promoting transparency, accountability, and citizen engagement in governance. It emphasizes the importance of open data, public participation, and responsive institutions. The guide outlines steps for implementing open government initiatives, including creating a legal framework, building capacity, and fostering collaboration among stakeholders.
2. World Bank's Access to Information Policy (2010)- The World Bank's Access to Information Policy (2010) aims to enhance transparency and accountability by promoting the public's right to access information held by the Bank. It establishes a presumption of openness, allowing access to most documents, with specific exceptions for sensitive information. The policy encourages the proactive disclosure of information, facilitates stakeholder engagement, and seeks to improve development outcomes by making information more accessible to the public, thus fostering trust and informed participation.
European Union Standards
1. EU Directive on Access to Documents (2011)- The EU Directive on Access to Documents (2011) establishes the framework for public access to documents held by EU institutions. It aims to promote transparency and accountability in the EU's decision-making processes. The directive stipulates that any citizen can request access to documents, with certain exceptions for privacy and security reasons. It encourages proactive publication of documents and ensures that access is granted in a timely manner, thereby fostering greater trust and engagement between EU institutions and the public.
2. EU Regulation on Public Access to Documents (2011)- The EU Regulation on Public Access to Documents (2011) sets out the rules for accessing documents held by EU institutions, bodies, and agencies. It emphasizes transparency and citizens' rights to request documents, ensuring that access is granted unless specific exceptions apply, such as concerns for privacy or security. The regulation also encourages proactive disclosure of information and aims to enhance public participation and trust in EU governance by making documents readily available to the public.
References
[1] Available at https://dopt.gov.in/sites/default/files/FAQ_RTI_2012%20(1).pdf
[2] CBSE v Aditya Bandopadhyay [2011 (8) SCC 497],https://indiankanoon.org/doc/1519371/
[3]UOI vs D.S Meena [W.P.(C) 4735/2011],https://indiankanoon.org/doc/127577585/
[4]Available at https://optimizeias.com/section-8-1-j-of-rti-act/
[5]Available at https://optimizeias.com/section-8-1-j-of-rti-act/
[6]Third Party Information, https://indiankanoon.org/doc/641228/
[7]Shri Syed Sajjad Ali v The POI CIC/SB/A/2015/000433, https://www.istm.gov.in/rti_portal/cms/89/4
[8]Annual reports by The State Information Commission,https://blog.ipleaders.in/rti-statistics/
[9]Dr. Celsa Pinto, Ex-Officio Joint ... vs The Goa State Information Commission ... on 3 April, 2008, https://indiankanoon.org/doc/399531/
