Module 03 — §8 exemptions and how to defeat them

Most-abused exemption. Defeats:

1. Time-bound test: post-award records are NOT commercial confidence. Tender is over; the bidders' competitive interest is over.
2. Public-interest override (§8(2)): where the contract value is large and public funds are involved, public interest demands disclosure.
3. Severability (§10): even if part is exempt (e.g. proprietary algorithms), the rest (price, scope, dates) is disclosable.

Precedent: *Reliance Industries v. CIC* — SC narrowed §8(1)(d) to genuinely competitive information, not all 'business' records.

Defeats:

1. Statutory-duty test (post-March-2026 SC in Patel): records held while doing the authority's job are NOT fiduciary. Only entrusted-trust data is.
2. Two-party test: a fiduciary relationship requires identifiable parties. Generic “public records” don't have one.
3. Public-interest override: especially for regulator records (banks, audit firms, contractors).

Precedent: *RBI v. Jayantilal Mistry (2015)* — RBI cannot use §8(1)(d) or (e) to shield bank inspection reports.

Defeats:

1. Named-FIR test (Kerala SIC Full Bench Jan 2026): generic “investigation” claims are insufficient; PIO must name the FIR/PE.
2. Closed-investigation rule: once the chargesheet is filed or closure report submitted, §8(1)(h) lifts.
3. Public-interest override: for systemic issues (Vyapam, NSE-co-location), public interest in disclosure outweighs the marginal investigation impact.

Precedent: *Khanapuram Gandaiah* — case diaries to non-parties typically refused, but with closure report disclosable.

Most cited. Defeats:

1. Public-activity test: salary, qualifications-on-appointment, performance reviews of public servants — disclosable (Karnataka HC 9-Feb-2026).
2. Substantial-public-interest test: even genuinely personal data is disclosable when public interest is overwhelming.
3. Severability: name + designation + post is public; phone/personal address is not. Sever, don't refuse whole.
4. DPDP Rules 2026 §4 interplay: data principal's consent is now a relevant factor — for living individuals, the PIO should at minimum issue §11 notice.

R&AW, IB, ED, NIA, etc. listed in Schedule 2 are exempt EXCEPT for “corruption and human rights violations” — that exception is a goldmine.

Framing: never ask R&AW for general activity. Ask for “investigations into corruption involving R&AW personnel” or “records relating to alleged human rights violations attributed to NIA officers in [district]”.

The §24 proviso gives a 45-day reply window with CIC oversight.

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Last reviewed: 24 April 2026.