M5, Exemptions Deep Dive, Section 8, 9 and 24

Module 5 of 10. Reading time about 50 to 60 minutes. End-of-module quiz unlocks Module 6.

This is the longest module in the course. It is also the most important for the working PIO. You will spend most of your career applying section 8 and section 10. By the end of this module you will be able to walk through every clause in your sleep.

The Supreme Court has held in CBSE v Aditya Bandopadhyay 2011 and in RBI v Jayantilal Mistry 2015 that the exemptions in section 8 are to be construed strictly because the RTI Act is a remedial statute that gives effect to a constitutional right. As a PIO, your default posture is disclosure. The exemption is an exception, not the rule.

“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.”

Apply this with discipline. The clause has six grounds and each is separate. The PIO must identify which ground is engaged and how the disclosure would prejudicially affect it. The CIC has rejected blanket invocations of section 8(1)(a) without a specific finding.

Typical legitimate uses, defence acquisitions in progress, codes and cyphers, locations of nuclear material, ongoing strategic negotiations with another State, classified scientific research with national security implications.

Typical wrong uses, routine administrative correspondence of a Ministry, audit reports, contracts that have already concluded, statistical data that the same authority publishes annually.

“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.”

This is a narrow clause. The PIO must point to a specific court order forbidding publication. The CIC has held that a general impression that disclosure may displease a court is not enough. Where the matter is sub judice but no order forbids publication, the clause does not apply.

“Information, the disclosure of which would cause a breach of privilege of Parliament or the State Legislature.”

This is rare. The PIO should consult the law officer if invoking this. Most parliamentary papers are already published.

“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.”

This clause has its own public interest test embedded. The PIO must (i) identify the commercial confidence, trade secret, or intellectual property, (ii) identify the third party whose competitive position would be harmed, (iii) record that the harm is real and not merely speculative, and (iv) carry out the larger public interest test.

The CIC has frequently set aside section 8(1)(d) invocations where the PIO did not identify the third party. Always name the third party in your reply (consistent with section 11 confidentiality of the third party's representation where applicable).

“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.”

After CBSE v Aditya Bandopadhyay 2011 and RBI v Jayantilal Mistry 2015, this clause is narrow. A fiduciary relationship is a relationship of trust where the fiduciary acts for the beneficiary. A regulator is not in a fiduciary relationship with the regulated. An employer is not in a fiduciary relationship with the employee for the section 8(1)(e) test.

Legitimate uses, a doctor's records of a patient when sought by a third party, a lawyer's privileged communication, a banker's customer records when sought by a third party, a teacher's confidential records of a student when sought by a third party.

Wrong uses, RBI inspection reports, examination answer sheets, departmental files.

“Information received in confidence from foreign Government.”

The PIO must show that the information was actually received from a foreign government and was received with a confidentiality understanding. A printed press release from a foreign embassy is not received in confidence.

“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 is a vital clause. It protects whistleblowers, informants, witnesses, and intelligence sources. The PIO must identify the person whose life would be endangered and explain the link. The clause cannot be used to shield a general investigation.

“Information which would impede the process of investigation or apprehension or prosecution of offenders.”

The clause is time-limited in effect. Once the investigation is over, the clause ceases to apply. The CIC has held that a PIO must record the stage of investigation. After the charge-sheet is filed, the clause weakens. After conviction or acquittal, the clause fails.

“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.”

The structure is, deliberations are exempt, decisions and reasons are disclosable once the matter is over. As a PIO of a Government department, you must check whether the matter is “complete or over”. If yes, the decision plus reasons must be released. Note that Cabinet deliberations of an ongoing matter remain exempt.

“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.”

This is the most invoked clause. The structure of the test is three-pronged.

1. Is the information personal?
2. Does its disclosure have a relationship to public activity or interest?
3. Would disclosure cause an unwarranted invasion of privacy?

If the information is personal AND has no relationship to public activity AND would cause unwarranted invasion of privacy, the clause is engaged. Even then, the public interest override may displace the exemption.

The Girish Deshpande line (Supreme Court 2013) places the burden on the applicant to show larger public interest for service records of public servants, including ACR, assets, and disciplinary records. After the Puttaswamy privacy judgment 2018, the proportionality of the public interest must be examined more rigorously.

The DPDP Act 2023 has rewritten section 8(1)(j) to a broader privacy bar. The amendment is sub judice. As a PIO, the safer course is to record analysis under both the original section 8(1)(j) and the DPDP-amended text, until the Supreme Court rules.

“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 disclosure outweighs the harm to the protected interests.”

This is the heart of the RTI Act. As a PIO, even after you have correctly invoked an exemption under section 8(1), you must apply section 8(2) and record a finding. The finding must answer:

1. What is the harm to the protected interest from disclosure?
2. What is the public interest in disclosure?
3. Does the public interest outweigh the harm?

A reply that invokes section 8(1) without considering section 8(2) is incomplete and has been set aside repeatedly by the CIC.

“Subject to the provisions of clauses (a), © 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.”

After twenty years, only clauses (a) (sovereignty, security), © (parliamentary privilege), and (i) (Cabinet papers) survive. All other exemptions fall away. As a PIO, when an applicant seeks records older than twenty years, the section 8(3) bar lifts most exemptions and you must disclose unless one of the three preserved clauses applies.

“Without prejudice to the provisions of section 8, a Central Public Information Officer or a State Public Information Officer, as the case may be, may reject a request for information where such a request for providing access would involve an infringement of copyright subsisting in a person other than the State.”

Copyright vests with the author by default. If the public authority holds a document whose copyright belongs to a private person, supplying a copy may infringe the copyright. The PIO may then refuse. However, the clause applies only to copyright in a person OTHER THAN THE STATE. If the copyright is with the Government, section 9 does not apply.

In practice, the clause is used for items like consultant reports purchased with reuse restrictions, software source code licensed to the Government, and standards documents (BIS standards, IS codes) where copyright vests with the standards body. Examination questions and answer sheets are NOT copyright protected from the candidate under Aditya Bandopadhyay.

If the information sought relates to or has been supplied by a third party and has been treated as confidential by that third party, the PIO must give a written notice to the third party within five days of receipt of the application.

1. PIO issues written notice within five days.
2. Third party has ten days to submit representation.
3. PIO considers the representation and passes a reasoned order within forty days of receipt.
4. The order is communicated to the applicant and the third party.
5. The third party has a right of first appeal under section 19(2) if the PIO orders disclosure.
6. The PIO must withhold disclosure for thirty days from communication to allow the third party to file the first appeal.

The PIO consults the third party but decides. The third party does not have a veto. Where the third party objects but the public interest favours disclosure, the PIO must disclose with reasons.

“Nothing contained in this Act shall apply to the intelligence and security organisations specified in the Second Schedule, being organisations established by the Central Government or any information furnished by such organisations to that Government, provided that the information pertaining to the allegations of corruption and human rights violations shall not be excluded under this sub-section, provided further that in the case of information sought for is in respect of allegations of violation of human rights, the information shall only be provided after the approval of the Central Information Commission.”

Two important carve-outs.

1. Allegations of corruption are NOT excluded. The PIO of a Second Schedule body must supply such information.
2. Allegations of human rights violations are NOT excluded, but disclosure is conditional on CIC approval.

The Second Schedule lists central intelligence and security organisations including IB, RAW (Research and Analysis Wing), Directorate of Revenue Intelligence, Aviation Research Centre, Special Frontier Force, Special Service Bureau, NTRO, Special Protection Group, Defence Research and Development Organisation, Border Roads Development Board (for specified portions), Financial Intelligence Unit, Directorate of Enforcement, NSCN, CISF, CRPF, BSF, SSB, ITBP, NSG, Assam Rifles, NIA, Sashastra Seema Bal. The list has been amended by Central Government notifications and you must check the current notification.

State Governments have similar exclusions under section 24(4) for State intelligence and security organisations. The corruption and human rights carve-outs apply equally.

Several High Courts have held that even within a Second Schedule organisation, purely administrative records (recruitment, posting, transfer, leave, audit) are not automatically excluded. The exclusion attaches to intelligence and security functions, not the entire body. As a PIO, separate operational from administrative records.

When a request touches a potentially exempt item, run this checklist.

1. Is the body a Second Schedule organisation under section 24? If yes, apply the section 24 carve-outs.
2. Is the request older than twenty years? If yes, apply section 8(3) to lift most exemptions.
3. For each item, does any clause of section 8(1) apply? If yes, identify the clause and the facts.
4. For each item where a clause of section 8(1) applies, apply section 8(2) public interest override.
5. For each item, can section 10 severability supply part of the record?
6. Is there a third party under section 11? If yes, issue notice within five days.
7. Is copyright in a non-State person under section 9? If yes, examine.
8. Draft the reply with item-wise reasons.

1. Bare citation of section 8(1)(j) without the three-prong test.
2. Bare citation of section 8(1)(d) without identifying the third party.
3. Section 8(1)(h) invoked after the investigation is over.
4. Section 8(1)(e) invoked for a regulator-regulated relationship.
5. Section 8(2) public interest test not recorded.
6. Section 10 severability not attempted.
7. Section 11 notice not issued where third party is named.
8. Section 24 invoked for administrative records of a Second Schedule body.
9. The twenty-year rule under section 8(3) ignored for old records.

This module gave you the full deep dive on section 8, section 9, section 11, and section 24. You can now write a reasoned exemption analysis for any clause. In Module 6 you will switch sides briefly and look at applications from the PIO's analytical perspective, separating genuine requests from fishing expeditions and identifying third-party triggers at intake.

For the citizen's view, see Section 8 exemptions explained and Section 24 explained on RTI Wiki.

This module is part of the RTI Wiki PIO Certification Course. The course is a Learner Certificate programme. It is NOT accredited by any government or statutory body. The drafting exercises in Module 7 are evaluated by a Large Language Model trained on RTI Wiki content, not by human evaluators. Scores are indicative knowledge measures, not legal advice.

Now take the M5 quiz to proceed to M6.