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--- explanations:grounds-for-rejection [2018/06/04 14:01] – created Shrawan
+++ explanations:grounds-for-rejection [2018/06/04 14:17] – Shrawan
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   * The organisation is not a Public authority - eg. a Cooperative Society, or a Private corporate or Institution, not substantially financed or controlled by the Government.
   * What is asked for ‘not information’ as defined under the Act: Information has to exist. Interpretations of law or decisions which do not exist, or reasons for decisions  which do not exist will not be covered under the definition of ‘information’
-Some examples to explain the above:
+===== Some examples to explain the above: =====
-  - ‘Why have I not got a ration card?’  is not asking for information; but ‘I want the progress of my file relating to my application for a ration card’ is asking information.
-  - ‘Why have I not got admission?’ is not asking for information,  whereas  ‘I want the cut-off marks at which admission was granted’ is asking for information. However, abiding by the spirit of Section 5(3), the PIO should help to reframe such queries.
+<note>‘Why have I not got a ration card?’  is not asking for information; but ‘I want the progress of my file relating to my application for a ration card’ is asking information.
+‘Why have I not got admission?’ is not asking for information,  whereas  ‘I want the cut-off marks at which admission was granted’ is asking for information. However, abiding by the spirit of Section 5(3), the PIO should help to reframe such queries.</note>
   * The information asked for falls in the exemptions of [[act:|Section 8(1)]] or under Section 9 applies. Section 9 bars giving information which would violate private party copyright.
   * Providing extracts from the records is required to be done as per Section 2(j)(ii) unless it would require too much time. If giving the information would require too much of the resource of the Public authority, it cannot refuse to give the information.
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 However, it would be wrong to refuse to provide a  collation or extracts from what is already in records. Section 7(9) should only be invoked when collation or extracting information is going to take too much time. In such an event, the PIO could offer photocopies of the complete records or allow an inspection. The choice should rest with the applicant.
+Denial of Information under Section 8
+//(a)	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;//
+The PIO must explain how the disclosure of information is likely to ‘prejudicially affect the sovereignty and integrity of India, or the security, strategic, scientific or economic interests of the State, relation with foreign State  or lead to incitement of an offence’. If no specific reasoning is given to justify denial, the information must be provided.  It must be observed that the law does not exempt files or information labelled ‘confidential’ as exempt. Classification as ‘confidential’ is an internal procedure and cannot be used to deny information, since the RTI Act has exempted thisthis category.
+//(b)	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;//
+The exemption will only apply when any matter has been specifically and expressly forbidden to be made public by a court or tribunal. Even if an issue is subjudice, the information has to be provided. This exemption will only apply if a specific order of the Court or tribunal says the particular information has been prohibited from disclosure. Such a disclosure would be contempt of court and hence barred.
+//(c)	information, the disclosure of which would cause a 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.
+There is a common practice of governments appointing Commissions of Inquiry and often not making the reports public. Since the report has not been placed before Parliament can it be given in response to an RTI application?
+As per Section 3(4) of the Commissions of Inquiry Act, “The appropriate Government shall cause to be laid before each House of Parliament or, as the case may be, the Legislature of the State the report, if any, of the commission on the inquiry made by the Commission under sub-section (1) together with a Memorandum of the action taken thereon, within a period of six months of the submission of  the  report by the commission to the appropriate Government.”
+If it has not been placed within six months before the Parliament, or State Legislature, the breach of privilege has already occurred since the government has not abided by the provision of the Commissions of Inquiry Act. It cannot then be claimed that giving the report to the applicant will cause a breach of privilege since it has already been breached by the holder of the report.
+Another important point which must be noted is that if some information is denied to Legislature, this exemption does not say it should not be given to a citizen. There is an additional view at this juncture.
+//(d)	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;//
+To qualify for this exemption, it must be established that it is  ‘commercial confidence,  trade secret or intellectual property’. Most importantly, it must be shown that the disclosure would ‘harm the competitive position of a third party’. This would mean if particular information is given by the ‘third party’ which can be identified as a trade secret or commercial confidence and its disclosure would harm its competitive position, then such information could be denied to the applicant. This section does not envisage denial of information such as tender bids, specifications or guarantees are given by bidders to the public authorities. The PIO must examine and ensure whether information denied qualifies this test of damage to third party likely to be caused by disclosure.
+As an example, if a Company is negotiating with some other customers for some orders and discloses this to the Public authority, it may be claimed that it is information given in commercial confidence and disclosing this information could damage its competitive position. Similarly, if a formula/ formulation is disclosed by a company, its disclosure could be exempted since disclosure could harm its competitive position. If there is no possibility of competition, the exemption cannot be claimed under this clause.
+//(e)	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;//
+The 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.” “Fiduciary relationship usually arises in one of the four situations: (1) when one person places trust in the faithful integrity of another, who as a result gains superiority or influence over the first, (2) when one person assumes control and responsibility over another, (3) when one person has a duty  to  act  or  give  advice  to  another on matters falling within the scope of the relationship, or
+(4) when there is a specific relationship that has traditionally been recognized as involving fiduciary duties, as with a lawyer and a client, or a stockbroker and a customer.”34
+The traditional definition of a fiduciary is a person who occupies a position of trust in relation to someone else, therefore requiring him to act for the latter's benefit within the scope of that relationship. In business or law, it generally means someone who has specific duties, such as those that attend a particular profession or role, e.g. doctor, lawyer, banker, financial analyst or trustee.
+Another characteristic of such a relationship is that the information is given by the holder of information out of choice. When a litigant goes to a particular lawyer, a customer chooses a particular bank, or a patient goes to a particular doctor he has a choice whether he wishes to give the information. An equally important characteristic for the relationship to qualify as a fiduciary relationship is that the provider of information gives the information for using it for his benefit. It is true that such a relationship is based on trust. A person will not choose a doctor, lawyer, banker or trustee unless there is trust. All relationships usually have an element of trust, but all of them cannot be classified as fiduciary. Information provided in a discharge of a statutory requirement, or to obtain a job, or to get a license or passport, cannot be considered to have been given in a fiduciary relationship. In such a situation, it cannot be claimed that the information has been given in a fiduciary relationship.
+Another aspect to be taken into account is that information provided by the beneficiary to a fiduciary is held in trust and cannot be shared with anyone, but the reverse is not true. A doctor is not free to discuss a patient’s information without the patient ’s consent, but there is no such binding on the patient sharing the doctor’s advice or medication.
+//(f)	information received in confidence 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 the 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.
+//(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;//
+The danger to life or physical safety must be a reasonable probability, not a mere imagination. This clause would be invoked when somebody has given information about a wrongdoing or acted as a whistleblower, and disclosure of his identity would endanger him. However, it should entail a situation where some threat to the source must be a reasonable probability.  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. There is an additional view at this juncture.
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