explanations:grounds-for-rejection
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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. | 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 | + | ===== Denial of Information under Section 8 ===== |
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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. | 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. | ||
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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. | 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. | ||
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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. | 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. | ||
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Another important point which must be noted is that if some information is denied to Legislature, | Another important point which must be noted is that if some information is denied to Legislature, | ||
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To qualify for this exemption, it must be established that it is ‘commercial confidence, | To qualify for this exemption, it must be established that it is ‘commercial confidence, | ||
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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, | 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, | ||
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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 | 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 | ||
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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. | 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. | ||
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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, | 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, | ||
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The danger to life or physical safety must be a reasonable probability, | The danger to life or physical safety must be a reasonable probability, | ||
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+ | Under this provision, information can be denied if one of the following conditions is satisfied: | ||
+ | - The investigation is not complete, and it can be shown that releasing the information could impede the process of investigation. This provision does not say that when an investigation is ongoing, information regarding it should not be provided. Hence, the PIO must consider whether there is a reasonable probability of the investigation being impeded if the information is provided. | ||
+ | - If it is shown and established that releasing the information will result in a situation which will impede apprehending the charged persons. | ||
+ | - Though the investigation and apprehension of offenders may be over, releasing the information would impede the process of prosecuting the offenders. If an investigation is over and no offender is likely to be apprehended or prosecuted, the information cannot be withheld.36 Also, the mere fact that release of some information from the records may lead to a weakening of the prosecution case cannot be advanced as a reason to deny information, | ||
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+ | **(i) cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers: | ||
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+ | This provision is often misunderstood as being a complete bar on providing information under Right to Information about cabinet papers and the cabinet deliberations. Once a decision is taken and the matter is complete or over, it places an obligation on the government to make public the material on the basis of which the decision has been taken. This means that the government must make the basis of taking the decisions public on its own. For example, once a bill is presented in Parliament or Legislature, | ||
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+ | This provision requires that the government places before people it's deliberations and reasoning for deciding to frame a law or policy. This provision reiterates the provisions of Section 4(1): | ||
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+ | (c) publish all relevant facts while formulating important policies or announcing the decisions which affect public; | ||
+ | (d) provide reasons for its administrative or quasi-judicial decisions to affected persons. | ||
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+ | It ensures that the advice given to the cabinet and its deliberations would not be revealed when it is being discussed. However, once the decision to make a law or policy has been taken, the reasons and records should be put before the public. This is the true empowerment of citizens and an attempt to bring in a participatory democracy and accountability. It is worth noting that this is the only provision in Section 8 (1), which while exempting disclosure of certain information, | ||
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+ | //**(j) information which relates to personal information the disclosure of which has no relationship to any public activity or interest, | ||
+ | Provided that the information, | ||
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+ | To qualify for this exemption, it must be personal information. In common language, we would ascribe the adjective ' | ||
+ | (j) of the RTI Act cannot be applied when the information concerns institutions, | ||
+ | The information requested, may be denied under section 8(1)(j), under the following two circumstances – | ||
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+ | a) Where the information requested is personal information and the nature of the information requested is such that it has apparently no relationship to any public activity or interest; or | ||
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+ | b) Where the information requested is personal information, | ||
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+ | If the information is personal information, | ||
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+ | Applying for a job, ration card or passport are examples of public activity. However, there may be some personal information which may be with public authorities which is not a consequence of a public activity, eg. Medical records, or transactions with a public sector bank. Similarly, a public authority may come into possession of some information during a raid or seizure which may have no relationship to any public activity. | ||
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+ | Even if the information has arisen by a public activity, | ||
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+ | (1) (a) in the interest of ‘decency or morality’. | ||
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+ | The proviso is meant as a test which must be applied before denying information claiming exemption under Section 8 (1) (j). Public servants have been used to answering questions raised in Parliament and the Legislature. It is difficult for them to develop the attitude of answering demands for information from citizens. Hence, when they have a doubt, | ||
+ | Another perspective is that information is to be denied to citizens based on the presumption that disclosure would cause harm to some interest of an individual. If, however, the information can be given to legislature it means the likely harm is not very high since what is given to legislature will be in public domain. Hence, it is necessary that when information is denied based on the provision of Section 8 (1) (j), the person denying the information must give his subjective assessment that such information would be denied to Parliament or State legislature if sought. This must be recorded in the decision. | ||
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+ | It is worth noting that in the Privacy bill 2014, it was proposed that Sensitive personal | ||
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+ | (e) banking credit and financial data (f) narco-analysis or polygraph test data, (g) sexual orientation.” This is in line with Article 19 (2) of the Constitution. | ||
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+ | **Section 9** | ||
+ | **//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.// | ||
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+ | 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. | ||
+ | However, by implication, | ||
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explanations/grounds-for-rejection.txt · Last modified: 2023/04/15 10:56 by Shrawan