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explanations:grounds-for-rejection [2018/06/05 01:21] – [Denial of Information under Section 8] Shrawanexplanations:grounds-for-rejection [2023/04/15 10:56] (current) – Shrawan
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 It must be clearly understood that giving information to the citizens must be the rule;  and denying it an exception. The constitutional basis for this is that Right to Information has been considered to be inherent to Article 19(1)(a). Hence, the denial also has to be as per the limits laid down by Article 19(2) which states:” (2) nothing in sub clause (a) of clause (1) shall affect the operation of any existing law,  or  prevent  the  State  from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence” It must be clearly understood that giving information to the citizens must be the rule;  and denying it an exception. The constitutional basis for this is that Right to Information has been considered to be inherent to Article 19(1)(a). Hence, the denial also has to be as per the limits laid down by Article 19(2) which states:” (2) nothing in sub clause (a) of clause (1) shall affect the operation of any existing law,  or  prevent  the  State  from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence”
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 **Grounds of Rejection of RTI**  **Grounds of Rejection of RTI** 
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   * If the form in which the applicant has asked for information would require too much time of the Public authority, it may offer it in another format. A common practice adopted by PIOs when the information gathering or collating in a particular format would require excessive time is to offer inspection of files to the applicant.   * If the form in which the applicant has asked for information would require too much time of the Public authority, it may offer it in another format. A common practice adopted by PIOs when the information gathering or collating in a particular format would require excessive time is to offer inspection of files to the applicant.
  
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 Section 7(9) cannot be a ground for denial of information, which is available on records. Denial can only be justified on the basis of Sections 8 and 9 of the Act. The only exception to this is if giving any information would violate the provisions of the Constitution,  in which case, the request for information, can be denied.  Section 7(9) cannot be a ground for denial of information, which is available on records. Denial can only be justified on the basis of Sections 8 and 9 of the Act. The only exception to this is if giving any information would violate the provisions of the Constitution,  in which case, the request for information, can be denied. 
  
 There may be certain rare instances in which providing information sought by an applicant could bring a work by the public authorities to a halt. In such a case, Section 7(9) may be used to deny information. For example, if someone sought information that is spread over fifty offices which is not available in a collated form, a PIO could say that even providing an inspection may disproportionately divert the resources of the public authority. On the other hand,  if collation of the information can be done in a couple of hours, the  PIO  should do this.   There may be certain rare instances in which providing information sought by an applicant could bring a work by the public authorities to a halt. In such a case, Section 7(9) may be used to deny information. For example, if someone sought information that is spread over fifty offices which is not available in a collated form, a PIO could say that even providing an inspection may disproportionately divert the resources of the public authority. On the other hand,  if collation of the information can be done in a couple of hours, the  PIO  should do this.  
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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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 **//(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;//** **//(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;//**
  
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 **//(c) information, the disclosure of which would cause a breach  of privilege of Parliament or the State Legislature;//** **//(c) information, the disclosure of which would cause a breach  of privilege of Parliament or the State Legislature;//**
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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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 **//(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;//** **//(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;//**
  
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-<script async src="//pagead2.googlesyndication.com/pagead/js/adsbygoogle.js"></script> +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 parties likely to be caused by disclosure.
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-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. 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.
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 **//(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;//** **//(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;//**
  
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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  to  another on matters falling within the scope of the relationship, or 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
  
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 **//(f) information received in confidence from foreign government;//** **//(f) information received in confidence from foreign government;//**
  
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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,  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. 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.
  
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 **//(h) information which would impede the process of investigation or apprehension or prosecution of offenders;//** **//(h) information which would impede the process of investigation or apprehension or prosecution of offenders;//**
  
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 Under this provision, information can be denied if one of the following conditions is satisfied: 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.  Similarly,  when an investigation report is already submitted, it cannot be claimed that the process of investigation will be impeded.  After this, only if there is any probability of somebody being apprehended or prosecuted, then it has to be established that the apprehension or prosecution will be impeded.   - 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.  Similarly,  when an investigation report is already submitted, it cannot be claimed that the process of investigation will be impeded.  After this, only if there is any probability of somebody being apprehended or prosecuted, then it has to be established that the apprehension or prosecution will be impeded.
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 **(i) cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers:**//Italic Text// **(i) cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers:**//Italic Text//
  
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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, the matter relating to the purpose of the deliberations and cabinet related file notings is clearly complete and over. 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, the matter relating to the purpose of the deliberations and cabinet related file notings is clearly complete and over.
  
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 Provided that the information, which cannot be denied to the Parliament or a State Legislature shall not be denied to any person.**// Provided that the information, which cannot be denied to the Parliament or a State Legislature shall not be denied to any person.**//
  
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 To qualify for this exemption, it must be personal information. In common language, we would ascribe the adjective 'personal' to an attribute which applies to an individual and not to an institution or a corporate. Therefore, it suggests that 'personal' cannot be related to institutions, organizations or corporates. Hence Section 8(1) To qualify for this exemption, it must be personal information. In common language, we would ascribe the adjective 'personal' to an attribute which applies to an individual and not to an institution or a corporate. Therefore, it suggests that 'personal' cannot be related to institutions, organizations or corporates. Hence Section 8(1)
 (j) of the RTI Act cannot be applied when the information concerns institutions, organizations or corporates. (j) of the RTI Act cannot be applied when the information concerns institutions, organizations or corporates.
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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 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
  
-b) Where the information requested is personal information, and the disclosure of the said information would cause unwarranted invasion of the privacy of the individual.+b) Where the information requested is personal information, and the disclosure of the said information would cause an unwarranted invasion of the privacy of the individual.
  
-If the information is personal information, it must be seen whether the information came to the public authority as a consequence of a public activity. Generally, most of the information in public records arises from a public activity.+If the information is personal information, it must be seen whether the information came to the public authority as a consequence of a public activity. Generally, most of the information in public records arises from public activity.
  
  
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 </WRAP> </WRAP>
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 Privacy is to do with matters within a home, a  person’s body,  sexual preferences etc.  This  is  in  line  with  Article 19  (2)  which  mentions  placing  restrictions  on  Article  19 Privacy is to do with matters within a home, a  person’s body,  sexual preferences etc.  This  is  in  line  with  Article 19  (2)  which  mentions  placing  restrictions  on  Article  19
  
-(1) (a) in the interest of  ‘decency or morality’.  There  is an additional view at this juncture.38 If, however, it is felt  that the information is not the result of any public activity,  or disclosing it would be an unwarranted invasion on the privacy of an individual, before denying information it must be subjected to the acid test of the proviso: Provided that  the information, which cannot be denied to the Parliament  or a State Legislature shall not be denied to any person.+(1) (a) in the interest of  ‘decency or morality’.  There  is an additional view at this juncture.38 If, however, it is felt  that the information is not the result of any public activity,  or disclosing it would be an unwarranted invasion on the privacy of an individual, before denying information it must be subjected to the acid test of the proviso: Provided that  the information, which cannot be denied to the Parliament or a State Legislature shall not be denied to any person.
  
 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,  it is worthwhile for them to first consider if they would give this information to the elected representatives. They must first come to the subjective conclusion that they would not provide the information to MPs and MLAs, and record it when denying information to citizens. There is an additional view at this juncture 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,  it is worthwhile for them to first consider if they would give this information to the elected representatives. They must first come to the subjective conclusion that they would not provide the information to MPs and MLAs, and record it when denying information to citizens. There is an additional view at this juncture
-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.+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 the 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.
  
 It is worth noting that in the Privacy bill 2014, it was proposed that Sensitive personal  data  should  be  defined  as Personal data relating to: “(a) physical and mental health including medical history, (b) biometric, bodily or genetic information, (c) criminal convictions (d) password, It is worth noting that in the Privacy bill 2014, it was proposed that Sensitive personal  data  should  be  defined  as Personal data relating to: “(a) physical and mental health including medical history, (b) biometric, bodily or genetic information, (c) criminal convictions (d) password,
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 **//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.// **//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. 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.
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 ~~socialite~~ ~~socialite~~
 [<>] [<>]
explanations/grounds-for-rejection.txt · Last modified: 2023/04/15 10:56 by Shrawan