explanations:grounds-for-rejection
Differences
This shows you the differences between two versions of the page.
Both sides previous revisionPrevious revision | |||
explanations:grounds-for-rejection [2018/06/05 01:21] – [Denial of Information under Section 8] Shrawan | explanations:grounds-for-rejection [2023/04/15 10:56] (current) – Shrawan | ||
---|---|---|---|
Line 3: | Line 3: | ||
{{ : | {{ : | ||
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 | 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 | ||
- | < | + | |
- | <script async src="// | + | |
- | <ins class=" | + | |
- | | + | |
- | | + | |
- | | + | |
- | | + | |
- | | + | |
- | < | + | |
- | | + | |
- | </ | + | |
- | </ | + | |
**Grounds of Rejection of RTI** | **Grounds of Rejection of RTI** | ||
Line 30: | Line 19: | ||
* 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. | ||
- | < | + | |
- | <script async src="// | + | |
- | <ins class=" | + | |
- | | + | |
- | | + | |
- | | + | |
- | | + | |
- | | + | |
- | < | + | |
- | | + | |
- | </ | + | |
- | </ | + | |
Section 7(9) cannot be a ground for denial of information, | Section 7(9) cannot be a ground for denial of information, | ||
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. | ||
- | < | + | |
- | <script async src="// | + | |
- | <ins class=" | + | |
- | | + | |
- | | + | |
- | | + | |
- | | + | |
- | | + | |
- | < | + | |
- | | + | |
- | </ | + | |
- | </ | + | |
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 ===== | ||
- | < | + | |
- | <script async src="// | + | |
- | <ins class=" | + | |
- | | + | |
- | | + | |
- | | + | |
- | | + | |
- | | + | |
- | < | + | |
- | | + | |
- | </ | + | |
- | </ | + | |
**// | **// | ||
Line 85: | Line 41: | ||
**// | **// | ||
- | < | + | |
- | <script async src="// | + | |
- | <ins class=" | + | |
- | | + | |
- | | + | |
- | | + | |
- | | + | |
- | | + | |
- | < | + | |
- | | + | |
- | </ | + | |
- | </ | + | |
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. | ||
Line 111: | Line 56: | ||
**// | **// | ||
- | < | + | |
- | <script async src="// | + | To qualify for this exemption, it must be established that it is ‘commercial confidence, |
- | <ins class=" | + | |
- | | + | |
- | | + | |
- | | + | |
- | | + | |
- | | + | |
- | < | + | |
- | | + | |
- | </ | + | |
- | </ | + | |
- | To qualify for this exemption, it must be established that it is ‘commercial confidence, | + | |
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, | ||
Line 132: | Line 66: | ||
**// | **// | ||
- | < | + | |
- | <script async src="// | + | |
- | <ins class=" | + | |
- | | + | |
- | | + | |
- | | + | |
- | | + | |
- | | + | |
- | < | + | |
- | | + | |
- | </ | + | |
- | </ | + | |
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 | ||
Line 157: | Line 80: | ||
**// | **// | ||
- | < | + | |
- | <script async src="// | + | |
- | <ins class=" | + | |
- | | + | |
- | | + | |
- | | + | |
- | | + | |
- | | + | |
- | < | + | |
- | | + | |
- | </ | + | |
- | </ | + | |
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, | ||
Line 181: | Line 93: | ||
**// | **// | ||
- | < | + | |
- | <script async src="// | + | |
- | <ins class=" | + | |
- | | + | |
- | | + | |
- | | + | |
- | | + | |
- | | + | |
- | < | + | |
- | | + | |
- | </ | + | |
- | </ | + | |
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. | - 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. | ||
Line 202: | Line 103: | ||
**(i) cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers: | **(i) cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers: | ||
- | < | + | |
- | <script async src="// | + | |
- | <ins class=" | + | |
- | | + | |
- | | + | |
- | | + | |
- | | + | |
- | | + | |
- | < | + | |
- | | + | |
- | </ | + | |
- | </ | + | |
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, | 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, | ||
Line 228: | Line 118: | ||
Provided that the information, | Provided that the information, | ||
- | < | + | |
- | <script async src="// | + | |
- | <ins class=" | + | |
- | | + | |
- | | + | |
- | | + | |
- | | + | |
- | | + | |
- | < | + | |
- | | + | |
- | </ | + | |
- | </ | + | |
To qualify for this exemption, it must be personal information. In common language, we would ascribe the adjective ' | 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, | (j) of the RTI Act cannot be applied when the information concerns institutions, | ||
Line 246: | Line 125: | ||
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, | + | b) Where the information requested is personal information, |
- | If the information is personal information, | + | If the information is personal information, |
Line 260: | Line 139: | ||
</ | </ | ||
<WRAP half column> | <WRAP half column> | ||
- | < | + | |
- | <script async src="// | + | |
- | <!-- wiki 300 bottom --> | + | |
- | <ins class=" | + | |
- | | + | |
- | | + | |
- | | + | |
- | < | + | |
- | (adsbygoogle = window.adsbygoogle || []).push({}); | + | |
- | </ | + | |
- | </ | + | |
</ | </ | ||
</ | </ | ||
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 | 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 | ||
- | (1) (a) in the interest of ‘decency or morality’. | + | (1) (a) in the interest of ‘decency or morality’. |
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, | 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. | + | 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 | It is worth noting that in the Privacy bill 2014, it was proposed that Sensitive personal | ||
Line 290: | Line 159: | ||
**//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.// | ||
** | ** | ||
- | < | + | |
- | <script async src="// | + | |
- | <ins class=" | + | |
- | | + | |
- | | + | |
- | | + | |
- | | + | |
- | | + | |
- | < | + | |
- | | + | |
- | </ | + | |
- | </ | + | |
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. | ||
Line 311: | Line 169: | ||
{{indexmenu>: | {{indexmenu>: | ||
- | < | + | |
- | <script async src="// | + | |
- | <ins class=" | + | |
- | | + | |
- | | + | |
- | | + | |
- | | + | |
- | | + | |
- | < | + | |
- | | + | |
- | </ | + | |
- | </ | + | |
~~socialite~~ | ~~socialite~~ | ||
[<>] | [<>] |
explanations/grounds-for-rejection.txt · Last modified: 2023/04/15 10:56 by Shrawan