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explanations:grounds-for-rejection

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explanations:grounds-for-rejection [2018/06/04 14:43] – Shrawanexplanations:grounds-for-rejection [2018/06/05 01:21] – [Denial of Information under Section 8] Shrawan
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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. 
  
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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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 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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 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. 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.
  
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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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 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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 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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 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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 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. 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.
  
-Even if the information has arisen by a public activity,  it could still be exempt if disclosing it would be an unwarranted invasion on the privacy of an individual. 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+Even if the information has arisen by a public activity,  it could still be exempt if disclosing it would be an unwarranted invasion on the privacy of an individual. 
  
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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
  
 (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.
explanations/grounds-for-rejection.txt · Last modified: 2023/04/15 10:56 by Shrawan