Obligation not to disclose information under 8(1)(e ) and (j) of the RTI Act, 2005

 

Obligation not to disclose information under  8(1)(e ) and (j) of the RTI Act, 2005

(A) Exemption of information n under Section 8(1)(e) ) and under Section  8(1)(j) of the RTI Act, 2005. 

Section 8(1)(e) states, Section 8(e) Notwithstanding anything in this Act, there shall be no obligation to give any citizen,--(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; 

  With regard to exemption under Section 8(1)(e)  of the RTI Act , information held in  ”fiduciary relationship or “ fiduciary capacity”, the Hon’ble Supreme Court  in case of CBSE Vs. Aditya Bandopadhyay  (Civil Appeal No. 6454 of 2011) )[Arising out of  SLP [C] 7526 /2009 Decide on 09 August 2011] Decided on August 09, 2011.

in which  Hon’ble Court has examined  the matter in detail and  held as under:- 

  The term `fiduciary' refers to a person having a duty to act for the benefit of another, showing good faith and condor  where such other person reposes trust and special confidence in the person owing or discharging the duty. The term `fiduciary relationship' is used to describe a situation or   transaction where one person (beneficiary) places complete confidence in another person (fiduciary) in regard to his affairs, business or transaction/s. The term also refers to a person who holds a thing in trust for another (beneficiary). The fiduciary is expected to act in confidence  .and for the benefits  and advantage of the   beneficiary, and use good faith and fairness in dealing with the beneficiary or the things belonging to the beneficiary. If the beneficiary has entrusted anything to the fiduciary, to hold the thing in trust or to execute  certain acts  in regard to  or with reference to  the entrusted thing, the fiduciary has to act in confidence and expected not to  disclose the thing or information to any third party

  (B). With regard to  notings, advices or opinions of higher authorities,  internal legal notes, advice, comments and written views / marginal notes of higher authorities  in file, are all  acts in confidence which are “privileged documents’ and cannot be  disclosed under  Section  123, 124 & 129 of the Indian Evidence Act which are reproduced as follows:- 

 Section 123 of the Indian Evidence Act, 1872 states, "123.  Evidence  as to affairs of State,-- No one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of State, except with the permission of the officer at the head of the department concerned, who shall give or withhold such permission as he thinks fit”.

 Section 124 of the Indian Evidence Act , 1872, states,  “124. Official communication, -   No public officer shall be compelled to disclose communications made to him in official confidence,  when he considers that the public interests would suffer by the disclosure.” 

  Section 129 of the Indian Evidence Act, 1872 states,   “129. Confidential communication with legal advisor,-- No one shall be compelled to disclose to the Court any confidential communication which has taken place between him and his legal professional adviser, unless he offers himself as a witness, in which case he may be compelled to disclose any such communications as may appear to the Court necessary to be known in order to explain any evidence which he has given, but no others”.

Further, copies of file notes and notings, internal legal notes/written view and all the legal opinions in respect of the said land; copies of correspondences in relation to the said land, exchanged between AAI and RCC, etc., as sought by the appellant are non-disclosable u/s 124 & 129 of the Evidence Act, 1882. Sections 124 and 129 of the Indian Evidence Act read as follows:

124. Official communications - No public officer shall be compelled to disclose communications made to him in official confidence, when he considers that the public interests would suffer by the disclosure.

129. Confidential communication with Legal Advisers - No one shall be compelled to disclose to the Court any confidential communication which has taken place between him and his legal professional adviser, unless he offers himself as a witness in which case he may be compelled to disclose any such communication as may appear to the Court necessary to be known in order to explain any evidence which he has given, but not others.

 CIC Finally held:-

 Citing the Full Bench of this Commission, vide order dated 27.07.2009, in the case of Shri Milap Choraria Vs. Central Board of Direct Taxes, Department of Revenue Complaint No.CIC/AT/C/2008/00025) had upheld that Section 22 of the RTI Act, 2005, did not override the provisions of the provisions of Section 124 and 129  of the Evidence Act, 1882, which read as under:

"21. Similar is the relationship between Section 124 of the Indian Evidence Act and the RTI Act. A public officer cannot be compelled to disclose communication made to him in official confidence when he considers that it would jeopardize public interest. The disclosure of any such information, which is a part of official confidence, is therefore, permissible only when larger public interest commands it. Read in this context, there is no inconsistency between the RTI Act and Section 124 of the  Evidence Act. The only issue that needs be decided is whether it would be in larger public interest if the information requested by the appellant is disclosed.

27. There may be circumstances, however, where, as in Section 8(1)(j) of the RTI Act, a personal information can be held to be non- disclosable unless warranted by public interest. If such personal information is also held confidential under any Section of the Indian Evidence Act on grounds of public interest, there shall be perfect compatibility / harmony between that withholding of the information or any order to withhold the information under Section 8(1)(j)  of the RTI Act."

 Therefore, what the appellant had sought is a matter of internal confidential official communications/information which is well protected under of the RTI Act, 2005 and the Indian Evidence Act, 1872  and the appellant has been unable to substantiate any public interest that would commend superseding the protected interest in the matter of disclosure of the requested information. The appeal is disposed of.

 **(C) Exempted information under Section 8(1)(j) of RTI Act, 2005.

Section 8(1)(j) states, Section 8(1) Notwithstanding anything in this Act, there shall be no obligation to give any citizen,-- (j) information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information: 

Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person. 

 ** Supreme Court of India in the case of Girish Ramchandra Deshpande vs Cen.Information Commr.& Ors. Case No. Special Leave Petition (Civil) No 27734 of 2012, (& CC 14781), Decided  on 3 October, 2012 has held:

“12. The petitioner herein sought for copies of all memos, show cause notices and censure/punishment awarded to the third respondent from his employer and also details viz. movable and immovable properties and also the details of his investments, lending and borrowing from Banks and other financial institutions. Further, he has also sought for the details of gifts stated to have accepted by the third respondent, his family members and friends and relatives at the marriage of his son. The information mostly sought for finds a place in the income tax returns of the third respondent. The question that has come up for consideration is whether the above-mentioned information sought for qualifies to be “personal information” as defined in clause (j) of Section 8(1) of the RTI Act.

 13. We are in agreement with the CIC and the courts below that the details called for by the petitioner i.e. copies of all memos issued to the third respondent, show cause notices and orders of censure/punishment etc. are qualified to be personal information as defined in clause (j) of Section 8(1) of the RTI Act. The performance of an employee/officer in an organization is primarily a matter between the employee and the employer and normally those aspects are governed by the service rules which fall under the expression “personal information”, the disclosure of which has no relationship to any public activity or public interest. On the other hand, the disclosure of which would cause unwarranted invasion of privacy of that individual. Of course, in a given case, if the Central Public Information Officer or the State Public Information Officer of the Appellate Authority is satisfied that the larger public interest justifies the disclosure of such information, appropriate orders could be passed but the petitioner cannot claim those details as a matter of right.

 14. The details disclosed by a person in his income tax returns are “personal information” which stand exempted from disclosure under clause (j) of Section 8(1) of the RTI Act, unless involves a larger public interest and the Central Public Information Officer or the State Public Information Officer or the Appellate Authority is satisfied that the larger public interest justifies the disclosure of such information.

 15. The petitioner in the instant case has not made a bona fide public interest in seeking information, the disclosure of such information would cause unwarranted invasion of privacy of the individual under Section 8(1)(j) of the RTI Act.

 16. We are, therefore, of the view that the petitioner has not succeeded in establishing that the information sought for is for the larger public interest. That being the fact, we are not inclined to entertain this special leave petition. Hence, the same is dismissed”.

[ Case Reference: -

1. . Supreme Court of India decision in CBSE Vs. Aditya Bandopadhyay  (Civil Appeal No. 6454 of 2011)[Arising out of  SLP [C] 7526 /2009 Decide on 09 August 2011].

2..  CIC decision in  Second  Appeal No. CIC/AAOIN/A/2017/309776/MP:  Appellant : Shri Snehasish Mukherjee, New Delhi - Vs.  Airport Authority of India, New Delhi, Public Authority  Date of Decision: September 18, 2017 ... cic.gov.in]

3. CIC Full Bench decision, in  Complaint No.CIC/AT/C/2008/00025), decided on dated 27.07.2009, in the case of Shri Milap Choraria Vs. Central Board of Direct Taxes, Department of Revenue.

4. Supreme Court of India in the case of Girish Ramchandra Deshpande vs Cen.Information Commr.& Ors. Case No. Special Leave Petition (Civil) No 27734 of 2012, (& CC 14781), Decided  on 3 October, 2012