Right To Information

One American writer has said:

The Supreme Court has ruled, modelled on the decisions of the
US Supreme Court, with regard to privacy. The Court observed in R. Rajagopal
alias R. R. Gopal v. State of Tamil Nadu (1994) 6 SCC 632:

Article 19 of the Constitution of India reads:

That right, as per the Supreme Court of India, includes the
right to information. S. 8(1)(j) of the RTI Act:

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

In Secretary General, Supreme Court of India v. Subhash
Chandra Agarwal: The Full Bench of the Delhi High Court concurred with the
view of the learned single Judge that the contents of asset declarations,
pursuant to the 1997 Resolution, are entitled to be treated as personal
information, and may be accessed in accordance with the procedure prescribed
u/s.8(1)(j); and that they are not otherwise subject to disclosure. Therefore,
as regards the contents of the declarations, whenever applicants approach the
authorities under the Act, they would have to satisfy themselves u/s.8(1)(j)
that such disclosure is warranted in ‘larger public interest’.

Dictionary defines:

Hence, S. 8(1)(j) only covers natural persons, i.e.,
individuals, it covers privacy of the individuals only.

Hence, other entities like companies, HUF, trusts, etc. are
not covered under this clause and any information on them cannot be affected by
the exemption u/s.8(1)(j).

Similarly, no such entities can take protection under the
Right of Privacy, a fundamental right guaranteed under the Article 21 of the
Constitution.

Re. Individual’s personal information gets exemption under
this clause on the following three criteria:

Personal information here has reference to the third party’s
information and not one’s own.

Extract from a Full Bench decision (five members of the
Central Information Commission) dated 23-4-2007, explaining the scope and ambit
of this clause: (Para 32)

In this case there were six applicants/complainants and 5
public authorities. Out of 5 Information Commissioners, three are presently in
chair, two have retired.

This Section has to be read as a whole. If that were done, it would be apparent that personal information does not mean information relating to the information seeker, but about third party. That is why, in the Section, it is stated “unwarranted invasion of the privacy of the individual”. If one were to seek information about oneself or one’s own case, the question of invasion of privacy of one’s own self does not arise. If one were to ask information about a third party and if it were to invade the privacy of the individual, the information seeker can be denied the information on the ground that disclosure would invade the privacy of a third party. Therefore, when a citizen seeks information about his own case and as long as the information sought is not exempt in terms of other provisions of S. 8 of RTI Act, this clause cannot be applied to deny the information. Thus, denial for inspection/verification of his own answer sheets by a citizen applying the provisions of S. 8(1)(j) is not sustainable.

2.    It must not have been disclosed to the public authority as a part of public activity:

When a citizen provides information in discharge of a statutory obligation, it is a disclosure as a part of public activity. The same cannot be exempted under this clause. For example:

Income-tax return — Not exempt.

The Assessment Order — Exempt.

Names of persons who applied for arms licenses — Not exempt.

See:

Mr. Jagvesh Kumar Sharma, New Delhi v. PIO, Govt. of NCT of Delhi Decision No. CIC/WB/A/2008/00993 dated 16-3-2009

One para thereof:

Various public authorities in performing their functions routinely ask for ‘personal’ information from citizens, and this is clearly a public activity. When a person applies for a job, or gives information about himself to a public authority as an employee, or asks for permission, licence or authorisation, all these are public activities. Applying for an arms licence certainly falls in this category. As a matter of fact S. 4(1)(b)(xii) requires a suo moto publishing of ‘particulars of recipients of concessions, permits or authorisations granted by it’.

3.    The disclosure of the information would cause unwarranted invasion of the privacy of the individual
What is unwarranted invasion of privacy of a person cannot be enlisted exhaustively. However cases have arisen before numerous adjudicative bodies on the issue of invasion of privacy arising out of the requests to furnish information under the RTI Act. To cite an example is the case before the Central Information Commission in Mr. Harish Lamba v. Indian Council of Medical Research, CIC/AD/A/20009/0010371 dated 2nd September, 2009. The Commission denied to provide information about expenses on educa-tion of the children of members of the Committee u/s.8(1)(j) as it was held to be personal information disclosure of which will cause unwarranted invasion of privacy of individuals constituting the Project Review Committee.

The right of privacy is an evolving right and the extent of its strength and reach is different in different countries.

Privacy is the ability of an individual or group to seclude themselves or information about themselves and thereby reveal themselves selectively. The boundaries and content of what is considered private differ among cultures and individuals, but share basic common themes. Privacy is sometimes related to anonymity, the wish to remain unnoticed or unidentified in the public realm. When something is private to a person , it usually means there is something within them that is considered inherently special or personally sensitive. The degree to which private information is exposed therefore depends on how the public will receive this information, which differs between places and over time.

Assuming that this clause is applicable after undergoing above three criteria, still it is overridden if larger public interest justifies the disclosure of such information.

Such matters could be of many types — e.g.,:

Para from the decision in
Mr. Mahesh Kumar Sharma
v. PIO, Govt. of NCT of Delhi
Decision No. CIC/AT/A/2008/01262/SG/2109 dated 27-2-2009

The test of public interest is to be applied to give information only if any of the exemptions of S. 8 apply. Even if the exemptions apply, the Act enjoins that if there is a larger public interest, the information would still have to be given. There is no requirement in the Act of establishing any pub-lic interest for information to be obtained by the sovereign citizen; nor is there any requirement to establish larger public interest, unless an exemption is held to be valid.

Para from the Decision No. CIC/OK/A/2008/00860/ SG/0809, dated 31-12-2008.

The concept of public interest cannot be invoked for denial of information. The Section empowers the Public Information Officer to provide the exempted information if it is in the larger public interest; meaning thereby that access to the exempted information can be allowed if public interest is served in providing the information.

The term ‘privacy’ means things in different contexts. Different people, cultures, and nations have a wide variety of expectations about how much privacy a person is entitled to or what constitutes an invasion of privacy.

Almost all countries have laws which in some way limit privacy; an example of this would be law concerning taxation, which normally require the sharing of information about personal income or earnings.

Similarly, if one is in job with the Government or is politician contesting for seat in Parliament, etc. he is obliged to disclose certain information publicly. Transparency is inseparable from good governance and privacy has then to be sacrificed for such occupation/situation and disclosure of many personal information has to be accepted as essential for democracy to be meaningful.

There are many types of privacy e.g.,

The concept of privacy is most often associated with western culture. Universal Declaration of Human Rights, Article 12 states:
No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.

In India, this right is not very deep. It would de-pend on each case to determine whether privacy is invaded in an unwarranted manner or not.

In fact, as regards the UID project, privacy right is extensively invaded and many civil society individuals are disturbed about it. Various representations have been made to the Authority through civil society meetings and discussions. In response, the Government has set up a group of officers under the Secretary, DOPT to develop frameworks for data protection, security and privacy.

It is difficult to balance between privacy and disclosure. An individual would say that he has the ‘right to be let alone’ yet he wants to live in the society and not alone, he wants to be part of the society. He has then to be open for disclosure. Hence, there is a right to privacy and the need for disclosure.

Each individual is continually engaged in a personal adjustment process in which he balances the de-sire for privacy with the desire for disclosure and communication of himself to others, in light of the environmental conditions and social norms set by the society in which he lives.

In India the subject of ‘privacy’ has hardly been in public debates. However as noted above, the UID project has opened up this subject, more now with ‘2G Scam tapes’. The Income-tax authorities have tapped the phones of Niira Radia, a powerful lobbyist. The same have been leaked and partly now are in public domain. Issue is raised by Mr. Ratan Tata whether his right to privacy is violated. Let me quote some opinions on the same?: one pro-disclosure, one against and the third balanced.

Advocate Prashant Bhushan:

I think it (tapes made public) is absolutely in public interest. The Income-tax Department taped all these conversations legally. If whoever leaked it did it in public interest, it could be argued that he or she is a whistle-blower. But there is no precise definition of public interest. If somebody asked for the tapes through the Right To Information Act, they could be denied only on the premise that it would compromise the investigation, or that it contains personal information that has no relevance to public interest at all. Whatever has come out in public domain is not personal information. It’s all purely official communication, which is of interest to the public. Tata was talking to Radia, only because she happened to be employed by the Tata group as its lobbyist.

Mr. Deepak Parekh on NDTV’S ‘Walk the talk program’ said: “the tapes and the leaked conversations were an invasion of privacy.”

Mr. Arun Jaitley writes on this issue of privacy related to these tapes:
“The intercepted materials are ordinarily not likely to be secrets of the State. Their disclosures are neither prohibited, nor can at present be penalised. It is expected that the same would be available with the relevant departments of the Government and a legitimate disclosure of the same could be made either through the RTI Act or through an investigative process if the same are utilised for that purpose. If the material intercepted deals with matters concerning the affairs of the State, unauthorised intervention in the functioning of a government or commission of an offence, it could be handed over to the competent authority dealing with the matter. However, if the conversations so taped are private in nature and have no bearing whatsoever on the functioning of the State, it would ordinarily be expected from the competent authority to direct that such conversations or intercepts be maintained in absolute secrecy and its disclosure and use is prohibited.

However, those who seek to interfere in the matters of the State and influence decisions concerning the State of play in the political arena are hardly expected to contend that a cloak of secrecy be maintained around their roles. They may have a right to privacy in relation to their private lives, but not in relation to activities which are wholly political or related to the public affairs of the State.”

On macro level on this issue of privacy &/v. information, let me quote Barack Obama:
Open government is, within limits, an ideal that we all share. US president Barack Obama endorsed it when he took office in January 2009. ‘Starting today,’ he told his cabinet secretaries and staff “every agency and department should know that this administration stands on the side not of those who seek to withhold information, but those who seek to make it known.” He then noted that there would have to be exceptions to this policy to protect privacy and national security.

An iconic industrialist, Mr. Ratan Tata feels violated, is outraged over the public disclosure of his private conversation with lobbyist, Niira Radia. Mr. Tata has filed a petition in the Supreme Court invoking Article 21 of the Constitution, arguing that what has happened is an invasion of his privacy.

I have always wondered whether the right of privacy is opposite to the right to information or these two fundamental rights make balance for human dignity and human values. I believe that there cannot be any general conclusion as to which right universally overrides the other; each case has to be decided on the issue involved.

Let us hope that the Supreme Court decision enlightens the citizens on this vital issue of human rights and restrictions therein. It shall be a land-mark decision. Citizens await the same, hopefully in February 2011.

(I was invited by the Institute of Secretarial Training and Management, Department of Personnel & Training, Ministry of Personnel, Public Governances & Pensions, GOI to make a presentation on the subject ‘Privacy Issues & RTI.’ This article is based on the said presentation and further developed by other information available on this subject on Wikipedia and other websites and the recent news items related to tapes of telephone conversion between Niira Radia and others in newspapers and magazines).