By KUSH KARLA - Online RTI Writer, 01 November 2014
Meaning of Information under the RTI Act, 2005:
Under the RTI Act, 2005 "information" is defined under Section 2(f), which provides:
"information" means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, report, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force.
This definition shows that an applicant under Section 6 of the RTI Act can get any information which is already in existence and accessible to the public authority under law. Of course, under the RTI Act an applicant is entitled to get copy of the opinions, advices, circulars, orders, etc., but she cannot ask for any information as to why such opinions, advices, circulars, orders, etc. have been passed, especially in matters pertaining to judicial decisions.
A judge speaks through his judgments or orders passed by him. If any party feels aggrieved by the order/judgment passed by a judge, the remedy available to such a party is either to challenge the same by way of appeal or by revision or any other legally permissible mode. No litigant can be allowed to seek information as to why and for what reasons the judge had come to a particular decision or conclusion.
A judge is not bound to explain later on for what reasons he had come to such a conclusion.
Disclosure of Information under Right to Information Act, 2005:
Information can be sought under the RTI Act at different stages or different points of time. What is exempted from disclosure at one point of time may cease to be exempted at a later point of time depending upon the nature of exemption.
For example, any information which is exempted from disclosure under Section 8 of RTI Act, 2005 is liable to be disclosed if the application is made with regard to the occurrence or event which took place or occurred or happened twenty years prior to the date of the request vide Section 8(3) of the RTI Act.
In other words, information which was exempted from disclosure, if an application is made within twenty years of the occurrence, may not be exempted if the application is made after twenty years.
Similarly, if information relating to the intellectual property that is the question papers, solutions/model answers and instructions, with regard to any particular examination conducted by the Appellant, cannot be disclosed before the examination is held, as it would harm the competitive position of innumerable third parties who are taking the said examination.
Therefore, it is obvious that the Appellant examining body was not liable to give to any citizen any information relating to question papers, solutions/model answers and instructions relating to a particular examination before the date of such examination. But, the position will be different once the examination is held.
Disclosure of the question papers, model answers and instructions in regard to any particular examination would not harm the competitive position of any third party once the examination is held. In fact, the question papers are disclosed to everyone at the time of examination. The Appellant voluntarily publishes the "suggested answers" in regard to the question papers in the form of a book for sale every year after the examination.
Therefore, Section 8(1)(d) of the RTI Act does not bar or prohibit the disclosure of question papers, model answers (solutions to questions) and instructions if any given to the examiners and moderators after the examination and after the evaluation of answer scripts is completed as at that stage they will not harm the competitive position of any third party.
The information to which RTI Act applies falls into two categories, namely,
(i) Information which promotes transparency and accountability in the working of every public authority disclosure of which helps in containing or discouraging corruption, enumerated in Clauses (b) and (c) of Section 4(1) of RTI Act and
(ii) Other information held by public authorities not falling under Section 4(1)(b) and (c) of RTI Act.
With regard to information falling under the first category, the public authorities owe a duty to disseminate the information widely suo moto to the public so as to make it easily accessible to the public. In regard to information enumerated or required to be enumerated under Section 4(1)(b) and (c) of RTI Act necessarily and naturally the competent authorities under the RTI Act will have to act in a pro-active manner so as to ensure accountability and ensure that the fight against corruption goes on relentlessly.
But, with regard to other information which do not fall under Section 4(1)(b) and (c) of the Act there is a need to proceed with circumspection as it is necessary to find out whether they are exempted from disclosure.
One of the objects of democracy is to bring about transparency of information to contain corruption and bring about accountability.
But, achieving this object does not mean that other equally important public interests including efficient functioning of the governments and public authorities optimum use of limited fiscal resources, preservation of confidentiality of sensitive information, etc. are to be ignored or sacrificed.
The object of RTI Act is to harmonize the conflicting public interests, that is ensuring transparency to bring in accountability and containing corruption on the one hand, and at the same time ensure that the revelation of information in actual practice does not harm or adversely affect other public interests which include efficient functioning of the governments optimum use of limited fiscal resources and preservation of confidentiality of sensitive information on the other hand. While Sections 3 and 4 of RTI Act, 2005 seek to achieve the first objective, Sections 8, 9, 10 and 11 of RTI Act, 2005 seek to achieve the second objective.
Therefore, when Section 8 exempts certain information from being disclosed it should not be considered to be a fetter on the right to information but as an equally important provision protecting other public interests essential for the fulfillment and preservation of democratic ideals. Therefore, in dealing with information not falling under Section 4(1)(b) and (c) the competent authorities under the RTI Act will not read the exemptions in Section 8 in a restrictive manner, but in a practical manner so that other public interests are preserved, and the RTI Act attains a fine balance between its goal of attaining transparency of information and safeguarding other public interests.
Among the ten categories of information which are exempted from disclosure under Section 8 of RTI Act, six categories which are described in Clauses (a), (b), (c), (f), (g) and (h) carry absolute exemption. Information enumerated in Clauses (d), (e) and (j) on the other hand, get only conditional exemption, that is the exemption is subject to the overriding power of the competent authority under the RTI Act in larger public interest to direct disclosure of such information. The information referred to in Clause (i) relates to an exemption for a specific period with an obligation to make the said information public after such period. The information relating to intellectual property and the information available to persons in their fiduciary relationship referred to in Clauses (d) and (e) of Section 8(1) do not enjoy absolute exemption. Though exempted, if the competent authority under the Act is satisfied that th larger public interest warrants disclosure of such information, such information will have to be disclosed. It is needless to say that the competent authority will have to record reasons for holding that an exempted information should be disclosed in the larger public interest.
Kush is a practicing lawyer at Delhi High Court. He graduated from Rajiv Gandhi National University of Law, Punjab, India in 2012 and has authored a total of 10 books on Law in a year which is accepted as a National Record i.e http://www.miraclesworldrecords.com/Gallery/Details/170
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