Right to Information vis-à-vis Your Right to Privacy

By Kush Karla – Online RTI Writer, 04 January 2015

In this article, we look at the Right to Information and the Right to Privacy from these 6 interesting perspectives:

  1. The Freedom of Information Principle,
  2. The Right to Information Colliding with The Right to Privacy,
  3. Protection of Personal Information under the RTI Act,
  4. A Perusal of Provisions of Section 8 of the RTI Act,
  5. Conflict in Objectives of RTI and Protecting Personal Privacy, and
  6. Public Interest Gets the Better of Privacy.

The right to privacy is an independent and distinctive concept that originated in the field of Tort law, under which the new cause of action for damage resulting from unlawful invasion of privacy was recognized. This Right to Privacy has two aspects:

  • The ordinary law of privacy which affords a tort action for damages resulting from an unlawful invasion of privacy, and

  • The constitutional recognition given to the right to privacy which protects personal privacy against unlawful government invasion. Right to privacy is not enumerated as a fundamental right in our Constitution, but has been inferred so from Article 21.

1. The Freedom of Information Principle

The freedom of information principle holds that, generally speaking, every citizen should have the right to obtain access to government records. The underlying rationale most frequently offered in support of the principle are, first, that the right of access will heighten the accountability of government and its agencies to the electorate; second, that it will enable interested citizens to contribute more effectively to debate on important questions of public policy; and third, that it will conduce to fairness in administrative decision-making processes affecting individuals.

The protection of privacy principle, on theotherhand, holds in part at least that individuals should, generally speaking, have some control over the use made byothers, especially government agencies, of information concerning them. Thus, one of the cardinal principles of privacy protection is that personal information acquired for one purpose should not be used for another purpose without the consent of the individual to whom the information pertains.

The philosophy underlying the privacy protection concern links personal autonomy to the control of data concerning oneself and suggests that the modern acceleration of personal data collection, especially by government agencies, carries with it a potential threat to a valued and fundamental aspect of our traditional freedoms.

2. The Right to Information Colliding with The Right to Privacy

RTI Collides with Priccy

The right to information often collides with the right to privacy. The government stores a lot of information about individuals in its dossiers supplied by individuals in applications made for obtaining various licences, permissions including passports, or through disclosures such as income tax returns or for census data.
When an applicant seeks access to government records containing personal information concerning identifiable individuals, it is obvious that these two rights are capable of generating conflict. In some cases this will involve disclosure of information pertaining to public officials. In others, it will involve disclosure of information concerning ordinary citizens. In each instance, the subject of the information can plausibly raise a privacy protection concern. As one American writer said one man's freedom of information is another man's invasion of privacy.

3. Protection of Personal Information under the RTI Act, Section 8(1)(j) :

The right to information, being integral part of the right to freedom of speech, is subject to restrictions that can be imposed upon that right under Article 19(2). The revelation of information in actual practice is likely to conflict withotherpublic interests including efficient operations of the Government, optimum use of limited fiscal resources and the preservation of confidentiality of sensitive information and, therefore, with a view to harmonize these conflicting interests while preserving the paramountcy of the democratic ideal, Section 8has been enacted for providing certain exemptions from disclosure of information. Section 8contains a well-defined list of ten kinds of matters that cannot be made public.

4. A Perusal of Provisions of Section 8

A perusal of the aforesaid provisions of Section 8reveals that there are certain information contained in Sub-clause (a), (b), (c), (f), (g) and (h), for which there is no obligation for giving such an information to any citizen; whereas information protected under Sub-clause (d), (e) and (j) are protected information, but on the discretion and satisfaction of the competent authority that it would be in larger public interest to disclose such information, such information can be disclosed. These information, thus, have limited protection, the disclosure of which is dependent upon the satisfaction of the competent authority that it would be in larger public interest as against the protected interest to disclose such information.

5. Conflict in Objectives of RTI and Protecting Personal Privacy

Conflict in RTI and Privacy

There is an inherent tension between the objective of right to information and the objective of protecting personal privacy. These objectives will often conflict when an applicant seeks access for personal information about a third party. The conflict poses two related challenges for lawmakers; first, to determine where the balance should be struck between these aims; and, secondly, to determine the mechanisms for dealing with requests for such information.

The conflict between the right to personal privacy and the public interest in the disclosure of personal information was recognized by the legislature by exempting purely personal information under Section 8(1)(j) of the Act. Section 8(1)(j) says that disclosure may be refused if the request pertains 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." Thus, personal information including tax returns, medical records etc. cannot be disclosed in view of Section 8(1)(j) of the Act.

6. Public Interest Gets the Better of Privacy

If, however, the applicant can show sufficient public interest in disclosure, the bar (preventing disclosure) is lifted and after duly notifying the third party (i.e. the individual concerned with the information or whose records are sought) and after considering his views, the authority can disclose it. The nature of restriction on the right of privacy, however, is of a different order. In the case of private individuals, the degree of protection afforded to be greater, whereas in the case of public servants, the degree of protection can be lower, depending on what is at stake. This is so because; a public servant is expected to act for the public good in the discharge of his duties and is thus accountable for them.

Kush Kalra

krrish.kush@gmail.com
*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 within a year - a National Record! https://www.miraclesworldrecords.com/Gallery/Details/170




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r_nadh@yahoo.com
Renjit is an IT professinal currently engaged in creating digital media content for online applications. He has over 16 years of multimedia and graphics experience. Cartooning, photography, and animation are his hobbies.

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