Privacy Issues and RTI

Transcription

1 Presentation by Narayan Varma at a Seminar on RTI-Key to Good Governance organised by ISTM, DOPT, Government of India On Privacy Issues and RTI INDEX 1. Introduction 2. Article 21 of the Constitution of India SC s interpretation to include Privacy in it 3. Section 8(1)(j) of the RTI Act 4. Reference to Full Bench decision of Delhi H.C. dated in Secretary General, Supreme Court of India vs. Subhash Chandra Agarwal 5. Analysis of section 8(1)(j) Personal CIC s full bench decision dated It must not have been disclosed to the public authority as a part of public activity The disclosure would cause unwarranted invasion of privacy Larger Public Interest Subsection 8(2) 6. General Conclusion

2 One American writer has said: One man s freedom of information is another man s invasion of privacy. The personal information of an individual need not be made public in every case as he has a right to be left alone which now has been recognised as a fundamental right the world over...1..

3 Article 21 of the Constitution of India: 21. Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law. 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 T N (1994) 6 SCC 632: The right to privacy is implicit in the right of life and liberty guaranteed to the citizens of this country by article 21. It is a right to be left alone. A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood and education among other matters. None can publish anything concerning the above matters without his consent. If he does so, he would be violating the right to privacy of the person concerned and would be liable in action for damages...2..

4 Article 19 of the constitution of India reads: All citizens shall have the right to freedom of speech and expression. That right, as per the Supreme Court of India includes Right to Information. Section 8(1)(j) of the RTI Act: 8(1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen 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...3..

5 Landmark judgment of Delhi high Court (F.B) pronounced on In Secretary General, Supreme Court of India vs. Subhash Chandra Agarwal: The full bench of the Delhi H.C. 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 under section 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 under section 8(1)(j) that such disclosure is warranted in larger public interest...4..

6 Privacy issues & RTI Section 8(1)(j) talks of personal information Dictionary defines: person as human being, an individual personal as relating to or affecting an individual Hence, 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). 5.1

7 Re. Individual s personal information gets exemption under this clause on three criteria: 1. It must be personal information Personal information here has reference to the third party s information and not one s own Extract from a full bench decision (5 members of the Central Information Commission) dated 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 Commissioner, 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 Section 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 section 8(1)(j) is not sustainable. 5.2

8 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. Same cannot be exempted under this clause. Income-tax return Yes; The Assessment Order No. Names of persons who applied for arms licenses See: Mr. Jagvesh Kumar Sharma, New Delhi vs. PIO, govt. of NCT of Delhi Decision No. CIC/WB/A/2008/00993 dated One para there of: 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, license or authorisation, all these are public activities. Applying for an arms license certainly falls in this category. As a matter of fact Section 4 (1) (b) (xii) requires a suo moto publishing of particulars of recipients of concessions, permits or authorizations granted by it; 5.3

9 3. The disclosure of the information would cause unwarranted invasion of the privacy of the individual The right of privacy is an evolving right and the extent of its strength & reach is different in different countries. 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 honor 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 depend on each case to determine whether privacy is invaded in a unwarranted manner or not. In fact, as regards 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 & 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. 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 vs Indian Council of Medical Research CIC/AD/A/20009/ dated 2nd September, The Commission denied to provide information about expenses on education 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. 5.4

10 Assuming that this clause is applicable after undergoing above 3 criteria, still it is overridden by Unless the PIO or AA is satisfied that larger public interest justifies the disclosure of such information. Such matters could be: criminal activity of any individual tax evasion matter medical related information on Prime Ministers and the Presidents of India Para from the decision in Mr. Mahesh Kumar Sharma vs. PIO, Govt of NCT of Delhi Decision No. CIC/AT/A/2008/01262/SG/2109 dated : The test of public interest is to be applied to give information, only if any of the exemptions of Section 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 public 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 : 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. 5.5

11 Conclusion: RTI Act is an extremely powerful Act and a short Act of only 31 sections. It is the opinion of all civil society members that it does not need any amendments yet. However, I believe it needs some interpretations, authentic and well considered by CIC backed by legal luminaries. Act has many nebulous words & phrases and sentences, the meaning of which differs from person to person and bench to bench and state to state and so on. e.g. substantially financed in sec. 2(h) defining public authority Provisions of section 8(1)(j) etc. Public Concern for Governance Trust has RTI-Helpline: It also mails articles on RTI written by Narayan Varma to hundreds of RTI friends. If you desire to be on mailing list, you may give your ID now or mail at publicconcern@gmail.com and/or Narayanvarma2011@gmail.com 6