Right to information and right to privacy are two fundamental rights guaranteed to a person under the Constitution of India. While the former right promises due disclosure of information about public affairs, the right to privacy protects one from undue disclosure of personal information. When looked at with myopic lens, the two rights seem juxtaposed and often used to negate one another. For example, the right to privacy of a public servant is used to deny citizen access to information.
Section 8(1)(j) of Right to Information Act, 2005 (‘the Act’ or ‘RTI Act’) captures this conflict between the two rights –
Notwithstanding anything contained 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.
This Section is the most common reason provided to not respond to an RTI application. The Section is widely worded with clear definitions of the terms ‘personal information’, ‘public activity or interest’ or ‘unwarranted invasion’. This has resulted in an exceedingly imaginative invocation of this exemption clause.
The Act provides 2 explanations to Section 8(1)(j) in form of provisos –
- If the personal information could be given to Legislature, it can be given to citizen also. This is as per the Proviso to Section 8(1) of the Act.
- If the public interest in disclosure of the information outweighs the public interest in protection. This is as per Proviso to Section 8(2) of the Act.
Privacy v. Public interest
Privacy does not mean secrecy. It has to be compared with public interest. Given the overriding nature of the concept of public interest, it would help if the phrase is contextually defined in the Act by way of an explanatory note. Dictionaries define public interest as something in which a class or community or the people as a whole have some interest by which their legal rights and liabilities are affected.
Justice Jeevan Reddy B.P in the case of R. Rajagopal v. State of Tamil Nadu, 1994 SCC (6) 632, drew a balance between privacy and public interest, the summary of the three parts is as under –
- Part 1 states that areas of privacy include family, marriage, procreation, motherhood, child bearing and education among other matters. Issuance of memos, initiating disciplinary action or imposing penalty does not fall in any of these categories and thus it cannot be said to be the personal or private information.
- Part 1 of the order has an exception in Part 2 which states that the information that formed part of the public record or court record does not give rise to any privacy, except in cases of female victims of sexual crimes where their name shall not be revealed.
- Part 3 says that the acts and conduct of public servant relevant to the discharge of his official duties cannot be treated as private information.
Though the privacy right of a person needs to be protected, the public interest in transparency is of higher value than the private interests of individuals. Despite the emphatic declaration that the right to privacy is a part of life and personal liberty, the right to information survives with Section 8(1)(j) and 11 of the RTI Act.
Transparency is not a personal issue of either citizen or the officer. It is a governance issue. It is an overall right of the people for the sake of good governance. As far as public affairs are concerned, it will be a contradiction to claim privacy by those who are involved in such public affairs. Corruption practices make it difficult for people to access the information in public records though guaranteed by the Parliament. Undoubtedly, the RTI Act is a revolutionary legislation as far as the governance in India is concerned even though it is met with huge internal resistance.
What can and cannot be disclosed?
The right to information forms a part of reasonable restrictions with a prescribed process of fair and just procedure to provide an opportunity to express views on disclosure. Unfortunately, the majority of the public authorities are misinterpreting the law to stonewall all and any requests for personal information under the Act.
Below is a list of non-exhaustive documents that are classified, for easy reference –
|Information type||Can/Cannot be disclosed||Conditions for disclosure|
|Assets and properties||It is undoubtedly a personal domain, but when contrasted with Part 3 of R. Rajagopal case ratio i.e. when it is relevant to discharge of public duty, it can be disclosed.||Details of owned properties should be disclosed but inherited properties can be redacted by adopting severability clause under Section 10 of the Act.|
|Caste certificate||Purely a family affair, but when it forms the basis for reservations under Constitution, rostrum or any other regulation, caste and its certification becomes an issue of investigation or public inquiry and can be disclosed.||Central Public Information Officer should examine whether the information sought is related to personal activity or public activity and analyse whether any public interest is involved.|
|Copy of service book; educational qualifications and marks obtained in promotional examinations; ITRs, increment, pension, TAs and DAs; vehicle allowance; logbooks; leave accounts including medical leaves and medical reimbursements or LTCs||Should be disclosed only when the public interest is established.||While disclosing, personal information like contact number, residential address, spouse details, medical ailments, etc. can be redacted as specified under Section 10 of the Act.|
|Appointment, promotion and transfer; complaints against conduct, action taken on complaints and inquiry reports, disciplinary action, penalties; charge-sheets||Terming these public activities as personal information is the new trend of interpretation.||This information cannot be disclosed en bloc but considering the circumstances, disclosure can be made by severing information under Section 10 of the Act.|
As the landmark order of 9-Judge Bench of Supreme Court in Justice Puttaswamy (retd.) v. Union of India, WP (C) 494 of 2012 laid down emphatically, the core area of private domain need to be protected, but the privacy of public servant has to be understood in the context of his public duties and propriety of his functioning. When a common man is prosecuted for theft and robbery, a public servant should at least be questioned for misappropriation of public money through white-collar means.
A public servant and his public activities with public money is facing a volley of RTI applications in recent times. The privacy law which is partly codified in RTI Act comes to rescue of public servant to some extent. However, the privacy of public servant is limited and confined to ‘his family’ and should not go beyond that. There can neither be an absolute denial nor total disclosure.
Though declared as constitutionally endorsed rights, right to privacy and right to information are confusing, ambiguous and often at loggerheads with one another. Law should ensure certainty with specific and definitive codification. Such demarcation, though brought into Section 8(1)(j) of the Act, is unfortunately lost in interpretation.
It is the need of the hour to either have a clear interpretation of the Apex Court of Section 8(1)(j) of the Act or a Legislature-added Proviso/explanation to it to stop public authorities from cowering under it. India, today, is in desperate need of transparency and accountability and RTI is one of the strongest tools in the hands of citizens to achieve it.
DISCLAIMER: The information provided in this article is for educational purpose only. The same cannot be construed as legal advice.