Friday, April 29, 2011

How Section 8 of the RTI Act is used as a lame excuse not to provide information

How Section 8 of the RTI Act is used as a lame excuse not to provide information
MoneyLife, March 23, 2011 10:19 AM Bookmark and Share
Vinita Deshmukh

The RTI Act lists special instances where the authorities are exempt from disclosing information. But this provision has been misused to avoid giving information. Here are a couple of cases where people have persisted and won 

While the Right to Information (RTI) Act is all about transparency and dissemination of information to citizens, there are certain kinds of information mentioned under Section 8, which government departments have the power not to disclose. This includes information that would threaten national integrity, security or economic interests; would amount to contempt of court; would hamper police investigations; would affect commercial interests like trade secrets; would affect 'fiduciary' relationships; would harm the person physically (like asking for details of VIP security, for example). This Section also protects information pertaining to deliberations of the Council of Ministers and Secretaries while the process is underway. (Information can be given after a Cabinet decision, though). (Read details of the list of exclusions under Section 8, listed separately at the end of this report.)

However, every citizen must remember that many of these exceptions can be overruled if public interest is seen to be more important than protecting information. The relevant clause in Section 8 states that, "a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests.'' This is indeed interesting and there have been many examples where the citizen has got the information he or she asked for, which has been earlier denied to him by the Public Information Officer (PIO) or Appellate Authority, under the pretext of Section 8. For, when the citizen pursued the matter by appealing to the Central or State Information Commissioner, he or she invariably received the information. In other cases, the Information Commissioner also denied the information, so the citizen appealed to the High Court and won the case, as the judge directed the information commission to provide information.

One of the most sterling examples is that of Vinita Kamte, wife of additional commissioner of police, Ashok Kamte (who was killed in action on the night of the 26/11 Mumbai terrorist attack). Her book To The Last Bullet, co-authored by me, brings out the shocking truth behind the death of her husband including two other officers-Hemant Karkare and Vijay Salaskar. The book, which exposed the utter negligence of the Control Room in not relaying vital messages, like movement of terrorists, and not sending reinforcements to the three police officers despite their urgent request, was made possible thanks to audio and written call log records (wireless) which she procured under the RTI Act. However, she received the information after much difficulty, as the Mumbai police authorities took undue advantage of Section 8 to avoid giving information.

Vinita Kamte was determined to find out the chronology of events that led to the death of her husband, but the Mumbai police authorities refused to tell her the truth, despite a formal request in the form of an official letter in January 2009.

In March 2009, Vinita filed an RTI application, under Section 6, to the PIO, and requested for the call log records (wireless)-both the written and the audio transcripts (these records provide conversations between the Police Control Room and officers/policemen at Ground Zero).

She also requested for inspection of these log records under Section 4. Her application was rejected, saying that the information comes under Section 8 (h) of the Act which states "information that may impede the process of investigation or apprehension or prosecution of offenders."  The PIO also enclosed a letter of the Joint Commissioner of Police, Crime, Rakesh Maria (who was in charge of the Control Room on the night of the terror attack) which stated, "Please reject the information sought by Mrs Vinita Kamte under the RTI Act. The information cannot be given to her under Section 8 (h) of the said Act."

Mrs Kamte challenged this order before the appellate authority. The Appellate Authority, Deputy Commissioner of Police SM Sabade, observed that the PIO was wrong in rejecting her request and had not applied his mind. He mentioned that he had simply relied on Mr Maria's letter to reject Mrs Kamte's application. He observed that the order of rejection does not specify how parting with the information would affect the investigation. He also mentioned that Ashok Kamte and the other officers had laid down their lives for the country and to reject Mrs Kamte's request on such baseless grounds was wrong. However, in his order he allowed only inspection of the log records and did not permit copies of the same (which is mandatory under Section 4).

So, Mrs Kamte filed a second appeal with the State Chief Information Commissioner, Maharashtra, Dr Suresh Joshi, seeking the original copies of the call logs, both written and audio, and the Commissioner ordered that she be given the required copies and the audio record on CD.

This was indeed a historic order, and it helped an individual to take on the state government, which was embarrassed by it. It also exposed the utter inefficiency and negligence of the Control Room-the anchor point of action during such a crisis-which led to the needless sacrifice of three of the most brilliant IPS officers of our country.

Sometimes, information is denied under the pretext of 'fiduciary' relationship. Here's a classic example wherein a high court overruled the verdict of the Kerala Information Commission. A postman (a woman), Treesa Irish, appeared for the written examination for selection to the post of last grade officials in the Kerala Circle of the Postal Department sometime in 2005. When the results were published, she learnt that no one qualified in the examination from the Ernakulam Division.

Treesa applied for her examination marks list, which she procured after she appealed to the Central Administrative Tribunal, Ernakulam Bench. She learnt that she had failed to obtain minimum marks in one of the three papers, having scored only 37 marks in that paper. She scored 45 and 70 marks for papers I and II, respectively.

She, therefore, applied under Section 6 of the RTI Act to the PIO of the Kerala Postal Circle, for a copy of the evaluated answer paper III for which she was shown as 'failed'. The PIO rejected her request, on the ground that no public interest is involved in the case. She then appealed to the Appellate Authority who also rejected her request stating that "disclosure of such nature will compromise the fairness and impartiality of the selection process and such disclosure does not justify the larger public interest.''

She then appealed to the Central Information Commissioner who again rejected the information citing Sections 8(1)(e) and 8(1) which states that, "the public authority is holding the information in fiduciary relationship and the information is purely a personal information, which has no relation to any public interest or activity.''

Treesa then filed a petition with the Kerala High Court, where the judge gave an order in her favour. Among other things, he stated that, "The conduct of the examination for selection to the post of Last Grade officials is certainly a public activity and, therefore, the valuation of answer papers of that examination has relationship to a public activity of the department in the matter of selection to a higher post. A candidate writing an examination has a right to have his answer paper valued correctly and he has a right to know whether the same has been done properly and correctly. Both the public authority and the examiner have a public duty to get the valuation done correctly and properly, which is a public activity and duty. Therefore, the supply of the copy of the answer paper, which is for enabling the candidate to ascertain whether the valuation of the answer paper has been done correctly and properly, has relationship to a public activity or interest.''

There are several high court judgments regarding Section 8, wherein citizens have won favorable orders after the information commissions have dismissed their appeals, says Pralhad Kachare, director, Centre for Public Policy, YASHADA, a government training centre for RTI for government employees. He recommends the following links: Irish case) (Please see link to 'High Court Rulings' in the left margin.)

What is Section 8? (From the RTI Act) 

Section 8. Exemption from disclosure of information.
(1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,
(a) Information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign State or lead to incitement of an offence;
(b) Information which has been expressly forbidden to be published by any court of law or tribunal or the disclosure of which may constitute contempt of court;
(c) Information, the disclosure of which would cause a breach of privilege of Parliament or the State Legislature;
(d) Information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information;
(e) Information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information;
(f) Information received in confidence from foreign government;
(g) Information, the disclosure of which would endanger the life or physical safety of any person or identify the source of information or assistance given in confidence for law enforcement or security purposes;
(h) Information which would impede the process of investigation or apprehension or prosecution of offenders;
(i) Cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers; provided that the decisions of Council of Ministers, the reasons thereof, and the material on the basis of which the decisions were taken shall be made public after the decision has been taken, and the matter is complete, or over; provided further that those matters which come under the exemptions specified in this section shall not be disclosed;
(j) information which relates to personal information-the disclosure of which has no relationship to any public authority 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.

(2) Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923), nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests.

(3) Subject to the provisions of clauses (a), (c) and (i) of sub-section (1), any information relating to any occurrence, event or matter which has taken place, occurred or happened 20 years before the date on which any request is made under section 6, shall be provided to any person making a request under that section; provided that where any question arises as to the date from which the said period of 20 years has to be computed, the decision of the Central Government shall be final, subject to the usual appeals provided for in this Act.

(Vinita Deshmukh is a senior editor, author and convener of Pune Metro Jagruti Abhiyaan. She can be reached at

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