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How to Handle RTI Rejection under Section 11 on Third-Party Information
Shailesh Gandhi 14 June 2021
In recent times it has been seen that a very large number of right to information (RTI) applications are being rejected on the ground that it is personal information or third party information.
Most applicants have no clue on how to argue against such rejection. With this in mind, Shailesh Gandhi, former central information commissioner and a long-time supporter of Moneylife, has put down for our readers a two-part ‘Grounds for appeal’ series to empower RTI appellants in such eventualities and also to persuade some first appellate authorities (FAAs) or information commissioners to rule in favour of disclosure.
When PIO denies information claiming it is third party information or saying he is denying information on account of Section 11
Grounds for appeal: The exemptions for providing the information are only in Section 8 and 9 as mentioned explicitly in Section 7 (1). The wording of this provision does not contemplate any Right to Information application being rejected on the grounds of Section 11. Section 11 is a procedure to allow an affected third party to voice his objections to releasing information which might cause harm to his interests.
The public information officer (PIO) is expected to follow the procedure of section 11 when he “intends to disclose any information or record.” This means that the information exists and the PIO has concluded that the information is not exempt as per the provisions of the RTI Act.
If the PIO has concluded that the third-party information is exempt as per Section 8 or 9, he must reject the application and inform the applicant accordingly.
If the information ‘relates to or has been supplied by a third party and has been treated as confidential by that third party’ the PIO must inform the third party within five days that he
‘intends to disclose the information or record, or part thereof’. It is clearly stated in section 11 (1) that ‘submission of the third party shall be kept in view while taking a decision about the disclosure of information’.
Thus, the procedure of Section 11 comes into effect when the information exists and the PIO’s view is, that it is not exempt under Sections 8(1) and 9, and that the third party has treated it as confidential. The PIO must send a letter to the third party within five days of receipt of the RTI application stating that he ‘intends to disclose’ the information.
The PIO can only intend to disclose information if he believes it is not exempt. He must give the third party an opportunity to voice its objections about disclosing information. If the third-party objects to the disclosure of the information, the PIO will keep this in mind and decide whether the third party’s objections are justified by the exemptions under Section 8(1) or 9.
If he is not convinced that the information is covered by any of the exemptions of Section 8(1) or 9, he will inform the third party accordingly. But if he is convinced, he will deny the information to the applicant quoting the relevant section and giving reasons as to how these exemptions apply.
The Act, in consonance with Section 8 (2) again reiterates that if a larger public interest is established by a disclosure, the information may be given, if it outweighs the likely harm. Hence, the larger public interest overrides the objection.
However, it has one exception.
If a third party objects and the PIO comes to the conclusion that the information is covered by Section 8 (1) (d)(trade or commercial secrets) which could harm the competitive interest of the third party, the information shall not be given, even if a larger public interest is established. This is the only exception which has been carved out for a prior law.
In case the disclosure of trade or commercial secrets might harm the competitive position, the RTI Act does not override the earlier law. By implication and specifically in Section 22, it has been clearly spelt out that this Act shall have effect notwithstanding anything inconsistent with it in any other law.
When the PIO puts in motion the third party reference, he is of the view that the information is not exempt, and is giving a chance to the third party to voice any objections which could be based on the exemptions under the Act. Only if the third party’s objection is in line with one of the exemptions under Section 8 (1) or Section 9, will the PIO again examine the issue.
If he is convinced that an exemption applies, he must change his earlier position to disclose and deny the information claiming exemption under the relevant Subsection of Section 8 or 9. It must be stressed that the issue of a larger public interest needs to be invoked only if the exemption is established. Otherwise, no public interest needs to be established in disclosure.
It is also evident that if there is no response from the third party, the information must be disclosed, since the PIO has already ensured that the information is not exempt.
It is my submission that since no personal information is exempt from disclosure by law, there is no reason to establish a larger public interest. This would be necessary only when the information is exempt.
The denial of information under Section 11 is not in consonance with the law and hence is an error.
(Shailesh Gandhi served as Central Information Commissioner under the RTI Act, 2005, during 18 September 2008 to 6 July 2012. He is a graduate in Civil Engineering from IIT-Bombay. Before becoming a full time RTI activist in 2003, he sold his packaging business. In 2008, he was conferred the Nani Palkhivala Memorial Award for civil liberties.)