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Section-8(1)(d) provides that there shall be no obligation to give any citizen, 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;
Section-8(1)(e) provides that there shall be no obligation to give any citizen, 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.
As per definition contained in Section-2(e) of the Act, “competent authority” means: –
- the Speaker in the case of the House of the People or the Legislative Assembly of a State or a Union territory having such Assembly and the Chairman in the case of the Council of States or Legislative Council of a State;
- the Chief Justice of India in the case of the Supreme Court;
- the Chief Justice of the High Court in the case of a High Court;
- the President or the Governor, as the case may be, in the case of other authorities established or constituted by or under the Constitution;
- the administrator appointed under article 239 of the Constitution;
Hon’ble Delhi High Court, while passing judgment on a bunch of appeals filed against CIC order, rejected the plea of the Centre, which had contended that information held in fiduciary relationship does not fall within the ambit of transparency law. Under Section 8(1)(e) of the RTI Act, the competent authority is entitled to examine the question whether in view of the larger public interest, information protected under the sub-clause should be disclosed. The competent authority can direct disclosure of information, if it comes to the conclusion that larger public interest warrants disclosure.
The question whether a particular information falling under the purview of Section-8(1)(d) or 8(1)(e) warrants disclosure in larger public interest, is subject to satisfaction of the Competent Authority. From the definition of ‘competent authority’, as it appears in Section-2(e) of the Act, it is clear that CPIO/SPIO or FAAs or Public Authority or even Central Information Commission or State Information Commission are not ‘Competent Authority’. Therefore, they are not empowered to take decision whether larger public interest warrants disclosure of the types of information mentioned under Section-8(1)(d) and (e) of the Act. Such decision must necessarily be taken by those authorities mentioned in Section-2(e) of the Act. Therefore, for Public Authorities under Central Government, State Government, and U/Ts the decision shall be taken by the President of India, the Governors, Administrators / Lt Governors respectively.
Position of the President and that of the Governor are just titular in nature and the real power is actually exercised by Council of Ministers. Whenever the Constitution requires the satisfaction of President or Governor for the exercise by President or Governor of any power or function, the satisfaction required by the Constitution is not personal satisfaction of President or Governor. Satisfaction of President or Governor in Constitutional sense in a Cabinet system of Government, is satisfaction of his Council of Ministers on whose aid and advice the President or Governor exercises all his powers and functions. Thus, this decision has to be made by the ministry concerned.
On the other hand, Section-8(1)(j) provides that there shall be no obligation to give any citizen, the 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 Public Information Officer or FAA is satisfied that larger public interest justifies the disclosure of such information.
The legislative intent thus clearly amplify delegating power to Competent Authority under Clauses (d) and (e), and to PIO or FAA in respect of Clause-(j). The framers of the Act well distinguished the delegation of power under Clauses (d) and (e) with that of (j). Therefore CPIO/SPIO, FAA or IC cannot exercise the power under Section-8(1)(d) or 8(1)(e) to disclose the exempted information in larger public interest.
This being the position, when an information is denied by CPIO and FAA, in subordinate / attached offices claiming exemption under Clause(d) or (e) of Sub-section-1 of Section-8 of RTI Act, the applicant can approach the Competent Authority, giving full details of larger public interest, which warrant disclosure of the exempted information.