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Mike10

Information of a public authority classified as confidential

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Mike10

Public Authorites need to keep some information confidential for the effective functioning of the organisation. Under what provision can these documents be declared confidential? Can such documents be denied?

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aksmat

plz read sections 8 and 9 of RTI Act carefully . Denial of information is exceptional , disclosure is the rule .

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karira

There is no exemption available under the RTI Act under the category of "confidential" !

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Mike10

thank you for the response. But we also see u/s Section 5 of the Official Secrets Act, 1923 that wrongful communication of information etc., ..." the disclosure of which is likely to affect

the sovereignty and integrity of India, the security of the State or friendly relations with

foreign States or which has been made or obtained in contravention of this Act,] or which

has been entrusted in confidence to him by any person holding office under Government (emphasis supplied)..." cannot be provided. Can we discuss this further since the OSA has not been over ridden.

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karira
Can we discuss this further since the OSA has not been over ridden.

 

Sec 23:

 

The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923, and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.

 

The OSA has not been repealed but if there is anything inconsistent in the OSA for disclosure of information, then RTI Act prevails.

 

Extract form the Delhi HC Full Bench order (regarding asset declaration by SC Judges):

 

CONFIDENTIALITY

103. The Act defines which information will be in the public domain and includes within the definition “any material in any form, including records, documents, memos, e-mails, opinions, advices, etc.” Irrespective of whether such notes, e-mails, advices, memos etc. were marked confidential and kept outside the public domain, the Act expressly places them in the public domain and accessible to the people subject to exclusionary clauses contained in Section 8 of the Act.

Extract from the Single Judge order of Delhi HC (regarding asset declaration by SC Judges):

 

So far as the argument that the 1997 Resolution had imposed a confidentiality obligation

on the CJI to ensure non-disclosure of the asset declarations, is concerned, the

court is of opinion that with the advent of the Act, and the provision in

Section 22 which overrides all other laws, etc. (even overriding the Official

Secrets Act) the argument about such a confidentiality condition is on a weak

foundation. The mere marking of a document, as "confidential", in this case,

does not undermine the overbearing nature of Section 22. Concededly, the

confidentiality clause (in the 1997 Resolution) operated, and many might have

bona fide believed that it would ensure immunity from access. Yet the advent of

the Act changed all that; all classes of information became its subject matter.

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PKH-Mumbai

Confidence has to be defined. If it is commercial confidence it can be denied under section 8 of the RTI Act.

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Mike10

thank you karira for that excellent analysis and extracts of judgments of the Delhi HC. Is sure does put things in perspective.

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Mike10

Yes PKH-Mumbai you noted that confidence should be defined. However, sec.8 1 d indicates " information including commercial confidence,...." This indicates that there could be info other than commercial confidence etc. which could hurt a third party. It effectively allows the PA to put a lot of info regarding employees, customers, etc (confidential or otherwise) in exemption bracket. Will u accept this or challenge it?

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sarbajit

Of course documents previously classified as "confidential" enjoy exemption from disclosure under the RTI Act and not only under 8(1)(d). Mike was absolutely correct in his original analysis, I dont know why he buckled under when karira cited a few paras from the DHC judgments in SC.Agrawal's case. The DHC judgments do not constitute citable precedent.

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karira

Most PIOs who reject information using Sec 8(1)(d) do not even read that section fully !

 

Pay attention to the second and third part of that subsection:

 

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;

 

So, if a PIO rejects any information under Sec 8(1)(d), in your first appeal ask the PIO to justify that disclosure of such information will "harm the competitive position of a third party".

 

If he is able to justify that, then invoke the larger public interest part (the third part) and ask the PIO to go to the "competent authority" and let him/her be satisfied whether public interest warrants the disclosure of that information.

 

At this stage the PIO will simply give up - because the competent authority is defined in Sec 2(e) as Speaker, Chief Justice, President, Governor, Chief Administrator, etc...

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Sajib Nandi
Of course documents previously classified as "confidential" enjoy exemption from disclosure under the RTI Act and not only under 8(1)(d). Mike was absolutely correct in his original analysis, I dont know why he buckled under when karira cited a few paras from the DHC judgments in SC.Agrawal's case. The DHC judgments do not constitute citable precedent.

 

Interesting discussion going on.

 

I would like to know the criteria/ yardsticks to decide judgments of an Hon'ble High Court or Hon'ble Supreme Court as citable precedent or not. I am a layman with impression that any judgment of any Hon'ble High Court which has not been reversed by the Hon'ble Supreme Court of India can be cited as precedent during legal proceedings.

 

Kindly enlighten me.

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Mike10

sarbajit,

U say "previously classified as "confidential" enjoy exemption from disclosure under the RTI Act"

How strong is this wicket?

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Mike10

establishing the second part would be the PIOs job whereas the third part would have to be established by the appellant by securing an order of the competent authority to disclose. do u agree karira?

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sarbajit
Most PIOs who reject information using Sec 8(1)(d) do not even read that section fully !

 

Pay attention to the second and third part of that subsection:

 

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;

 

So, if a PIO rejects any information under Sec 8(1)(d), in your first appeal ask the PIO to justify that disclosure of such information will "harm the competitive position of a third party".

 

If he is able to justify that, then invoke the larger public interest part (the third part) and ask the PIO to go to the "competent authority" and let him/her be satisfied whether public interest warrants the disclosure of that information.

 

At this stage the PIO will simply give up - because the competent authority is defined in Sec 2(e) as Speaker, Chief Justice, President, Governor, Chief Administrator, etc...

 

Why would the PIO give up ? The PIO will be dancing with joy. It is for the PIO to simply invoke 8.1.d "information which would harm competitive position of 3rd party" and for the applicant to get the competent authority to certify that larger public interest is involved.

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Sajib Nandi
Why would the PIO give up ? The PIO will be dancing with joy. It is for the PIO to simply invoke 8.1.d "information which would harm competitive position of 3rd party" and for the applicant to get the competent authority to certify that larger public interest is involved.

 

An applicant who is not in a position to justify larger public interest but tries to obtain information which would harm competitive position of third party is merely misusing the Act. Let the PIO dance in joy peacefully.

 

In case the applicant wants to save time and efforts to convince the FAA or Competent Authority, he can always add a para in the application itself justifying request for third party information in larger public interest. If the reasonings are sound, the PIO will provide him information and may even dance in joy for serving public interest.

 

Regards.

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sharadphadke

If the applicant has brought this in FAA then what should be the path in Complaint? (Sec-18)

My complaint due hearing this week on 4th.

I had bought point of Larger Public Interest in FA but was turned down. There was no hearing. Complaint is for with held under sec 8.1.d & j illegal rejection.

This PA claims in other RTI there is no provision of hearing in FA.

Section 4.1.b information totally incomplete. No list of officers and most data outdated.

Manual/norms/orders passed are confidential and is only for internal circulation are the answer from this PA

How to trap PIO in large public interest point? Mr. Karira's post not understood properly about sec 2

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Sajib Nandi

Sharadphadke,

 

What information was requested?

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sharadphadke
Sharadphadke,

 

What information was requested?

 

Name of officer who did not followed rules and action taken on the defaulter.

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Mike10

this debate between personal injury vs public interest is going to be the centre stage of RTI in the Country!!! Lets keep it going.

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karira
this debate between personal injury vs public interest is going to be the centre stage of RTI in the Country!!! Lets keep it going.

 

The problem is that there is no law on "privacy" - as of now - in India.

DoPT is formulating such a law and has asked for opinions.

 

http://persmin.gov.in/WriteReadData/RTI/aproach_paper.pdf

 

http://persmin.gov.in/WriteReadData/RTI/12AUGUST.pdf

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Mike10

The proceedings and the approach paper was useful. We have not passed the A/V and Information Technology explosion era yet. It will be impossible to meaningfully protect privacy till around 2020.

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karira

Mike10,

 

If you are further interested in this subject, you can read the UK Data Protection Act and the US law of Torts (just google for them).

 

These two are frequently referred to by ICs in the CIC - when issues of privacy are raised during second appeals - in the absence of a privacy law in India.

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Mike10

Thank you karira, I found some good stuff. U r like an Oracle on RTIindia!!!!!!!

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