Access to Public Information
Dotcom Trading 121 (PTY) Ltd v. King
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The Constitution Bench of the Supreme Court of India held that the Supreme Court is a “public authority” and hence will fall within the ambit of the Right to Information Act, 2005 (RTI Act). The respondent, Subhash Chandra Agarwal, an Indian businessman and right to information activist, filed separate applications requesting access to information from the Central Public Information Officer (CPIO) relating to assets of sitting judges, as well as correspondence relating to the appointment of judges and alleged influence on a decision. The applications were denied with a response that the information requested was either exempted or confidential. Upon appeal, the Chief Information Commission (CIC) granted access to the information. The appeal against one of the orders before the Delhi High Court led to a judgment from its Full Bench holding the Office of the Chief Justice of India to be a public authority and subject to the RTI Act. The Court conducted a proportionality test, balancing the right to privacy against the public interest in disclosure, to find that the requested information regarding the functioning of the Supreme Court and judicial assets should be released in the name of transparency and accountability, but that information related to third-parties needed to be re-examined.
The present case involves three appeals which arose from separate orders denying the required access to information under the RTI Act. The first of the appeals involved a right to information application (RTI application) filed by the respondent, Subhash Chandra Agarwal, on the basis of a newspaper report. The respondent sought the complete correspondence of the Chief Justice of India regarding a Union Minister having allegedly approached Justice R Raghupati of the Madras High Court, through a lawyer, to influence a judicial decision. The second appeal involved an RTI application request to furnish a copy of documents available with the Supreme Court. This included a correspondence between the relevant constitutional authorities relating to the appointment of various Supreme Court judges, superseding other senior judges. The third appeal involved an RTI application seeking information on a declaration made by judges of the Chief Justice of the Supreme Court and the Chief Justices in the States regarding the assets held by them, their spouses or any person dependent on them.
The first two appeals were filed against the order of the CIC directing access to information be granted and were initially denied. The third appeal was filed against the judgment of the full bench of the Delhi High Court, which had held that the office of the Chief Justice of India falls within the ambit of the term “public authority” under the RTI Act and allowed the access to information on declaration made by the judges to the Chief Justice of the Supreme Court and the Chief Justices in the States regarding the assets held by them, their spouses or any person dependent of them.
Justice Sanjeev Khanna delivered the judgment for the five-judge bench of the Supreme Court.
The substantial questions of law raised by the Court were as follows:
The appellants argued the following points:
The respondent argued the following points:
Supreme Court of India and the Chief Justice of India – two separate public authorities?
The term “public authority” has been defined under Section 2(h) of the RTI Act to include any authority or body or an institution of self-government established by the Constitution or under the Constitution. Referring to Article 124 of the Constitution of India, which established the Supreme Court of India, the Court concluded that the Court is a “public authority” as defined in the RTI Act. The Chief Justice of India is the competent authority under Section 2(2)(ii) of the RTI Act. Accordingly, the Chief Justice of India is empowered to frame rules, which have to be notified in the Official Gazette, to carry out the provisions of the RTI Act (Section 28, RTI Act).
The Court further observed that the Supreme Court will necessarily include the office of the Chief Justice and the judges. Hence, the Court concluded that the office of the Chief Justice or the judges is not separate from the Supreme Court. In other words, the Chief Justice and other judges constitute the “public authority,” that is, the Supreme Court.
Information and right to information
The Court started off by explaining the terms “information” and “right to information” under the RTI Act.
Reading the definition of “information” and “right to information” under the RTI Act, the Court affirmed that information is understood broadly to mean “material in any form” which is accessible by the public authority and “held by or under the control of any public authority.” [p.16] The Court relied on the Black’s Law Dictionary for interpreting the word ‘hold’ broadly to mean: “to keep, to retain, to maintain possession of or authority over.” [p. 18] The Court observed that any information on a private body, accessible by a public authority under any law, subject to applicable restrictions, will come within its purview. Further, validating the interpretation by the Full Judge Bench of the Delhi High Court, the Court held that the word “hold” is not purely a physical concept but refers to the appropriate connection between the information and the authority so that it can properly be said that the information is held by the public authority.
Additionally, the Court observed that the expressions “held by or under the control of any public authority” and “information accessible under this Act” are restrictive and reflect the limits to the “right to information” granted under Section 3 of the RTI Act. Hence, the right to information is not an absolute right. Such restriction might be applied in a situation when personal information is asked for, which has no relationship to any public activity or interest and would cause invasion of privacy of the individual. Highlighting the situation, the Court referred to the Thalappalam Service Cooperative Bank Limited v. State of Kerala and others (2013) 16 SCC 82 in which it was held that the competent authority is not bound to disclose such information unless he is satisfied that the larger public interest justifies the disclosure of such information
Having defined the expressions “information” and “right to information,” the Court noted that the “RTI Act sets out a practical and pragmatic regime to enable citizens to secure greater access to information available with public authorities by balancing diverse interests including efficient governance, optimum use of limited fiscal operations and preservation of confidentiality of sensitive information.” [p. 24] The balancing has been done by providing for exceptions and conditions on access to information stated in Sections 8-11 of the Act. The Court further classified the exemption into two categories; those which incorporate absolute exemptions and others which incorporate qualified prohibitions and exemptions.
One of the qualified exemptions is the prohibition on disclosure information made available to a person in his fiduciary relationship under Section 8(1)(e). The competent authority may disclose the information if the larger public interest warrants the disclosure of such information.
To understand the meaning of ‘fiduciary relationship’ under section 8(1)(e), the Court referred to Aditya Bandopadhyay case. The court in the case had observed that the expression is used “in its normal and well-recognised sense, that is, to refer to persons who act in a fiduciary capacity, with reference to a specific beneficiary or beneficiaries who are to be expected to be protected or benefited by the actions of the fiduciary.” [p. 41] The Court concluded that the exemption under section 8(1)(e) of the RTI Act does not apply to beneficiaries regarding whom the fiduciary holds information.
Thereafter, the Court referred to the RBI case, in which the court highlighted four principles required to classify a relationship as a fiduciary relationship. These are: (1) no conflict rule; (2) no profit rule; (3) undivided loyalty rule, and; (4) duty of confidentiality. The court observed that the fiduciary relationship casts positive obligations on the fiduciary and requires it to protect the interests of the beneficiary. Accordingly, obligations of the fiduciary are stricter than non-fiduciary relationships and the judicial scrutiny is higher.
The Court held that the relationship between the Chief Justice and judges is not generally that of a fiduciary and a beneficiary. However, it is not an absolute rule as in certain situations and acts, a fiduciary relationship may arise. Whether or not such a relationship arises in a particular situation would have to be dealt with based on the tests and parameters expressed above.
Right to privacy and confidentiality
Section 8(1)(j) pertains to restriction on disclosure of personal information which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual. Section 11 pertains to restrictions on disclosure of personal information which relates to or has been supplied by a third party and has been treated as confidential by that third party. These are not absolute restrictions and hence will come within the purview of qualified exemptions. These provisions also act to harmonize one’s right to information with the need for personal privacy, confidentiality of information and effective governance.
For the purpose of Section 8(1)(j) the Court clarified that it would treat the word “information,” which if disclosed would lead to invasion of privacy, to mean personal information, as distinct from public information. Thereafter, the Court referred to various judicial precedents to understand and form an indicative list of what would form part of personal information. Certain items referred to by the Court are name, address, physical, mental and psychological status, marks obtained, grades and answer sheets, medical records, treatment, choice of medicine, list of hospitals and doctors visited, findings recorded, etc. The Court then concluded that such personal information is entitled to protection from unwarranted invasion of privacy and conditional access is available only when stipulation of larger public interest is satisfied.
For the purpose of Section 11, the Court highlighted the relevance of confidentiality in the government and its functioning. The Court clarified that “the plea of confidentiality is an absolute bar, for in terms of proviso to Section 11(1) of the RTI Act, the Public Information Officer has to undertake the balancing exercise and weigh the advantages and benefits of disclosing the information with the possible harm or injury to the third party on the information being disclosed.” [p. 69] The Court also referred to the decisions by the High Court of Australia (Attorney General (UK) v. Heinemann Publishers Pty Ltd (1987) 10 NSWLR 86, and Commonwealth v. John Fairfax and Sons Ltd (1980) 147 CLR 39), which highlighted the importance of public interest for determining if the information should be disclosed in the light of government’s claim of confidentiality. In the end, the Court concluded:
“Confidentiality may have some bearing and importance in ensuring honest and fair appraisals, though it could work the other way around also and, therefore, what should be disclosed would depend on authentic enquiry relating to the public interest, that is, whether the right to access and the right to know outweighs the possible public interest in protecting privacy or outweighs the harm and injury to third parties when the information relates to such third parties or the information is confidential in nature.” [p. 70]
Meaning of public interest
The Court observed that the public interest test often applied in the right to information legislation to balance right to access and protection of the conflicting right to deny access. Section 8(1)(j) and Section 11 also require balancing of competing public interests. The Court noted that the test prescribed in Section 8(1)(j) is broader than the one in Section 11, as the latter requires comparison between disclosure of information relating to a third person or information supplied and treated as confidential by the third party and possible harm or injury to the third party on disclosure, which would include all kinds of ‘possible’ harm and injury to the third party on disclosure.
For the purpose of understanding public interest in the context of the RTI Act, the Court relied on a Supreme Court judgment (Bihar Public Service Commission v. Saiyed Hussain Abbas Rizwi and Another, (2012) 13 SCC 61) for it to mean the general welfare of the public warranting the disclosure and the protection applicable, in which the public as a whole has a stake. Differentiating between information “in public interest” and information “which is of interest to the public”, the Court held that the public interest test in the context of the RTI Act would mean reflecting upon the object and purpose behind the right to information, the right to privacy and consequences of invasion, and breach of confidentiality and possible harm and injury that would be caused to the third party, with reference to particular information and the person.
The Court also observed that the Act does not specify factors which should be taken into consideration for determining public interest. To determine these factors, the Court referred to an article published in the Oxford University Commonwealth Law Journal (‘Freedom of Information and the Public Interest: the Commonwealth experience’). The article determined that there are certain factors which weigh in favor of disclosure (accountability of officials, openness in the expenditure of public funds, the performance by a public authority of its regulatory functions, public health and safety, etc.), some against (the likelihood of damage to security or international relations, the likelihood of damage to the integrity or viability of decision-making processes, etc.), and lastly those which are irrelevant (the information might be misunderstood, embarrassing, that the requested information is overly technical in nature, etc.). When rendering a decision, the Public Information Officers must clearly state their reasoning. Accordingly, the Court held:
“The delicate balance requires identification of public interest behind each exemption and then cumulatively weighing the public interest in accepting or maintaining the exemption(s) to deny information in a particular case against the public interest in disclosure in that particular case. Further, under Section 11(1), reference is made to the ‘possible’ harm and injury to the third party which will also have to be factored in when determining disclosure of confidential information relating to the third parties.” [p. 78]
The last aspect in the public interest test which the Court suggested may factor in is the ‘motive’ and ‘purpose’ for making the request for information. In the words of the Court:
“Clearly, ‘motive’ and ‘purpose’ for making the request for information is irrelevant, and being extraneous cannot be a ground for refusing the information. However, this is not to state that ‘motive’ and ‘purpose’ may not be relevant factor while applying the public interest test in case of qualified exemptions governed by the public interest test… Similarly, in other cases, public interest may weigh in favour of the disclosure when the information sought may be of special interest or special significance to the applicant. It could equally be a negative factor when the ‘motive’ and ‘purpose’ is vexatious or it is a case of clear abuse of law.” [p. 79]
Next, the Court examined the co-relation between the transparency in the functioning of the judiciary in matters of judicial appointments and the importance of judicial independence.
The Court recognised four major arguments invoked to deny public access to information on appointment of judges: “(i) confidentiality concerns; (ii) data protection; (ii) reputation of those being considered in the selection process, especially those whose candidature/eligibility stands negated; and (iv) potential chilling effect on future candidates given the degree of exposure and public scrutiny involved.” [p. 82]
The Court then referred to the majority judgment of the Constitutional Court of South Africa in the case, Helen Suzman Foundation v. Judicial Service Commission (Case 289/16), in which the Court had directed the Judicial Service Commission to furnish the record of its deliberations, rejecting the contrary argument of candour and robustness as that of “timorous faint hearts.” The candidates, it was noticed, had undergone grueling scrutiny in the public interviews, and therefore disclosure of deliberation would not deter future candidates. The Court also referred to the Advisory Panel responsible for selection of judges to the European Court of Human Rights (ECtHR), wherein access to certain relevant documents is denied on ground of integrity and privacy of the individual, since the opinions largely include personal data of the candidates. It was observed that certain documents and opinions which do not contain personal data and provide a description of the procedure adopted and criteria applied by the Panel have been released as “Activity Reports” in the framework of partial access to such information. However, access to adverse comments is denied on the ground that negative comments can hamper commercial interests of the candidates in their capacity as legal practitioners. Whereas, positive opinions are exempted from disclosure as such opinions can lead to comparison and public scrutiny, potentially interfering with the proceedings of the Court of Justice.
The Court then referred to the Supreme Court Advocates-on-Record Association v. Union of India (2016) 5 SCC 1 to highlight the National Judicial Appointments Commission’s (NJAC) lack of concern regarding the privacy of judges. The Court observed that the independence of the judiciary is not limited to judicial appointments but also extends to the independence from other prejudices as well, including social, economic and political pressure.
The Court noted the necessity to account for judicial independence in the balancing exercise, given that the independence of the judiciary is a matter of public concern. At the same time, the Court clarified that the statement should not be interpreted to mean that the independence of the judiciary is dependent upon the denial of access to information. As per the Court, judicial independence and accountability go hand in hand as accountability ensures, and is a facet of judicial independence. Further, while applying the proportionality test, the type and nature of the information is a relevant factor.
In conclusion, it was observed that answering the questions before the Court in absolute terms is impossible and that in each case, the public interest test would be applied to weigh the scales and on balance determine whether information should be furnished or would be exempt.
Regarding the appeal for the application to furnish information on judges of the Supreme Court who had declared their assets, the lower court ruling was upheld. As per the Court, such disclosure would not, in any way, impinge upon the personal information and right to privacy of the judges. The fiduciary relationship rule in terms of Section 8(1)(e) of the RTI Act is inapplicable. Further, such disclosure will not affect the right to confidentiality of the judges and their right to protect personal information and privacy. Hence, the Court did not feel the need to apply the public interest test under Sections 8(1)(j) and 11 of the Act.
Regarding the remaining matters, the Supreme Court partially allowed the appeal with an order to remit to the Public Information Officer, Supreme Court to re-examine the matter after following the procedure under Section 11(1) of the RTI Act as the information relates to third parties.
Justice Dhananjaya Y. Chandrachud delivered a concurring opinion. He stated that judicial independence does not mean the insulation of judges from the rule of law. He further observed that judges are not elected representatives and are accountable to the trust which is vested in them as independent decision makers. As per Chandrachud J., “making them accountable in the discharge of that trust does not dilute their independence.” [p. 57] In rejecting the argument that there exists a fiduciary relationship between the Chief Justice of India and the judges, he pointed out the application of the fiduciary principle to public institutions where judges hold citizens’ interests in public trust, guided by fiduciary standards, including a duty of loyalty, duty of care and the cluster comprising the duties of candour, disclosure and accounting. He noted that the duties of candour, disclosure and accounting are based on the premise of judicial transparency and judicial honesty.
He also expanded the purview of public interest to include casting light on the adequate performance of public authorities, beyond the mala fide actions or wrongdoings by public figures. Further, he held that Public Information Officers must set out the reasons underlying their decision on the “balancing” between privacy and public interest.
Justice Nuthalapati Venkata Ramana delivered a concurring opinion as well. In addition to agreeing with the Khanna J.’s judgment, he stated that: “We may note that right to information should not be allowed to be used as a tool of surveillance to scuttle effective functioning of judiciary.” [p. 43]
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The judgment by the Supreme Court of India expands expression by extending the scope of access to information to the Supreme Court as well. However, certain RTI activists have raised concerns with the statement by Ramana J. that “right to information should not be allowed to be used as a tool of surveillance to scuttle effective functioning of judiciary.” Additionally, legal scholar Gautam Bhatia has raised certain issues with the main judgment. Firstly, he raised his concern with regard to the ruling that the “motive” of the person claiming information will be a relevant factor to determine the sufficiency of “public interest.” Secondly, he argued that those in public offices have a “diminished expectation of privacy” in some respects. Hence, he fails to understand the relevancy of the issue on “confidentiality in government affairs” to the case.
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