Access to Public Information
Company Doe v. Public Citizen
Closed Expands Expression
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The Supreme Court of India held that a co-operative society registered under the Kerala Co-operative Societies Act was not bound by the country’s Right to Information (RTI) Act to provide information sought by a citizen and that the Society did not fall within the definition of “public authority” under the RTI Act. The Applicant had requested information relating to the bank accounts of certain members of the Mulloor Rural Co-operative Society Ltd. The Court reasoned that co-operative societies neither met the threshold of control by government required under the definition of “the State” in Article 12 of the Constitution nor were “substantially financed” by the government so as to qualify as a “public authority” under the RTI Act. In balancing the Applicant’s right to disclosure against the privacy rights of the Society’s members the Court reasoned that the information was personal and did not relate to any public activity or interest, so the public authority or officer was not obliged to comply with the request.
This case analysis was contributed by Right2Info.org.
In May 2007, the Applicant requested information under India’s Right to Information (RTI) Act relating to the bank accounts of certain members of the Mulloor Rural Co-operative Society Ltd. The Society refused to grant access to the information due to its confidential nature and also argued that it would be a violation of “commercial confidence.” Moreover, it was pointed out that the information had no relationship to any “public activity” conducted by the Society. However, the State’s Information Officer decided that the non-disclosure violated mandatory provisions of the RTI Act and rendered the Society liable to be punished for non-compliance. In its decision, the State Information Officer relied on a circular note issued by the Registrar of Co-operative Societies which established administrative control over all Societies as “public authorities” falling under the Section 2(h) of the RTI Act.
The Co-operative Society filed a writ petition with the High Court challenging the order of the State Information Officer. The single judge of the high court established that all co-operative societies registered under Societies Act were public authorities and therefore bound to act in conformity with the RTI Act. Several appeals, revoking the decision and adopting reserved views on the definition of “public authority” followed before a submission came before a full bench. The bench gave a liberal interpretation of public authority, which was capable of covering co-operative societies and thus, an obligation to comply with the RTI Act.
As a result, an appeal was brought before the Supreme Court of India with two substantial questions to be answered: (a)whether a co-operative society falls within the definition of “public authority” under section 2(h) of the RTI Act and (b)if a co-operative society is bound to provide information requested by a citizen.
In order to answer questions presented before it, the Court began by examining the status of co-operative societies under the Constitution. Namely, whether they might fall under the definition of “the State” as enshrined in Article 12 of the Constitution. The Court, referring to its previous case law concluded that the level of direct or indirect control with respect to societies does not meet the required threshold, that is, it is not “deep and all pervasive” and therefore cannot be considered within the expression “State” under Article 12. However, the Court said that co-operative societies are still capable of satisfying the definition of public authority.
The Court went on to consider the RTI Act, which provides for citizens’ right to access information “under the control of public authorities.” The definition of “public authority” is provided under Section 2(h) of RTI Act. The Court established that the essential part of the provision applicable in the case before it referred to the control or “substantial funding” of an institution or non-governmental organization. In this respect the Court first outlined the test required for the establishment of “control.” Its analysis of case-law lead to the conclusion that “mere supervision or regulation as such by a statute or otherwise of a body would not make that body a public authority within the meaning of Section 2(h)(d) (i) of the RTI Act.”
Subsequently, the Court engaged in defining the term “substantially financed” where financing might be direct or indirect. Citing the case of Palser v. Grimling (1948) 1 All ER 1, 11 (HL), the Court said that the term cannot be interpreted using a de minimis approach, and that the financing must be “actual, existing, positive and real to a substantial extent, not moderate, ordinary, tolerable.” The Court also noted that the State may provide schemes for welfare projects, but said that unless the funding was so substantial that the body “would struggle to exist” without it, the relevant provision could not be engaged. Thus “merely providing subsidiaries, grants, exemptions, privileges” did not satisfy the requirement. The Court said that schools getting 95% grant in aid from government was an example of substantial funding.
As for NGOs, the Court stated that, even in the absence of statutory control, it is possible to establish that an NGO has been substantially financed directly or indirectly by governmental funds. The latter would bring those organizations within the definition of “public authority”.
Furthermore, the Court ruled that the onus of proof to show that a body is owned, controlled or substantially financed or that an NGO is substantially financed directly or indirectly by the funds provided by the appropriate Government is on the applicant who seeks information or the appropriate Government and can be examined by the State Public Information Officer, State Chief Information Officer, State Chief Information Commission, Central Public Information Officer etc., when the question comes up for consideration.
Lastly, the Court engaged in balancing the disclosure of information and privacy rights. It concluded that if information is personal and does not relate to any public activity or interest, the public authority or officer is not obliged to comply with the request.
Applying all these criteria to the circumstances of the case, the Court concluded that co-operative societies registered under the Co-Operative Societies Act would not be considered as “public authorities”, because it cannot be shown that they are “owned, controlled or substantially financed “ by the government.
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