Section 8 (Exemptions under RTI Act 2005)

Section 8(1): Notwithstanding anything contained in this act, there shall be no obligation to give citizen-

A) Information if discloses would prejudicially affect the sovereignty & Integrity of the state, relation to foreign state or lead to incitement of an offence

B) Information which has been expressly forbidden by court of law or tribunal or disclosure would lead to Contempt of Court

C) Disclosure of Information would cause breach of privilege of Parliament or State Legislature

D) Information including Commercial Confidence, Trade Secrets or IPR, the disclosure would harm the competitive position of third party unless the competent authority is satisfied that larger public interest is involved

E) Information available to a person in fiduciary relationship unless the competent authority is satisfied that larger public interest is involved

F) Information received in confidence from Foreign Government

G) Information whose disclosure would endanger the life or physical safety of any person

H) Information which would impede the process of investigation or apprehension of offenders

I) Cabinet papers include deliberation of Council of Ministers, Secretariat & other officers

J) Information which relates to personal information and has no relation to public activity and whose disclosure would lead to invasion of privacy unless CPIO or SPIO or AA satisfied that larger public interest is involved

Section 8(2): Notwithstanding anything contained in the official secrets act or exemptions provided under subsection (1) unless the case may be provided access if Public Authority is satisfied that public interest would outweighs the harm to the protected interest

Section 8(3): Subject to clause (a) & (c) of subsection (1) information related to occurrence or matter which has taken place before twenty years before the date on which such request has been made under Section 6. The decision of Central government shall be final while computing twenty years.

Landmark Judgments

Guideline Relating to Section 8(1) of

the RTI Act 2005

IN THE Central Information Commission

New Delhi

Decided On 07 .07.2006

Decision No. CIC/OK/A/00163

Appellants: Dhananjay Tripathi

Vs.

Respondent: Banaras Hindu University

Brief Facts:

The appellant had applied for seeking information in relation to the death of the student of the university due to the negligence by the university doctor. The PIO denied to provide information to the appellant under section 8(1)(g) without providing any further reason why such information could not be given to the appellant.

Judgment:

The commission held that under Section 8(1), the authority has to provide proper reason while denying or refusing to give the information and if proper reason is not provided by the concerned authority it would lead to mala fide denial of legitimate information. Not Providing the reason for how the application was rejected would attract the penalties under Section 20(1) of the act.

Guideline Relating to Section 8(1)(e) of

the RTI Act 2005

IN THE Central Information Commission

New Delhi

Decided On 19.08.2009

Case No. CIC/AD/A/2009/000857

Appellants: Ms. TarunaPahuja

Vs.

Respondent: A.I.I.M.S

Brief Facts:

The Appellant has filed the RTI Application seeking her information while she was under psychiatric treatment in AIIMS. She has divorced her husband and all the documents is with him and he has not providing to produce before court of law. the PIO has said that communication has already been provided. Not satisfied with the order she has filed appeal and it was dismissed that patient information should be disclosed to himself/herself or court of law. It was ordered that appellant has to prove his identity as Mrs.TarunaPahujabefore CPIO. not satisfied with the order she has filed second appeal before appellate authority.

Judgment:

The commission has upheld the order of the appellate authority that such information is in fiduciary relationship and falls under Section 8(1)(e) of the act and would only be disclosed to the patient himself/herself or to court of law. As the appellant has to prove its identity to the CPIO by providing any document which provide veracity of its identity. Unless the identity is not established, no information should be provided to the appellant and Appellate Authority is justified in its action of denying of access to such information.

Guideline Relating to Section 8(1)(j) of

the RTI Act 2005

In The Hon’ble High Court of

New Delhi

Decided On 24.01.2017

WP (C) No. 624/2107

Appellants: B.B. Dash

Vs.

Respondent: Central Information Commission &Anr.

Brief Facts:

The petitioner impugned the order dated 22.11.2016, the CIC has held the CPIO liable for not providing information to the concerned party without any cogent reasons and has imposed a liability of maximum amount of Rs 25,000 on the petitioner.

Judgment:

The High Court of Delhi in its order held that the Central Information Commission has not erred in imposing liability on the CPIO because the information has not been provided to the concerned party without giving cogent explanation. Thus, order of the Central Information Commission is within the framework of the law. 

Section 9.Grounds for rejection to access in certain cases.- Without prejudice to the provisions of section 8, a Central Public Officer or State Public Information Public Officer, as the case may be reject a request for information where such a request for providing access would involve an infringement of copyright subsisting in a person other than the State.

The section basically states that without abridging the exemptions under section 8 of the Act, the authorities, as appointed under the provisions of the Act, receiving an application requesting an information disclosure of which might be infringe the copyright subsisting in a person, the concerned authorities under the said section may reject such application. The exemption under the section is not applicable upon any work of the State though the work is covered under the Copyright Act, 1957.

The exemption provided under the section does not add any qualification to the exemption rather it is an absolute exemption. It is a step in order to avoid any misuse of the RTI Act by the Government Agencies, especially in regard to the matter related with infringement of copyright. The other importance of the section is to safeguard the copyright of any person.

The legislature should amend the provisions clarifying the works which might be covered under the section to avoid any unnecessary initiation of proceedings before the exemption as the section which explicitly defines the ambit covered under the exemptions.

Mr. Kuldeep Singh Tomer v. Mcd, Gnct Delhi, in the instant case the third party relied upon the definition of the ‘artistic work’ under Section 2(c) of the Copyright Act and other relevant authorities to argue that the disclosure of the building sanction plan(s) would be an violation of the intellectual property rights of the architect. The Commission accepted the contention of the third party and stated that disclosure of the building sanction plan may be an infringement of the intellectual property right and may be exempted from disclosure under Section 9 of the RTI Act.

 The closing lines of the section clearly states that the information with held under the authorities which are state as defined under Article 12 of the Constitution whether covered under the provisions of the Copyright Act, 1957 or not cannot be exempted from disclosure of such information underlining the exemption provided under section 9 of the Act which are exempted only in the case of copyright vested in any other person.

In Sudhir Vohra v. Delhi Metro Rail Corporation, the Central Information Commission held that the Delhi Metro Rail Corporation, being ‘state’ under Article 12 of the Constitution of India, could not claim exemption on the ground that the engineering and structural design was its intellectual property and was covered under the Copyright Act, 1957.

In the case of Pramod Sarin v. University, the Commission held that the copies of test booklets, solutions etc. cannot be denied on the grounds that it would harm the competitive position of other candidates and solutions are the intellectual property of the University. The Commission also held that by no stretch of imagination can mere solutions of questions be treated as a matter of either copyright or intellectual property and there is no element of creativity involved in setting an objective type question paper for any examination.

Section10 Severability-

1)   Where a request for access to information is rejected on the ground that it is in relation to information which is exempt from disclosure, then, notwithstanding anything contained in this Act, access may be provided to that part of the information which does not contain any information which is exempt from disclosure under this Act and which can reasonably be severed from any part of that contains exempt information.

2)   Where access is granted to part of the record under sub-section (1), the Central Public Information Officer or State Public Information Officer, as the case may be shall give a notice to the applicant, informing-

a)   that only part of the record requested, after severance of the record containing information which is exempt from disclosure, is being provided;

b)   the reasons for the decision, including any findings on any material questions of fact, referring to the material on which those findings were based;

c)   the name and designation of the person giving decision;

d)   the details of the fees calculated by him or her and the amount of fee which the applicant is required to deposit; and

e)   his or her rights with respect to review of decision regarding non-disclosure of part of the information, the amount of fee charged or the form of access provided, including the particulars of the senior officer specified under sub-section (1) of section 19 or the Central Information Commission or the State Information Commission, as the case may be, time limit, process and any other form of access.

The section is based upon the principles imbibed under the Doctrine of Severability. The doctrine states that if any part does not fall within the words of law in spite of discarding it in whole any part of the main article is valid and in accordance with the law which can be severed from the main article and can stand alone such part should be severed. Under the Act the principle is included in the context of the information which is not exempted from disclosure. The doctrine provides for an opportunity to the part of the information which can be disclosed and it does not fall within any exemption which might have been rejected due to the information requested containing few part to be exempted from disclosure and if such part can be easily severed from the information which cannot be disclosed such information can be disclosed with the help of this section by the authorities having power to make such decision.

This section of the Act states that if the information requested falls under any exemption provided within the Act and such application is rejected upon the same grounds, in spite of anything containing in the Act, those part of the information may disclosed which does not fall within the exemption provided under the Act and such part can be reasonably be dissociated from that part of the information which is exempted from disclosure [sub-section 1]. The sub-section (2) of the section states that if such information is disclosed within the sub-section (1) the authorities allowing disclosure of such information shall provide the applicant with following particulars through a notice-

                                       I.         that only part of the information requested is provided after severing that part of the information which is exempted from disclosure;

                                     II.         the reasoning behind the decision so taken and other finding upon the material question of fact and on which the decision is based;

                                  III.         the name and designation of the person finalizing the decision;

                                  IV.         the details of the fees calculated by the officer and the amount payable by the applicant which is to be deposited; and

                                    V.         the rights of the applicant in relation to review the decision of non-disclosure of the part of the information, the fees charged or the form of access provided, time limit, process to be followed and any other form of access including the particulars of the senior officer as provided under section 19(1) or the Central Information Commission or State Information Commission.

This section is important to safeguard the right of the applicant whose application can be out rightly rejected upon the grounds of non-disclosure without scrutinizing all the portions of the application and severing those parts which can be disclosed and are not exempted under any part of the Act.