Section11. Third party information-

1)   Where a Central Public Information Officer or the State Public Information Officer, as the case may be, intends to disclose any information or record, or part thereof on a request made under this Act, which relates to or has been supplied by a third party and has been treated as confidential by that third party, the Central Public Information Officer or State Public Information Officer, as the case may be, shall, within five days from the receipt of the request, give a written notice to such third party of the request and of the fact that the Central Public Information Officer or State Public Information Officer, as the case may be, intends to disclose the information or record, or part thereof, and invite the third party to make a submission in writing or orally, regarding whether the information should be disclosed, and such submission of the third party shall be kept in view while taking a decision about disclosure of information:

Provided that except in the case of trade or commercial secrets protected by law, disclosure may be allowed if the public interest in disclosure outweighs in importance any possible harm or injury to the interests of such third party.

2)   Where a notice is served by the Central Public Information Officer or State Public Information Officer, as the case may be, under sub-section (1) to a third party in respect of such information or record or part thereof, the third party shall, within ten days from the date of receipt of such notice, be given the opportunity to make representation against the proposed disclosure.

3)   Notwithstanding anything contained in section 7, the Central Public Information Officer or State Public Information Officer, as the case may be, shall, within forty days after receipt of the request under section 6, if the third party has been given an opportunity to make representation under sub-section (2), make decision as to whether or not to disclose the information or record or part thereof and give in writing the notice of his decision to the third party.

4)   A notice given under sub-section (3) shall include a statement that the third party to whom the notice is given is entitled to prefer an appeal under section 19 against the decision. 

This section in whole protects the rights of any third party in relation to whom any information is requested to be disclosed and the same information has been treated as confidential by the third party. No one has right to disclose any information which is confidential to any person without his or her permission or without providing an opportunity to represent his views upon non-disclosure of the information. This section more or less is an implementation of the right to privacy conferred on all the citizens of India. The section avoids the misuse of the right to information in order to bother someone with unnecessary disclosure of the information which is more private and personal to a person. The section should always be read with the section 8(1) (j) which will add more meaning to the section and clarify the intent of legislature behind this section.

The sub-section (1) of the section states that the CPIO or SPIO upon receiving an application for the information which is related to or supplied by any third party and that information is regarded as confidential by the party. The CPIO or SPIO intends to disclose such information upon the application in respect of any information or record or any part thereof so received, within five days from the date of the receipt of the application serve a written notice upon the third party stating the request and that the CPIO or SPIO intends to disclose the information and invite the third party to make its submission whether the information should be disclosed in writing or orally. The submission by the third party upon the service of such notice should be kept in view while deciding upon the disclosure or non-disclosure of the information. The proviso to sub-section (1) states that except in the cases which is related to trade and commercial secretes which are protected under the law for the time being in force in India can be disclosed if the disclosure of the information outweighs the public interest at large in comparison to the harm or injury to interests of the third party involved. The sub-section (2) of the section states that the third party upon receiving a notice under sub-section (1) by the CPIO or SPIO in respect of any information or record or part thereof the third party shall be given an opportunity to represent against the proposed disclosure within ten days from the date of the receipt of the notice by the third party.

The sub-section (3) states that the in spite of the time limits provided under section 7 of the Act, the CPIO or SPIO shall make an decision upon disclosure or non-disclosure of the information within forty days from the date of the receipt of the application under section 6 of the Act if the third party has been given an opportunity of representation under sub-section (2) and shall in writing serve the notice upon the third party of the decision. The sub-section (4) states that the notice served upon the third party under sub-section (3) include a statement that the third party has right to appeal against the decision of the disclosure in accordance with the provisions under section 19 of the Act.

This section of the Act holds an importance in safeguarding the right of privacy of any person. In this particular section, the information requested is related to a third party which had kept the information as a confidential information, disclosure of such information cannot be disclosed without providing an opportunity to the third party to make an submission against the disclosure of the information, disclosure of which might invade the privacy of the third party. The section does not give any veto power to the third party in relation to non-disclosure of the information lest it provides only an opportunity to present its objections against the disclosure of the information.

In the case of Arvind Kejriwal v. Central Public Information Commission, the appellant has primarily questioned and challenged the interpretation of the Section 11 of the Right to Information Act, 2005 in the impugned decision. The question, therefore, arises as to what is the intent of the legislative intent behind section 11. The intent of the legislature is clear and reflected in the proviso which spells out the parameters when third party information can be furnished or denied to the information seeker. The said proviso has to be read with along with the exemptions which is provided under section 8 specially section 8(1)(j) which permits denial/disclosure of personal information which has no relationship with a any public activity or interest; or which cause unwarranted invasion of the privacy of an individual unless larger public interest justifies disclosure of such information.

The court further observed that Section 11(1),(2),(3) and (4) are the procedural provisions which have to be complied with by the PIO/Appellant authority; when they are required to apply the said test and give a finding whether information should be disclosed pr not disclosed. If the said aspect is kept in mind, there would be no difficulty in interpreting section 11(1).

In the case of Mr. Anand D Kharade v. Ministry of Communication and Information Technology, the applicant in the instant case has requested to disclose the number of charge sheet had been issued in their tenure against Shri. N.B. Kepkar and Shri. S.G. Mallapur. The CPIO in reply stated that two charge sheet were issued against the first person and the second person has requested not to disclose personal information under section 11 of the RTI Act, 2005. The applicant has appealed against the information as he was unsatisfied with the information provided. The Commission was of the view that section 11 of the RTI Act prescribes a procedure to be followed in case of the third party information and cannot be used as an exemption for non-disclosure. The commission observed that the information sought by the appellant is not covered by any exemption stipulated in section 8 of the RTI Act.

 In the case of J.B. Kohli v. New Delhi Municipal Council (NMDC), the Central Information Commission clarified following two issues on the information provided by the third party-

               i.         Every document provided by the third party is not governed by the provision of section 11(1) of the Act. It is only those documents which are personal or private in nature attract the provisions of section 11(1). Thus, section 11 (1) of the RTI Act is applicable to only that information which has been given in good faith or in confidence by the third party.

             ii.         The second issue clarified was that the third party which was involved at the lower level, has to be heard by the Commission at appeal level also. If it is not allowed it would be against the principles of natural justice and fair play, such third party has right t protect his interest at every level, once he is involved in the proceedings.

Section 12 Constitution of Central Information Commission –

1)   The Central Government shall, by notification in the Official Gazette, constitute a body to be known as Central Information Commission to exercise the powers conferred on, and to perform the functions assigned to, it under this Act.

2)   The Central Information Commission shall consist of-

a)   the Chief Information Commissioner, and

b)   such number of Central Information Commissioners not exceeding ten as may be deemed necessary.

3)   The Chief Information Commissioners shall be appointed by the President on the recommendation of a committee consisting of-

                          i.         the Prime Minister, who shall be the Chairperson of the committee;

                        ii.         the Leader of Opposition in the Lok Sabha; and

                      iii.         a Union Cabinet Minister to be nominated by the Prime Minister.

4)   The general superintendence, direction and management of the affairs of the Central Information Commission shall vest in the Chief Information Commissioners who shall be assisted by the Information Commissioners and may exercise all such powers and do all such acts and things which may be exercised or done by the Central Information Commission autonomously without being subjected to directions by any other authority under this Act.

5)   The Chief Information Commissioner and Information Commissioners shall be person of eminence in public life with wide knowledge and experience in law, science and technology, social service, management, journalism, mass media or administration and governance.

6)   The Chief Information Commissioner or an Information Commissioner shall not be a Member of Parliament or Member of the Legislature of any State or Union Territory, as the case may be, or hold any office of profit or connected with any political party or carrying on any business or pursuing any profession.

7)   The headquarters of the Central Information Commission shall be at Delhi and the Central Information Commission may, with previous approval of the Central Government, establish offices at other places in India.   

The section 12 of the Act states the provisions related to the establishment and composition of the Central Information Commission. The commission is appointed by the Central Government. The section further deals with the appointment and tenure of the Chief Information Commissioner and Information Commissioners. The section also deals with the qualifications and disqualification of the members of the commissions as well as the provisions related to their salary and allowances. The duties and powers of the commission as prescribed in the other provisions of the Act.

The sub-section (1) of section 12 states that by notification in the Official Gazette the Central Government shall constitute a body to be known as Central Information Commission. The body so constituted shall exercise all the duties and perform all the functions conferred upon it under this Act. The sub-section (2) states the composition of the Central Information Commission which shall consist of the Chief Information Commissioner and Information Commissioners as may be deemed necessary but not exceeding ten in number. The sub-section (3) states that the Chief Information Commissioner shall be appointed by the President upon recommendation of the committee consisting of Prime Minister, Leader of Opposition and a Union Cabinet Minister nominated by the Prime Minister. The Prime Minister shall be the chairperson of the committee.

The sub-section (4) states that the Chief Information Commission shall be the governing authority of the Commission and all the powers related to management, superintendence and direction shall vest in the Chief Information Commissioner. The Chief of the Commission shall be assisted by the other Information Commissioners. The Information Commissioners may exercise all the powers and things to do any act which is to be performed autonomously by the Chief Information Commission without any prior consent of any other authority as per the provisions of this Act.

The sub-section (5) states that the Chief Information Commissioner and Information Commissioners shall be an eminent person in public life and hold wide knowledge and experience in the fields of law, science and technology , social service, management, journalism, mass media or administration and governance. The sub-section (6) states that the Chief Information Commissioner or the Information Commissioner shall not be member of any legislative body at the Central or in any States or in the Union Territory. They should not hold any other office of profit under any political party or carry on any business or any other profession.

The sub-section (7) states that the headquarters of the Central Information Commission shall be at Delhi and at other places in India with previous approval of the Central Government.

The section holds its importance in its clarity which precisely shows the manner of the appointment, the composition, the qualifications and disqualifications, the parameters of salary and allowances. This unambiguous provisions shows that the legislature intended to have a procedure without any vagueness which might have delayed the appointment of the commissioners which might have further delayed the other main objectives inserted in the provisions of the Act which were to be performed under the supervision and guidance of the Central Information Commission.

The section 12 of the Act is out and out a complete provision in itself the only problem is in the composition of the committee for the recommendation of the Chief Information Commissioner to the President. The composition has an imbalance and the majority is always in the favor of the Prime Minister because the third member is nominated by the Prime Minister who might always favor the decision of the Prime Minister because of which the opinion of the Leader of the Opposition would have no value in the final decision of the committee.

The Honorable High Court has observed in Delhi Development Authority v. Central Information Commission that:

“Thus the flow of information is not to be an unregulated flood. It needs to be controlled just as the flow of water is controlled by a tap. Those empowered to handle this tap of information are imbued with great power. Under this Act, this power is to be exercised by the Information Commission (State or Central). But, the power is clearly not plenary, unrestricted, limitless or unguided. The Information Commissions are set up under the said Act and they have to perform their functions and duties within the precincts marked out by the legislature.”

Namit Sharma v. Union of India, the petitioner alleged that the eligibility criteria under Section 12(5) and 12(6) are vague and ultra vires the Constitution. The court did not agree that Section 12(5) of the Act offended the doctrine of equality as they did not discriminate against any person in the matter of appointment. Nor did Section 12(6) offend the doctrine of equality, as it should be interpreted to mean that an individual, once appointed as a Chief Information Commissioner or Information Commissioner, “cannot continue to be a Member of Parliament or Member of the State Legislature or Union Territory,” so as to avoid any potential conflict of interest. Although the Court acknowledged that there may have been valid concerns about individuals appointed to the Information Commissions not having “the required mind to balance the interests indicated in the Act,” it concluded that it was ultimately “for the Parliament to consider” whether appointment required judicial experience.

Section 13 in The Right To Information Act, 2005

13. Term of office and conditions of service.—

(1) The Chief Information Commissioner shall hold office for a term of five years from the date on which he enters upon his office and shall not be eligible for reappointment: Provided that no Chief Information Commissioner shall hold office as such after he has attained the age of sixty‑five years.

(2) Every Information Commissioner shall hold office for a term of five years from the date on which he enters upon his office or till he attains the age of sixty‑five years, whichever is earlier, and shall not be eligible for reappointment as such Information Commissioner: Provided that every Information Commissioner shall, on vacating his office under this sub‑section be eligible for appointment as the Chief Information Commissioner in the manner specified in sub‑section (3) of section 12: Provided further that where the Information Commissioner is appointed as the Chief Information Commissioner, his term of office shall not be more than five years in aggregate as the Information Commissioner and the Chief Information Commissioner.

(3) The Chief Information Commissioner or an Information Commissioner shall, before he enters upon his office make and subscribe before the President or some other person appointed by him in that behalf, an oath or affirmation according to the form set out for the purpose in the First Schedule.

(4) The Chief Information Commissioner or an Information Commissioner may, at any time, by writing under his hand addressed to the President, resign from his office: Provided that the Chief Information Commissioner or an Information Commissioner may be removed in the manner specified under section 14.

(5) The salaries and allowances payable to and other terms and conditions of service of—

(a) the Chief Information Commissioner shall be the same as that of the Chief Election Commissioner;

(b) an Information Commissioner shall be the same as that of an Election Commissioner: Provided that if the Chief Information Commissioner or an Information Commissioner, at the time of his appointment is, in receipt of a pension (other than a disability or wound pension) in respect of any previous service under the Government of India or under the Government of a State, his salary in respect of the service as the Chief Information Commissioner or an Information Commissioner shall be reduced by the amount of that pension including any portion of pension which was commuted and pension equivalent of other forms of retirement benefits excluding pension equivalent of retirement gratuity: Provided further that if the Chief Information Commissioner or an Information Commissioner if, at the time of his appointment is, in receipt of retirement benefits in respect of any previous service rendered in a Corporation established by or under any Central Act or State Act or a Government company owned or controlled by the Central Government or the State Government, his salary in respect of the service as the Chief Information Commissioner or an Information Commissioner shall be reduced by the amount of pension equivalent to the retirement benefits: Provided also that the salaries, allowances and other conditions of service of the Chief Information Commissioner and the Information Commissioners shall not be varied to their disadvantage after their appointment.

(6) The Central Government shall provide the Chief Information Commissioner and the Information Commissioners with such officers and employees as may be necessary for the efficient performance of their functions under this Act, and the salaries and allowances payable to, and the terms and conditions of service of the officers and other employees appointed for the purpose of this Act shall be such as may be prescribed.

Meaning:

SECTION13(1): -

MAXIMUM TIME PERIOD AND AGE FOR THE CHIEF INFORNMATION COMMISSIONER IS

Time period: - 5 years.

Age: - 65 years.

Also, the chief information commissioner shall not be eligible for reappointment.

Section 13(2): -

MAXIMUM TIME PERIODAND AGE FOR THE INFORMATION COMMISSIONER IS

Time period: - 5 years.

Age: - 65 years.

Also, the Information commissioner shall not be eligible for reappointment. But, on vacating his office can be eligible for the appointment as a chief information commissioner and his term of office shall not be more than aggregate as the information commissioner and the chief information commissioner

ACCORDING TO SECTION13(3),SECTION13(4),SECTION13(5),

·      THE CHIEF INFORMATION COMMISSIONER OR AN INFORMATION COMMISSIONER MAY, AT ANY TIME RESIGN BY WRITING HIS HAND ADDRESSED TO THE PRESIDENT, RESIGN FROM THE OFFICE.

·      THE CHIEF INFORMATION COMMISSIONER SHALL BE THE SAME AS THE CHIEF ELECTION COMMISSIONER;

·      AN INFORMATION COMMISSIONER SHALL BE SAME AS THAT OF AN ELECTION COMMISSIONER.