APPLYING THE LAW

What Type of Information Can You Legitimately Withhold?

Although the principle of maximum disclosure underpins all RTI laws, it is recognised that the right to information is not absolute. Not all information that your organisation generates will or should be given out to the public. We would all agree that there are some pieces of information, which are so sensitive that if they were released to the public, they might actually cause serious harm to important interests. For example, at a time of conflict, if someone wanted to know how many troops were being deployed and where they were being sent, the Government might legitimately want to keep these details secret because if this information fell into the wrong hands, Indian lives could be at risk. Notably though, if someone requested the same information two years after the war, it would be less clear that the information should be kept secret because the likelihood of harm being caused by disclosure would probably be less.

All right to information laws include provisions that allow certain types of information to be withheld from the public. These provisions are commonly called "exemption provisions" or "exclusion clauses". In the Central Act these exemptions are found in Section 8(1).

Even more importantly, Section 8(2) of the Central Act makes all of the exemptions contained in section 8 (1) of the Act subject to a "Public Interest Override". What this means, in practice, is that even where requested information is covered by an exemption, you should still disclose it to the applicant if the public interest in the specific case requires it.

To assist you when applying exemptions, you may want to consider the following three-part test which can help to identify whether a document does contain sensitive information that can be legitimately withheld from disclosure:

1. Does the information relate to a legitimate aim specified in the freedom of information law (such as national security, privacy, etc)?
2. Would disclosure do substantial harm to that aim? (iii) Would it nevertheless be in the public interest to disclose the information?

FREQUENTLY ASKED QUESTIONS

Question: What about the Official Secrets Act?
Section 22 of the Central Act explicitly states that it overrides all other inconsistent legislation. This means that the duties of officials to open up under Central Act overrides the duties of secrecy contained in other laws, such as the Official Secrets Act. As such, the only exemptions you should look at are those contained in the Central Act. Nonetheless, in your day to day work, you will still be likely to classify documents in accordance with the Official Secrets Act and other relevant guidelines. The process of classification of information will remain a part of the process of records management. Documents will still be labelled "Top Secret", or "Confidential" or "Classified".

For the purposes of applying RTI laws, what you need to remember is that, even if a document has already been classified as "Top Secret", at the time you receive a request for that document you will still need to consider again whether the document should be withheld or disclosed. It is not enough to simply say that it is classified "Top Secret" and therefore must remain secret. It may be that the information was sensitive when it was first classified, but that on the date of the request it is no longer necessary to protect the information from public disclosure. Every case will need to be considered on the specific facts.

Question: What if only part of document is covered by an exemption?
Under the Central Act, it is possible for information to be only partially withheld/released. This might happen where some of the information in the documents requested is sensitive and falls under an exemption, but the remainder is harmless. In such cases, the sensitive information should be removed or blacked out from the record, and the remainder of the information can still be released.

Please click on the link to the Central RTI Act to read the detailed provisions contained in the law. Please click on the link to CHRI's State RTI pages to find out more about relevant rules and implementation in your specific State.