APPLYING THE LAW

What Type of Information Can You Legitimately Withhold: Exemptions

The key issue to remember when applying exemption provisions is that information can legitimately be kept secret in some circumstances, but only where disclosure would be likely to cause serious harm to specific, important public interests. Information cannot be withheld simply because disclosure might embarrass the government, or government officials; it certainly cannot be withheld simply because it might expose corruption. What is important is that these legitimate exemptions are used to protect the country from harm which could be caused by disclosure, and are not abused to protect special interests.

Each request needs to be considered on a case-by-case basis. As noted above, information which might be sensitive today, in a few years or even a few months, may not be so sensitive. We have seen good examples of this in recent times in relation to information on the Iraq War. The British Government kept secret lots of correspondence and documents - but during a later government inquiry (the Hutton Inquiry) a lot of this information was released publicly, mostly on the internet. Similarly in America, the September 11 Commission has been declassifying some very sensitive documents - including a Presidential Daily Briefing, a type of document which had never before been publicly released - because they recognised that the public's right to know needed to override the Government's desire for secrecy.

Exemptions As noted above, all of India's right to information laws contained exemptions provisions. In the Central Act, Section 8(1) lists all of the exemptions. Below is a general discussion of some of the key provisions:

• National Security or Sovereignty: As explained above, there is some information, which relates to India's national security, which could genuinely cause harm if it was released to the public. For example, information published during a conflict, detailing the number of soldiers defending a boundary, where they were positioned or their strategic plans. However, it would not be appropriate to use this exemption simply to keep a contract for the purchase of an air force fighter jet secret. This is common commercial information which should be made public to reduce the likelihood of corruption tainting the procurement process, and should not be withheld simply because it relates to defence.
• National Economic Interests: Disclosure of information about currency or exchange rates, interest rates, taxes, the regulation or supervision of banking, insurance and other financial institutions, proposals for expenditure or borrowing and foreign investment could in some cases harm the national economy, particularly if released prematurely. However, lower level economic and financial information, like contracts and departmental budgets should not be withheld under this exemption.
• Relations with Foreign States: The relationship between countries can often be sensitive, such that candid assessments and analysis of other countries' behaviour and policies could easily offend and in so doing, damage India's own international interests. However, this exemption should not be used simply to hide political deals between players, which are not in the public interest and can never justify non-disclosure of information which discloses a breach of national law.
• Law Enforcement and the Judicial Process: While an investigation is underway, there may be information which needs to be protected, for example, witnesses identities or the case being put together against a suspect. If released, the case could be jeopardized. Likewise, while a case is underway, information may need to be kept secret. Notably, the discussions between a lawyer and their client will almost always be kept secret, even if the lawyer is the Attorney-General and the client is the Government. These exemptions should not be used though, to protect police and judicial officers from having their own conduct scrutinized, particularly if a victim is seeking information about whether their case is being/has been properly handled.
• Cabinet and Other Decision-Making Documents: Cabinet papers, including records of deliberations of the Council of Ministers, Secretaries and other offices, are excluded, but once a decision is made, the reasons for the decisions and the documents which were used to make the decision should then be disclosed to the public. This is important because it means that during the decision-making process there is a level of confidentiality, but once a decision is made the public has a right to access relevant information so that they can better understand the policy-making process.
• Trade Secrets and Commercial Confidentiality: Some information held by many private companies should be open to the public, for example, where that information relates to the provision of a public service or is necessary for the exercise or protection of a right. However, it is already recognised in law that companies should be able to protect their trade secrets. Care should also be taken to minimize the harm caused to a company's competitive commercial interests when disclosing information, for example, by not publishing tender submissions during a tender process. However, this exemption should not be used to block the release of contracts with private bodies who are providing public services.
• Individual Safety: Obviously, information should not be disclosed where publication would be likely to put an individual's safety or liberty at risk. For example, the identity of people who "blow the whistle" on corruption inside their organisation should be protected, because otherwise they may be targeted for discrimination or even violence.
• Personal Privacy: There is considerable information about individuals which is held by the government. The right to privacy requires that the government should try to protect this information from public disclosure, unless there is some overriding need for it to be disclosed. For example, my next door neighbour should not be able to access my medical records just because they are held by a government hospital. Notably though, public officials should not be able to use this exemption to protect their own conduct in their official capacity from scrutiny. Thus, information about public service transfers and appointments can be disclosed.

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.