right to information is not absolute. Not all information that the
Government generates will or should be given out to the public.
Everyone would 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 more important interests.
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, it could pose a great
risk to the national security of India. Nevertheless, 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
key issue 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. 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".
although exemption provisions can serve a useful function, experience
has shown that they are often abused by officials who are determined
to keep their actions hidden from the public. This is not acceptable.
Information should not be withheld just because it 'embarrasses'
the government, or because it will get officials into trouble. Recognising
that exemption clauses are often misapplied to protect government
interests, it is important that you have a good understanding of
the exemptions provisions that might apply to your application so
that you can check to see if they have been properly applied.
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 the exemption 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.
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.
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.
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.
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.
Obviously, information should not be disclosure 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.
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.
is extremely positive that the Central Act makes all of the exemptions
contained in section 8(1) subject to a "Public Interest Override"
8(2) of the Central Act). What this means is that even where
requested information is covered by an exemption, the information
should still be disclosed to the applicant if the public interest
in the specific case requires it. When applying this test, three
questions should be asked by officials:
- Is the information covered by a legitimate exemption?
- the PIO should tell you in the notice responding to your application
what the exemption is.
- Will disclosure cause substantial harm?
- Is the likely harm greater than the public interest
you believe that this questions have not been properly considered
by the PIO, you could consider appealing
the decision of the PIO if they decide to refuse your request.
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.