Disclosure of Personal Information under the Right to Information Act, 2005

No. 11/2/2013–IR (Pt.)
Government of India
Ministry of Personnel, Public Grievances and Pensions
Department of Personnel and Training
North Block, New Delhi

Dated: 14 August, 2013

OFFICE MEMORANDUM

Subject: Disclosure of Personal Information under the Right to Information Act, 2005

The Central Information Commission (CIC), in one of its recent decisions (copy enclosed), has examined the issue of disclosure of information relating to complaints made against government officers and the consequential action taken by the competent authorities. The Commission has held that such information constitutes personal information within the meaning of Section 8(1)(j) of the Right to Information Act, 2005.

2. While adjudicating the matter, the Commission relied upon the judgment of the Hon’ble Supreme Court of India in Girish R. Deshpande vs. Central Information Commission & Others [SLP (C) No. 27734/2012] (2013 (1) SCC 212). The Supreme Court observed that:

“The performance of an employee or officer in an organisation is primarily a matter between the employee and the employer. Such matters are generally governed by service rules and fall within the ambit of ‘personal information’. Disclosure of such information bears no relation to any public activity or public interest and may result in an unwarranted invasion of the individual’s privacy.”

The Court further clarified that disclosure of such personal information may be permitted only when it demonstrably serves a larger public interest.

3. The above position may be brought to the notice of all concerned authorities for guidance and strict compliance.

Enclosure: As stated above.

(Manoj Joshi)
Joint Secretary (AT&A)
Tel: 2309 3668

To

1. All Ministries and Departments of the Government of India.
2. Union Public Service Commission / Lok Sabha Secretariat / Rajya Sabha Secretariat / Cabinet Secretariat / Central Vigilance Commission / President’s Secretariat / Vice-President’s Secretariat / Prime Minister’s Office / Planning Commission / Election Commission.
3. Central Information Commission and all State Information Commissions.
4. Staff Selection Commission, CGO Complex, New Delhi.
5. Office of the Comptroller and Auditor General of India,
   10, Bahadur Shah Zafar Marg, New Delhi.
6. All Officers, Desks, and Sections of the Department of Personnel & Training and the Department of Pension & Pensioners’ Welfare.

Disclosure of Personal Information 

Section 8(1) of the RTI Act, unless it involves a larger public interest, and the Central Public Information Officer, the State Public Information Officer, or the Appellate Authority is satisfied that the larger public interest justifies the disclosure of such information. While clause (j) exempts disclosure of two kinds of information, that is “personal information” with no relation to public activity or interest and “information” that is exempt from disclosure to prevent unwarranted invasion of privacy, this Court has not underscored, as will be seen below, such distinctiveness and treated personal information to be exempt from disclosure if such disclosure invades on balance the privacy rights, thereby linking the former kind of information with the latter kind. This means that information, which if disclosed could lead to an unwarranted invasion of privacy rights, would mean personal information, that is, information that does not correlate with public information.

In Bihar Public Service Commission v. Saiyed Hussain Abbas Rizwi and Another Apex court has held that the phrase ‘public interest’ in Section 8(1)(j) has to be understood in its true connotation to give complete meaning to the relevant provisions of the RTI Act. However, the RTI Act does not specifically identify factors to be taken into account in determining where the public 50 (2012) 13 SCC 61 interest lies. Therefore, it is important to understand the meaning of the expression ‘public interest’ in the context of the RTI Act. The

Apex Court held ‘public interest’ to mean the general welfare of the public warranting the disclosure and the protection applicable, in which the public as a whole has a stake, and observed:

“23. The satisfaction has to be arrived at by the authorities objectively and the consequences of such disclosure have to be weighed with regard to the circumstances of a given case. The decision has to be based on objective satisfaction recorded for ensuring that larger public interest outweighs unwarranted invasion of privacy or other factors stated in the provision. Certain matters, particularly in relation to appointment, are required to be dealt with great confidentiality. The information may come to knowledge of the authority as a result of disclosure by others who give that information in confidence and with complete faith, integrity and fidelity. Secrecy of such information shall be maintained, thus, bringing it within the ambit of fiduciary capacity. Similarly, there may be cases where the disclosure has no relationship to any public activity or interest or it may even cause unwarranted invasion of privacy of the individual. All these protections have to be given their due implementation as they spring from statutory exemptions. It is not a decision simpliciter between private interest and public interest. It is a matter where a constitutional protection is available to a person with regard to the right to privacy. Thus, the public interest has to be construed while keeping in mind the balance factor between right to privacy and right to information with the purpose sought to be achieved and the purpose that would be served in the larger public interest, particularly when both these rights emerge from the constitutional values under the Constitution of India.”

Renu v. District & Sessions Judge, (2014) 14 SCC 50 to contend that in the matter of appointment in all judicial institutions, “complete darkness in the lighthouse has to be removed.”…A large number of instances have been pointed out on the basis of the information received under the Right to Information Act, 2005 of cases not only of irregularity but of favouritism also in making such appointments. It has been suggested by the learned counsel appearing in the matter that this court has a duty not only to check illegality, irregularity, corruption, nepotism and favouritism in judicial institutions, but also to provide guidelines to prevent the menace of back-door entries of employees who subsequently are ordered to be regularised.

“Our basic concern is that the appointments in judicial institutions must be made on the touchstone of equality of opportunity enshrined in Article 14 read with Article 16 of the Constitution of India, 1950 (hereinafter referred to as the `Constitution’) and under no circumstance any appointment which is illegal should be saved for the reason that the grievance of the people at large is that complete darkness in the light house has to be removed. The judiciary, which raises a finger towards actions of every other wing of society, cannot afford to have these kinds of accusations against itself”.

Article 235 of the Constitution provides for power of the High Court to exercise complete administrative control over the Subordinate Courts. This control, undoubtedly, extends to all functionaries attached to the Subordinate Courts including the ministerial staff and servants in the establishment of the Subordinate Courts. If the administrative control cannot be exercised over the administrative and ministerial staff, i.e. if the High Court would be denuded of its powers of control over the other administrative functionaries and ministerial staff of the District Court and Subordinate Courts other than Judicial Officers, then the purpose of superintendence provided therein would stand frustrated and such an interpretation would be wholly destructive to the harmonious, efficient and effective working of the Subordinate Courts. The Courts are institutions or organism where all the limbs complete the whole system of Courts and when the Constitutional provision is of such wide amplitude to cover both the Courts and persons belonging to the Judicial Office, there would be no reason to exclude the other limbs of the Courts, namely, administrative functionaries and ministerial staff of its establishment from the scope of control. Such control is exclusive in nature, comprehensive in extent and effective in operation. (Vide: The State of West Bengal & Anr. v. Nripendra Nath Bagchi, AIR 1966 SC 447; Shri Baradakanta Mishra v. Registrar of Orissa High Court & Anr., AIR 1974 SC 710; Yoginath D. Bagde v. State of Maharashtra & Anr., AIR 1999 SCC 3734; Subedar Singh & Ors. v. District Judge, Mirzapur & Anr., AIR 2001 SC 201; High Court of Judicature for Rajasthan v. P.P. Singh & Anr., AIR 2003 SC 1029; and Registrar General, High Court of Judicature at Madras v. R. Perachi & Ors., AIR 2012 SC 232).

Disclosure of Personal Information 

The exemption may be overridden where the Information Officer is satisfied that the larger public interest justifies the disclosure. Clause (j) is not an absolute exemption from the disclosure of information on the ground of privacy, but states that disclosure is exempted in cases where personal information is sought, and there exists no larger public interest. Where the Information Officer is satisfied that the existence of the larger public interest justifies the disclosure of the personal information, the information must be disclosed. The exact contours of the phrases ―personal information and ―larger public interest with respect to members of the judiciary, and the exact manner in which they relate to each other form the subject matter of the third referral question and shall be analysed during the course of this judgment.

The information disclosed under the RTI Act may include personal information relating to individuals. The RTI Act does not contain any restrictions on the end-use of the information disclosed under its provisions. The information disclosed by an Information Officer of the State pursuant to a right to information application may subsequently be widely disseminated. Clause (j) of sub-section (1) of Section 8 provides that, in certain situations, even personal information of an individual may be disclosed under the RTI Act. Where the RTI Act contemplates the disclosure of ―personal information‖, the right to privacy of the individual is engaged. The Act recognise that the absolute or unwarranted disclosure of an individual‘s personal information under the RTI Act would constitute an unwarranted invasion of the right to privacy under the statutory provisions of the RTI Act and also abridge the individual‘s constitutional right to privacy. However, the RTI Act has various checks and balances to guard against the unadulterated disclosure of personal information under the RTI Act. (Cen.Pub.Information Officer,Sci . vs Subhash Chandra Agarwal on 13 November, 2019, Supreme Court)

Disclosure of Personal Information  “harm test”

Section 8(1)(j) of the RTI Act sets out ten exemption clauses that incorporate a “harm test” to guide public authorities in deciding whether information should be disclosed. This assessment rests on two essential considerations:

a. Evaluating the likely consequences or impact of releasing the information; and
b. Ensuring that exemptions are not misused to shield entire categories of information from public oversight.

The presence of a harm-based evaluation underscores the principle that disclosure is the rule and exemption the exception. Information is presumed to be disclosable unless it can be clearly demonstrated that its release would result in identifiable harm. Only where such harm is established should access to the information be lawfully refused.

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