How the broad interpretation of personal information is disarming the RTI act

In November 2012, Shailesh Gandhi, a right-to-information activist and former information commissioner, filed an RTI request with the Maharashtra income tax department. He was seeking the income-tax returns and balance sheets of Ajit Pawar, a former deputy chief minister of Maharashtra. A series of public authorities dismissed his petition and subsequent appeals—the public information officer, the first appellate authority, the central information commission (CIC), the Bombay High Court, and finally the Supreme Court, which dismissed his special leave petition in 2015.

The information officers and the courts denied Gandhi’s request citing a 2012 Supreme Court order dismissing a similar special leave petition in the case of Girish R Deshpande vs Central Information Commissioner. The Supreme Court order, passed by a division bench of Dipak Misra and KS Radhakrishnan, states that income tax returns, assets, liabilities, official orders and performance records of public officers are personal information and can be exempted under Section 8(1)(j) of the RTI Act of 2005. The provision exempts from disclosure any personal information that does not serve a larger public interest, or when it can result in the invasion of a person’s privacy. But the broad interpretation of this clause has weakened the RTI Act, allowing authorities to withhold information and protect public officials from public scrutiny.

In August 2013, the department of personnel and training, or DoPT—the nodal agency that implements the RTI act—issued an office memorandum stating that complaints against officials and the action taken against them comes under the category of personal information and is therefore exempt from disclosure under the RTI act. “This office memorandum is the single most problem faced by every information commissioner in the country,” Sridhar Acharyulu, a former central information commissioner, said. “The CIC can’t even take action against information officers for denying information because they are quoting the DoPT order. If the government is sincere about implementing transparency in public offices, the office memorandum should be withdrawn.”

The DoPT memorandum drew primarily on the Desphande order. According to Acharyulu, Gandhi’s request is only one among lakhs of RTI requests and thousands of appeals that have been similarly rejected citing the Deshpande order. Yet, legal experts, former information commissioners and RTI activists I spoke to said that the order violates the RTI act and goes against the guarantee of information derived from Article 19 of the constitution.

“Today, if there are 20 RTI second appeals, 10-12 are rejected by quoting the Girish Deshpande judgement,” Acharyulu said. “This is a very difficult situation for the commission. If information officers do not want to give information they can easily cite 8(1)(j) as interpreted by the Deshpande order.”

Section 8 of the RTI act lists ten exemptions to information disclosure. It includes anything that may compromise national security, breach the privilege of parliament or state legislatures, or impede investigation or prosecution of offenders. The tenth clause, Section 8(1)(j), refers to invasion of privacy and reads as follows:

(j) information which relates to personal information the disclosure of which has not relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information:

Provided that the information, which cannot be denied to the Parliament or a State Legislature shall not be denied to any person.

Further, Section 8(2) of the RTI act states that “a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests.”

According to Anjali Bharadwaj, an RTI activist, the privacy clause of Section 8(1)(j) is the “most often cited exemption” to deny information requested under the RTI Act. “Information is denied illegally,” Bharadwaj said. “By this argument, the government can define anything as personal information. There is increasingly a very restricted interpretation of the RTI by the judiciary.”

In his RTI application filed in August 2008, Girish Deshpande had requested copies of memos, show-cause notices and departmental actions, assets, liabilities and IT returns of an income-tax official in Maharashtra. The information was denied citing Section 8(1)(j). Similar to Gandhi’s case, appeals to the central information commission, Bombay High Court, and Supreme Court failed to revoke this decision.

Dismissing the petition, the Supreme Court ruled:

The performance of an employee/officer in an organisation is primarily a matter between the employee and the employer and normally those aspects are governed by the service rules which fall under the expression ‘personal information’, the disclosure of which has no relationship to any public activity or public interest. On the other hand, the disclosure of which would cause unwarranted invasion of privacy of that individual. Of course, in a given case, if the Central Public Information Officer or the State Public Information Officer of the Appellate Authority is satisfied that the larger public interest justifies the disclosure of such information, appropriate orders could be passed but the petitioner cannot claim those details as a matter of right.

Legal experts argue that the court did not properly examine the merits of the case. According to Sai Vinod, a Delhi-based advocate, the Supreme Court’s reading of Section 8(1)(j) is inaccurate. “This section exempts only two categories of personal information, those that have no relation to public activity or public interest, or that disclosure which would lead to an unwarranted invasion of privacy. The Supreme Court found Desphande’s request falling in both the categories. This is totally flawed,” he said.

Vinod further said that in a democracy, the government officials spend public money and ought to be accountable to the public. “Hence, the actual employers are the people of India,” he added. “The fact that there are laws which regulate the service conditions of public officers such as disciplinary procedures emphasises the need to keep a public check on officials. From this perspective, it is erroneous to conclude that disciplinary proceedings have no relation to public activity.”

Gandhi also pointed to flaws in the Deshpande order that he said violate the spirit of the RTI act. The Act is derived from Article 19(1)(a) of the Indian constitution, which confers the freedom of speech and expression. “Article 19(2) gives the limits to which Article 19(1) could be curbed, and mentions only two words applicable to privacy— decency and morality,” Gandhi said. “Therefore, when you claim exemption because of Section 8(1)(j), you should actually establish how it is violating decency or morality.”

Gandhi added that Section 8(1)(j) also states that any information that cannot be denied to the parliament should not be denied to petitioners under the RTI. But the Deshpande order ignores this. “You cannot render an entire proviso irrelevant. This judgment effectively has no rationale, but everybody is treating it as the judgment to go by.”

According to Bharadwaj, the Deshpande case is one of several cases where the judicial interpretation of the RTI act limits information disclosure. She said that RTI activists have consistently maintained that assets, liabilities, promotions, transfers, performance records and IT returns of public officials should be public information. “Catching somebody red-handed while doing corruption is a very difficult proposition,” Bharadwaj said. “It is proven by checking if his or her assets are disproportionate to the means of income. We constantly hear of cases where wrong people are being promoted to positions of power. So, there is great public interest in seeking information on service records and in knowing how a public servant performs. However, the court has not considered the reliance placed on larger public interest in the RTI act.”

The legal experts also pointed to earlier judgments by the Supreme Court and various high courts that contradict the Deshpande order. In several cases, the Supreme Court has held that the larger public interest involved in divulging information relating to public servants, members of parliament, and ministers outweighed the right to privacy—for instance, in the case of PUCL vs Union of India, in 2009; in Union of India vs Association for Democratic Reforms, in 2003; and in R Rajagopal & Anr. vs State of Tamil Nadu, in 1994.

In 2009, in the case of Kashinath Shetye vs Dinesh Vaghela, the Bombay High Court ruled that “nothing remains personal as far as the discharging of duty,” when it comes to public servants. “A public servant continues to be a public servant for all 24 hours,” the court held. “Any conduct/ misconduct of a public servant even in private, ceases to be private. When, therefore, a member of a public demands information as to how many leaves were availed by the public servant, such information though personal, has to be supplied.”

Acharyulu added that as central information commissioner, he was “free to choose” which judgments he was bound by. “I chose these judgments and not Deshpande,” he said. “When a Supreme Court order does not go into the merits of the case and is a mere dismissal of a SLP, then it does not qualify as precedent. I need not follow it.” He pointed to the Rajagopal case, in which the Supreme Court specified that privacy means family, procreation of children, spouses, and related activities in a marital home.

Despite such Supreme Court orders, Venkatesh Nayak, an RTI activist, noted that the DoPT is more enthusiastic about choosing court orders which are beneficial to public officers. “The judgments by the Supreme Court and high courts promoting the RTI and expanding transparency are not being translated into office memorandums,” Nayak said.

The RTI activists emphasised that both the DoPT memorandum and the Deshpande order have made it easier for public officials to limit inconvenient public disclosures. Vinod further pointed to the difficulty of challenging the Supreme Court’s Desphande judgment. “The decision in Deshpande case is certainly a legal precedent,” he said. “It is only for the court to review the judgment or overturn by a larger bench in a subsequent case. Having said that, it is not a bar on PIOs”—public information officers—“in disclosing such information in the future. But it prevents information seekers if the PIOs choose to deny citing Girsh Deshpande.”

According to RTI activists and legal experts, the amendments proposed to the RTI Act by the Narendra Modi government will further weaken it. In July 2018, the government announced its decision to introduce the Right to Information (Amendment) Bill in parliament. It proposed to give the centre the power to regulate salaries and tenures of state and central information commissioners, thereby restricting their autonomous functioning. The same month, the Sri Krishna Committee, which was set up in July 2017 with the task of formulating India’s data protection policy—proposed amendments to Section 8(1)(j) of the RTI act that granted PIOs wider powers to withhold personal information.

In its July 2018 draft bill, the committee proposed that any disclosure of personal data which is likely to cause “harm” can be exempted from disclosure “where such harm outweighs the public interest.” It defined personal data as data about an individual who is “directly or indirectly identifiable, having regard to any characteristic, trait, attribute or any other feature of the identity” of that person. The bill further defined harm in ten clauses which includes “loss of reputation or humiliation,” and “bodily or mental injury.”

According to RTI activists, this broader definition of personal data would result in a lot of information about public officials being exempted from the RTI act. Bharadwaj added that the bill defines reputational harm in a very expansive way. “It is easy for people to claim this about everything,” she said. “That is a very low threshold for exemption of information. Now, if somebody is corrupt, asking for information on that person will harm his or her reputation, and it should. If the definition of Section 8(1)(j) is changed, we won't be able to access information which would be important to hold public officials accountable.”

While the broad interpretation of Section 8(1)(j) has already disarmed the RTI act, Vinod said that proposed amendment “flips the whole concept” of the right to information. “It places a higher burden on information seekers in favour of protecting private information.”