EXEMPTIONS MANAGEMENT OF RTI APPLICATIONS DILEMMA SOLUTIONS RAJEEV BHARDWAJ DIRECTOR (HR) SOLAR ENERGY CORPORATION OF INDIA LTD. EXEMPTIONS IN THE RTI ACT Before enactment of the RTI Act, by way of catena of Judicial
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EXEMPTIONS & MANAGEMENT OF RTI APPLICATIONS – DILEMMA & SOLUTIONS RAJEEV BHARDWAJ
DIRECTOR (HR)
SOLAR ENERGY CORPORATION OF INDIA LTD.<br>
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EXEMPTIONS IN THE RTI ACT Before enactment of the RTI Act, by way of catena of Judicial pronouncements/orders, the ‘right to information’ was explicitly held to be a Fundamental Right under the constitution of India. [Freedom of Speech and Expression]
Even Constitution provides for certain restrictions on these Fundamental Rights.<br>
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EXEMPTIONS … The whole Act provides for Procedures and Regulations for Disclosure of the “Information”. [as defined u/s 2(f)].
Subject to Provision of this Act, all citizens shall have the Right to Information.[Section 3]
Every Public Authority shall – Provide reasons for its administrative or quassi-judicial decisions to affected persons.[Section 4(1)(d)]<br>
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EXEMPTIONS… The Act provides for specific Exemption from Disclosure under Section 8(1) and 9.
But for not disclosing the information, other provisions under sections 7(9), 10, and 11 are also being applied by the PIOs.
Section 8(1) begins with a non-obstante clause and stipulates that notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, ---
There are 10 exceptions or exclusion stated in Section 8(1) (a) to (j).<br>
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Exception… Sub-clauses (a) to (j) are in the nature of alternative or independent clauses.
Access to information U/S 3 is the Rule and exemption U/S 8(1) the exception.
Section 8 being a restriction on the fundamental right, it must therefore be strictly construed. It should not be interpreted in manner as to shadow the very right itself.
The mere existence or apprehension of any exception provisions cannot be a ground for refusal of the information.<br>
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Exceptions… The authority withholding information must show satisfactory reasons as to why the release of such information would hamper the public and/or private interest as the case may be.
Such reason should be germane and opinion should be based on some material facts.
Otherwise Section 8 would become the haven for dodging demands for information.<br>
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Exception… The most widely used exception in the CPSUs are Sections 8(1)(d), (e), (h), and (j).
Commercial Confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of the third party…
Third Party includes public authority [u/s 2(n)]
Competent Authority …[u/s 2(e)] in case of CPSUs is the President, it is distinct & does not mean “public authority” or PIO.<br>
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Exception… General Public as an information seeker equate PSUs with any other Govt. Department.
They believe PSUs are using Public Fund and being a Public Authority under Act is required to disclose all information, including business decisions and trading practices.
But when confronted with the facts & material that PSUs are also a Business Entity and compete in the market, the perception changes.<br>
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Exception… FIDUCIARY RELATIONSHIP
Husband/Wife
Trustee/beneficiary (Section 88, Indian Trust Act, 1882)
Legal Guardians/wards (Section 20, Guardians and Wards Act, 1890)
Lawyer / client
Executors and Administrators / legatees and heir<br>
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Fiduciary … Board of Directors /Company;
Liquidator / Company;
Receivers, trustees in bankruptcy and assignees in insolvency / creditors;
Doctor / patient;
Parent / Child;<br>
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Fiduciary relationship… It may be formal, informal, voluntary or involuntary;
It may be created by a contract but they differ from contractual relationships for they can exist even without payment of consideration by the beneficiaries;
Fiduciary loyalty and obligation requires complete subordination of self-interest and action exclusively for the benefit of the beneficiary.<br>
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Exception … The clause “impede the process of investigation” is widely used in cases of Vigilance and/or Departmental Inquiry.
Such exception should be based upon some material facts as to how disclosure may impede the process of investigation.<br>
