10 Solved Problems (IRAC Method) — Right to Information (RTI)

These ten problems are worked in the IRAC method — Issue, Rule, Analysis, Conclusion — the way a KSLU answer sheet expects; the full Question Bank has 40+ more.

Problem 1 — A voter seeks the antecedents of a candidate contesting an… (Unit 1)

Problem: A voter seeks the antecedents of a candidate contesting an election.

I — Issue. Is a voter entitled, under the RTI Act, to the antecedents of a candidate contesting an election — or is that “personal information” exempt under s. 8(1)(j)?

R — Rule. - Section 3 — all citizens have the right to information. - Section 8(1)(j) exempts personal information the disclosure of which has no relationship to any public activity or interest, or which would cause an unwarranted invasion of privacy — unless the larger public interest justifies disclosure. And its proviso: information which cannot be denied to Parliament or a State Legislature shall not be denied to any person. > Section 8(1)(j), Right to Information Act, 2005: “information which relates to personal information the disclosure of which has no 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.” - Union of India v. Association for Democratic Reforms (2002) — the voter has a fundamental right to know the antecedents of a candidate, as a facet of Art. 19(1)(a): “the little man of this country would have basic elementary right to know full particulars of a candidate who is to represent him in Parliament, where laws to bind his liberty and property may be enacted.” - People’s Union for Civil Liberties v. Union of India, (2003) 4 SCC 399 — Parliament’s attempt to undo ADR by inserting s. 33B into the Representation of the People Act, 1951 was struck down: a fundamental right cannot be removed by ordinary legislation. > Article 19(1)(a), Constitution of India: “All citizens shall have the right — (a) to freedom of speech and expression.”

A — Analysis. 1. The exemption is engaged only in form. A candidate’s criminal record and assets are, in the abstract, personal information. But s. 8(1)(j) exempts personal information only where it has no relationship to any public activity or interest — and standing for public office is the paradigm of a public activity. The nexus is direct, so the clause is not made out at all. 2. In any event, the public interest is overwhelming. An uninformed vote is no vote at all (ADR, 2002). B, by seeking the people’s mandate, has submitted his antecedents to public scrutiny. 3. And the proviso is decisive. The information is already on the sworn affidavit every candidate must file with the Election Commission — a public document, which no legislature could be denied. What cannot be denied to Parliament cannot be denied to A. 4. The decoy resolved. The planted fact is the label “personal information” (in the 2012 version, dressed up as “police records are confidential”). It is a false scent: privacy protects the private man, not the candidate for public power — and PUCL (2003) shows that even Parliament could not take this right away.

C — Conclusion. A is entitled to the information, and the authority must supply it within thirty days under s. 7(1). A refusal would be unlawful; under s. 19(5) the burden of justifying it would lie on the PIO, and he could discharge none. If refused, A should file a first appeal under s. 19(1) within thirty days, and a second appeal to the Commission under s. 19(3) within ninety days, pressing also for the s. 20 penalty — ₹250 a day up to ₹25,000, on the officer personally. — ## UNIT 2 — The RTI Act, 2005: Definitions, the Right, and the Obligations of Public Authorities

Problem 2 — An applicant asks a PIO “WHY” — why is the post vacant, why… (Unit 2)

Problem: An applicant asks a PIO “WHY” — why is the post vacant, why is there delay, what measures will you take?

I — Issue. Is a question beginning “why…?” or “what measures will you take?” a request for “information” within s. 2(f), which a PIO is bound to answer?

R — Rule. - Section 2(f) defines “information” as any material in any form — i.e. material already in existence and held by the public authority. > Section 2(f), Right to Information Act, 2005: “‘information’ means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form…” - CBSE v. Aditya Bandopadhyay (2011) — a public authority must supply information “which is held by it or under its control”, and is “not required to create information, or to interpret information, or to solve the problems raised by the applicants, or to furnish replies to hypothetical questions.” - But s. 4(1)(d) requires an authority to “provide reasons for its administrative or quasi-judicial decisions to affected persons” — the one exception, and it is confined to the person affected by the decision.

A — Analysis. 1. A is not asking for a record. He is asking for an explanation — an opinion the authority may never have formed and reasons it may never have recorded. Under s. 2(f) that is not “information” at all, and the PIO owes no duty in respect of it. 2. Aditya Bandopadhyay is directly in point. The PIO is a custodian of records, not a consultant. He is not bound to create the answer. 3. The s. 4(1)(d) exception does not save A on these facts. It entitles an affected person to the reasons for a decision made about him — a licence refused, a pension reduced. A is asking about departmental policy at large, not about a decision affecting him. (And in the 2017 version, the Government had already given its reasons; the second application sought a fresh essay on “more detailed measures”, which is an opinion, not a record.) 4. The decoy resolved. The planted fact is the sheer reasonableness of the question — “why has the post been vacant for ten years?” sounds like the most legitimate RTI application ever filed. It is not an RTI application at all.

C — Conclusion. The PIO is NOT bound to answer, and the rejection is lawful. But A is not without a remedy, and this is what wins the marks: had he instead asked for “copies of the file relating to the sanctioned post of librarian, including all notings and correspondence from 2004 to 2014”, that is plainly a record under s. 2(i) — a file includes its notings — and the PIO must supply it within thirty days under s. 7(1). The file will itself reveal why the post was never filled. The lesson, and the practical lesson of the whole Act: an RTI application must ask for DOCUMENTS, not for ANSWERS. Advise A to re-frame and re-file.

Problem 3 — The PIO demands proof of citizenship from the applicant (Unit 2)

Problem: The PIO demands proof of citizenship from the applicant.

I — Issue. May a PIO lawfully require an applicant to prove his citizenship as a condition of receiving or processing his RTI application?

R — Rule. - Section 3 confers the right on “all citizens”. > Section 3, Right to Information Act, 2005: “Subject to the provisions of this Act, all citizens shall have the right to information.” - But Section 6(2) forbids the PIO from demanding any reason or any personal detail beyond what he needs to write back. > Section 6(2), Right to Information Act, 2005: “An applicant making request for information shall not be required to give any reason for requesting the information or any other personal details except those that may be necessary for contacting him.” - Section 18(1)(f) — a complaint lies to the Commission “in respect of any other matter relating to requesting or obtaining access to records”, which covers a PIO’s refusal to receive an application. (Note the distinction: s. 18(1)(a) is narrower — it covers only the case where no PIO has been appointed at all, or where an ASSISTANT PIO refuses to accept the application for forwarding.) And s. 20(1) — refusing to receive an application without reasonable cause, or obstructing the furnishing of information, is an express penalty default.

A — Analysis. 1. Citizenship is a qualification for the right; it is not a precondition of the application. The applicant’s assertion is ordinarily enough. Section 6(2) permits the PIO to ask only for what he needs to contact the applicant — his name and address. Identity proof, occupation, motive and a citizenship certificate are all outside his power to demand. 2. The demand defeats the Act. Requiring every applicant to produce documentary proof would make the right expensive and intimidating to exercise — precisely for the poor and illiterate whom the Act was written to empower. 3. It operates as a refusal to receive. By making receipt conditional on a document he cannot demand, the PIO has in substance refused to receive the application — a ground of complaint under s. 18(1)(f) (“any other matter relating to requesting or obtaining access to records”) and an obstruction within s. 20(1). 4. The decoy resolved. The planted reasoning is seductive and syllogistic: “only citizens have the right (s. 3), therefore demanding proof of citizenship is only fair.” It is wrong, because s. 6(2) says so in terms. The examiner is testing whether you read s. 6(2) as well as s. 3.

C — Conclusion. The PIO’s demand is ILLEGAL, and A need not comply. Advise him to: 1. Reply in writing, citing s. 6(2), and require the PIO to process the application. 2. If the information is not supplied within thirty days, treat it as a deemed refusal under s. 7(2) and file a first appeal under s. 19(1) within thirty days — remembering that under s. 19(5) the burden of justifying the denial is on the PIO. 3. In addition, file a complaint under s. 18(1)(f) for the refusal to receive the application, and press for the s. 20 penalty — ₹250 a day, up to ₹25,000, on the officer personally, the burden of showing he acted reasonably and diligently being on him.

Problem 4 — A co-operative society / a private company / a registered… (Unit 2)

Problem: A co-operative society / a private company / a registered association says: “we are not a public authority.”

I — Issue. Is a body which is merely registered under a statute, or which is privately owned, a “public authority” against which the RTI Act runs?

R — Rule. > Section 2(h), Right to Information Act, 2005: “‘public authority’ means any authority or body or institution of self-government established or constituted — (a) by or under the Constitution; (b) by any other law made by Parliament; (c) by any other law made by State Legislature; (d) by notification issued or order made by the appropriate Government, and includes any — (i) body owned, controlled or substantially financed; (ii) non-Government organisation substantially financed, directly or indirectly by funds provided by the appropriate Government.” Two routes in: the State created you (limbs (a)–(d)), or the State owns, controls or substantially finances you (the inclusive limbs). Either suffices; neither may be presumed. Thalappalam Service Coop. Bank v. State of Kerala (2013) — the controlling authority. “Substantially financed” means financing to such a degree that the body would “find it difficult to exist or survive without the said finance”. “Control” must be “deep and pervasive” — not the mere regulatory or supervisory control that a statutory Registrar exercises over a society.

A — Analysis. 1. Registration is not establishment. B was registered under a law; it was not established by one. The words of s. 2(h) are “established or constituted”, and a society that merely registers itself under a State (or Central) Act was not brought into existence by that Act at all. So limbs (a)–(d) fail. (This disposes of the housing society, IFFCO and the KSCA alike — and registration under a Central Act, as in IFFCO’s case, makes no difference: it is still only registration.) 2. Regulation is not control. The Registrar of Co-operative Societies has supervisory and regulatory powers; every company is regulated by the Registrar of Companies. That is not the “deep and pervasive” control Thalappalam requires — if it were, every company in India would be a public authority. (This disposes of WIPRO: a listed private company, regulated but neither owned nor controlled nor financed by government.) 3. A grant is not substantial financing. The test is whether the body could survive without the government’s money — whether the funding is its lifeblood. On the bare facts, no such financing is shown. 4. The decoy resolved. The planted fact is always B’s own label — “we are a private/registered society/company.” The label is irrelevant. The label does not decide; the funding and the control decide. Note that the decoy cuts both ways: a student who accepts the label loses the marks, and so does one who assumes that a “public-sounding” body must be covered.

C — Conclusion. On the bare facts B is NOT a public authority, and the RTI application does not lie against it directly. But three things must be added, and they are what separate a first-class answer: 1. A is not without a remedy. The Registrar of Co-operative Societies (or the regulator concerned) IS a public authority. And by the last limb of s. 2(f), “information” includes information relating to any private body which can be accessed by a public authority under any other law. So whatever of B’s records the Registrar can lawfully call for is “information” in the Registrar’s hands — and A should apply to the Registrar. 2. The answer would FLIP if the facts showed that B had been given land free or at a concessional rate, or was living on government grants. Then it would be substantially financed, and it would be a public authority. 3. The Karnataka State Cricket Association is the hardest of the six, and deserves its own line. On the strict Thalappalam (2013) test a mere registered society is not a public authority. But the KSCA plays on a government-allotted stadium, often on a long concessional lease, and enjoys a State-conferred monopoly over cricket in the State. A balanced answer says: strictly, a registered society is not a public authority — but where the stadium land was given free or on a long concessional lease, “substantially financed” under Thalappalam is squarely made out, and the body becomes amenable to the Act. The lesson repeats: the label decides nothing; the funding and control decide.

Problem 5 — The PIO who refused the application is later appointed First… (Unit 3)

Problem: The PIO who refused the application is later appointed First Appellate Authority. Can he decide that appeal?

I — Issue. May an officer who, as PIO, rejected an RTI application, decide the first appeal against that very rejection after being appointed the department’s First Appellate Authority?

R — Rule. - Section 19(1) requires the first appeal to lie to an officer “senior in rank to the Central Public Information Officer or State Public Information Officer… in each public authority”. - The appeal is a quasi-judicial proceeding, and the principles of natural justice apply to every quasi-judicial function unless expressly excluded. The maxim is nemo judex in causa sua [no one should be a judge in his own cause], whose corollary is that justice must not only be done but must manifestly be seen to be done. - Section 19(5) — the burden of proving that the denial was justified is on the PIO. > Section 19(5), Right to Information Act, 2005: “In any appeal proceedings, the onus to prove that a denial of a request was justified shall be on the Central Public Information Officer or State Public Information Officer, as the case may be, who denied the request.”

A — Analysis. 1. If the same officer hears the appeal against his own order, he is judging his own decision — he is a judge in his own cause. No reasonable person could believe the appeal was a genuine reconsideration; there is at the very least a real likelihood of bias. 2. The scheme of s. 19(1) itself presupposes TWO DIFFERENT OFFICERS. An appeal to an officer “senior in rank to the PIO” is meaningless if that officer is the PIO. 3. And s. 19(5) makes it impossible. The section places the burden of proof on the PIO. An officer cannot simultaneously BEAR a burden of proof and ADJUDICATE whether it has been discharged. 4. The decoy resolved. The planted reasoning is textual: “he is now senior in rank, and the section only requires seniority — so he qualifies.” He satisfies the LETTER of s. 19(1) and violates its SPIRIT and the whole law of natural justice. The examiner is testing whether you can see past the section to the principle.

C — Conclusion. He CANNOT decide that appeal. He must RECUSE himself, and the appeal must be heard by another officer senior in rank — or, if none is available in that unit, the public authority must designate one. An order passed by him would be vitiated by bias and liable to be set aside on second appeal to the Commission (s. 19(3)), or by a writ under Art. 226. Note the limit of the disqualification: it is case-specific, not office-wide — he remains perfectly competent to decide other appeals in which he was not the PIO.

Problem 6 — The information was supplied — what is the applicant’s next… (Unit 3)

Problem: The information was supplied — what is the applicant’s next course of action?

I — Issue. What course of action lies to an applicant after a public authority has supplied information in reply to his RTI application?

R — Rule. - Section 19(1) — an appeal lies to a person “aggrieved by a decision” of the PIO. The mere fact that something was supplied is not a decision in his favour. - Section 18(1)(e) — a complaint lies to the Commission by a person who believes he has been given “incomplete, misleading or false information”. - Section 20(1) — knowingly giving incorrect, incomplete or misleading information is an express penalty default. - Section 7(6) — where the authority misses the s. 7(1) time limit, the information must be supplied FREE of charge.

A — Analysis. Take it in three steps; which remedy lies depends on which is made out. 1. If the reply is INCOMPLETE, or answers only part of the request — A is a person “aggrieved by a decision” within s. 19(1) and may file a first appeal within thirty days. He is not obliged to accept a partial answer as a full one. 2. If the reply is INCOMPLETE, MISLEADING or FALSE — he has, in addition, a complaint under s. 18(1)(e), which is the ground provided for precisely this situation; and he may seek the s. 20 penalty, since knowingly giving incorrect, incomplete or misleading information is an express default. 3. If it was supplied AFTER the thirty days — he was entitled to it free of charge under s. 7(6), and any fee he paid must be refunded; the delay also grounds a s. 20 penalty. 4. And if it is complete, correct and timely? Then he has NO further course of action — and saying so plainly is itself the mark of a candidate who has understood the Act rather than merely memorised its remedies. A right to information is not a right to be satisfied with the information.

C — Conclusion. Advise A to examine the reply. - If complete, correct and timely — no further action lies. - If incomplete or misleading: (i) file a first appeal under s. 19(1) within thirty days to the officer senior to the PIO; (ii) if refused or not decided within 30 (extendable to 45) days, a second appeal to the State Information Commission under s. 19(3) within ninety days — where the Commission may direct disclosure (s. 19(8)(a)(i)) and award compensation (s. 19(8)(b)); and (iii) file a complaint under s. 18(1)(e) and press for the s. 20 penalty, remembering that under s. 19(5) the burden of justifying any withholding lies on the PIO.

Problem 7 — A research scholar seeks public records — including… (Unit 4)

Problem: A research scholar seeks public records — including “classified and permanent” documents.

I — Issue. (a) Is a research scholar entitled to consult public records — and (b) does the entitlement extend to records that are CLASSIFIED? If so, how?

R — Rule. - Section 12(1), Public Records Act, 1993 — THREE conditions, all of which must be met: the records must be (i) UNCLASSIFIED, (ii) more than THIRTY YEARS old (reckoned from the year of the OPENING of the record), and (iii) TRANSFERRED to the National Archives (or the Archives of the Union Territory). Meeting all three, they may be made available to any BONA FIDE RESEARCH SCHOLAR, subject to such exceptions and restrictions as may be prescribed. - Section 10, Public Records Act, 1993 — “No public records bearing security classification shall be transferred to the National Archives of India” or the Archives of the Union Territory. So a classified record is NOT EVEN IN THE ARCHIVES to be consulted. - The Public Records Rules, 1997 (made under s. 17(1)). Rule 2 — a “classified record” means a file relating to public records classified as TOP-SECRET, CONFIDENTIAL or RESTRICTED in accordance with the Manual of Departmental Security Instruction circulated by the Ministry of Home Affairs. Rule 7 — DOWN-GRADING: the records-creating agency shall, by office order, authorise an officer NOT BELOW the rank of UNDER SECRETARY to the Government of India to evaluate and downgrade its classified records, and that officer shall evaluate them EVERY FIFTH YEAR for the purpose of downgrading. Rule 11 — ACCESS: a person who intends to consult public records shall apply to the Director General of Archives in FORM-8, who may refuse permission in the PUBLIC INTEREST, for REASONS TO BE RECORDED on the application.

A — Analysis. The answer SPLITS. (a) The “PERMANENT” (and unclassified) records — YES, subject to the three conditions. Records of a permanent nature are precisely the records that ARE deposited with the Archives. If they are unclassified and more than thirty years old, A is entitled to consult them. (b) The “CLASSIFIED” records — NOT AS THEY STAND. So long as a record bears a security classification — top-secret, confidential or restricted — s. 10 forbids its transfer to the Archives at all, and s. 12(1) confines access to UNCLASSIFIED records. A is NOT entitled to them. (c) “IF SO, HOW” — and this is where the marks are, because there IS a route. The record must first be DECLASSIFIED. Under Rule 7, an officer not below the rank of Under Secretary must review the classified records EVERY FIFTH YEAR and downgrade those that no longer need protection. Once declassified and appraised, a record of permanent nature is deposited with the Director General — and, if over thirty years old, it is then open to A on a Form-8 application. Note what this means: DECLASSIFICATION IS A DUTY THE DEPARTMENT OWES, NOT A FAVOUR IT GRANTS — and it must be reconsidered every five years. (d) THE PROCEDURE, which the 2011 question asks for expressly. 1. A applies to the DIRECTOR GENERAL of Archives (or the head of the Archives of the Union Territory) in FORM-8, giving his name, qualifications, nationality, profession, SUBJECT OF RESEARCH, the University with which he is registered, the period for which admission is sought, and the particulars of the records to be consulted — attaching a letter of recommendation from his University. 2. He undertakes to comply with the rules and to deposit a copy of his published work based on the records with the National Archives. 3. The Director General may REFUSE permission in the public interest — for REASONS TO BE RECORDED on the application. (So the right is not absolute, but a refusal must be reasoned.) 4. Where a MICROFILM of the record exists, the ORIGINAL is not supplied — he gets the microfilm. 5. For copies, he applies in FORM-9 for reprographic or transcription facilities, on payment of the prescribed charges. 6. He must observe the prohibitions — no writing or marking on the records, no folding, tearing or damaging, no removal without permission, no eating, drinking or smoking while consulting, and no disturbing other readers. 7. (Had A been a FOREIGN NATIONAL, he would additionally have needed letters of introduction from his sponsoring institution AND from his country’s diplomatic mission in India.) The decoy resolved. The planted word is “CLASSIFIED” — it sounds absolutely and permanently closed, a door with no handle. It is not. The Rules build in a five-yearly duty to reconsider the classification. Saying so is what earns the marks; the weak answer simply refuses him. (A second, subtler decoy in the 2011 version is the phrase “for his academic purpose” — a good motive does not by itself unlock a record; the procedure must still be followed.)

C — Conclusion. Issue. (a) Is a research scholar entitled to consult public records — and (b) does the entitlement extend to records that are CLASSIFIED? If so, how?

Problem 8 — A Commission of Inquiry submits its report (Unit 4)

Problem: A Commission of Inquiry submits its report. An RTI activist seeks the report.

I — Issue. Is the report of a Commission of Inquiry “information” disclosable under the RTI Act, 2005 — and does its submission to the Supreme Court make it secret?

R — Rule. - Section 3(4), Commissions of Inquiry Act, 1952 — the appropriate Government shall cause the report to be LAID BEFORE the legislature, together with a MEMORANDUM OF THE ACTION TAKEN, WITHIN SIX MONTHS of its submission. - Section 9, Commissions of Inquiry Act, 1952 — protects the publication of any report, paper or proceedings by or under the authority of the Government or the Commission. - RTI Act: s. 2(f) (“information” = material held); s. 2(h) (public authority); s. 8(1)(b) (information expressly forbidden to be published by a court, or whose disclosure would be contempt of court); s. 8(1)(g) (endangering a person’s safety, or identifying a confidential source); s. 8(1)(h) (impeding an investigation or prosecution); s. 8(2) (the public-interest override); s. 10 (severability). - CPIO, Supreme Court of India v. Subhash Chandra Agarwal (2019) — the Supreme Court is a PUBLIC AUTHORITY under s. 2(h).

A — Analysis. Take it in four steps. 1. Is the report “information” held by a “public authority”? YES. The Commission is constituted by government notification under s. 3(1), and its report is held either by the appropriate Government or (here) by the Supreme Court, which is itself a public authority (Subhash Chandra Agarwal, 2019). Either way, the record is held by a public authority. 2. Is a Commission of Inquiry’s report SECRET? NO — and this is the decoy. The whole scheme of the Act is that the report BECOMES PUBLIC: s. 3(4) obliges the Government to lay it before the legislature within six months, together with the action taken; and s. 9 contemplates its publication. A Commission of Inquiry is a fact-finding body created to INFORM the public, not to keep secrets from it. So the instinctive answer — “a commission report is confidential” — is WRONG. 3. Could any exemption still apply? A good answer canvasses them and disposes of each. (i) s. 8(1)(b) — if the Supreme Court has EXPRESSLY forbidden publication, or if disclosure would be contempt, that is a complete answer while the direction stands. (ii) s. 8(1)(h) — if criminal investigations or prosecutions arising from the riot are still LIVE, disclosure of parts of the report might impede them. (iii) s. 8(1)(g) — the identity of witnesses who deposed in confidence must be protected. But NONE of these makes the WHOLE report exempt — and s. 10 (severability) requires the exempt parts to be masked and the rest released. 4. And the public interest. If any exemption were even arguable, s. 8(2) applies with great force: an inquiry into a COMMUNAL RIOT, ordered by the Supreme Court, is a matter of the highest public concern, and the public interest in disclosure would plainly outweigh the harm. The decoy resolved — and there are two. (i) “A Commission of Inquiry report is confidential.” It is the opposite: s. 3(4) requires it to be LAID BEFORE THE LEGISLATURE. (ii) “It was submitted to the Supreme Court, so it is sub judice.” “Sub judice” is NOT a ground of exemption under the RTI Act — s. 8(1)(b) bites only if the court has ACTUALLY forbidden publication.

C — Conclusion. A IS ENTITLED to the report — because a Commission of Inquiry’s report is, by the very design of s. 3(4), a PUBLIC DOCUMENT once submitted and laid. He must apply to the correct public authority — the CPIO of the Supreme Court, or of the Government which appointed the Commission. Disclosure is subject only to (i) any EXPRESS direction of the Supreme Court forbidding publication (s. 8(1)(b)); (ii) the SEVERANCE under s. 10 of anything that would impede a LIVE investigation (s. 8(1)(h)) or identify a PROTECTED WITNESS (s. 8(1)(g)); and (iii) the s. 11 third-party procedure where a named individual’s interests are affected. Under s. 19(5), the burden of justifying any withholding lies on the PIO. — ## UNIT 5 — Judicial Response and Best Practices

Problem 9 — The judiciary as a public authority — the CJI, judges’… (Unit 5)

Problem: The judiciary as a public authority — the CJI, judges’ medical expenses, and the Art. 124(2) consultations.

I — Issue. Is X entitled to this information?

R — Rule. s. 2(h)(a) (public authority); s. 2(f) (“information”); CPIO, Supreme Court of India v. Subhash Chandra Agarwal (2019); CBSE v. Aditya Bandopadhyay (2011); Khanapuram Gandaiah v. Administrative Officer (2010). Application — and the answer has two limbs, of which only the SECOND matters. (1) Is the Supreme Court / the office of the CJI a public authority? YES — and this is the DECOY. Most candidates spend the whole answer here. The Supreme Court is established BY THE CONSTITUTION and is a public authority under s. 2(h)(a); the office of the CJI is PART OF it and is covered by the Act (Subhash Chandra Agarwal, 2019). So the application does NOT fail for want of a public authority. (2) But is what he asks for “INFORMATION”? NO — and this is where the problem is decided. X is not asking for a RECORD. He is asking the Chief Justice what measures the Court has taken, and to explain them — a request for an opinion, an explanation and a policy statement, not for material the Court HOLDS. Under s. 2(f), “information” is material already held. Applying Aditya Bandopadhyay, a public authority is “not required to create information, or to interpret information, or to solve the problems raised by the applicants, or to furnish replies to hypothetical questions.” And applying Khanapuram Gandaiah, an applicant may not demand an explanation of how a court performs its JUDICIAL function.

A — Analysis. (1) The threshold is passed. The Supreme Court IS a public authority, and the correspondence IS “information” held by it (or by the President’s Secretariat, itself a public authority). The application does not fail at the threshold. (2) But the Constitution Bench drew a careful line on PRECISELY this material. In Subhash Chandra Agarwal (2019), on the collegium — the body of the CJI and the four senior-most judges which recommends appointments — the Court held that the REASONS for a recommendation, once the decision is complete, MAY be disclosed; but the INPUTS, the consultation correspondence and the PERSONAL ASSESSMENTS of candidates attract s. 8(1)(e) (information held in confidence) and s. 8(1)(j) (personal information about identified individuals). Their disclosure would inhibit the CANDOUR on which the consultative process depends — which is itself an aspect of JUDICIAL INDEPENDENCE, a value the Court held must be weighed in the balance. Conclusion — IN PART. The citizen MAY obtain the FACT and the OUTCOME of the consultation, and the REASONS for the decision once taken. He may NOT, as a matter of course, obtain the CONFIDENTIAL INPUTS and PERSONAL ASSESSMENTS exchanged during it — unless he demonstrates a larger public interest under s. 8(2), which is decided case by case. Apply s. 10 and sever. Decoy resolved: “the Supreme Court is a public authority, so its files are open.” It IS a public authority — and s. 8(1)(e) and (j) still apply to what it holds.

C — Conclusion. X’s application must FAIL — but NOT because the CJI is beyond the RTI Act. It fails because what he seeks is not “information” within s. 2(f). Advise X to RE-FRAME: if he asks instead for “copies of the circulars, resolutions, committee reports and case-management statistics of the Supreme Court relating to arrears and delay”, those ARE records held by the Court, and the CPIO would be BOUND to supply them within thirty days. Once again: an RTI application must ask for DOCUMENTS, not for ANSWERS. — LIMB B — Rajiv, a social worker, seeks the medical expenses of judges. (2020)

Problem 10 — A hospital discloses a patient’s HIV status to his fiancée on… (Unit 5)

Problem: A hospital discloses a patient’s HIV status to his fiancée on her RTI application. Was the disclosure illegal?

I — Issue. Was the Hospital’s disclosure of Z’s HIV status lawful — (a) under the RTI Act, 2005, and (b) under the general law of confidentiality and privacy? These are TWO DIFFERENT QUESTIONS, and the trap is to answer only one.

R — Rule. - s. 8(1)(j) — personal information with no relationship to public activity, or whose disclosure would be an unwarranted invasion of privacy — exempt unless the larger public interest justifies it. - s. 8(1)(e) — information held in a FIDUCIARY relationship. A doctor holds a patient’s medical information in exactly that capacity. - s. 11 — where information relates to a THIRD PARTY and has been treated as confidential, the PIO must give the third party WRITTEN NOTICE within FIVE DAYS, invite his submission, allow him TEN DAYS to object, and decide within FORTY DAYS. - Art. 21 and K.S. Puttaswamy v. Union of India (2017) — privacy is a FUNDAMENTAL RIGHT, and medical information lies at its core. - Mr X v. Hospital Z (1998) — where a person is found HIV-positive and is about to marry, disclosure of that fact by the doctor to the person he is to marry is NOT a violation of his right to privacy, because the right to LIFE AND HEALTH of the prospective spouse under Art. 21 OUTWEIGHS the patient’s right of confidentiality. (Note the qualification: the 1998 judgment’s further observations, that a person with a communicable venereal disease has “no right to marry”, were held “uncalled for” and unnecessary by a three-judge Bench in Mr X v. Hospital Z, (2003) 1 SCC 500, and were not approved. Do not write that an HIV-positive person has no right to marry.)

A — Analysis. There are TWO distinct questions, and the trap is to answer only one. (A) Was the disclosure lawful UNDER THE RTI ACT? NO — and this is the decoy the examiner has planted. The instinctive answer is: “the 1998 decision says disclosure was justified, so Z fails.” But look at what the Hospital ACTUALLY DID: it disclosed in response to an RTI APPLICATION — and under the RTI Act the disclosure was plainly BAD. 1. Z’s HIV status and blood report are the paradigm of “personal information” under s. 8(1)(j) — medical information sits at the core of the privacy protected by Art. 21 (Puttaswamy, 2017). 2. The hospital holds it in a FIDUCIARY capacity — s. 8(1)(e). 3. Get the label right — examiners notice. Under s. 2(n) a “third party” is “a person other than the citizen making the request” — so Z is the THIRD PARTY and Y is the APPLICANT. The PIO was therefore BOUND by s. 11 to give Z written notice within five days, invite his submission, allow him ten days to object, and decide within forty days — AND HE DID NONE OF THIS. Z WAS NEVER HEARD. That alone vitiates the disclosure. 4. And what was Y’s stated interest? A PRIVATE one — her own marriage. Under s. 8(1)(j) the question is whether disclosure serves a PUBLIC activity or interest. It does not. A prospective bride’s concern for herself, however genuine, is NOT a “larger public interest” within s. 8(2). So the RTI Act did NOT authorise this disclosure. The PIO acted in breach of ss. 8(1)(e), 8(1)(j) and 11. BUT — and this is the point almost every answer misses — the RTI Act gives Z NOTHING. Look at s. 20(1): all SIX of its defaults are forms of WITHHOLDING (refusing to receive; not furnishing in time; malafide denial; giving incorrect or incomplete information; destroying it; obstructing it). There is NO penalty in the Act for OVER-disclosure. And s. 18(1)’s grounds belong to a person who has been DENIED access — Z was not denied anything; he was EXPOSED. The RTI Act is a DISCLOSURE statute: it regulates the giving of information, not the wrongful giving of it. Z’s remedies therefore lie OUTSIDE the Act — an action for breach of confidence, and a writ under Art. 226 for the violation of his Art. 21 right to privacy (K.S. Puttaswamy, 2017). (B) But was the disclosure lawful UNDER THE GENERAL LAW? Very probably YES — and this is the other half. In Mr X v. Hospital Z (1998) the Supreme Court held, on materially identical facts, that a doctor’s duty of confidentiality is NOT absolute: where the patient is about to marry, and his HIV status places his fiancée’s LIFE AND HEALTH in danger, the doctor is justified in disclosing it to her, because HER right to life under Art. 21 OVERRIDES HIS right to privacy under Art. 21. Where two Art. 21 rights collide, the one that protects LIFE prevails. So the Hospital has a complete defence ON THE MERITS — not because the RTI Act permitted the disclosure, but because the constitutional duty to protect Y’s life justified it.

C — Conclusion. Issue. Was the Hospital’s disclosure of Z’s HIV status lawful — (a) under the RTI Act, 2005, and (b) under the general law of confidentiality and privacy? These are TWO DIFFERENT QUESTIONS, and the trap is to answer only one.

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