I believe Section 8 (1) (j) of RTI Act 2005 is the most used and abused section of the RTI Act, 2005. Many citizens file RTI to get personal information of others to take revenge in some way. On the other hand, many a time Public Information Officers (PIO) deny information on the ground of being personal information, without applying mind on the provisions of the Act. Thus, for effective implementation of the RTI Act, 2005 it is important for both PIO and Applicant to understand the scope of Section 8 (1) (j) of RTI Act 2005, which exempts certain categories of personal information from disclosure. In this article, I have explained what Personal Information under RTI Act 2005 is, and how should PIO deal with request for such information u/s Section 8 (1) (j) of RTI Act 2005.
Section 8 (1) (j) of RTI Act 2005
Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen:
“(j) 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.”
What is Personal Information under RTI Act 2005?
Any information which is related to an individual is personal information. The term ‘personal’ is used for individual and not for an institutions, organizations or corporate. Thus, the information related to only individual, not institutions, organizations or corporate may fall under ambit of section 8(1)(j). There are various categories of personal information. Some such as ‘Name’ may be available in public domain, while others such as medical reports are known to only concerned person. RTI Act, 2005 doesn’t treat all category of information equally, and hence doesn’t provide absolute exemption to personal information. Accordingly, not all category of personal information are exempted from disclosure under Section 8 (1) (j) of RTI Act 2005.
What categories of personal information may be exempted from disclosure under Section 8 (1) (j) of RTI Act 2005
As per the Section 8 (1) (j) of RTI Act 2005, the following categories of information may be exempted from disclosure:
a) personal information the disclosure of which has no relationship to any public activity or interest, or
b) personal information which would cause unwarranted invasion of the privacy of the individual.
Only above two categories of Personal Information under RTI Act 2005 may be exempted from disclosure. I have used the term ‘may be’ because such information may be furnished under certain circumstances, which I have explained further.
Examples of personal information, which are not exempted under Section 8 (1) (j) of RTI Act 2005
Various decisions of Central Information Commission (CIC) have clarified that following information can’t be considered personal information, which may be exempted, and hence can’t be denied by the Public authority under Section 8 (1) (j) of RTI Act 2005:
Appointments, Postings, Transfers, Promotions, Gradations, etc. of public servants relate to the public activity, and are hence not personal information.
Document regarding the transfer of colleagues, vis-a-vis whom he feels that he has been discriminated against, is not personal information.
Details of leave taken by the public servant are not personal information; however, the purpose of leave is personal information.
LTC Information of government officials is not personal information.
Official tour program of public servants is not personal information; however, personal tour program is personal information.
Personal Information sought by legal heir of the deceased employee, etc.
How should the PIO deal with request seeking Personal Information under RTI Act 2005
If the information sought is personal, the PIO must check whether the information came to the public authority as a consequence of a public activity. Generally, most of the information in public records arises from a public activity. Applying for a job, ration card, passport, etc are examples of public activity. However, public authorities may have some personal information, which may not be collected as a consequence of a public activity. For example, medical records, transactions with banks, etc are not collected as public activity. Similarly, a public authority may come into possession of some information during a raid or seizure which may have no relationship to any public activity. These information may be exempted under Section 8 (1) (j) of RTI Act 2005.
Even if the information has arisen by a public activity, it could still be exempt if disclosing it would be an unwarranted invasion on the privacy of an individual. Privacy is to do with matters within a home, a person’s body, sexual preferences etc. This is in line with Article 19 (2) which mentions placing restrictions on Article 19 (1) (a) in the interest of ‘decency or morality’. In fact it is to protect the rights of others.
Even if the PIO feels that the information is not the result of any public activity, or disclosing it would be an unwarranted invasion on the privacy of an individual, before denying information he must subject the sought information to following two tests:
i) Does the larger public interest justify the disclosure of such information?
ii) Can such information be denied to the Parliament or a State?
If the PIO has YES answer to any of the above two questions, he shall provide the information to the applicant. If he can give such information to the legislature it means the likely harm is not very high since what is given to legislature will be in public domain. Hence, when the PIO denies personal information based on the provision of Section 8 (1) (j) of RTI Act 2005, he must give his subjective assessment of above questions. This must be recorded in his decision.
It is worth noting that in the Privacy Bill 2014, it was proposed that sensitive personal data should be defined as personal data relating to: “(a) physical and mental health including medical history, (b) biometric, bodily or genetic information, (c) criminal convictions (d) password, (e) banking credit and financial data (f) narco analysis or polygraph test data, (g) sexual orientation.” This is in line with Article 19 (2) of the Constitution. The PIO may keep this in mind while taking the decision.
Limitation of proviso of Section 8 (1) (j) of RTI Act 2005
This proviso mandates that any information which cannot be denied to the Parliament or a State Legislature cannot be denied to any person. But unfortunately, there is no clear guidelines or schedule or list of information available anywhere based on which the PIO can conclude if the desired piece of information can or cannot be denied to the legislature, Parliament or a State Assembly. Therefore, the PIOs find it very difficult to decide which personal information should be disclosed or not.
Can the PIO reject your own information under Section 8 (1) (j) of RTI Act 2005 by terming it confidential?
NO. There is no way section 8(1)(j) can be applied in the case when the appellant is seeking information about his own case. On various occasions, PIOs rejected the request for own information of applicant under section 8(1)(j) by stating that information is confidential. The denial of information by the PIO in such case is not justified and will be treated as abuse of the RTI Act. The Full Bench of the CIC has explained the ambit of section 8(1)(j) with observation that “Section 8 (1) (j) of RTI Act 2005 has to be read as whole. If done so it would be apparent that “personal information” does not mean information relating to the information seeker, but about a third party. That is why, in the Section it is stated “unwarranted invasion of the privacy of the individual”. If one were to seek information about himself or his own case, the question of invasion of privacy of his own self does not arise. If one were to ask information about a third party and if it were to invade the privacy of the individual, the information seeker can be denied the information on the ground that disclosure would invade the privacy of a third party. Therefore, when a citizen seeks information about his own case and as long as the information sought is not exempt in terms of other provision of Section 8 (1) (j) of RTI Act 2005, this Section cannot be applied to deny the information.
To understand other categories of information, which are exempted under RTI Act, you may visit information exempted from disclosure under RTI Act.