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Government officials can turn down RTI requests under the right to privacy as per an amendment to the Right to Information (RTI) Act of 2005 included in the Digital Personal Data Protection (DPDP) Bill, 2023 [PDF]. The Bill was tabled on August 3, 2023, before the Lok Sabha.
Read the Bill Summary here.
Amendment relates to an exemption under the RTI Act: Prior to this amendment, the Right to Information Act of 2005 exempted the Indian state from disclosing personal information which has no relationship to any public interest or activity, or which unwarrantedly invades an individual’s privacy. This provision can only be overridden by the Central or State Public Information Officer or the appellate authority, if the “larger public interest justifies the disclosure of such information.” Under the amendment, this clause will only state that there is no obligation to give citizens information that relates to personal information. This means that the government can even decline to give any information relating to a person, in response to an RTI request.
In addition, the amendment removes a clause from the RTI Act that states that information that cannot be denied to the Parliament/ a State Legislature will not be denied to an individual person either. Thus, citizens have now lost the right to access the same information that the Parliament or a State legislature has access to.
When this amendment was first introduced in the 2022 version of the data protection Bill, former Chief Information Commissioner Shailesh Gandhi, in conversation with MediaNama, had suggested that the amendment should have removed information legitimately provided under the RTI Act from the purview of the data protection Bill. Instead, the amendment goes the other way and gives information officers the power to deny RTI requests.
A detailed understanding of the impact of this amendment can be read here.
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Consequences of this amendment
Creates a ‘Right to deny’ for Public Information Officers: By relating any information requested to a person, a Public Information Officer can use this amendment as a right to deny information to people. Under the data protection Bill, a ‘person’ is “an individual; a Hindu undivided family; a company; a firm; an association of persons or a body of individuals whether incorporated or not; the State; and every artificial juristic person not falling within any of the preceding sub-clauses”. Everything related to this definition could then be considered personal information.
Hinder transparency of information: RTIs are important to get information on welfare programmes and investigate potential misappropriation of funds, corruption, etc. Giving an option of refusing information under the guise of privacy makes such initiatives more opaque.
Where can this right to deny be challenged? There is confusion as to whether an individual should go to the Information Commission or the Data Protection Board of India to raise a grievance on the grounds of this amendment. There are no details on what the Commission is supposed to do if such a grievance comes to them. There is also no clarity on how the Board will cooperate with other government authorities.
Criticism regarding the amendment
Omission of proviso could hurt access to information: There has been some confusion within the government and judiciary as to whether the clause (on disclosure between state or Central assemblies) that comes immediately after clause (j) applies to that clause alone or the entire Act. With the amendment specifically pairing it with the preceding clause, the recommended change takes away people’s right to be privy to the same information that is supplied to the Parliament or State Legislature.
Why include this amendment in the DPDP Bill at all? None of the experts MediaNama spoke to last year could give an explanation as to why an amendment regarding the RTI Act is included in a data protection Bill. One possible explanation is that the government feels the data protection law should come in if personal information is being made public. However, the right to information is also to be balanced with the right to privacy. In 2012, the Justice A.P. Shah Committee report on privacy argued that “the Privacy Act should not circumscribe the Right to Information. Additionally, RTI recipients should not be considered a data controller”.
Section 8(2) of the RTI Act makes the amendment redundant: Section 8(2) of the RTI Act mandates that a public authority may disclose the requested information if public interest outweighs the harm to protected interests. So individuals can use this section to challenge the right to deny under the amendment. However, this section is rarely used, as per the account of former Chief Information Commissioner Shailesh Gandhi.
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