When does the Court reject RTI requests?

In November 2019, the Supreme Court delivered a crucial judgment as to the application of the Right to Information Act, 2005 to the Court itself. The judgment cemented that citizens can file right to information (RTI) requests for records held by the Chief Justice’s Office. However, it also emphasised that certain types of information are exempted from requests, such as personal information.

The judgment illustrated an underlying tension at the heart of the Right to Information Act, 2005 – namely the competing demands for transparency and accountability on the one hand, and those for efficiency and confidentiality on the other. While the Act aims to provide citizens with a means of ‘secure access to information under the control of public authorities’, it also recognizes that this cannot come at the cost of hampering the operation of these authorities.

Hence, the Supreme Court’s Public Information Officer (PIO) enjoys the authority under the Act to reject RTI requests. The Act lays out several grounds for rejection, which broadly fall into the categories of national interest, privacy and confidentiality (the relevant provisions are provided below).

For the sake of transparency, the PIO produces quarterly reports to document how many RTI requests they are rejecting and (loosely) on what grounds. They are required to do so to comply with the Central Information Commission’s periodic transparency audits.

These reports provide a quantitative overview of the grounds on which the Supreme Court is rejecting RTI requests. In particular, they show which RTI Act provisions are being referred to in rejecting requests.

The Court’s November 2019 judgment was primarily occupied with the information exemptions under Sections 8(1)(e), 8(1)(j) and 11(1). These pertain to information held in a fiduciary capacity, personal information and third-party information. Are these the provisions that are most frequently cited in rejection orders?

‘Other’ provisions invoked

The quarterly reports record the number of times RTI Act provisions ‘were invoked while rejecting requests’. In particular, it records the provisions under Sections 8 (by sub-section), 9, 11 and 24 of the Act (short descriptions of each of these provisions can be found below). The reports also record the number of times ‘other’ provisions are invoked.

We surveyed all the reports published so far, beginning in the fiscal year 2006-07 and ending in quarter 3 of the 2019-20 fiscal year, and found that the PIO had primarily cited ‘other’ provisions in rejecting requests. It cited ‘other’ a total of 6,410 times. In other words, 69% of all provisions cited fell in the ‘other’ category.

Presumably, the ‘other’ category signifies other provisions in the Act itself. However, it is unclear which provisions the PIO may have referred to, as the primary exemptions in the Act are found in Sections 8, 9, 11 and 24. This leaves us somewhat in the dark about why requests are being rejected.

Turning to the provisions that are being cited, the below graph shows how the most invoked provisions are Sections 8(1)(j), (e) and (b). They are invoked a total of 1,195 (12.9%), 751 (8.1%) and 604 (6.5%) times respectively. As aforementioned, sub-section (j) contains the personal information exemption and sub-section (e) the fiduciary exemption. These are not absolute exemptions. The PIO can still disclose personal or fiduciary information if there is a larger public interest in disclosure. On the other hand, sub-section (b) is absolute. It prevents information from being disclosed whose publication is prohibited by a court or tribunal.

The graph also shows that many of the key provisions that allow for exemptions under the Act have rarely or never been invoked. Sections 8(1)(a), (c), (d), (h), (i) and 11 have each been used fewer than 10 times since 2006. Further, Sections 8(1)(f), 9 and 24 have not been invoked a single time. Given the wide range of matters that the Supreme Court deals with, it is perhaps somewhat unexpected that some of these provisions, such as those pertaining to sovereignty and national security under Section 8(1)(a), have been so rarely invoked.

Rejections without citations

The data appears to show that many RTI requests are rejected without specific reference to any provision. According to the reports, the number of times provisions were invoked was less than the number of requests rejected. In total, the Court rejected 13,394 requests (and appeals*), whereas it only invoked RTI Act provisions a total of 9,293 times. Even if we optimistically assume that the Court only invoked one provision per rejection, this would still equate to 4,101 (30.6%) rejections being made without a reference to a provision of the Act.

As the Supreme Court itself observed in its 2019 judgment, PIOs should provide reasons for rejecting RTI requests. Citizens enjoy a fundamental right to information, which can only be curtailed when the larger public interest demands it. In other words, rejecting an RTI request requires strong justifications. Therefore, PIOs must engage in a careful reason-giving exercise before rejecting an RTI request.

Whether this reason-giving exercise requires PIOs to explicitly reference specific provisions of the RTI Act is an open question. On the one hand, Justice D.Y. Chandrachud in his concurring opinion, said that PIOs should ‘record detailed reasons’, to prevent them from arbitrarily rejecting requests. On the other hand, the majority opinion by Justice Sanjiv Khanna does not dwell on how much or little PIOs should record. Perhaps the Court will clarify this question in a future judgment.

* It is possible that the quarterly reports only record invoked provisions for rejections for requests, as opposed to appeals. This would mean that the percentage of requests that cite no provisions would be less than what we calculated (30.6%). The quarterly reports use the following language: “details of various provisions while rejecting the requested information”. The use of the general phrase “requested information” led us to assume that the reports count provisions referenced both in requests and appeals.

Access the raw data here.