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SECTION 8 OF THE RTI ACT

3. Section 8 (1) of the RTI Act begins with a non-obstante clause and stipulates that notwithstanding any other provision under the RTI Act, information need not be furnished when any of the clauses (a) to

SECTION 8(2) OF THE RTI ACT

44. Section 8(2) of the RTI Act empowers a public authority to allow access to information even when the Official Secrets Act, 1923 or any of the exemption clauses in Sub-section (1) are applicable. The requirement is that public interest in disclosure should outweigh the harm to protected interest. The question of public interest and when the right to disclosure of information would outweigh rights to secrecy and confidentiality or privacy as has been referred to and considered above. Section 8(2) of the RTI Act empowers the public authority to decide the question whether right to disclosure over-weighs the harm to protected interests. PIO cannot decide this question and cannot WPC NO.7304/2007 + CONNECTED MATTERS Page 43 pass an order under Section 8(2) of the RTI Act holding, inter alia, that information is covered by the exemption clauses under Section 8(1) of the RTI Act but public interest in disclosure overweighs and justifies disclosure. Once PIO comes to the conclusion that any of the exemption clauses is applicable, he cannot decide and hold that Section 8(2) of the RTI Act should be invoked and lager public interest requires disclosure of information. Unlike Section 8(1)(j) of the RTI Act, under section 8(2) this power to decide whether larger public interest warrants disclosure of information is not conferred on the PIO.

51. Learned Additional Solicitor General had urged that Section 8(1) of the RTI Act empowers and authorizes public information officers to deny information but the decision on merits cannot be questioned in appeal before the Central/State Information Commission. It was submitted that the decision of the public information officers and the first appellate authority cannot be made WPC NO.7304/2007 + CONNECTED MATTERS Page 48 subject matter of second appeal before the CIC except when under Section 8(1) of the RTI Act the Central/State Information Commission has been empowered to examine the correctness or merit of the decision of the public information officer. In this connection, my attention was drawn to the language of Section 8(1)(j) of the RTI Act. This contention cannot be accepted. Power of the CIC as observed above, under Sections 18 and 19 includes power to go into the question whether provisions in any clause of Section 8(1) of the RTI Act, have been rightly interpreted and applied in a given case. The power of the CIC is that of an appellate authority which can go into all questions of law and fact and is not circumscribed or limited power. Indeed the argument will go against the very object and purpose of the RTI Act and negates the power of general superintendence vested with the Central/State Information Commissions under Section 18 of the RTI Act.

63. The public authority had relied upon Section 8(1)(e) and (j) of the RTI Act. Central Information Commission referred to the judgment of the Supreme Court in Civil Appeal No. 7631/2002 titled Dev Dutt versus Union Public Service Commission and others WPC NO.7304/2007 + CONNECTED MATTERS Page 55 (decided on 12th May, 2008) but it was observed that this decision was not applicable as the information seeker had asked for third party ACRs. Thus information (a) was denied. CIC made reference to their decision dated 13th July, 2006 in the case of Gopal Kumar versus Ministry of Defence (Case No. CIC/AT/A/2006/00069) and it was observed that disclosure of contents of ACR is not exempted under Section 8(1)(j) but the principle of severability under section 10 of the RTI Act should be applied. Informations (b) to (e) were directed to be furnished. The Central Information Commission did not permit the petitioner herein to rely upon Section 8(1)(a) of the RTI Act as the said Section was not invoked by the Public Information Officer or the first appellate authority. The said approach and reasoning is not acceptable. Public authority is entitled to raise any of the defences mentioned in Section 8(1) of the RTI Act before the Central Information Commission and not merely rely upon the provision referred to by the Public Information Officer or the first appellate authority to deny information. An error or mistake made by the Public Information Officer or the first appellate authority cannot be a ground to stop and prevent a public authority from raising a justiciable and valid objection to disclosure of information under Section 8(1) of the RTI Act. The subject matter of appeal before the Central Information Commission is whether or not the information can be denied under Section 8(1) of the RTI Act. While deciding the said question it is open to the public authority to rely upon any of the Sub-sections to WPC NO.7304/2007 + CONNECTED MATTERS Page 56 Section 8(1) of the RTI Act, whether or not referred to by the public information officer or the first appellate authority. Under Section 19(9) notice of the decision is to be given to a public authority.