RTI vs Privacy: And the twain shall never meet

Hans India

6 days ago

The clash between the Right to Information Act (RTI) 2005, and the Digital Personal Data Protection Act (DPDP) 2023 raises critical constitutional and jurisprudential issues: RTI is rooted in Article 19(1)(a) freedom of speech and expression — which includes the right to receive information. DPDPA draws strength from Article 21, as interpreted in the K S Puttaswamy ruling, which declared privacy a fundamental right. The legal challenge lies in reconciling these two rights when they come into direct conflict.
When India passed the Right to Information Act in 2005, it was hailed as a revolutionary tool for empowering citizens and holding public authorities accountable. Two decades on, we now face a growing threat to that hard-won transparency, courtesy the Digital Personal Data Protection (DPDP) Act 2023.
Billed as a progressive law meant to safeguard our digital privacy, the DPDP Act is ironically being used as a potent weapon to deny citizens access to critical information. Government officials can now refuse RTI requests by invoking a broad, often vaguely defined shield of 'personal data'. The result? People are increasingly denied information about how public funds are used, who benefits from welfare programs, and whether officials have misused their positions.
Privacy and public interest:
Section 8(1) (j) of the RTI Act upholds privacy where necessary, balancing it against public interest. The introduction of an overriding DPDP regime, without clearly defining the scope of exemptions or the hierarchy of laws, creates a dangerous ambiguity.
Unless the judiciary or legislature intervene and clarify or harmonise application of these laws, the citizens' right to know may be systematically undermined, particularly when accessing information about the state.
This isn't just a bureaucratic tiff between two laws. It is a democratic dilemma. The 'privacy' is being twisted into a legal fig leaf to hide public wrongdoing.
What's more alarming is the power imbalance it creates. Lower-level officers — often under political pressure — are now arbiters of what counts as 'personal data,' overriding the established RTI mechanism. Add to this the fact that many states, like Telangana and Andhra Pradesh, don't even have functional RTI commissions due to which tousands of applications are piling up, unanswered.
Privacy is a fundamental right as upheld by the Supreme Court in the 2017 Puttaswamy judgment. The RTI Act includes safeguards like Section 8(1)(j)) to protect privacy, disclosing personal information only when it serves a larger public interest. Given this facility, there was no need for another opaque filter.
The DPDP Act must not become a smokescreen for stonewalling accountability. Parliament, courts, and civil society must act before we lose one of the most powerful instruments of participatory democracy.
Though recently the Chief and four Information Commissioners have been appointed in Telangana, there are still vacancies all over India.
There is a need to prioritise issues: 1. Appoint RTI commissioners immediately in states where they do not exist; 2. Reinforce RTI institutions; 3. Amend the DPDP Act to honour RTI's public interest provisions; Train officials so that they can distinguish between legitimate privacy and public transparency; Demand clarity on when RTI should override DPDP, especially in cases pertaining to governance and misuse of public funds.
Accountability without RTI! This will invariably have a chilling effect on investigative journalism and civic activism; The government data might become opaque and inaccessible; Citizens will face hurdles when seeking even their own data, if deemed protected under DPDP; There is a need to clear demarcation on when RTI trumps DPDP, especially in public interest.
Civil society should challenge the amendments in courts or through public mobilisation, besides building civil society pressure by petitioning Parliament to amend or roll back harmful provisions. This will also result in a decrease in government accountability due to increased opacity.
Let's take a look at a recent judgment by the CIC on this conflict:
Most of the requests for police related information are stonewalled on the 'privacy' excuse, seldom rightly. That is the major conflict.
The Central Information Commission (CIC) (CIC/UTOJK/A/2024/116027 KULDEEPRAJ Vs. UT of Jammu and Kashmir) dismissed a Second Appeal filed against J&K's Home Department and made it unequivocally clear that the RTI Act is not a tool to intrude into personal lives, especially where no public interest is involved.
On February 26, 2024, Kuldeep Raj, a resident of Jammu district, wanted to know from the state PIO Home Department information regarding joining reports, selection orders, SROs, category certificates, transfer and promotion details of two police personnel.
The First Appellate Authority eventually transferred the matter to the Police Headquarters (PHQ), J&K, in May last year.
The appellant filed a Second Appeal before the CIC. During the final hearing held a few days back, the Central Information Commission upheld the PIO's denial of information, stating: 'The requested information qualifies as personal information of third parties and is therefore exempt from disclosure under Section 8(1)(j) of the RTI Act, 2005'.
The appeal was filed by an advocate, who sought details of complaints filed by one Fareed Ahmad Chouhan from Ganderbal, including the number of complaints, their nature, status and related documents.
The application dated January 11, 2024, was turned down by the Central Public Information Officer (CPIO) of ACB, Kashmir, because disclosure of such information could endanger the life or physical safety of the complainant and could possibly obstruct ongoing investigations or prosecutions. These reasons were cited under Sections 8(1)(g) and 8(1)(h) of the RTI Act, 2005, which exempt disclosure of sensitive information that may harm individual safety or compromise investigative processes.
The CIC emphasised that no element of larger public interest was invoked by the appellant to justify overriding the privacy protections enshrined in the law. The Commission cited the Supreme Court's 'Central Public Information Officer, Supreme Court of India Versus Subhash Chandra Agarwal', which held that personal records, including service details, ACRs, financial disclosures, and medical records, are not subject to public disclosure unless a compelling public interest is established.
'The RTI Act is not a surveillance tool and cannot be used to gather personal details of others without a strong and demonstrated public cause,' the CIC noted, adding 'service records of police personnel fall under personal information'.
The CIC ruled that ACB J&K had provided a valid and appropriate reply, justifying the denial based on exemptions under the law.
'The safety of individuals and integrity of law enforcement processes must be protected over disclosure of information where no overriding public interest is demonstrated', the Commission said.
He further said: 'Disclosing such information may expose the whistleblower to victimization or harassment and could derail sensitive investigations,' the Commission observed, adding 'the appellant has failed to establish any larger public interest that would warrant overriding the exemptions provided under the Act'.
This order looks to be a denial to the applicant. The entire question is about what is 'overriding the exemptions' on what compelling public interest is. The PIO, First and Second appeals are heavily dependent upon the 2019 judgment. Instead of going through the time-consuming process of using RTI methodology, the applicant may have to go to a writ petition. All petitioners invariably face the same questions. Another bundle of cases will add to the heavy pendency. Advocates are happy, and judges will be using the time to discuss these old issues. And the victims are the applicants.
This transparency watchdog will go a long way in deterring those who are using the RTI Act to breach privacy rights based on the risk of violating privacy, for which the DATA Act prescribed heavy, exorbitant penalties.
The judges quite easily use 'the balance between transparency and protection of whistleblowers'.
(The writer is Advisor, School of Law, Mahindra University, Hyderabad)