Moneylife: Pune: Saturday, February 09, 2013.
Exemption
under Section 8(1)(e) of the RTI Act cannot apply to information held by a
client in a lawyer-client relationship or with the patient in a doctor-patient
relationship. This is the 37th in a series of important judgements given by
former Central Information Commissioner Shailesh Gandhi that can be used or
quoted in an RTI application
The Central
Information Commission (CIC) said exemption under Section 8(1)(e) of the Right
to Information (RTI) Act cannot apply to the information held by a client in a
lawyer-client relationship or with the patient in a doctor-patient
relationship. While giving this important judgement, Shailesh Gandhi, former
Central Information Commissioner, said the relationship of trust in that
relationship is one way and it is only the lawyer who holds the information in
a fiduciary capacity and not the University.
Allowing the
appeal, the CIC in its order issued on 30 December 2009, said, “The Commission
finds that in the present case, the disclosure of the legal opinion does not
harm the lawyer who has given this opinion”.
Delhi
resident Aman Kumar sought information about Guru Gobind Singh Indraprastha
University (GGSIPU) and Maharaja Agrasen College (MAC). Below are the points on
which he sought information and the replies provided by the PIO...
1.
Details
of action taken on letter no. PGC/09/GGSIP/01/21968 dated 10/02/2009.
PIO-
University has forwarded a letter to the legal counsel for legal opinion in the
light of the PGC's letter No.PGC/09/GGSIP/01/21968 dated 10/02/2009 (copy
enclosed)
2.
Relevant
record of the case i.e. entire orders/comments/proceeding/application/annexure
PIO-
Concerned records and proceedings may be inspected with prior appointment of
PIO
3.
Action
taken report on recommendations of PGC which it passed against Maharaja Agrasen
College, Rohini, Delhi - 110087 acting on the complaint of Mr Aman Kumar PIO-
Legal opinion has been sought and the legal counsel has been called for a
meeting by the competent authority so that matter could be placed before the
Board of Affiliation
4.
Details
of letter dated 02/03/2009 vide letter no. IPU/JR/ARP/IC/2009/1415 issued to Jr
Dr Suchitra Kumar on behalf of GGSIPU
PIO-
Same as for Point 1
5.
Details
of legal opinion obtained from Mr GD Goel, legal counsel
PIO-
Same as for Point 3
6.
Complete
guideline for applying for Technical College from University
PIO-
Information available on the website of the University www.ipu.ac.in
7.
Complete
data of the students of Maharaja Agrasen College, Rohini, Delhi, admitted in
the year of 2008-09 on the basis of application with GGSIPU
PIO-
Information enclosed
Kumar, not
satisfied with the reply given by the PIO, then filed his first appeal before
the First Appellate Authority (FAA). On 10 July 2009, the FAA in his order
said, “Information with regard to Points 1 and 2 has been provided. Some of the
queries raised in the First Appeal were not part of the original RTI
Application. However, this is contested by the applicant. Therefore, the PIO
may call the applicant and get them to reconcile on the basis of the original
application and wherever the information has not been provided. Request for
inspection of the relevant documents may be entertained.”
After the
order from the FAA, the PIO allowed Kumar to undertake inspection of the
documents. The PIO asked Kumar to deposit Rs1,468 (@Rs2 per page for 734 pages)
for the papers identified by him. The PIO further informed that the information
to query no5 was related to third party and permission was sought from it and said
that the information will be provided as per the comments of third party.
When Kumar
failed to receive a reply from the PIO about his query no5, he filed his Second
Appeal before the CIC. During a hearing on 27 October 2009, the PIO stated that
the information not provided by him is the legal opinion obtained from the
legal counsel in the matter of affiliation of Maharaja Agrasen Institute of
Technology (MAIT) in respect to Auburn University. He also sought exemption
under Section 8(1)(e) claiming that the information provided by the legal
counsel is available in the fiduciary relationship.
Mr Gandhi,
the CIC, directed the PIO to give his written submissions justifying how he was
claiming a fiduciary relationship in this matter before 5 November 2009. The
matter was then adjourned for 27 October 2009.
The PIO
submitted that it has to be determined whether there is any public interest in
disclosing the information sought by the appellant. “Opinion provided by the
University’s legal counsel is of trust and good faith. If the same is
disclosed, it would amount to breach of trust or faith and may harm the
interest of third party if the same has any bearing on the third party. Certain
advice rendered by the legal counsel is intellectual property of the
professional/ legal consultant,” the PIO stated.
The
Commission then issued a notice to the third party, M/s GD Goel and Company
along with the appellant and respondent for a hearing on 30 December 2009.
During the
hearing, the third party was absent. Kumar, in his submission stated that there
is no breach of trust as the information is required from the client and not
the Advocate. The client must disclose the information received as legal advice
as it is public interest as the client, GGSIP University, is a public body.
He said,
“...the issue which had been referred for legal opinion was in reference to
imposing penalty on MAIT on similar lines as it was imposed on Jagan Institute
of Management Studies (JIMS), Rohini. Penalty was finally not imposed on MAIT
causing financial loss to the University.”
The Commission
said, for Section 8(1)(e) of the RTI Act to apply there must be a fiduciary
relationship and holder of information must hold the information in his
fiduciary capacity.
Section
8(1)(e) of the RTI Act provides-
8(1) Notwithstanding anything contained in
this Act, there shall be no obligation to give any citizen,-
(e)
information available to a person in his fiduciary relationship, unless the
competent authority is satisfied that
the larger public interest warrants the disclosure of such information;
The
client-lawyer relationship has always been considered a fiduciary relationship
as the client reposes trust in the lawyer to act in his interest. The exemption
under Section 8(1)(e) exempts the disclosure of this information which is being
held by the lawyer in his fiduciary capacity unless the disclosure serves a
larger public interest, Mr Gandhi said.
“In the
present case, the information the appellant is seeking a copy of the legal
opinion from the GGSIP University which the University has received from its
legal counsel. The University had to seek a legal opinion and it chose a
particular legal counsel for this purpose thereby trusting this counsel to act
on behalf of the University and protect its interests. As the opinion had been
sought by the University, the opinion could only be given to the University and
no other entity,” he noted.
Mr Gandhi
said, “The relationship of trust in that way is one way and it is only the
lawyer who holds the information in a fiduciary capacity and not the
University. Section 8(1)(e) exemption applies to information that is held that
by the information holder in his fiduciary capacity i.e. another person has
chosen to trust the information holder with that information and the
information holder is expected to act in the interest of the information
provided. Therefore, the exemption under Section 8(1)(e) cannot apply to the
information held by a client in a lawyer-client relationship or with the
patient in a doctor-patient relationship.”
The
University then stated that certain opinion provided by the lawyer is the
intellectual property of the lawyer. However, this ground had not been relied
on by the PIO in his reply to the appellant and nor was it raised during the
hearing before the Commission. Therefore, Mr Gandhi said, the Commission will
not accept this ground at such a late stage.
The CIC said,
mere fact that a copyright exists in a literary work does not mean that its
disclosure under the RTI Act would lead to its infringement. Therefore, the
Commission finds no merit in the argument raised by the PIO, it added.
Section 9
of the RTI Act provides that;
9. Without prejudice to the provisions of
section 8, a Central Public Information Officer or a State Public Information
Officer, as the case may be, may reject a request for information where such a
request for providing access would involve an infringement of copyright
subsisting in a person other than the State.
Section 51 of
the Copyright Act, 1957, provides the scenarios in which a copyright can be
considered to be infringed-
51. When
copyright infringed. -Copyright in a work shall be deemed to be infringed-
(a) when any
person, without a licence granted by the owner of the copyright or the
Registrar of Copyrights under this
Act or in contravention of the conditions of a licence so granted or of any
condition imposed by a competent authority under this Act-
- (i) does anything, the exclusive right to do which is by this Act conferred upon the owner of the copyright, or
- (ii) permits for profit any place to be used for the communication of the work to the public where such communication constitutes an infringement of the copyright in the work, unless he was not aware and had no reasonable ground for believing that such communication to the public would be an infringement of copyright; or
(b) when any
person-
- (i) makes for sale or hire, or sells or lets for hire, or by way of trade displays or offers for sale or hire, or
- (ii) distributes either for the purpose of trade or to such an extent as to affect prejudicially the owner of the copyright, or
- (iii) by way of trade exhibits in public, or
- iv) imports into India, any infringing copies of the work
Provided that nothing in sub-clause (iv) shall
apply to the import of one copy of any work for the private and domestic use of
the importer
Mr Gandhi
said, for a copyright to be infringed, the person holding the copyright must be
affected prejudicially for there to be an infringement of the copyright. “There
must be a reason to believe that the reproduction of the work would be used in
a manner that would harm the copyright holder. The Commission finds that in the
present case, the disclosure of the legal opinion does not harm the lawyer who
has given this opinion,” the CIC said in its order.