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Right to Information against Confidential/ Copyrighted Information

April 22, 2020

By Lucy Rana and Meril Mathew Joy

Right to Information with time has become the most convenient path for people to obtain information. Though the Right to Information Act, 2005 (RTI Act) was introduced to assist people to keep an check and hold government/ its instrumentalities accountable, however at present it can be seen that the RTI Act is invoked to bypass any standard procedure which is laid down under different rules or practice, which is no doubt an abuse of using the RTI Act.

If alternative mechanism is available to obtain information then provisions of RTI Act cannot be resorted to

The Hon’ble Supreme Court in a recent decision in Chief Information Commissioner v. High Court of Gujarat & Another[1] held that when  the High Court rules provide for third party to have access  to obtain certified copies of the documents or order by filing an application along with affidavit stating the reasons for the said information/documents and the requite fee then in such cases  applicant cannot  resort to Right to Information Act,2005, As there is no inconsistency between the  Right to information Act 2005 and the High Court Rules and RTI Act will not have overriding effect. The Hon’ble Supreme Court observed  as under that

“When there is an effective machinery for having access to the information or obtaining certified copies which, in our view, is a very simple procedure i.e. filing of an application/affidavit with requisite court fee and stating the reasons for which the certified copies are required, we do not find any justification for invoking Section 11 of the RTI Act and adopt a cumbersome procedure.”[2].

Some of the crucial notes from the submissions by parties and amicus curie were as under:

  • Under Article 145 of the Constitution of India, Supreme Court has the authority for regulating the Practice and Procedure of the Court. In exercise of the powers under Article 145 of the Constitution, the Supreme Court has framed “Supreme Court Rules” whereunder Order XIII of the Supreme Court Rules provides for procedure in respect of grant of certified copies,[3] to the parties to the litigation and also to the third parties. Further, Order XIII Rule 2 clearly states that in case the request is made by a third party, then a copy of certified copy may be provided to such party, upon showing good cause for such request.
  • Similarly, High Court Rules are framed under Article 225 of the Constitution of India, and therefore procedure to obtain certified copy are governed under said rules of respective High Court.
  • The information is not denied by the Supreme Court or High Court, however the rules under these courts only require a good cause/ reasonable cause to seek such information along with requisite fee.
  • The requirement of court fee and/ or providing affidavit against the reasons, cannot be said to be unreasonable and cannot be said as a procedure to deny information.

Observations by the Court:[4]

  • If High Court Rules provides for a mechanism for obtaining the required information, then said mechanism cannot be abandoned or discontinued merely because the general law – RTI Act has been enacted.
  • The information available with the records of the High Court are “personal information” of the litigants and therefore the High Court acts as a trustee for the litigant and therefore by resorting to RTI the process of Court must not be abused for obtaining information.
  • As a trustee the High Court is entitled to demand reasons from the third party seeking information of the case, and therefore the rules requiring the affidavit cannot be said to be inconsistent with the RTI Act in as much as the rejection if any, made thereafter will be for the very reasons as stipulated in Section 8 of the RTI Act.
  • Reliance was placed on the Hon’ble Delhi High Court decision in The Registrar Supreme Court of India v. R S Misra,,[5] wherein the court observed that “This Court is further of the opinion that if any information can be accessed through the mechanism provided under another statute, then the provisions of the RTI Act cannot be resorted to as there is absence of the very basis for invoking the provisions of RTI Act, namely, lack of transparency. In other words, the provisions of RTI Act are not to be resorted to if the same are not actuated to achieve transparency.”[6]

The Apex Court  has held  that when there is an alternative process available to seek information under the High Court rules then  the applicant is required to comply with the said rules  in such a case the applicant must resort to such procedure for obtaining information/documents.

Merely because the applicant is unwilling to follow a process and in alternative looks for a easy and cheap solution to obtain information, the reliance on RTI cannot be made. RTI Act is to ensure transparency and not to abuse any existing process.

It is often observed that a party is often willing to take guise under RTI to seek information, even when there exists alternative mechanism to obtain the same information. This may be done to escape any fee applicable or to obtain information in much faster route than the actual process. Even though there exist another mechanism, parties still look for the easy route under RTI.

The Hon’ble Supreme Court held that when an alternative mechanism is available to obtain the requisite information then RTI cannot be resorted to.

  • Whether access to Information under RTI must always be read harmoniously with other laws providing access to same information but with procedures?

It may be a simple connotation that the RTI was enacted to ensure transparency and ease of access of information which is not otherwise easily available for public. To this extent let us review the very object and purpose of the RTI Act 2005, as under:

An Act to provide for setting out the practical regime of right to information for citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority, the constitution of a Central Information Commission and State Information Commissions and for matters connected therewith or incidental thereto.

The above object of the RTI Act clarifies that the main intention of the legislation was to ensure an informed citizen, transparency of information which is vital to functioning, contain corruption and to hold government and its instrumentalities accountable. The preamble also clarifies that it is necessary to harmonise the conflicting interests while preserving the paramountcy of the democratic ideal.

It is true that the RTI Act is enacted to make information available to the person seeking it but to the extent of transparency or contain corruption or to hold government/ its instrumentalities accountable.

‘Right to Information’ is a right granted to person seeking information, which may not be easily available in common platforms. The Hon’ble Court was pleased to hold that the Right to Information cannot supersede any specific enactment , Rules   which provides procedure to obtain information. When a procedure is available to obtain information, irrespective of the complications involved in form of fee to be paid, reasons to be provided, lengthy process etc., then it is only fair to accept and adopt the rules in place for obtaining the information/document, under R T I Act.

Whether RT I being special Act can have  priority over other enactments  or if the person is given the option to choose between the available option or RTI then the purpose of having other enactments/rules in place for providing information lose its essence. If at all, a harmonious reading has to be made, then such reading must mandate that the CIC or other authority entertaining such RTI application may direct the applicant to apply to the Registrar of the High Court under the Rules to obtain the desired documents/information by paying requisite fees

Under the High Court Rules, the third party to obtain the required documents/ information is to submit application with affidavit giving reasons for obtaining the document and the fee which is essential part of the process. The Court Officer has the responsibility to ensure that not all information is given to every third party, as the nature of information available in the records is not only confidential but may also be intellectual property or other IP protected information or can also be personal information. Even though the court officer is at the liberty to grant access to the information, but it is duty of the court officer that information may be provided only when it is very essential or reasonable for the third party or any public interest is at stake.

In view thereof, it is only fair for the authority under RTI Act 2005, to entertain matter only when there is no other option or procedure available.

  • Whether the Information available with the Court is not confidential material and Copyrighted material of the Parties? If Yes, then should the Parties consent be required?

Right to Information against Confidential Information

The matters available on records with the Court are ‘Confidential/ Personal Information’ of the parties to the case, as the court also acts as the trustee to the information available. This is precisely the reason why the information available with the Court are not available for the third party/ however such information can be given to the third party upon satisfaction of the officer in charge of the court, about the grounds/reasons provided in the affidavit by the applicant.

The approach of the Hon’ble Supreme Court also indicates that the information on records are personal information of the litigant and due care must be taken to protect them.   To ensure transparency and under circumstances when such information is  to be given to the third party, after due satisfaction of the concerned officer, only then such information may be provided.

Are drafting of pleadings by an Advocate Copyrighted Content?

The pleadings submitted by the advocates for the litigants are the original work of the lawyers. It is observed that the advocates often show their skills and creativity in their drafting which is a combination of facts, law and creative work of the lawyer is an original copyrighted work.

Even though the advocate is the author but since the information of the cause of action and facts are supplied by the litigant and a proper professional fee is paid to engage the advocate therefore by virtue of payment of consideration to seek services of the advocate, the litigant becomes the owner of the pleading prepared by the advocate. Therefore, prior to submission of the pleadings with the Hon’ble Court, the pleadings are under the ownership of the litigant and a consent from the litigant is mandatory to share the same with any third party. However, once the pleadings (along with annexures) are submitted with Hon’ble Court, then the ownership changes hand, and thereafter any consent to supply information must be requested from the Hon’ble Court.

Under the Copyright Act 1957, section 2(k)(iii) defines ‘Government Works’ as a work which is made or published by or under the direction or control of any court, tribunal or other judicial authority in India.   This section makes it clear that when a work (in form of pleading) is submitted before a Court/ Tribunal or other judicial authority, then the moment the pleadings are submitted to the records of the judicial authority, there is an automatic transfer of right of control of the work in favour of the judicial authority.. Once the pleadings are submitted to the judicial authority, the amendment/ changes can only be made to the pleading subject to approval of the judicial authority. Further, the judicial authority has the right to extract and reproduce the content of the pleading, as it deems ft, for its judicial purposes.

In view thereof , the pleadings once submitted to the judicial authority becomes a ‘Government Work’ and it is clearly stated under section 17(d) of the Copyright Act 1957 that “in the case of a Government work, Government shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein”. In the present, circumstances the Court/ Judicial Authority in control of the pleadings is the owner and controlling authority of the work. Therefore, the consent and approval of the Court (including the Court officer in charge) is required for the purpose of allowing or rejecting any request seeking information/documents.by the third party.

It is also pertinent to note that the pleadings in Court of law are mainly used for judicial purposes, news reporting or education/ training purposes, and all use of work for the said purposes protected as fair dealing.

The Hon’ble Supreme Court has now clearly declared that there cannot be an overlap between any rules and RTI Act, and wherever such confusion appears, then the respective rules/ legislation will override the RTI Act in terms of obtaining information. Merely because other rules/ legislations require the party to provide fee or additional documentation to obtain information, then such requirement cannot be bypassed by invoking RTI.

[1] CIVIL APPEAL NO(S).1966-1967 OF 2020.

[2] Id. at Para 42.

[3] Certified copies of pleadings, judgments, documents, decrees or orders, deposition of the witnesses, etc

[4] CIVIL APPEAL NO(S).1966-1967 OF 2020.

[5] (2017) 244 DLT 179

[6] CIVIL APPEAL NO(S).1966-1967 OF 2020. Para 31.

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