Source: Delhi High Court  

Why in News? 

The Delhi High Court ruled that PhD theses not containing commercially sensitive or proprietary information cannot be exempted from disclosure under Section 8(1)(d) of the RTI Act, 2005.  

• Justice Sanjeev Narula held that mere claims of intellectual property or commercial value are insufficient without evidence of harm to competitive positions.  
• The court observed the need to balance transparency and public interest against protecting sensitive information, evaluating each case on its merits. 

What was the Background of Rajeev Kumar v. Central Information Commission (CIC) Through CPIO & Ors. ? 

• Rajeev Kumar filed an online RTI application with the Public Information Officer of Jamia Millia Islamia University on 26th March, 2019, seeking access to a PhD thesis titled "Studies on some nitrogen fixing genes of Azotobacter vinelandii" authored by Mr. Umesh Kumar Bageshwar. 
• The University's PIO, responding on 14thApril, 2019, merely forwarded the Librarian's reply which stated that the thesis was put in "absolute safe custody" without providing any actual access to the document. 
• Dissatisfied with this response, Kumar filed a first appeal, which was rejected on 24th May, 2019, citing Section 8(1)(d) of the Right to Information Act, 2005. 
• Kumar then filed a second appeal before the Central Information Commission (CIC) challenging the First Appellate Authority's decision. 
• The CIC issued its order on 12th April, 2021, upholding the University's decision to deny access to the thesis. 
• The PhD thesis in question had previously been accessible and had been cited in other academic works, as evidenced by references annexed to the petition. 
• According to JMIU's regulations, specifically Rule 13(b) of Ordinance 9(IX), the University is required to make every PhD thesis available without any exceptions. 
• The UGC regulations of 2016 also mandate universities to submit PhD theses to INFLIBNET to make them accessible to all institutions and universities. 
• The University maintained that the thesis had gained commercial importance, involved intellectual property, and fell within the exemptions under Section 8(1)(d) of the RTI Act, making it non-disclosable. 

What were the Court’s Observations? 

• The Court held that a PhD thesis represents a scholarly contribution to knowledge and its primary purpose is to facilitate academic discourse and further research, making transparency and accessibility essential to these objectives. 
• The Court observed that JMIU's regulations and UGC guidelines unequivocally mandate the accessibility of PhD theses, with no carve-outs or exceptions, thereby preventing such documents from being fully confidential. 
• The Court elucidated that for information to be exempted under Section 8(1)(d) of the RTI Act, a dual test must be satisfied: first, the information must fall within categories of commercial confidence, trade secrets, or intellectual property; and second, its disclosure must demonstrably harm the competitive position of a third party. 
• While acknowledging that PhD theses enjoy copyright protection, the Court emphasized that mere existence of copyright does not automatically justify invoking Section 8(1)(d), as copyright law is intended to safeguard economic and moral rights rather than curtail access to information. 
• The Court noted that universities may legitimately restrict access to theses containing potentially patentable inventions until patent applications are filed, but such exemptions are not absolute and can be overridden by larger public interest under the RTI Act. 
• The Court found that JMIU and CIC's claims of "commercial importance" and potential harm to "competitive position of stakeholders" were speculative and unsubstantiated, failing to meet the threshold requirements for invoking Section 8(1)(d). 
• The Court determined that once a thesis is submitted to a public university, the author relinquishes the right to withhold its disclosure as it becomes part of the institution's academic repository, particularly when the thesis was previously publicly available. 
• The Court observed that decisions regarding disclosure of PhD theses under RTI Act require a careful balancing of transparency and public interest against the protection of genuinely sensitive information, necessitating case-by-case evaluation based on specific content and context. 

Right to Information Act,2005 

• The Right to Information Act, 2005 is a landmark legislation that empowers Indian citizens to seek information from public authorities, promoting transparency and accountability in the functioning of public institutions by establishing a systematic mechanism for citizens to request and receive information. 
• The Act defines "information" under Section 2(f) broadly to include: 
  • Any material in any form, including records, documents, memos, emails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in electronic form, and information relating to any private body which can be accessed by a public authority under any other law. 
• The Act establishes a three-tier structure for information requests: starting with the Public Information Officer (PIO) at the institution level, followed by the First Appellate Authority, and finally the Central/State Information Commission for second appeals, with specific timeframes for responses at each level. 
• Under Section 8(1)(d) of the Act, information including commercial confidence, trade secrets, or intellectual property is exempt from disclosure if its revelation would harm the competitive position of a third party, though this exemption is subject to the larger public interest test under Section 8(2). 

What is Section 8 of RTI Act,2005? 

• Section 8 of the RTI Act establishes specific exemptions from disclosure, while simultaneously incorporating an overriding public interest test under Section 8(2) that can supersede these exemptions if public interest outweighs the protected interests. 
• The exemptions under Section 8(1) are qualified exemptions, not absolute prohibitions, and must be interpreted strictly as they derogate from the general principle of transparency established by the Act. 
• Section 8(1)(d) specifically protects three categories of information: commercial confidence, trade secrets, and intellectual property, but only when disclosure would harm the competitive position of a third party, subject to the public interest override. 
• The Act mandates that information that cannot be denied to Parliament or State Legislature cannot be denied to any person, establishing a fundamental principle of equal access to information. 
• Under Section 8(3), historical information (over 20 years old) must be disclosed regardless of most exemptions, except those related to national sovereignty, parliamentary privilege, and cabinet papers. 
• Section 8(1)(j) creates a specific regime for personal information, requiring a demonstrable relationship to public activity or interest for disclosure, unless larger public interest justifies such disclosure. 
• The provision under Section 8(2) explicitly overrides the Official Secrets Act, 1923, establishing the primacy of public interest in disclosure over traditional governmental secrecy. 
• Information held in a fiduciary relationship is protected under Section 8(1)(e), but this protection is subject to the larger public interest test, requiring a balance between confidentiality obligations and public benefit. 
• The Act requires competent authorities to apply a harm test and public interest test when considering exemptions, making the exemption process a thorough analytical exercise rather than an automatic application. 

Case Law 

• Institute of Chartered Accountants of India v. Shaunak H. Satya, (2011) 
  • The Supreme Court held that question papers, model answers, and instructions to examiners cannot be withheld under Section 8(1)(d) after examination and evaluation are complete. 
  • Such disclosure would not harm any third party's competitive position at that stage. 
• Naresh Trehan v. Rakesh Kumar Gupta, (2014) 
  • The Delhi High Court ruled that assessment proceedings are private, not public proceedings. 
  • The Court held that allowing public participation in assessment proceedings could interfere with the process and isn't justified by larger public interest. 
  • Income tax returns and related assessment information are protected under Section 8(1)(d). 
• Shonkh Technology International Ltd. v. State Information Commission Maharashtra,(2011) 
  • The Bombay High Court held that agreements for smart card services between government departments and third parties cannot be denied under Section 8(1)(d). 
  • The Court emphasized that disclosure of such agreements doesn't reveal trade secrets or intellectual property. 
  • Public scrutiny of such contracts serves larger public interest, overriding the exemption. 
• Electronics Corporation of Tamil Nadu Limited v. Tamil Nadu Information Commission,(2010): 
  • The Madras High Court mandated disclosure of field inspection reports about water bodies and lands for IT development. 
  • The Court emphasized that larger public interest warranted disclosure of such environmental and development-related information. 
  • The exemption under Section 8(1)(d) was overridden by public interest considerations.

What are the Information Included under RTI 2005?  

Definitively Covered Under RTI Act: 

• Government Operations & Administration: 
  • Council of Ministers' decisions (after decisions are complete) 
  • Administrative procedures and decisions 
  • Public authority functioning and operations 
  • Official circulars, orders, and notifications 
  • Policy decisions and their rationale 
  • Government programs and schemes 
• Financial Information: 
  • Budget allocations and expenditures 
  • Public funds utilization 
  • Tender processes and awarded contracts 
  • Financial statements of public authorities 
  • Audit reports 
  • Government subsidies and benefits 
• Personnel & Employment: 
  • Recruitment procedures 
  • Transfer and posting policies 
  • Appointment orders 
  • Basic salary information of public servants 
  • Organizational structure 
  • Vacancy positions 
• Public Services: 
  • Citizen services procedures 
  • Application processing status 
  • Public grievance redressal mechanisms 
  • Service delivery standards 
  • Welfare scheme implementation 
• Institutional Records: 
  • Annual reports 
  • Statistical data 
  • Official documents and records 
  • Meeting minutes (non-confidential) 
  • Departmental studies and surveys 
  • Public authority publications 

Potentially Missing or Additional Areas That Could be Covered: 

• Environmental Information: 
  • Environmental impact assessments 
  • Pollution control data 
  • Forest clearances 
  • Environmental compliance reports 
  • Natural resource allocation 
• Infrastructure & Development: 
  • Development project details 
  • Urban planning documents 
  • Infrastructure project status 
  • Land acquisition details 
  • Public-private partnership agreements 
• Educational Information: 
  • Educational institution accreditation 
  • Course curriculum details 
  • Faculty qualification standards 
  • Research grant allocations 
  • Academic performance metrics 
• Healthcare Information: 
  • Public health program details 
  • Medical facility standards 
  • Disease surveillance data 
  • Health safety regulations 
  • Medical service availability 
• Regulatory Information: 
  • Compliance requirements 
  • Inspection reports 
  • License issuance criteria 
  • Quality control standards 
  • Regulatory violations data 
• Social Welfare: 
  • Beneficiary selection criteria 
  • Distribution of welfare benefits 
  • Social audit reports 
  • Implementation statistics 
  • Impact assessment studies