Third party information and organisations excluded from the Act

Right to Information · Unit II · Topic 7 of 16 · 6 min read

The notice-and-hearing procedure for third party information under section 11, the intelligence and security organisations kept outside the Act by section 24 and the Second Schedule with the corruption and human rights exceptions, and the overriding effect and bar of courts in sections 22 and 23, with the bank borrower problem solved.

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On this page

1. Who is a third party
2. The procedure under section 11
3. Section 24: organisations outside the Act
4. Sections 22 and 23
5. Problem: securities given to a bank
How this is examined

Cases checked to exist. Read the judgment before quoting a holding.

Every case cited here has been checked to exist — the citation resolves and names the right parties. The propositions attributed to each case have not been verified line by line against the judgment. Case names link through to the full judgment: read it before quoting a holding in an examination answer, and never carry a proposition from notes into court on trust.

The examinable core. Both topics are set as short notes in almost every paper: “Third party information” (April and November 2021) and “RTI Act not to apply to certain organisations” (April 2021). For section 11, learn the three time limits (5, 10, 40 days) and the public interest proviso. For section 24, learn the two exceptions (corruption, human rights) and the 45-day rule.

1. Who is a third party

Section 2(n): a person other than the citizen making the request, and it includes a public authority. So a request to one department for a letter written by another department, or for a contractor’s bid, or for a person’s file, involves a third party.

2. The procedure under section 11

Section 11 applies where the PIO intends to disclose information or a record which relates to or has been supplied by a third party and has been treated as confidential by that third party. Then:

Notice within 5 days. Within five days of receiving the request, the PIO must give written notice to the third party of the request and of his intention to disclose, and invite a written or oral submission on whether the information should be disclosed. The submission is to be kept in view in deciding, section 11(1).
Public interest proviso. Except in the case of trade or commercial secrets protected by law, disclosure may be allowed if the public interest in disclosure outweighs in importance any possible harm or injury to the interests of the third party.
Representation within 10 days. The third party must be given the opportunity to make a representation against disclosure within ten days of receiving the notice, section 11(2).
Decision within 40 days. Notwithstanding section 7, the PIO must decide within forty days of receipt of the request whether to disclose, and give written notice of the decision to the third party, section 11(3).
Right of appeal. The notice must state that the third party may appeal under section 19, section 11(4). His first appeal lies within thirty days of the order, section 19(2), and the Commission must hear him in any second appeal, section 19(4).

Section 7(7) closes the loop: before deciding, the PIO must take the third party’s representation into account.

Two points students miss. First, section 11 is a procedure, not an exemption: the third party has a right to be heard, not a veto. The ground for refusing, if any, must be found in section 8 (usually clause (d), (e) or (j)). Second, the notice is required only where the PIO intends to disclose and the third party has treated the information as confidential. If the PIO is going to refuse anyway, no notice is needed.

In CPIO, Supreme Court of India v. Subhash Chandra Agarwal (2019), the Constitution Bench treated the judges whose appointments and assets were the subject of the requests as third parties, and directed that the section 11 procedure be followed before disclosure of information relating to them. The case is discussed in the Unit V note.

3. Section 24: organisations outside the Act

Section 24(1): nothing in the Act applies to the intelligence and security organisations specified in the Second Schedule, established by the Central Government, or to any information furnished by them to that Government. The Schedule, as amended by notifications from 2005 to 2021, lists twenty-five organisations, including the Intelligence Bureau, the Research and Analysis Wing, the Directorate of Revenue Intelligence, the Directorate of Enforcement, the Narcotics Control Bureau, the Border Security Force, the CRPF, ITBP, CISF, NSG, Assam Rifles, Sashastra Seema Bal, the Directorate General of Income-tax (Investigation), the National Technical Research Organisation, the Financial Intelligence Unit, the Special Protection Group, DRDO, the National Security Council Secretariat, the CBI, the NIA, NATGRID and the Strategic Forces Command.

Two provisos limit the exclusion:

Information pertaining to allegations of corruption and human rights violations is not excluded.
Where the information concerns allegations of human rights violations, it is provided only after the approval of the Central Information Commission, and within forty-five days of the request, notwithstanding section 7.

Section 24(2) and (3): the Central Government may amend the Schedule by notification, adding or omitting organisations, and each notification must be laid before Parliament. Section 24(4) and (5): a State Government may by notification exclude intelligence and security organisations established by it, subject to the same two provisos (with the State Information Commission’s approval for human rights information), and the notification must be laid before the State Legislature.

Note the difference from section 8. Section 8 exempts information wherever it is held; section 24 takes whole organisations out of the Act, except for the two categories in the provisos.

4. Sections 22 and 23

Section 22: the Act has effect notwithstanding anything inconsistent in the Official Secrets Act, 1923, any other law, or any instrument having effect by virtue of law. A departmental rule or contract clause cannot defeat a request. Section 23: no court shall entertain any suit, application or other proceeding in respect of an order made under the Act, and no such order may be questioned otherwise than by appeal under the Act. The writ jurisdiction of the High Courts and the Supreme Court under Articles 226 and 32 is not affected, because a statute cannot take away a constitutional remedy; orders of the Commissions are regularly challenged by writ petition.

5. Problem: securities given to a bank

Ramu applied to bank authorities for details of the properties and securities submitted by Shivaraj. Can he succeed? (December 2020)

Issue. Whether a borrower’s security documents held by a bank can be obtained by a stranger under the Act.

Law. First, the bank must be a public authority: a nationalised or State Bank is (owned by the Government); a private bank is not, though information about it that the Reserve Bank can obtain under the Banking Regulation Act may be sought from the Reserve Bank under section 2(f). Second, Shivaraj is a third party, so section 11 applies. Third, the information is personal to Shivaraj under section 8(1)(j) and is held by the bank in a relationship of confidence with its customer, a ground also argued under section 8(1)(e). Jayantilal Mistry rejected the fiduciary claim of the Reserve Bank as regulator, but that case concerned inspection reports in the public interest, not the private security papers of an individual borrower.

Application. Ramu shows no public interest, and the details of a private person’s properties and securities are personal information of the plainest kind. If the PIO were nevertheless inclined to disclose, he would have to give Shivaraj notice within five days and hear him.

Conclusion. Ramu will not succeed unless he shows a larger public interest under section 8(2), for example a large public-sector loan that went bad through fraud. Even then the bank must follow section 11 first.

How this is examined

As 8-mark short notes, write section 11 as a sequence of steps with the time limits and the proviso, and section 24 as the rule, the Schedule (name five or six bodies), the two provisos and the State power. Problems about a bank customer, a contractor’s bid or a colleague’s file always need a sentence on section 11.

Now try the real questions: Right to Information past question papers.