INTRODUCTION
The Right to Information Act (“RTI”), 2005 replaced the Freedom of Information Act, 2002.[1] It was enacted to establish a framework for providing information to citizens while promoting their right to access information.[2] RTI is considered a fundamental right under Article 19(1) of the Constitution. It enables citizens to learn about their rights while using public services and allows them to file complaints if necessary.[3] This includes the right to be heard and access to consumer education regarding these rights. The principles underlying the RTI are inclusivity, transparency, and responsible governance.[4]
The inclusion of private entities and Intellectual Property Rights (“IPR”) within the purview of the RTI Act holds significant societal implications. It enhances transparency, accountability, and consumer rights in the private sector, while fostering public participation in decision-making processes. Although the RTI Act in India does not explicitly cover private entities, the Sarabjit Roy v. Delhi Electricity Regulatory Commission case established that privatized utility firms are subject to the RTI.[5] It is important to note that private entities are bound by the RTI regardless of government support. While the law recognizes the need to safeguard confidential information such as commercial confidence, intellectual property, or trade secrets, disclosure may be required in the interest of the community as determined by the relevant authority.[6] Striking a balance between transparency and commercial interests is essential for the effective implementation of the RTI Act.
NAVIGATING THE INTERSECTION OF RTI AND PRIVATE COMPANIES
The inclusion of private entities under the ambit of the Right to Information Act (RTI) requires an examination of Section 2 of the act, specifically sub-sections (a), (f), and (h).[7] These provisions define key terms such as “Appropriate Government,” “Information,” “Public Authority,” and “Substantially Financed,” which are crucial in determining whether private entities fall within the jurisdiction of the RTI and their implications on intellectual property rights.
Section 2(a) defines “Appropriate Government” as a “Public Authority” owned or "Substantially Financed" by any form of government.[8] Section 2(f) clarifies that “Information” includes material in any form, including electronic, and encompasses information related to non-public bodies accessible through a “Public Authority.”[9] Section 2(h) defines “Public Authority” and establishes that any entity “Substantially Financed” by any form of government is subject to the purview of the RTI.[10]
While the term “Substantially Financed” is not explicitly defined in the RTI, judicial decisions have shed light on its interpretation. In Tamil Nadu Road Development Co. Ltd. v. Tamil Nadu Information Commission,[11] it was determined that private entities substantially financed and managed by the government should be brought within the scope of the RTI to ensure better access to information about their functioning. Companies with a Public Sector Undertaking shareholding of at least 45.91% of the paid-up capital are considered “Public Authorities.”[12] Additionally, companies receiving financial assistance from the state are also deemed “public authorities.”[13]
The term “State,” as defined in the Constitution concerning the enforcement of fundamental rights, includes Government Companies.[14] Therefore, Government Companies automatically fall within the ambit of “Public Authorities,” as established in the Central Inland Water Transport Corporation Ltd. and Anr. Etc. v. Brojo Nath Ganguly and Anr.[15]
Regarding the interpretation of “Substantially Financed,” the Indian Olympic Association v. Veeresh Malik case noted that it cannot be precisely defined as it varies based on the circumstances of each case.[16] The key factor in determining substantial financing is whether the funds were used for public obligations or to assist the public in response to specific needs, distinguishing it from non-governmental organizations. Furthermore, it has been interpreted that “Substantially Financed” refers to bodies where ownership and control need not necessarily reside with the government, implying that a holding of at least 50% is required. The Companies Act 2013 grants certain rights to individuals who own 26% equity in a company, and a similar rationale can be applied to the concept of “Substantially Financed.”[17]
The analysis of Section 2 of the RTI Act demonstrates the complex considerations involved in including private entities under its purview.[18] The definitions of key terms play a crucial role in determining the applicability of the RTI to private entities and its impact on intellectual property rights. The courts have provided interpretations of these terms through notable cases. They have emphasized that private entities substantially financed and managed by the government should be subject to the RTI to ensure transparency and access to information.[19] Financial assistance from the state is also a significant criterion.[20] The concept of “Substantially Financed” is dynamic and depends on the utilization of funds for public obligations and addressing specific needs. These cases highlight the evolving understanding of the RTI’s applicability to private entities and the balance between transparency and IPR.
THE INTERPLAY OF RTI AND IPR: THE CURIOUS CASE OF FERANI HOTELS
The Ferani Hotels Pvt. Ltd. v. State Information Commissioner and Ors.[21] case exemplifies the delicate balance between the RTI and IPR. Mr. Nusli Neville Wadia sought RTI information regarding property documents and development plans, while Ferani Hotels argued that disclosing the plans would infringe their copyright.[22] The High Court ruled that once development plans are authorized and become part of the public record, they lose their trade secret status. Withholding such information would undermine the goals of the RTI. The court clarified that the disclosure of the development plans in this case would not constitute copyright infringement. It highlighted that the RTI permits non-disclosure if it risks copyright infringement, but the plans, being part of the public record, did not violate copyright laws.[23] This case emphasizes the need to strike a balance between the RTI's transparency objectives and the protection of intellectual property rights, affirming the importance of disclosing public record information within the boundaries of the RTI Act.
CHALLENGES AND OPPORTUNITIES IN IMPLEMENTING RTI FOR PRIVATE ENTITIES
The applicability of the RTI Act to private entities hinges on the extent of government funding they receive. However, the issue of defining “substantial funding” remains unresolved, allowing private entities to evade disclosure and withhold information. The interpretation of previous court cases suggests that companies in which the government holds a minority stake, up to 26% equity, are considered “Public Authorities” and subject to the RTI.[24] In such cases, the RTI mandates the provision of non-exempt information to any citizen who requests it.
Nevertheless, when it comes to IPR, the RTI Act exempts the publication of information that could compromise the originality or competitive position of a third party, unless it serves a higher public interest determined by the Central Information Commission.[25] This exemption aligns with the recognition that freedom of expression, encompassing the right to access information, is a fundamental aspect of Article 19.[26] While certain proceedings, such as assessment hearings, may be closed to the public to safeguard evaluation procedures, this should be carefully balanced to ensure public policy justifications.
The RTI Act seeks to strike a delicate equilibrium between conflicting interests by acknowledging the importance of maintaining democracy and protecting IP.[27] The authorities responsible for enforcing the Act must adopt a strategic and sensible approach to reconcile its contradictory provisions.[28] It is worth noting that the RTI Act supersedes any other information dissemination systems established under specific regulations. In the case of patents, disclosure lies at the core of their purpose, as they grant a 20-year monopoly in exchange for providing public benefits.
Navigating the intersection between private entities, the RTI Act, and IPR requires careful consideration of transparency requirements and the need to protect proprietary information. Striking a balance between these two facets is crucial for upholding the principles of democracy and fostering an environment conducive to innovation and Public Private Partnerships.
CONCLUSION
The application of the RTI Act to private entities raises complex considerations regarding transparency and intellectual property rights. While businesses are not exempt from transparency mechanisms, the disclosure of private information must be approached cautiously, considering the sensitive nature of certain data and its potential impact on stock markets and securities regulations. Applying RTI principles directly to private disclosures may pose challenges and conflicts with existing information rights protected by securities regulations. To address this, it is necessary to establish specific rules and guidelines by competent authorities that outline the obligations of private entities as well as the procedures for responding to information requests under section 2(f) of the RTI Act.
One potential solution to address this issue is to look at prospective examples from other organizations and jurisdictions. For example, the United Nations (“UN”) provides valuable insights into applying transparency mechanisms to private entities. Initiatives like the UN Global Compact and the UN Guiding Principles on Business and Human Rights emphasize the importance of transparency and accountability in both public and private sectors. One solution is to encourage private entities to voluntarily adopt transparency standards through frameworks like the UN Global Compact. This promotes responsible business practices and disclosure of information on human rights, labor standards, and anti-corruption measures. Countries like India can learn from these initiatives and develop similar frameworks or encourage private entities to align with existing UN initiatives.
Additionally, one potential foreign jurisdiction that provides insights for addressing the application of the RTI Act to private entities, similar to India, is the United Kingdom (“UK”). The UK’s Freedom of Information Act governs information disclosure by public authorities and includes provisions for certain private entities performing public functions. India could adopt a similar framework by designating specific private entities involved in public functions or public-private partnerships as “public authorities” under the RTI Act, promoting transparency and accountability.
To further address these issues, policymakers and stakeholders should engage in dialogue to develop clear regulations. These regulations should balance transparency requirements with the protection of intellectual property rights, taking into account the specific challenges and sensitivities involved. This approach promotes transparency and accountability while respecting the concerns of private entities regarding proprietary information.
[1] The Right to Information Act, § 1, No. 22 of 2005, Acts of Parliament 2005 (India) [Hereinafter RTI Act]; The Freedom of Information Act, § 1, No. 5 of 2003, Acts of Parliament 2003 (India). [Replaced with RTI now]. [2] RTI Act, preamble. [3] India Const. art. 19(1). [4] RTI Act, chapter II. [5] Sarabjit Roy v. Delhi Electricity Regulatory Commission, Application No: CIC/WB/A/2006/00011; RTI Act, § 19. [6] VK Ahuja, Intellectual Property Rights in India 2015 1 (2nd Ed.). [7] RTI Act, § 2. [8] RTI Act, § 2(a). [9] RTI Act, § 2(f). [10] RTI Act, § 2(h). [11] Tamil Nadu Road Development Co. Ltd v. Tamil Nadu Information Commission and Anr., [2008] 145 Comp Cas 248 (Mad). [12] Shri Nisar Ahmed Shaikh and Ors v. LIC Housing Finance Limited, Complaint Nos. CIC/AT/C/2007/0216, 365,462,498,540,511 and Complaint Nos. CIC/AT/C/2008/172,342,655,487. [13] M.P. Varghese v. Mahatma Gandhi University AIR 2007 Ker 230. [14] India Const. art 12; India Const. art. 19(1). [15] Central Inland Water Transport Corporation Ltd. and Anr. Etc. v. Brojo Nath Ganguly and Anr., 1986 AIR 1571. [16] Indian Olympic Association v. Veeresh Malik, MANU/DE/0108/2010. [17] Bangalore International Airport Limited v. Karnataka Information Commission, MANU/KA/0292/2010. [18] RTI Act, § 2. [19] Bangalore International Airport Limited v. Karnataka Information Commission, MANU/KA/0292/2010. [20] Mr. Ved Prakash Sharma vs Senior Citizens Welfare, Decision No. CIC/SG/C/2009/001193/5009. [21] Ferani Hotels Pvt. Ltd. v. State Information Commissioner and Ors., 2016 (2) ALLMR26. [22] RTI Act, § 6(1); Shonkh Technology International Ltd. v. State Information Commission Maharashtra Konkan Region, and United Telecom Limited v. State Information Commission Maharashtra Konkan Region and Ors., 2011 (113) BOMLR 2433. [23] The Copyright Act, § 52(f), No. 14 of 1957, Acts of Parliament 1957 (India). [24] Krishak Bharti Cooperative Ltd. v. Ramesh Chander Bawa, (2010) 118 DRJ 176. [25] Institute of Chartered Accountants of India v. Shaunak H. Satya and Ors., (2011) 8 SCC 781. [26] Mr. Kulwal v. Jaipur Municipal Corporation, AIR 1988 RAJ 2. [27] Naresh Trehan v. Rakesh Kumar Gupta, 216 (2015) DLT 156. [28] Central Board of Secondary Education and Anr. vs. Aditya Bandopadhyay and Ors., (2011) 8 SCC 497.
This post is authored by Dhaval Bothra, a student at Symbiosis Law School, Pune.
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