Right to Information Act, 2005 — Section 8(1)(d) & (3) — Information — Exemption from disclosure

August 2nd, 2013

Right to Information Act, 2005 — Section 8(1)(d) & (3) — Information — Exemption from disclosure — Respondent field RTI seeking information relating to instructions issued by ICAI to examiners and moderators — Rejection of request on ground of exemption from disclosure under section 8(1)(c) & (d) — Whether instructions and solutions to questions given by ICAI to examiners are intellectual property of ICAI, disclosure of which harms the competitive position of third party, hence exempted? No — No doubt, ICAI has copyright in regard to question papers, solutions etc. — Information exempted from disclosure at one point of time may cease to be exempted at a later point — Disclosure of papers, model answers in regard to particular examination would not harm competitive position of third party once the examinations are over.

HELD: The term ‘intellectual property’ refers to a category of intangible rights protecting commercially valuable products of human intellect comprising primarily trade mark, copyright and patent right, as also trade secret rights, publicity rights, moral rights and rights against unfair competition (vide Black’s Law Dictionary, 7th Edition, page 813). Question papers, instructions regarding evaluation and solutions to questions (or model answers) which are furnished to examiners and moderators in connection with evaluation of answer scripts, are literary works which are products of human intellect and therefore subject to a copyright. The paper setters and authors thereof (other than employees of ICAI), who are the first owners thereof are required to assign their copyright in regard to the question papers/solutions in favour of ICAI.

Information can be sought under the RTI Act at different stages or different points of time. What is exempted from disclosure at one point of time may cease to be exempted at a later point of time, depending upon the nature of exemption. For example, any information which is exempted from disclosure under section 8, is liable to be disclosed if the application is made in regard to the occurrence or event which took place or occurred or happened twenty years prior to the date of the request, vide section 8(3) of the RTI Act. In other words, information which was exempted from disclosure, if an application is made within twenty years of the occurrence, may not be exempted if the application is made after twenty years. Similarly, if information relating to the intellectual property, that is the question papers, solutions/model answers and instructions, in regard to any particular examination conducted by the appellant cannot be disclosed before the examination is held, as it would harm the competitive position of innumerable third parties who are taking the said examination. Therefore it is obvious that the appellant examining body is not liable to give to any citizen any information relating to question papers, solutions/model answers and instructions relating to a particular examination before the date of such examination. But the position will be different once the examination is held. Disclosure of the question papers, model answers and instructions in regard to any particular examination, would not harm the competitive position of any third party once the examination is held. In fact the question papers are disclosed to everyone at the time of examination. The appellant voluntarily publishes the “suggested answers” in regard to the question papers in the form of a book for sale every year, after the examination. Therefore section 8(1)(d) of the RTI Act does not bar or prohibit the disclosure of question papers, model answers (solutions to questions) and instructions if any given to the examiners and moderators after the examination and after the evaluation of answerscripts is completed, as at that stage they will not harm the competitive position of any third party. We therefore reject the contention of the appellant that if an information is exempt at any given point of time, it continues to be exempt for all time to come — .

Institute of Chartered Accountants of India v. Shaunak H. Satya[Bench Strength 2], Civil Appeal No. 7571/2011 (Arising out of SLP (C) No. 2040/2011)(02/09/2011), 2012(1) SCV(Civil) 23: 2011 AIR(SC) 3336: 2011(8) SCC 781: 2011(10) JT 128: 2011(9) SCALE 639: 2011(6) SLT 692 [R.V. Raveendran, J.: A.K. Patnaik, J.]

Entry Filed under: Right to Information