Transparency vs Privacy

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Relevance:

  • GS II: Transparency & accountability & institutional & other measures
  • GS IV: Information sharing & transparency in govt, Right to Information

Context:

  • The right to privacy and the right to information are both essential human rights in the Modern information society. For the most part, these two rights complement each other in holding governments accountable to individuals. But there is a potential conflict between these rights when there is a demand for access to personal information held by the government bodies.
  • Many presume that when citizens invoke the RTI, then government bodies can seek shelter under the RTP. This is a myth that was recently exposed by the Supreme Court when it ruled that even the Chief Justice of India’s office will come under the Right to Information Act

  • Where the two rights overlap, states need to develop mechanisms for identifying core issues to limit conflicts and for balancing the rights. Let us see how:
Right to information
  • The right of access to information held by government bodies (RTI) provides that individuals have a basic human right to demand information held by government bodies. 
  • In India, Right To Information is derived from our fundamental right of freedom of speech and expression under Article 19 of the Constitution. 
  • Under the RTI Act, any citizen of India can request information from a “public authority”, including the Chief Justice of India, and the relevant authority is required to reply within 30 days.
  • Exemptions: Sec. 8 exempts from disclosure certain information and contents like:
    • The information, which is expressly forbidden by any court of law or tribunal or the dispute of which may constitute contempt of court. 
    • The information the disclosure of which would endanger life, or physical safety of any person or identify the source of information or assistance given in confidence for law enforcement or security purpose.
    • The information, which could impede the process of investigation or apprehension or prosecution of offenders. 
    • The Act specifies that intelligence and security organizations are exempted from the application of the Act.
    • However, it is provided that in case the demand for information pertains to allegations of corruption and human rights violations, the Act shall apply even to such institutions.
Right to Privacy
  • The right to privacy is a fundamental right and an intrinsic part of Article 21, which protects the life and liberty of citizens under Part III of the Constitution.
  • On 24 August 2017, a nine-judge bench of the Supreme Court in Justice K.S. Puttaswamy (Retd.) and Anr. vs Union Of India And Ors. unanimously held that the right to privacy is an intrinsic part of the right to life and personal liberty under Article 21 of the Indian Constitution.

What is the paradox of these two rights?
  • The government stores a lot of personal information on individuals. This ranges from income tax returns and driving licence details to census data and medical information.
  • When an application is made under the RTI Act for disclosure of some information on an identifiable individual, there is a conflict between the RTI and the RTP. Right to Information primarily gives citizens access to records in the government.
  • Personal information can be denied if it infringes an individual’s privacy.
  • A good example is our medical records. Such information, the disclosure of which would invade someone’s privacy, is exempt from the RTI requirements. (According to Sec8, As stated above)
  • If the information is personal and would cause an unwarranted invasion of privacy and serves no public interest, then it cannot be disclosed, unless the central public information officer or the state public information officer, or any other appellate authority, is of the opinion that the disclosure of this information would serve a larger public interest.
  • In terms of procedure, before an applicant asks for the personal information of an individual, he or she has to justify the public benefit of its disclosure and the information officer should be convinced of it. If the officer accepts the argument, public interest trumps the Right to Privacy.
  • But, there are instances where access to information is denied under the name of Right to privacy. They are:
    • corruption for getting added to lists of beneficiaries are being denied.
    • A number of fake degrees, experience certificates, caste certificates, corrupt officials being favoured, et al, which were slowly curbing wrong actions, are denied
    • Even details of expenditure from MLA funds are being denied on the grounds that it relates to a person.

This cloak of Privacy Right, being increasingly used to deny information may lead to a major regression for transparency and RTI.

Can the two rights be reconciled?
  • The question arises- “do we have to sacrifice one right to enforce the other?” And there have been mixed responses to this.
  • Experts have come up with the view that “you can have varying amounts of transparency and privacy regarding a particular subject, but you can’t have total transparency and privacy at the same time.”
  • Sunil Abraham (executive director of the Centre for Internet and Society based in Bangalore) suggests that these rights are completely compatible if you address the question of power.
  • These rights do not have to be balanced against one another. Privacy protections must be inversely proportionate to power and, as Julian Assange says, transparency requirements should be directly proportionate to power.
  • It means: There is no public interest in reducing privacy for ordinary citizens – the powerless – but there are huge public interest benefits to be secured by increasing transparency of politicians and bureaucrats, who are powerful.
  • In most privacy laws, the public interest is an exception to privacy. If public interest is being undermined, then an individual’s privacy can be infringed upon by the state, by researchers, by the media, and so on.
  • In transparency law, if the privacy of an individual could be infringed, transparency would not be required unless it is in the public interest.
  • In other words, the ‘public interest test' allows us to use privacy law and transparency law to address power asymmetries rather than exacerbate them.

Case Study of Adhaar

  • Aadhaar or UID is India’s ambitious centralized biometric identity and authentication management system.
  • In its current avatar, the Aadhaar project hopes to assign biometric-based identities to all citizens.
  • The hope is that corruption within India’s massive subsidy programmes will be reduced.
  • But this might marginally reduce retail corruption at the bottom of the pyramid. It will do nothing to address wholesale corruption that occurs as subsidies travel from the top to the bottom of the pyramid.
  • Experts have over and over again suggested abandoning the issuing of biometric identities to all citizens to make them more transparent to the state. Let us instead issue Aadhaar numbers to all politicians and bureaucrats and make the state more transparent to citizens. 
  • Another suggestion to address corruption was to construct a digital signature based on audit trails that track all funds and subsidies as they move up and down the pyramid. These audit trails must be made public so that ordinary villagers can be supported by open data activists, journalists and others.
  • The main privacy concerns with Aadhaar are Identity theft. Aadhaar is vulnerable to illegal harvesting of biometrics and identity frauds because biometrics are not secret information.

 

Way ahead
  • There need to be common definitions and internal consistency within the entire framework to limit conflict and establish a balance. Since this exercise involves specific legal provisions, it might even call for legislative efforts.
  • A “conflict resolution strategy” can be adopted to harmonize the two rights.
  • Appropriate institutional structures and public interest tests should be created to balance these rights and ensure that data protection and the right to information work together in harmony. 
  • We need to demarcate the extent to which personal information may be disclosed in the general interest. As of now, there is no line of demarcation for disclosure and non-disclosure. This is a bridge that could resolve at least part of the RTI-RTP paradox.
Conclusion

Both rights are intended to help an individual in making government accountable and transparent. Most issues can be mitigated through the enactment of clear definitions in legislation, guidelines, techniques, and oversight systems. Due diligence would ensure that the access to information and data protection laws have compatible definitions of personal information.  The public authorities should deal with the applicants in a friendly manner and public interest should be the core and the disclosures should be made accordingly.



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