APPLYING THE LAW

Handling Appeals: Section 8(2) Public Interest Override

Section 8(2) of the Central Act makes all of the exemptions contained in section 8 (1) of the Act subject to a "Public Interest Override". This means in practice that even where requested information is covered by an exemption, an official - and the Information Commission when considering an appeal - should still disclose information to an appellant if the public interest in the specific case requires it.

The term "public interest" is deliberately not defined in the Central Act. Because of this, public authorities - more specifically, Public Information Officers and Appellate Authorities - as well as Information Commissioners will need to judge each case on its merit and in light of any emerging guidance or best practice. Notably in this context, what is held to be in the public interest will change over time and it will also depend on the particular circumstances of each case. Consideration of the public interest is made case by case.

Notably, the notion of the 'public interest' is the unifying principle in the Central Act. The recognition that information received or created by government is held for the benefit of the public underpins the public interest balancing test. Government information is not the property of the organisation that holds it. It is not 'owned' by any department or by the government of the day. It is held for the community.

The comparative strengths/importance of the public interest issues identified must then be weighed against each other to decide whether or not those favouring disclosure outweigh those favouring non-disclosure. The extent of the harm or benefit will influence the weight to be given to the factor. When weighing competing interests, consider any probable harm from disclosure and the fact that information generally becomes less sensitive over time. Be proactive and consider whether the exemption as applies to an official document has outlived its purpose.

How to apply sections 8(1) and 8(2) of the RTI Act 2005
Step 1: Consider whether all the requirements of any of the exemptions in section 8(1) are satisfied.
Step 2: Identify all public interest factors for and against disclosure
For Disclosure For example Government accountability Public participation Public awareness Promoting human rights	Against Disclosure For example Personal privacy Efficient regulation
Step 3: Assess weight of each factor and decide whether factors against disclosure outweigh factors for disclosure*
* Where competing public interests have to be considered and the public interest in disclosing or not disclosing information is judged to be evenly balanced, public authorities should always decide in favour of disclosure.

See CHRI's separate paper on "Balancing the public interest" for a more detailed discussion on this topic.

Please click on the link to the Central RTI Act to read the detailed provisions contained in the law. Please click on the link to CHRI's State RTI pages to find out more about relevant rules and implementation in your specific State.