Sunday, August 27, 2017

Right to information vis-à-vis right to privacy

Dr KK Aggarwal

Until this week, right to privacy was only inferred from the Article 21 “Protection of Life and Personal Liberty” of our constitution and not recognized as a fundamental right or guaranteed by the constitution. But, the judgement of the Supreme Court of India on August 24 (Thursday) has now granted the right to privacy as a fundamental right. It’s a historic judgement, which may well redefine what information can be accessed and how information can be used.

The Right to Information (RTI) Act was enacted in 2005 to make the citizens informed about the activities of the Government. Under the provisions of the Act, any citizen of India may request information "public authority", which is established, constituted, owned, controlled or substantially financed by funds provided directly or indirectly by the Govt (Central/State/UT). RTI mandates timely response to citizen requests for government information. This right to information includes right to obtain information and to disseminate that information.

Privacy of information gives a person control over his personal information including health information. He/she has the right to decide if as well as with who this information can be shared with.

There is a concern that personal health information of a patient can be accessed via the RTI Act.

However, the RTI Act has provided for the protection of patient’s personal information in Section 8(1)(j) and section 11, which relates to third party information.

Section 8(1)(j) relates to exemption from disclosure of personal information, which is purely concerned to the person in question and is not of public interest.  It secures personal health information and does not automatically grant the right to request any personal information such as medical records, tax returns. Disclosure can be refused unless it is in the larger public interest.

“Section 8(1)(j): information which relates to personal information the disclosure of which has not relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information: Provided that the information, which cannot be denied to the Parliament or a State Legislature shall not be denied to any person.”

Section 11 relates to disclosure of third party information. Any confidential third party information can be disclosed after informing the third party i.e. who has provided the confidential information. Information can still be disclosed, even if the third party denies permission, if the public interest outweighs any injury to privacy of the said third party.

“11. Third party information.—
(1) Where a Central Public Information Officer or the State Public Information Officer, as the case may be, intends to disclose any information or record, or part thereof on a request made under this Act, which relates to or has been supplied by a third party and has been treated as confidential by that third party, the Central Public Information Officer or State Public Information Officer, as the case may be, shall, within five days from the receipt of the request, give a written notice to such third party of the request and of the fact that the Central Public Information Officer or State Public Information Officer, as the case may be, intends to disclose the information or record, or part thereof, and invite the third party to make a submission in writing or orally, regarding whether the information should be disclosed, and such submission of the third party shall be kept in view while taking a decision about disclosure of information: Provided that 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 such third party.

(2) Where a notice is served by the Central Public Information Officer or State Public Information Officer, as the case may be, under sub‑section (1) to a third party in respect of any information or record or part thereof, the third party shall, within ten days from the date of receipt of such notice, be given the opportunity to make representation against the proposed disclosure.

(3) Notwithstanding anything contained in section 7, the Central Public Information Officer or State Public Information Officer, as the case may be, shall, within forty days after receipt of the request under section 6, if the third party has been given an opportunity to make representation under sub‑section (2), make a decision as to whether or not to disclose the information or record or part thereof and give in writing the notice of his decision to the third party.

(4) A notice given under sub‑section (3) shall include a statement that the third party to whom the notice is given is entitled to prefer an appeal under section 19 against the decision.”

Doctors have an ethical duty to keep patient’s health information confidential and not disclose it to others without consent as per the MCI Code of Ethics Regulations. But the MCI Ethics Code has also defined conditions when patient information can be disclosed under Regulations 2.2 and 7.14.

“2.2 Patience, Delicacy and Secrecy: Patience and delicacy should characterize the physician. Confidences concerning individual or domestic life entrusted by patients to a physician and defects in the disposition or character of patients observed during medical attendance should never be revealed unless their revelation is required by the laws of the State. Sometimes, however, a physician must determine whether his duty to society requires him to employ knowledge, obtained through confidence as a physician, to protect a healthy person against a communicable disease to which he is about to be exposed. In such instance, the physician should act as he would wish another to act toward one of his own family in like circumstances.

7.14 The registered medical practitioner shall not disclose the secrets of a patient that have been learnt in the exercise of his / her profession except –
  • in a court of law under orders of the Presiding Judge;
  • in circumstances where there is a serious and identified risk to a specific person and / or community; and
  • notifiable diseases.

In case of communicable / notifiable diseases, concerned public health authorities should be informed immediately.”

Right to information and right to privacy can be considered two sides of the same coin. Like all fundamental rights, right to privacy is fundamental, but not an absolute right. It is subject to reasonable restrictions as imposed by the State.

But, will the new fundamental right to privacy impinge upon the RTI Act and limit its scope in some way? This would depend on if the definition of “public interest” is expanded.

Disclaimer: The views expressed in this write up are entirely my own

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