Law Web: Can Police Disclose WhatsApp Chats and Photos Collected During Investigation Under RTI Act?

I. Conclusions of the Court

28. The competing arguments advanced on behalf of the parties lead to the following conclusions :

a)􀀁 The designated Information Officer has a duty and an obligation to apply his

mind on the nature of the information which is to be furnished to an

applicant who has sought for such information. This obligation calls for an

active determination taking into account Section 8(1) (a)-(j) and whether an

overwhelming pressure of public interest justifies the disclosure of the information at hand.

b)􀀁 The determination must also involve an assessment of whether the personal

information has any nexus with a public activity or furnishing of such

information would cause an unwarranted invasion of the privacy of the

individual concerned.

c)􀀁 The IO must also take into account the mechanism provided under section

11 of the Act involving the information supplied by a third party and treated

as confidential by that third party. In essence, the disclosure must be with

the consent of the third party.

d)􀀁 The IO must also consider whether the information is in the public domain

on the date of the application made for it and trace the movement of the

information from the private to the public domain. In other words, the IO

must see whether the information was put in the public sphere voluntarily

or under threat or compulsion.

e)􀀁 The determination must also include a fact-check as to whether the

information travelled to the public domain at the instance of one party or all

the parties who created and shared the content of the information.

f)􀀁 The determination must be nuanced and sensitive where one of the parties

to the conversation is no longer alive. In such cases, the consent of the other

(living) party to the disclosure of the information may not be relevant for the

purposes of section 8(1)(j) of the Act.

g)􀀁 The significance of section 8(1)(j) which upholds the right to privacy and

ultimately the reputation and dignity of an individual under Article 21 of the

Constitution goes against the tide of a free flow of information and remains

steadfast in holding on to the private space of an individual. The significance

of this provision must not be forgotten or diluted under any circumstances

(Ref. Subramanian Swamy vs. Union of India, Ministry of Law; (2016) 7 SCC

221).

29. In view of the above discussion is allowed and disposed

of by directing the Police Authorities to immediately withdraw the entire series of

photographs and WhatsApp messages between the deceased and

and treat the same as private information which falls within the

clamp of section 8(1)(j) of The Right to Information Act. The authorities are to

ensure that the WhatsApp messages and the photographs are not disclosed to any

person or authority by way of an application under the Right to Information Act or

otherwise.

IN THE HIGH COURT AT CALCUTTA

Constitutional Writ Jurisdiction

Appellate Side

X Vs. State of West Bengal & Ors.

Present :-

The Hon’ble Justice Moushumi Bhattacharya.

Delivered on : 29.09.2022.

Moushumi Bhattacharya, J.

1. The petitioner has challenged a Memo dated 11th March, 2022 issued by the

Assistant Commissioner of Police (ACP) disclosing certain documents under The

Right to Information Act, 2005, with reference to an ongoing police case. The

documents in question are a series of WhatsApp chats between one

(since deceased) and from 26th November, 2014 -22nd July, 2019.

The documents also include photographs of and

The petitioner is the father of the deceased and seeks a restraint on

the disclosure of the WhatsApp chats between his late daughter and her friend

2. The reference made above to an ongoing P.S Case is relevant for a more

complete appreciation of the concerns of the parties before the Court. The

petitioner’s daughter and (son of respondents

were married on 9th February, 2020. died

on 16th February, 2021 under mysterious circumstances. The Jains and the

Agarwals thereafter filed criminal proceedings against each other. The petitioner

lodged a complaint with the Alipore P.S on 17th February, 2021 against

and his parents (the Alipore P.S. Case). The Agarwals lodged a case in the

Kalighat P.S on 22nd July, 2021 against the petitioner and his wife for removal of

jewellery belonging to from the locker of the Axis Bank (the Kalighat

P.S Case). The petitioner was granted anticipatory bail by this Court on 21st June,

2022. , the husband of late , is presently in custody

and an application for bail has recently been rejected.

3. The contention of learned senior counsel Mr. Kalyan Bandhopadhyay,

appearing for the petitioner, being the father of the

deceased is that the WhatsApp chats between the petitioner’s late

daughter and could not have been disclosed under the provisions

of the RTI Act. Counsel submits that the information is required to be kept secret

since the investigation in the Alipore P.S Case against the Agarwals is continuing.

Counsel relies on Regulation 71 (g) of Chapter V of the Police Regulations, Calcutta

1968 where the contents of a case diary and statements of witnesses are regarded

as privileged information. Counsel submits that the authority acted in breach of

Articles 19 and 21 of The Constitution of India. Counsel urges that in the present

case, the information was supplied without due regard to the requirements under

the aforesaid sections.

4. Mr. Joydip Kar, learned senior counsel appearing for the Agarwal family

(respondent nos. 7 to 9), submits that the information furnished was required for

the ongoing investigation under the Kalighat P.S. Case with regard to removal of

jewellery from the concerned Bank. Counsel submits that there is no provision

under the RTI Act which bars disclosure of information which is required as

evidence for corroborative purposes. Counsel further submits that the information

was in the public domain on the date of furnishing of the information by the police

authorities. It is also submitted that the right to privacy is subject to the

qualifications provided under the law. Counsel urges that the respondents have a

right to self-defence against the charges brought by the Jains and that the

information is required for that purpose.

5. Mr. Pranab Kumar Dutta, learned senior counsel appearing for

(respondent no. 6), being the defacto complainant in the Kalighat P.S Case

and a cousin of (husband of late ) submits that an

RTI application was made by to the SPIO on 2nd March, 2022.

Counsel relies on a progress report dated 6th February, 2022 in the Kalighat P.S

Case which reflects the name of as having emerged from the

statements of witnesses. Counsel stresses that section 8(1)(j) has to be read in

conjunction with section 11 of the RTI Act on the point of voluntary disclosure.

Counsel supports the case sought to be made out by the Agarwals and urges that

the information in question is necessary for the ongoing investigation.

6. Mr. Amitesh Banerjee, learned senior standing counsel for the State clarifies

the ongoing criminal investigations in the two P.S Cases, namely, Alipore P.S Case

(where the Agarwals are the accused) and Kalighat P.S Case (where the Jains are

the accused). It is submitted that the documents are regarded to be in the public

domain from the time they are disclosed to the police authorities. Counsel submits

that the information hence loses the character of private information. Counsel

submits that the police are independent authorities and have no leaning towards

or against any of the parties before the Court.

7. The contentions of the parties can be grouped under the following subheads.

The decision is structured accordingly.

A. The Right to Information Act, 2005

8. The petitioner seeks to rely on two provisions of the Act to stop any further

steps being taken in the disclosure of the WhatsApp messages of the petitioner’s

late daughter and . The first of the provisions is section 8(1)(h) of

the Act by which the designated authorities under the Act shall not be under any

obligation to give any citizen, information which would impede the process of

investigation or apprehension or prosecution of offenders. It is doubtful whether

section 8(1)(h) would come to the assistance of the petitioner since the case sought

to be made out is the reverse. The petitioner urges that the information disclosed

or in the process of being further disclosed, is wholly unnecessary to the ongoing

investigation in the Alipore and Kalighat P.S. cases.

9. The second provision, section 8(1)(j) however fits the parameters of the

argument made and is set out below;

“8.(1) ...................

(j) information which relates to personal information the disclosure of which

has no 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.”

Unlike the other clauses under section 8(1), clause (j) covers the space of personal

information and the right to privacy. In essence, the clamp on disclosure of

information, unlike the object of transparency of the 2005 Act, travels from

national security issues, parliamentary privilege, sanctity of court orders,

international relations and settles in the corner of the private space of an

individual.

10. Section 8(1)(j) contemplates personal information which is wholly

unnecessary to any public interest. The exception to non-disclosure of such

information is where the CPIO/SPIO (Central Public Information Officer/State

Public Information Officer) is satisfied that unlocking the disclosure of such

information is necessary for the larger public interest. The satisfaction

requirement brings with it a duty to engage with the relevant facts and come to a

specific view or opinion upon due application of mind and an assessment of the

circumstances attending the disclosure. There must hence be a definite opinion

expressed on the link between the personal information sought for and the larger

public interest justifying the departure from protection of privacy of such

information.

11. Section 11 of the RTI Act which relates to third-party information cannot

come to the rescue of the respondents. This section contemplates a situation

where CPIO/SPIO intends to disclose any information on the request made under

this Act and which has been supplied by a third party and has also been treated

as confidential by that third party. In such cases, the CPIO/SPIO shall give a

written notice to such third party of the request and the fact that the Officer

intends to disclose the information. The Officer must also invite the third party to

make a submission in writing or orally as to whether the information should be

disclosed. Even if is treated as the “third party” for the purpose of

section 11, the case reflects that was not the only “third party”

who treated the information as confidential. The procedure to be followed in

section 11 would have to cover every third party whose information was confined

to the private sphere.

12. In the present case, the information was disclosed on an application made

under the Act by one on 2nd March, 2022 for the documents

collected from as mentioned in the progress report filed before the

Chief Judicial Magistrate, Alipore. The information was disclosed by the SPIO and

Assistant Commissioner of Police on 11th March, 2022 to The

documents show that there was an obvious absence of any independent

assessment by the SPIO and ACP as envisaged under section 8(1)(j). The

respondent simply gave the information applied for. There was neither any enquiry

made as to whether the information was necessary for the larger public interest or

whether the disclosure of personal information was justified in the circumstances.

In essence, the impugned act of disclosing the WhatsApp messages between the

petitioner’s deceased daughter and falls clearly foul of the fetter on

disclosing personal information under section 8(1)(j) of the RTI Act.

B. Information emanating from the private space

13. The concept of privacy and private information underpins the constitutional

guarantee of freedom of thought and associations. It includes the right to be free

from interference and intrusion, whether from the prying eyes of a neighbour or

the eavesdropping ears of an associate or even the intrusive camera of a

photographer. Private information also includes the following inalienable – and

often indefinable - characteristics;

(i)􀀁Private information is a part of the private space of an individual

where the individual retains full agency on controlling the space and its

boundaries.

(ii)􀀁Information which relates to personal choices, relationships,

intimacies, sexual preferences and orientation, home, family life; in

essence any thought or idea which a person does not wish to be made

known to the world or even beyond the confines of the person

himself/herself or a group chosen by the persons, is private information.

(iii)􀀁The information-creator remains in the driver’s seat and exercises

complete cruise-control on the movement and destination of the

information.

(iv)􀀁It necessarily emanates from a source; namely of a person who

preserves information for private consumption and enjoyment between

two or more persons forming the periphery of the limits of access to the

information exchanged among themselves.

(v)􀀁It is information which is protected from surveillance whether by

another individual, a group or the society at large. “Information privacy”

is also about protection of information which says who we are, what we

do and what we believe in.

(vi)􀀁The concept of personal space and information also carries with it

the right to be forgotten. Any information shared with another or put in

the public domain does not mean that the information of the source

must remain in public memory for all times to come. In other words,

concomitant to the right of private information, is the right to be erased

from public memory.

(vii)􀀁The presumption is of control and agency where the person putting

out the information remains the master of what he/she has put out, who

should have access to it and for how long. The control does not pass

from the disseminator to the receptor.

(viii)􀀁Sharing of private information with another carries with it an

implicit pact of confidence. The originator of information has a legitimate

expectation that the other party will not make the information public.

This would entail that the other person would only disclose the

information to a third party upon the consent of the originator.

(ix)􀀁The right is informed with the overriding characteristic of consent.

The originator of information must agree to the information being

disseminated beyond the boundaries of consensual sharing of

information.

(x)􀀁The right is exercisable against the world at large; a right in rem so to

speak. An unsuspecting person who is filmed or photographed by a

journalist in a street has the right to seek injunction against the

publication of that photograph regardless of whether there is an

understanding between the person photographed and the photographer.

To use another analogy, a person who picks up a diary containing

personal notes belonging to another has the obligation not to make the

contents of that diary public.

(xi)􀀁As a logical extension even if a person ventures into the public, he or

she does not relinquish his/her claims to the private sphere.

The above pointers sharpen and invigorate the right to life and personal liberty

under Article 21 of the Constitution of India. It also reinforces the freedoms under

Article 19 including the freedom to choose who we want to associate with and live

our lives by our personal choices without interference in that private realm.

C. The concept of public domain

14. The expression “public domain” is broadly used for an information-space

where anybody and everybody can access information. Information which is put

out for the consumption, use and enjoyment of one and all is said to be in the

public domain. By the act of sharing the information in the public sphere the

disseminator relinquishes the right to preserve the information within the private

space. Social media, with the newly introduced privacy settings (Group Firewalls),

is an instance where the information shared assumes the character of private

information. The assumption of privacy is also evident from the “end-to-end

encrypted” security assurance of the WhatsApp messaging system.

15. In the present context, it is relevant to trace the journey of the information

(in the form of WhatsApp messages and photographs) for understanding whether

the information can be treated as being in the public domain and thus losing the

character of private information.

16. The records show that was mentioned in the Progress

Report dated 6.2.2022 before the Chief Judicial Magistrate, Alipore Court. The

Progress Report states that had given a statement under section

161 of The Code of Criminal Procedure, 1973 after which documents and

photographs were collected from the said It was on this basis that

filed an application under section 6 of the RTI Act seeking the

documents which had been collected from The information was

thereafter disclosed by the impugned letter of the SPIO and ACP to

on 11.3.2022. The chain of events makes it clear that the WhatsApp messages

between the petitioner’s daughter and was not in

the public domain before the same was disclosed by to the

concerned authorities. The disclosure of the information by cannot

be treated as a voluntary act of disclosure where the person had the ability to

exercise his informed choice in the matter. It can safely be presumed that the

disclosure was made under duress and may even have been for self-preservation.

17. Further, the disclosure of information by lacked the

consent-criterion of the other party to the chats, namely, . A chat

necessarily includes more than one party and colours the conversation with the

hue of privacy. The concept of a chat-room even in the internet-space gives a sense

of virtual privacy where people intending to chat with one another are provided

with a virtual private-room for such exchanges. Hence, without the consent of the

other party to the conversation, furnishing of the WhatsApp messages by

breached the obligation to keep the WhatsApp chats private and restricted

between himself and

D. Breach of confidence

18. The concept of “breach of confidence” or a non-consensual violation of the

limits of private space is the strongest contender for protection of privacy. It is an

equitable principle developed from English cases where first, the information must

have the necessary quality of confidence; second, the information must have been

imparted in circumstances embodying an obligation of confidence; and third, there

must have been an unauthorised use of that information to the detriment of the

other party.

19. Breach of confidence traditionally fastens on the conscience of one to

enforce equitable duties which arises out of his/her relationship with the other.

Simply put, confidential information which comes to the knowledge of a person in

circumstances where he is put on notice or is held to have agreed that the

information is confidential, carries with it the equitable principle that the person

receiving the information should be precluded from disclosing the information to

others. It may also be useful to stretch the borders of confidentiality to make a

point against automatic sharing of information just because the information is in

the public space. There may be unique ways in which information obtained from

the public domain is used to sully a person’s image and reputation or ridicule a

person’s identity.

E. Respect for the dead

20. There is another factor which simply cannot be ignored in the present case.

The marriage of to was solemnized after the

WhatsApp messages were exchanged between and

The subsequent death of transforms the case from an investigation

simpliciter to one with moral underpinnings with an obligation to respect the dead.

The obligation assumes a higher moral ground since the deceased cannot defend

oneself against any such unwarranted intrusion into her private space. After all,

the right to privacy draws within its fold, the right to be left alone (or with others)

and the right to treat one’s intimacies, relationships, beliefs and associations as

information which is to remain within the private domain. It is also about the

belief that a person should be allowed to carry his/her secrets to the grave.

F. The argument of the right to self-defence

21. The respondent Agarwals seek to justify the disclosure of the WhatsApp

messages and photographs between the late and on

the ground that the information serves as corroborative evidence and can be used

to verify the contradictory evidence given by the witnesses in the Alipore P.S Case.

This also means that the information which was furnished against the RTI

application of l in connection with the Kalighat P.S Case dealing with

removal of jewellery by the Jains, is now being intended to be used to defend the

charges in the Alipore P.S Case. Apart from the questionable intention of the

Agarwals in making the information public and using it for self-serving reasons,

the disclosure of the information is confronted by built-in-restrictions in the RTI

Act itself.

22. Section 8 of the Act is an exception to the mandate of the Act namely for

citizens to secure access to information under the control of public authorities and

for ensuring transparency and accountability in the work of every public authority.

Section 8 hence is a pronounced departure from the object of the Act and provides

for a specific enumeration of information which is not to be disclosed to any

citizen. The statutory-restriction is clothed in comparatively softer terms - “… there

shall be no obligation to give any citizen …”. The gamut of prohibition covers

national security, strategic, scientific or economic interests of the State, relation

with foreign States, parliamentary privilege, trade secrets, fiduciary relationship,

physical safety of individuals, ongoing investigations and invasion of privacy. The

respondents must hence ascertain that the information applied for does not fall

within section 8(1)(a)-(j).

23. It is not the respondents’ case that the information is not private information

between two individuals or ceased to retain that character at any point of time.

What the respondents say is that the information was carried to the public domain

on disclosure of the same by There is an essential difference

between the two. The content of the information is the determinative factor and

would signify whether an information is personal or private. The conversation of

two or more persons becomes private where the persons in that conversation

intend the exchange to remain within their personal circle and not be divulged to

the world at large. The act of furnishing WhatsApp messages and

photographs to the police authorities does not transform the nature or the content

of the messages from private to non-private.

24. Further, the determination as to whether the information crosses over the

private-public boundary is a determination which is to be made by the concerned

Officer under the Act. The concerned Officer must come to an independent

assessment as to whether the hold of section 8(1)(j) can be unlocked by a larger

issue of public interest. To add, the right to privacy must be harmonised with the

overwhelming need to disclose the information on public interest considerations

(Ref. Central Public Information Officer, Supreme Court of India vs. Subhash

Chandra Agarwal; (2020) 5 SCC 481). There cannot be an automatic assumption

that an application for information made by a party interested in an ongoing

investigation would naturally entitle such party to receiving that information

where the information has the unmistakable character of a private information

under section 8(1)(j) of the Act. The argument of self-defence builds on the position

of this automatic entitlement and discounts the safeguards in section 8 against

the disclosure of such information.

25. The related argument of the right to privacy being subject to qualifications is

also fallacious in the context of what section 8 of the RTI Act entails. As stated

above, section 8 is the lone swimmer against the tide of transparency closely

cradling certain kinds of information from being swept into the sea of public

scrutiny. The qualifications to the privacy-privilege must clearly be spelt out and

particularised in the relevant statute. The argument that a person’s right over

his/her personal information can be compromised in certain cases cannot be read

into the statute unless the situations warranting disclosure of such information

are specifically provided for. The RTI Act does not provide for any such clear

answers or statutory clarifications which would justify diluting the section 8(1)(j)

bar or qualify the prohibition against the disclosure of private information.

G. Authorities cited on behalf of the parties

26. In Shri N. Sri Rama Reddy vs. Shri V. V. Giri; (1970) 2 SCC 340, a

Constitution Bench of the Supreme Court opined that a previous statement made

by a person and recorded on tape can be used not only to corroborate the evidence

given by the witness in Court but also to contradict the evidence and test the

veracity of the statement. Although the proposition for which the authority has

been cited cannot be called to question, section 65B of the Indian Evidence Act,

1872 has made the admissibility of electronic records subject to certain condition

under section 65B(2) in respect of a computer output. Pooran Mal vs. The Director

of Inspection (Investigation), New Delhi; (1974) 1 SCC 345, held that evidence

obtained from an illegal search and seizure can be used against the person from

whose custody it was seized. However, this decision was on the question whether

the search and seizure was vitiated by illegality and the Supreme Court disagreed

with that view. Chief Information Commissioner vs. State of Manipur; (2011) 15 SCC

1, recognised the right of all citizens to receive information under section 3 of the

RTI Act. As discussed above, this right is curtailed under section 8 of the Act and

the conditions envisaged therein. Union of India vs. Sh. O.P. Nahar; 2015 SCC

OnLine Del 9197 concerned a case where the information-seeker filed the writ

petition before the Delhi High Court which held that it was incumbent upon the

officer to furnish the information sought for if otherwise permissible under the

provisions of RTI Act. Dealing with section 8(1)(h), the Court was of the view that

since the investigation was over and the charge-sheet had been filed, there was no

question of the information impeding the process of investigation under section

8(1)(h) of the Act. The judgment of Telangana High Court in Civil Miscellaneous

Appeal No. 351 of 2020 relied on behalf of /respondent no. 6 relies

on a narrow definition of the right to privacy and restricts such matters only to

“family, marriage, procreation, motherhood and child-bearing”. Surely, there are

other areas within the private realm of a person which can give rise to information

having the characteristic of privacy?

H. The significance of this case

27. The present case brings to the fore the significance of section 8(1)(j) of The

Right to Information Act where the unhindered right to information is checked by

keeping certain information out of reach from the public eye. The Information

Officer is given the onerous task of determining whether the information should

remain in the private domain or is required to be disclosed in the larger public

interest. The Information Officer is hence under an obligation to satisfy the

aforesaid test. The Act also affirms that preservation of private space is sacrosanct

and any disclosure of information emanating from that space must be voluntary

and without compulsion. The unspoken significance of the case also arises from

the fact that one of the contributors to the information is no longer alive. The facts

hence involve a basic morality and respect for the wishes of the dead.