Can Police Disclose WhatsApp Chats and Photos Collected During Investigation Under RTI Act? Calcutta High Court Says No

Passing an order against the RTI disclosure of private chats and pictures of a deceased woman and her friend, the Calcutta High Court has said that the providing of WhatsApp messages and photographs to the police during an investigation does not transform them "from private to non-private".

Justice Moushumi Bhattacharya said the right to privacy also includes the right to be left alone or with others, and the right to treat one's intimacies, relationships, beliefs and association 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," said the court.

The court also said that the qualifications to the privacy-privilege must clearly be spelt out and particularised in the relevant statute. Section 8(1)(j) of the RTI bars disclosure of personal information which has no relationship to any public activity or interest, unless the public information officer is satisfied that larger public interest justifies the disclosure.

"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," said the court.

The court also observed that the RTI Act 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," it said

The court also held that Section 8(1)(j) upholds the right to privacy and ultimately the reputation and dignity of an individual under Article 21 of the Constitution. The provision goes against the tide of free flow of information and remains steadfast in holding on to the private space of an individual, it said further.

Justice Bhattacharya made the observations in a judgement on a petition challenging the Assistant Commissioner of Police's decision to disclose the information under RTI Act. The documents allowed to be disclosed were a series of WhatsApp chats between a 27-year-old woman, who died under mysterious circumstances last year at her matrimonial year, and her friend.

The Case

The woman's family (Jains) and her in-laws (Agarwals) have filed cases against each other. While Jains accuse Agarwals of causing the death of their daughter, a case has been registered against them by Agarwals for allegedly taking away certain jewellery of theirs from a locker. During investigation of the case pertaining to the jewellery, the police had recovered the WhatsApp chats in question while examining the woman's friend as a witness. The chats were later made available to Agarwals under the RTI Act. The conversations are of 2014-2019 - when the woman wasn't married in the Agarwal family.

RTI Disclosure and the challenge

Challenging the disclosure, the counsel representing the woman's father argued that such information could not have been disclosed under the RTI Act and that it was in breach of Article 19 and 21 of the Constitution. The information is being used to cast aspersions against the victim and create defence in the SLP filed by the victim's husband for anticipatory bail in the case connected to her death, the court was told.

He also referred to Section 8(1)(h) of the RTI Act which states that police have no obligation to disclose any information which can impede the process of investigation or apprehension or prosecution of offenders. It was also argued that such information has nothing to do with two police cases.

A counsel representing the Agarwal family argued that the information was required for an ongoing investigation with regard to removal of jewellery from the bank locker. It was also argued that there is no provision under the RTI Act which bars disclosure of information required as evidence for corroborative purposes.

The State argued that documents are regarded to be in public domain from the time they are disclosed to the police authorities.

Findings

The court said Section 8(1)(j) of the RTI Acts fits the parameters of the arguments made by the petitioner as it covers the space of personal information and 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," it said.

The bench also referred to Section 11 of the RTI Act which states that the public information officer has to first give a written notice to a third party whose information is intended to be disclosed under the law.

"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," the court held.

Justice Bhattacharya also noted that the WhatsApp messages between the petitioner's daughter and her friend were not in the public domain before the same were disclosed by the latter to the police during investigation. The court observed that such disclosure of information cannot be treated as a voluntary act of disclosure and that it can "safely be presumed" that the disclosure was made under duress and may even have been for self-preservation.

The court also said such disclosure by the woman's friend "lacked the consent-criterion" of the other party of the chats - the deceased. Without consent of the other party, the furnishing of WhatsApp chats breached the obligation to keep them private and restricted, it observed.

The court also stressed on the aspect of respect for the dead and noted that the marriage of the victim woman in Agarwal family took place much after the WhatsApp messages were exchanged between her and her friend.

"The subsequent death of [the woman] 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," it said.

On the argument that the information was carried to the public domain on disclosure of the same by victim's friend, the court said 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 [victim's friend] 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," said the court.

It also said the determination as to whether the information crosses the private-public boundary has to be done by the concerned officer under the RTI Act and he or she must come to an independent assessment as to whether exemption from disclosure as per Section 8(1)(j) can be ignored in public interest.

"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," said the bench.

The court also said that the officer must also take into account the mechanism provided under Section 11 of the Act and in essence the disclosure must be with the consent of the third party. It also said the officer has to see whether the information was in public domain voluntarily or under threat or compulsion.

"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," it added.

Relief

Allowing the writ petition, the court directed the police authorities to immediately withdraw the entire series of photographs and WhatsApp messages 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," said the court.

Also Read: Right To Privacy Entitles A Person To Carry Secrets To The Grave, Personal Space Includes Right To Be Forgotten: Calcutta High Court

Citation: 2022 LiveLaw (Cal) 312 

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