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 saidThe 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 CaseThe 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 challengeChallenging 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.FindingsThe 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...

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

Sofi Ahsan

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