Section 8(1)(e) of the RTI Act: The Fiduciary Exemption Explained

Among the ten exemptions listed in Section 8(1) of the RTI Act, 2005, Section 8(1)(e) is among the least understood and the most frequently misapplied. It is invoked to shield DPC minutes, examination answer sheets, bank inspection reports, and government consultancy documents — and in most of these cases, the invocation is legally incorrect.

Getting to grips with Section 8(1)(e) requires understanding one central question: what is a fiduciary relationship? This is not a question the RTI Act answers directly. It draws on general law, and the Supreme Court has been clear about what it requires.

The Full Text of Section 8(1)(e)

Section 8(1)(e) of the RTI Act, 2005 exempts:

"information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information"

Two things stand out in this text. First, the exemption attaches to information held "in" a fiduciary relationship — not merely information that is sensitive, confidential, or given in private. The nature of the relationship that generates the information is the key question. Second, like many of the Section 8(1) exemptions, this one has a public interest override: even genuinely fiduciary information must be disclosed if the competent authority is satisfied that public interest warrants it.

What Is a Fiduciary Relationship?

The word "fiduciary" derives from the Latin fiducia — trust. In law, a fiduciary relationship is one in which one party (the fiduciary) is entrusted to act on behalf of, and in the best interests of, another party (the beneficiary), with the beneficiary placing genuine confidence in the fiduciary to do so faithfully.

The classic examples from private law are:

• Trustee and beneficiary: the trustee manages property for the beneficiary's benefit
• Lawyer and client: the lawyer acts in the client's exclusive interest, bound by professional privilege
• Doctor and patient: the doctor receives confidential medical information in a relationship of confidence
• Director and company: a company director owes fiduciary duties to the company and its shareholders

The defining features of a fiduciary relationship are:

1. One party acts for the benefit of the other, not in its own interest
2. The beneficiary places substantial trust and confidence in the fiduciary
3. The information is given or received specifically in the context of that trust relationship
4. There is a reasonable expectation of confidentiality arising from the nature of the relationship

Not every relationship involving government — and not every instance of receiving information from someone — creates a fiduciary relationship. Most government functions are regulatory or administrative, not fiduciary. This distinction is central to understanding how Section 8(1)(e) is abused.

How Section 8(1)(e) Is Commonly Misused

The following are the most frequent and most problematic misuses of Section 8(1)(e) that applicants encounter in practice.

1. DPC Minutes and Departmental Promotion Committee Records

Government departments and ministries frequently refuse to disclose the minutes of Departmental Promotion Committees (DPCs), or the grading/fitness remarks recorded against individual officers in those proceedings, by claiming that the DPC holds this information in a "fiduciary relationship" with the officers being considered.

This claim deserves careful scrutiny. A DPC is an administrative body exercising a statutory function — it evaluates the fitness of officers for promotion based on service records, ACRs, and prescribed criteria. The DPC does not act "for the benefit of" the officer. It acts on behalf of the State, performing an assessment function. The officer whose fitness is being assessed is not the "beneficiary" in any fiduciary sense — they are the subject of an administrative process.

There may be a separate and stronger argument under Section 8(1)(j) (personal information) for the specific numerical gradings or remarks about an individual officer's personality. But the DPC's overall function, the criteria applied, the names on the panel, and the broad outcome are administrative records — not fiduciary records. A claim of Section 8(1)(e) for the DPC's own working is generally misplaced.

2. Examination Answer Books and Evaluation Marks

This is the clearest and most authoritatively settled misuse. University bodies, school examination boards, and central examining authorities have repeatedly invoked Section 8(1)(e) to refuse disclosure of evaluated answer books to candidates — claiming that the examiner-board relationship is a fiduciary one, and that answer books are held in a relationship of trust that prevents disclosure.

The Supreme Court rejected this argument comprehensively in Central Board of Secondary Education & Anr v. Aditya Bandopadhyay & Ors (2011).

The Court's analysis was direct: "The word 'fiduciary' refers to a person having a duty to act for another's benefit... The relationship between the CBSE and students is not fiduciary. CBSE does not act as a trustee for the students. CBSE acts as a statutory authority which conducts examinations and the examiner-examinee relationship is not a fiduciary relationship."

The Court further held that CBSE did not hold the answer sheets in a fiduciary capacity and that there was no basis for invoking Section 8(1)(e). The information was not held in a relationship of trust where the board acted for the student's benefit — the board performed a regulatory and assessment function. This reasoning applies equally to state examination boards, university examinations, and similar bodies.

If you are seeking your own evaluated answer sheets or marks from an examination board and Section 8(1)(e) has been cited, this is a direct violation of the Supreme Court's holding in Aditya Bandopadhyay.

3. Public Sector Bank Inspection Reports and Internal Audit Records

Public sector banks — which are clearly public authorities under the RTI Act — frequently deny requests for RBI inspection reports, NABARD inspection reports, or their own internal audit reports by claiming that (a) they received this information from the RBI/NABARD in confidence, or (b) the bank's relationship with its customers generates fiduciary obligations.

This argument fails on multiple grounds. An RBI inspection of a bank is a regulatory exercise, not a fiduciary one. The RBI acts as a regulator, not as a trustee acting for the bank's benefit. The information generated by a regulatory inspection is a record of the exercise of statutory authority — it does not acquire a fiduciary character simply because the regulator might prefer that it remain confidential.

Similarly, the bank-customer relationship does involve duties of confidentiality in contract and banking law — but that does not mean a bank "holds" information about its operations and governance "in a fiduciary relationship" with customers for purposes of the RTI Act. Section 8(1)(e) is not a catch-all for commercially sensitive information.

The more appropriate exemption for genuinely sensitive inspection findings might be Section 8(1)(a) (prejudicial to sovereignty/security) in extreme cases, or Section 8(1)(d) (commercial confidence/trade secrets), each with their own specific tests. But Section 8(1)(e) is not the right tool for regulatory records.

4. Consultancy Reports and Government Advisory Documents

A government department sometimes receives advice from consultants, expert committees, or advisory bodies and then refuses to disclose the resulting report by claiming the information was given "in confidence" in a fiduciary relationship.

Not every confidential communication is a fiduciary one. For a consultancy to give rise to a fiduciary relationship within the meaning of Section 8(1)(e), the relationship would need to satisfy the legal criteria described above: trust, acting for the other's benefit, and reasonable expectation of confidentiality of the specific type that law recognises as fiduciary.

Most commercial consultancies hired by government departments are arms-length contractual relationships, not fiduciary ones. The consultancy provides a service; the government pays for it. The government does not act "for the benefit" of the consultancy, nor does the consultancy act as a trustee of the government's interests in a legal sense. The report produced is the government's own record and is subject to the RTI Act.

There may be legitimate confidentiality arguments — for example, under Section 8(1)(d) if the report contains commercially sensitive information provided by third parties, or under Section 8(1)(g) if its release would endanger a life. But Section 8(1)(e) requires a genuinely fiduciary relationship, and most government-consultant arrangements do not meet that standard.

When Section 8(1)(e) Is Validly Invoked

It is equally important to be accurate about where the exemption does legitimately apply.

Legal opinions from Law Officers in pending or anticipated litigation. The Law Department or Ministry of Law may receive specific legal advice from the Solicitor General, Attorney General, or government-retained counsel in anticipation of specific litigation. Legal professional privilege, which is part of the concept of fiduciary confidentiality, may apply here. A legal opinion given specifically to help the government assess its position in a case it is party to has traditionally been treated with a degree of confidentiality in many legal systems, including India. However, even here, the public interest override can apply, and the CIC has ordered disclosure of some legal opinions where the matter is of sufficient public importance.

Mediators and conciliators in government-facilitated dispute resolution. Where a government body facilitates mediation and a mediator receives information in the course of that mediation from the parties, there is a recognised confidentiality obligation — and possibly a fiduciary element — in the mediator's role. This is narrow and context-specific.

A trust's records concerning its individual beneficiaries. A government-administered trust (say, a welfare fund or a scholarship trust) that maintains private records of individual beneficiaries' circumstances may invoke Section 8(1)(e) to protect those specific records — because the trust-beneficiary relationship is the original and clearest example of a fiduciary relationship in law.

The Legal Test to Apply in Your Appeal

When you encounter a Section 8(1)(e) denial, your First Appeal should ask the First Appellate Authority to address the following questions:

First: What specific relationship does the PIO claim is fiduciary? Require the PIO to name the fiduciary, the beneficiary, and the trust-like obligations involved. A conclusory statement that "information was received in confidence" is not the same as identifying a fiduciary relationship.

Second: Does the claimed fiduciary actually act for the benefit of the claimed beneficiary? Or is this a regulatory, administrative, or contractual relationship in which the parties each pursue their own interests? Most government functions are the latter.

Third: Was the information given or received specifically in the context of a relationship of trust and confidence that law recognises as fiduciary? Or is the confidentiality claim really about the content of the information (commercially sensitive, embarrassing, etc.) rather than the nature of the relationship?

Fourth: Even if a fiduciary relationship exists, does the larger public interest warrant disclosure? The Section 8(1)(e) exemption contains its own public interest override; the appellate authority has express power to order disclosure on public interest grounds.

You can also cite CBSE v. Aditya Bandopadhyay (2011) directly for the proposition that the fiduciary relationship test is a strict legal test, not a casual one, and that the Court has specifically rejected its application to examination records.

Key Takeaway

Section 8(1)(e) has a legitimate purpose: genuine relationships of legal trust deserve protection, and government bodies that act as trustees, or receive confidential information in clearly fiduciary contexts, should not be compelled to disclose that information without good reason. But the exemption requires a real fiduciary relationship in law — not merely a confidential one, not merely a sensitive one, and not merely one that the government finds inconvenient to disclose.

If a public authority cannot identify the specific fiduciary and beneficiary, the trust-like duty that generates the relationship, and why law recognises this particular relationship as fiduciary — the exemption does not apply. A vague invocation of Section 8(1)(e) to block disclosure of administrative records, examination results, or regulatory inspection findings is not a lawful denial. Challenge it.