Legal opinion given by Advocate General to State government exempt from RTI Act: Kerala High Court

The Kerala High Court on Friday held that the legal opinions given by the Advocate General (AG) to the State government are confidential and, therefore, exempt from disclosure under the Right to Information Act, 2005 (RTI Act) [Secretary to the Advocate General & Ors. v State Information Commissioner & Anr.]. .Justice PV Kunhikrishnan opined that any communication between the AG and his client, the State government, is confidential, and the relationship between the AG and the State being a fiduciary one, such communications enjoy the exemption under Section 8(1)(e) of the RTI Act."As I mentioned earlier, there may be delicate and sensitive issues, in which the Government wants the opinion of the Advocate General. Those are confidential communications between the Government and the Advocate General. The legal opinions given by the Advocate General to the Government should always be confidential. That is protected under Section 8(1)(e) of the Act 2005," the Court said in its order.Further, the Court said that Section 126 of the Indian Evidence Act is also applicable as far as a legal opinion given by the Advocate General to the government is concerned..While a legal opinion given by the AG will come within the purview of information as per the RTI Act, Section 8(1)(e) says that information available to a person in his fiduciary relationship is exempted from disclosure, the Court said..The Court was considering two writ petitions moved by the Secretary to the Advocate General challenging the orders of the State Information Commission which had ruled that a party is entitled to a copy of the legal advice given by the AG, in the Lavalin case and the custodial death case of Sampath of Palghat, to the Government of Kerala, under Section 5 of the RTI Act.Senior Government Pleader TB Hood, representing the petitioners, contended that the relationship between the AG and the State government being a fiduciary relationship, any legal opinion given is protected from disclosure as per Section 8(1)(e) of the RTI Act.He also submitted that the relationship between the AG and the State government is essentially that of an advocate and client, and to strengthen his contention, he relied on the judgment in Joginder Singh Wasu v State of Punjab.Advocate M Ajay, appearing for the State Information Commission, supported the orders passed by the Commission. He submitted that when the government forwards a file to the AG and the AG generates an opinion on it, it becomes part of the file. Therefore, he contended that the same will not come within the purview of Section 8(1)(e) of RTI Act..The Court did not concur with this argument of the respondent.It pointed out that the file in which the legal opinion is given is not in the custody of the Advocate General but it is in the custody of the government. But the details of the legal opinion given in that file will be available in the office of the Advocate General.After referring to a host of Supreme Court precedents defining a fiduciary relationship, the Court concluded that the lawyer-client relationship is a fiduciary relationship. "There may be delicate and confidential communications between a lawyer and his client. All communications between the lawyer and his client are to be protected 24 WP(C)Nos.7240 of 2013 & 7979 of 2010 because these communications are confidential. The same is protected as per Section 8(1)(e) of the Act 2005. The Advocate General is the advisor of the Government," the Court said..[Read Judgment]