5. Ss. 8, 9 and 10

Pros and Cons of Exemptions under Sections 8, 9 and 10

Significant Decisions of Information Commissions

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Pros and cons of exemptions under S. 8 (1)(a)-(j), 8(2) and (3), S.9 and S. 10

Central Information Commission

Decision No. CIC/SG/A/2009/002567/5719 Appeal No.

CIC/SG/A/2009/002567 Request- Appellant requested under the proviso to Section 7(1) of RTI. He sought facts and reason together with certified copies of all file noting leading to the issue of his suspension order and the name and designation of the officer/functionary who decided not to follow the principles of natural justice before the said suspension order was issued together with the facts and reason specified by her/him for the same and also to provide the definition of ‘gross misconduct’ as used in the said suspension order and the provision of the rules of the university where the said definition is provided. The Respondent has refused to give the information sought by the Appellant on query-1 claiming exemption under Section 8(1)(g) of the RTI Act. Section 8(1)(g) exempts, “information, the disclosure of which would endanger the life or physical safety of any person or identify the source of information or assistance given in confidence for law enforcement or security purposes;”. Decision- The appeal is allowed, directing the PIO to give the information for all the queries except the first question. The obvious implication of this is that revealing the facts and reasons leading to the issue of suspending the appellant who is a faculty member of University would endanger the life or physical safety of the persons who are involved in this process. The implication of using this exemption would be that Aligarh Muslim University believes that faculty member is capable of physically harming those who may have been involved in the process of his suspension. This is a very serious charge and the PIO admits that this was not in their mind at all. Before invoking Section 8(1)(g) PIO should carefully evaluate whether It applies since it the instant case this is invoking this section is like making an allegation against a faculty member of the university itself. This would be reducing the respect and the structure of the University and the PI admits that he had not realized this implication. In view of this the exemption claimed under Section 8(1)(g) is struck down. The Appellant claims that he is entitled for the administrative reasons under Section 4(1)(d). This is not in the domain of Information Commissioner to go into whether the reasons provided are adequate or not. If the RTI applicants claim that the Information Commissioner’s go into the merits or adequacy of reasons for each administrative decision taken by various administrative bodies in each individual case, this is not sustainable. CIC/WB/C/2006/00066 of 19.04.2006-

Request- Information relating to the recommendations of a Group of Ministers that had recently visited the Narmada valley in connection with resettlement and rehabilitation projects under the Sardar Sarovar Project in Madhya Pradesh at the behest of the Prime Minister. Decision-



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The application be accompanied with substantive evidence that a threat to life and liberty exists. The CIC passed following observation about section 7(1), which might help you to understand the provision better. Proviso of Section 7(1) has to be applied only in exceptional cases. Whether the information sought concerns the life and liberty of a person has to be carefully scrutinized and only in a very limited number of cases this ground can be relied upon. The government machinery is not designed in a way that responses to all RTI Applications can be given within forty-eight hours. A broad interpretation of ‘life and liberty’ would result in a substantial diversion of manpower and resources. The life and liberty provision can be applied only in cases where there is an imminent danger to the life and liberty of a person and the non-supply of the information may either lead to death or grievous injury to the concerned person. Liberty of a person is threatened if she or he is going to be incarcerated or has already been incarcerated and the disclosure of the information may change that situation. If the disclosure of the information would obviate the danger then it may be considered under the proviso of Section 7(1). The imminent danger has to be demonstrably proven. The Commission is well aware of the fact that when a citizen exercises his or her fundamental right to information, the information disclosed may assist him or her to lead a better life. But in all such cases, the proviso of Section 7(1) cannot be invoked unless imminent danger to life and liberty can be proven. F.No. CIC/AT/A/2006/00069 - Dated the 13th July, 2006 –

Request- Annual Confidential Report Decision- In regard to the annual confidential report of any officer, it is our view that what is contained therein is undoubtedly ‘personal information’ about that employee. The ACRs are protected from disclosure because arguably such disclosure seriously harm interpersonal relationship in a given organization. Further, the ACR notings represent an interaction based on trust and confidence between the officers involved in initiating, reviewing or accepting the ACRs. These officers could be seriously embarrassed and even compromised if their notings are made public. There are, thus, reasonable grounds to protect all such information through a proper classification under the Official Secrets Act - No public purpose is going to be served by disclosing this information. On the contrary it may lead to harming public interest in terms of compromising objectivity of assessment – which is the core and the substance of the ACR, which may result from the uneasiness of the Reporting, Reviewing and the Accepting officers from the knowledge that their comments were no longer confidential. These ACRs are used by the public authorities for promotions, placement and grading etc. of the officers, which are strictly house-keeping and man management functions of any organization. A certain amount of confidentiality insulates these actions from competing pressures and thereby promotes objectivity. It is also possible that many officers may not like their assessment by their superiors to go into the hands of all and sundry. If the reports are good, these may attract envy and if these are bad, ridicule and derision. Either way it affects the employee as well as the organization he works for. On balance, therefore, confidentiality of this information serves a larger purpose, which far out-strips the argument for its disclosure.



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The Departmental Promotion Committees (DPCs) prepare their minutes and make recommendations after examining ACRs of the employees due for promotion. Disclosure of the complete proceedings of the DPC and the grades given by various officers to their sub-ordinates may lead to disclosure of the ACRs. As ACRs themselves, according to us, are barred from disclosure, we hold, that by inference the DPC proceedings should be similarly barred. However, in all such cases, the CPIO and the Appellate Authorities should apply the doctrine of severability and should provide him the information, which can be provided under sub-section (2) of Section 10 of the Right to Information Act, 2005. Appeal No. CIC/WB/A/2007/00422 dated 19.2.2009 The appellant sought information pertaining to Annual Confidential Reports considered for the ad hoc promotion from the post of A.E. to the post of EE issued vide No.28/10/2006-EC-I dated 21.4.2006 and also vide No.28/10/2006-EC-I (Voll-II) dated 12.5.2006; and a certified copy of the applicant’s ACR. The CPIO declined to provide the information stating interalia as under: “This information is of confidential nature as the reports are written and reviewed by various officers on the understanding that the remarks will be kept confidential. According to Rule 8(g) of RTI Act, 2005, such information cannot be disclosed which would endanger the life or physical safety of any person or identify the source of information or assistance given in confidence for law enforcement or security purposes. As such, to keep the confidentiality of the officers who have written/reviewed ACRs, this information cannot be provided.” CPWD, the respondent had made a reference to DoPT seeking instructions regarding disclosure of ACRs to the officer reported upon whereupon DoPT had issued an Office Memorandum dated 21/09/2007. He also furnished a copy of the said Memorandum to the Commission which was taken on record. Perusal of the memorandum indicates that discretion has been left with the public authority to disclose or not to disclose ACRs to an employee depending upon as to whether the public interest in disclosure outweighs the harm to the protected interest. The Single Bench took note of the fact that at present only adverse entries are being communicated to the Government employees as per extant rules. The Commission also took note of the decision of its Division Bench in CIC/AT/A/2006/00069 which has held that confidentiality of the ACRs serves a larger purpose which outstrips the arguments for its disclosure. However, in view of the decision of the Hon’ble Supreme Court in “Dev Dutt Vs. Union of India & ors.” - (2008)8SCC725. the Single Bench of the this Commission decided to refer the matter to the Chief Information Commissioner for constitution of a Full Bench of the Commission to hear and decide the issue of disclosure of ACRs in view of the changed circumstances. The only question for consideration in this case is as to whether a copy of the ACR of the Appellant for the year 2003-04 can be furnished to him under the RTI Act in view of the above mentioned decision of the Hon’ble Apex Court. The Supreme Court has further observed in the judgment as follows:- “Every entry1 (and not merely a poor or adverse entry) relating to an employee under the State or an instrumentality of the State, whether in civil, judicial, police or other service (except the military) must be communicated to him, within a reasonable period, and it makes no difference whether there is a benchmark or not. Even if there is no benchmark, non-communication of an entry may adversely affect the employee’ s chances of promotion (or getting some other benefit), because when comparative merit is being considered for promotion (or some other benefit), a person having a ‘good’ or ‘average’ or ‘fair’ entry certainly has less chances of being selected than a person having a ‘very good’ or ‘outstanding’ entry. The Apex Court held that in their opinion this is the



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correct legal position even though there may be no Rule/G.O. requiring communication of the entry, or even if there is a Rule/G.O. prohibiting it, because the principle of non-arbitrariness in State action as envisaged by Article 14 of the Constitution in our opinion requires such communication. Article 14 will override all rules or government orders. The opinion issued vide DoPT I.D. No.21011/1/2008-Estt(A) dated 26.8.2008 reads as under: In regard to the disclosure of ACR entries which are adverse, this Department has not issued any instructions after the Supreme Court judgment in Dev Dutt Vs. UOI (Civil Appeal No.7631/2002). After careful analysis of the import of the judgment, the Government have decided to file a Review petition in the Supreme Court in the case. As regards point (b) para 5 of the AM’s note, the IR Seciton, which is the nodal Section for RTI Act, has advised that till the time administrative instructions are issued, the CPIO may take a decision with regard to the disclosure of the ACRs in light of the provisions of RTI Act, 2005 and the decision of the Supreme Court. The objective of the Right to Information Act is also to bring transparency and accountability in the working of all Public Authorities. The disclosure of ACRs to the concerned employee cannot, therefore, be denied in the light of decision/directions of the Hon’ble Apex Court, in which in developing the principle of natural justice that Hon’ble Court has ruled that "The concept of natural justice has undergone a great deal of change in recent years. In the past it was thought that it included just two rules, namely (1) no one shall be a

judge in his own cause (Nemo debet csse judex propria causa), and (2) no decision shall

be given against a party without affording him a reasonable hearing (audi alteram

partem). Very soon thereafter a third rule was envisaged and that is that quasi-judicial

enquiries must be held in good faith, without bias and not arbitrarily or unreasonably.

But in the course of years many more subsidiary rules came to be added to the rules of

natural justice.”

This does not however imply that it will necessarily be desirable to provide either a photocopy or a certified copy of the ACRs to a public servant. Similarly, one cannot seek an Annual Confidential Report of some one else as a matter of right. Such disclosure would be permissible only when the larger public interest so warrants. In view of the above, the respondent Public Authority is directed to communicate the entries in the ACRs to the appellant for the period asked for by him in his RTI application within a period of 10 working days from the date of receipt of this Decision Notice. CIC/AT/A/2006/00311-3.11.2006

Request- Employees' personal information Decision- The information which the appellant has solicited in respect of a third party, is clearly of a very personal nature. There is no reason why any person should get information about a Government employee in respect of the family members listed on the CGHS Card, the name of the Dispensary, whether that employee is married, the name of his wife, the date of his informing the public authority about his marriage, the names of his nominees for the GPF and CGEIS and other documents, the dates on which the forms have been filled, and whether any disciplinary action is pending against him. Apart from being personal information, disclosure of such information serves no public purpose. It is quite possible that disclosure of such information may lead to unwarranted harassment and intimidation of the employee by other parties. The Commission has to



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exercise utmost caution in authorizing disclosure of personal information of employees of public authorities. Except when dictated by overwhelming public purpose, such information is better left undisclosed under the provision of exemption Section 8(1)(j) of the Act. 22/IC(A)/ 30.3.2009

Request- I.T. Returns Decision- Income Tax Returns filed by an assessee are confidential information which include details of commercial activities and that it relates to third person. These are submitted in fiduciary capacities. There is no public action involved in the matter. Disclosure is exempted under s.8(1)(j).

Request- Files pertaining to an ongoing disciplinary proceeding involving the appellant. Decision- Considering the fact that these files are currently subject-matter of an ongoing enquiry, any action for disclosure of information thereof will surely impede the enquiry. The Enquiry Officer is entitled to conduct the enquiry as per the procedure established by the Rules governing conduct of such enquiries without any intrusive probing by the officers enquired into or by third-parties. This is consistent with the decision of the Commission in V.K. Gulati Vs. DG Vig. Customs & Central Excise; Appeal No.

CIC/AT/A/2007/01508; Dt: 17.06.2008 that file-notings in vigilance and enquiry-related files, which are held confidentially by a public authority, must not be allowed to be disclosed to the employee or to any other seeking that information. The reason for that is sanguine. First, such disclosures serve no public interest. The employee’s personal interest cannot be conflated with public interest. Second, such disclosures undeniably cause injury to the interest of the third-party, who holds these file-notings in certain special category of files, i.e. vigilance and enquiry-related files, confidentially. The officers and members of the staff who make such notings perform the thankless task of commenting on the conduct, reputation, behaviour of the officers enquired into apart from analyzing the evidence in order to help the competent authority make an informed decision. Such comments and remarks recorded by officers, if disclosed to the very person against whom these are recorded, have the potentiality of being used by the employee to start legal processes against these officers for charges such as defamation, criminal conspiracy and so on. There is also a chance that the officer enquired into attempt to seek vengeance against those who recorded adverse notes against him in the note-files. The vengeance can take several forms, such as physical and mental threats, causing annoyance, long and expensive judicial proceedings and so on. Even if such actions of the employees or others sympathetic to them, do not yield any useful result to them; as long as these actions last, they cause boundless anxiety, annoyance, physical discomfort and stress to the officers for no fault of theirs, and in true fact, for doing their job ably, honestly and conscientiously. Anonymity of officers recording file-notes deserves to be protected in their own interest as well as the interest of the system they serve.



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There is, therefore, enough reason to conclude that disclosure of confidential file-notings in vigilance, investigation and enquiry-related files, attracts the first proviso of Section 11(1), i.e. it possessing the power to inflict “possible harm or injury to the interests of

such third-party.” The public authority is duty-bound to protect the interests of its officers who examine through their notings in files the conduct of other employees of the public authority and thereby expose themselves to possible revengeful action by those whose conduct they bring under scanner. Appeal No.908/ICPB/2007-F.No.PBA/07/211-17.9.2007-

The CIC reiterated its earlier decisions stating that if the information sought relates to a pending proceeding before a competent court/tribunal, then the said information should be obtained only through court /tribunal and not under the provisions of the RTI Act. Appeal 05/IC(A)/CIC/2006 Dt. 3.3.2006

Request- PAN Number Decision- PAN is a statuary number, which functions as a unique identification for each tax payers. Making PAN public can result in misuse of this information by other persons to quote wrong PAN while entering into financial transactions and also could compromise the privacy of the personal financial transactions linked with PAN. This also holds true for TAN. Information relating to PAN and TAN, including the dated of issue of these numbers, are composite and confidential in nature under Section 138 of Income Tax Act. The appellant has not made a case of bonafide public interest for disclosure of PAN/TAN Numbers of 26 companies on grounds of submissions of their application for above purposes or filing of tax returns. Decision No. CIC /WB/A/2008/00838/1777

The appellate authority had claimed exemption under Section 8 (1) (e), but the PIO has given no reason to justify how Section 8 (1) (e) can apply. The CIC decision cited by the respondent states ‘The matter is sub judice. The appellate authority has correctly advised that information in question could be obtained through Court, which is examining the matter.’ No reasoning has been offered as to which exemption clause of the RTI act applies. The only exemption of Section 8 (1) which might remotely apply is Section 8(1)(b) which states, ‘information which has been expressly forbidden to be

published by any court of law or tribunal or the disclosure of which may constitute

contempt of court;’ can be denied. This clause does not cover sub judice matters, and unless an exemption is specifically mentioned, information cannot be denied. Disclosing information on matters which are sub judice does not constitute contempt of Court, unless there is a specific order forbidding its disclosure. I respectfully have to disagree with the earlier decision cited by the appellant since it is per incuriam. This Commission rules that a matter being sub judice cannot be used as a reason for denying information under the Right to Information Act.

F.No. CIC/AT/ A/2006/00500 Dt.16.01.2007

Request-



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Copies of complaint lodged by the applicant and action taken on the same. The Commission has been approached by Government servants facing investigations, departmental action and other enquiries, to know the names of those who filed complaints against them. Decision- Such disclosures, if allowed, have the potentiality to put at risk the interest and the physical safety of those who file such complaints. There are specific provisions in various Laws, Rules, Orders and instructions regarding the entitlement of a person facing an enquiry, investigation or disciplinary action for documents, records, etc. What he can access and cannot access is also specified. On the other hand, the RTI Act makes an omnibus provision regarding disclosure of all variety of information to a requester, who can also be a person facing investigation etc., but quite cautiously limits this right through certain exemptions. The eligibility of such persons to access information as requested is to be determined under the provision of the RTI Act regardless of what the other Laws may prescribe. The two eligibilities are best examined independently. An employee facing disciplinary action at the hands of his superiors may wish to invoke the RTI Act to access the file/records in which his case may be dealt with, but will be hindered by the exemption provided under Section 8(1)(j) since the information sought would be personal to him with no relationship to any public activity or interest. The appeal is consequently rejected.

63/IC (A)/2006 – 30 March 2006

Request- Information regarding Travel Expenses of the public officials Decision- Travel expenses were charged to the public account. Disclosure of information can not be denied on the ground of this being personal information and not a public activity and serves no public interest, etc. Travel has been performed as a part and in discharge of official duties and the records related the same are public records and therefore, a citizen has the right to seek disclosure of the same. 22/IC (A)/2006 – 30.3.2006.

Request- The Appellant had requested for information on the following three points in relating to her husband who has retired as Tax Assistant in August, 2008:-

“(i) Details of family members, nomination for DCRG, nomination for pension and other related papers with regard to pension;

(ii) The amount Shri A. Manoharan received towards DCRG, commutation value of pension, provident fund, leave encashment and any other amount received by him at the time of retirement or after retirement due to him.

(ii) The amount of monthly pension and family pension entitled.” It is her apprehension that her husband would squander away the pensionary benefit without peer group pressure and in that eventuality, her children will be left high and dry, without any pecuniary resources for their education and other social obligations. It is her forceful submission that she needs the information mentioned here in above in the interest of the future of her children. CPIO refused to disclose the information in terms of section 8(1)(j) of RTI Act, that the information has been rightly denied to her inasmuch as she is seeking information in her



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personal interest and that no larger public interest is involved in the disclosure of this information Decision- It was held that the information sought by the Appellant cannot be said to be ‘personal information’, as being a legally wedded wife, she has a legitimate claim on the information sought by her for the reasons mentioned herein above. Looked at from this perspective, to treat the husband and wife as separate entities in the context of RTI Act may not be legally correct. Therefore, application of ‘larger public interest’ test may not be appropriate in the matter in hand. File No. CIC/LS/A/2008/00245 dt.31.3.2009

Request-

Copy of valuation report in respect of 10 buildings submitted to Central Bureau of Investigation. It is the apprehension of the appellant that differential norms have been adopted by the District Valuation Officer, in assessing the buildings. The CPIO had refused to disclose information under section 8 (1) (j) of the RTI Act. On appeal, the Appellate Authority had upheld the decision CPIO.

Decision-

As it is deemed expedient to peruse the files relating to aforesaid two buildings, the respondent is directed to produce files relating to the above mentioned two buildings on the next date of hearing, as an interim direction. F.No.CIC/AT/A/2007/01508 Dt. the 17.6.2008.

The RTI-application of the appellant contains questions such as “basis of allegations” and queries regarding other types of explanations originating from the disclosure of U.O. Note under the RTI Act to the appellant which was apparently the basis on which departmental and criminal proceedings were commenced. Whether the information requested by the appellant ― which was the evidence in that criminal proceeding comes within the prohibition of Section 8(1)(h) of the RTI Act. In this judgment of the Commission held that denial of information to the appellant

under Section 8(1)(h) is justified. Commission has received several appeals of a like nature from civil servants facing disciplinary proceedings, criminal investigations and prosecutions for acts of misdemeanour, malfeasance, corruption, indiscipline and so on. In most of these cases, the respondents invoked the provisions of Section 8(1)(h) of the RTI Act to deny information to the appellants over and above those which they (the appellants) might have had access to either through the Enquiry Officer in a disciplinary proceeding, or through the investigating agency, or through the Court. In all the above matters, there are specific statutes and rules, under which such employees’ access to information is determined. For example, what information, an accused could access under the Prevention of Corruption Act, Indian Penal Code (IPC), Criminal Procedure Code (Cr.PC) and Civil Procedure Code (CPC) is provided in those Acts itself, which can be modified by the discretion which the Court or the investigating agency has about disclosing that information.



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Similarly, in disciplinary cases, the Enquiry Officer determines the extent of access to documents and records, which the officer investigated against would have. Appellate remedies are available to the officer facing disciplinary proceedings. Accused and delinquent officers under the above statutes approach this Commission to invoke the provisions of the RTI Act aimed principally at expanding their access to the information beyond what those statutes provide, or beyond what the authorized officer, or the Court under those statutes, allow the appellants to access using the authorized officers’ or Court’s discretion. In other words, RTI Act is now being used not only to expand the access of the accused and delinquent officers to information germane to the proceedings against them; it is also used to circumscribe the discretion of the authorized officer or the Courts in given matters. A question has been raised whether authorizing a delinquent officer to access information under RTI Act, beyond what he would have been authorized under those other statutes, would amount to “impeding” those processes as laid-down in the Section 8(1)(h) of the RTI Act. It was argued before the Commission that the expression “impede” used in Section 8(1)(h) should be construed as impeding a given investigation, disciplinary or prosecution process, or having potentiality to do so. According to this argument, expanding an employee’s access to documents and records in excess of what he would be entitled to under the statutes or rules under which he might be facing action, or what would be authorized to him under the discretion vested in the Court and the authorized officers under those statutes, undoubtedly has the potentiality to impede the processes current under those statutes. When an Enquiry Officer in a disciplinary proceeding and Investigating Officer under the CrPC / IPC or the Prevention of Corruption Act or any such Act decides that a certain set of documents be disclosed to the delinquent officer and, not other documents, such E.O./ I.O or Judge / Magistrate applies his / her rational consideration to such disclosure and decides not only to allow the officer access to certain document but also to exclude his access to certain others. Exclusion of access to documents may be in writing, or may be the net-result of the exercise of Enquiry Officer’s direction to limit the access of a delinquent employee to a certain set of documents. That is to say, exclusion of access to certain documents can flow from the very act of limiting the delinquent employee’s access tocertain documents. Now, if the RTI Act is invoked to allow access to documents which the Courts / I.O. / E.O. would exclude, the net-effect of such RTI-action could be impeding the processes under those other statutes. The Commission is in agreement with this line of argument. The term “impede” occurring in Section 8(1)(h) has to be broadly interpreted. The respondents are quite right in holding that the Commission cannot substitute its own rational judgement about what information should not be disclosed to delinquent employees, for the judgement of the E.O. / Courts / I.O. under given statutes. Authorizing disclosure of information under RTI Act, denied to an employee under other statutes, amounts to impeding the extant processes under those statutes. In that sense, it amount to RTI being invoked to reverse the orders of those other statutory authorities for which there is no scope in this Act. Any attempt to do so would amount to assumption of authority not clearly vested. Additionally, italso needs to be remembered that in terms of access to information the RTI Act is the general Act whereas the Acts such as the Prevention of Corruption Act are specific Acts. Similar is case with the disciplinary procedure and the rules thereof vis-à-vis the RTI Act. In the present case, it is an admitted fact that action against appellant was initiated under Prevention of Corruption Act, which being a specific Act to the RTI-general Act must hold ground against the RTI Act. In other words, the appellant cannot be authorized to expand his access to records and documents beyond what the Court has authorized him to in course of the prosecution he is facing under the Prevention of Corruption Act.



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In the Commission’s view, therefore, the appellant has no right to demand access to information admittedly germane to an ongoing investigation or prosecution against him or a disciplinary proceeding that may be pending, by invoking the provisions of the RTI Act. Since disclosure of that information under the RTI Act is sure to impede the extant processes under other statutes, this appellant should be content with the information provided to him under those statutes by the authorized officers and the Court. He will no doubt have remedies under provisions of those Acts / Rules to seek appropriate relief for himself against the orders of the E.O / I.O. or Court. RTI Act cannot provide him the type of access he wishes to have. The Commission wishes to express itself firmly against attempts by employees of public authorities facing different types of actions for their acts of malfeasance invoking the provisions of RTI Act in order to garner evidence or contrive methodologies to defeat the processes to bring them to book. While Commission is cognizant of the rights of such applicants, it cannot also overlook the fact that the action against such officers under other statutes was to combat corruption, indiscipline and other such offences, which is an objective which RTI Act, in its Preamble, endorses. The Commission would be weakening the edifice built over the years to combat corruption, indiscipline and malfeasance by government employees, if it allows the RTI Act to be used as an instrument to interrupt and derail the statutory processes through which such employees are sought to be disciplined, or punished for their acts of omission and commission. If allowed, this will weaken the purpose for which this RTI Act was enacted. The Commission will, therefore, scrutinize requests for information such as this with utmost caution in the context of the Preamble to the RTI Act. CIC/MA/A/2006/00012- Dt.10.3. 2006

Request- Chief Commissioner of Customs sought the names of importers and exporters in daily list of import and export which are being published from the custom houses. But a notification No. 128/2004-Cus (NT) dated 19 November 2004 forbids the disclosure of the names requested. The CIC held that the notification containing rules are in the nature of subordinate legislation is appropriate under section 8(1) (d) of the RTI Act. Decision No. CIC/SG/A/2009/001343/4053

The traditional definition of a fiduciary is a person who occupies a position of trust in relation to someone else, therefore requiring him to act for the latter's benefit within the scope of that relationship. In business or law, we generally mean someone who has specific duties, such as those that attend a particular profession or role, e.g. financial analyst or trustee. The information must be given by the holder of information when there is a choice- as when a litigant goes to a particular lawyer, or a patient goes to particular doctor. It is also necessary that the principal character of the relationship is the trust placed by the provider of information in the person to whom the information is given. An equally important characteristic for the relationship to qualify as a fiduciary relationship is that the provider of information gives the information for using it for his the benefit of the giver. When a committee is formed to give a report, the information provided by it in the report cannot be said to be given in a fiduciary relationship. All relationships usually have an element of trust, but all of them cannot be classified as fiduciary.



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Appeal No. 17/IC(A)/2006 F.No. 11/54/2006-CIC Dated, the 28th March, 2006

Request- The appellant asked for all the ‘valuation reports of the last two years of immovable assets of borrowers. The appellate authority upheld the decision of CPIO and contended that the information sought is exempted from disclosure under 8(1)(d),(e) and (j) of RTI Act, stating that, ‘loaning is a public activity and the prevailing practice of unduly excessive valuation of substandard assets have led to increase in NPA. So in wider public interest, overvalued loans needs to be exposed’. Commission’s. Decision- Disbursement of loans is a public activity and therefore the issue of NPA is a matter of serious concern to the society. However, disclosure of reports of valuation of immovable properties of borrowers is not enough to identify the sources of NPA. The appellant has not asked for the details of bad loans that have contributed to NPA or the action taken by the Bank to recover loans. It therefore cannot be established how the valuation reports of last two years would indicate the extent of NPA attributable to high or low valuation of properties of borrowers. In fact, the appellant has made a mention of NPA in his appeal to the Commission, while he was silent on this issue in his original application for information. The link between valuation of mortgaged properties of borrowers and NPA is not clear. There is therefore no bonafide public interest in disclosure of valuation reports submitted to the Bank by the borrowers. The Bank is also required to maintain secrecy of details of loan accounts as it is personal information and is also in the nature of commercial confidence. The exemption from disclosure of information under Section 8(1)(d),(e) and (j) has been correctly applied by the Bank. The appeal is therefore dismissed.

Appeal No.376-382/ICPB/2006 F.No.PBA/06/440, 476 to 481, Dt.5.3.2007

Request- .......the appellant has sought for information in a tabular form of the loans sanctioned by him and the AA has applied the provisions of Section 8(1)(j) and 13(1) of Banking companies Act. Decision- In the normal course, the decision of the AA is fully justified but not in the present case, as the appellant has sought for details of only the loans sanctioned by him and on which basis he has been charged in the disciplinary as well as criminal proceeding. Therefore, the CPIO is bound to furnish the information and cannot seek exemption either under RTI Act or the Banking companies Act. In case the information sought cannot be given in a tabular form, the same may be furnished in such form as the CPIO finds it convenient. Appeal No. 19/IC(A)/2006 – Order dated 29-03-2006 –

Request- Appellant sought details of loans sanctioned and disbursed to a particular company – not indicated the bonafide public interest in seeking the info – Decision-



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CIC upheld the view that details of properties and securities submitted by the borrowers are in the nature of commercial confidence, the disclosure of which is exempted under Section 8(d) of the RTI Act - Also, the information sought relate to collateral and securities taken by the concerned Company and its directors, which are personal information. This has no relationship with any public activity or interest - Disclosure of such information would cause unwarranted invasion of privacy of individual / third party, as per Section 8(1) (j). Appeal No. 19/IC(A)/2006 F.No. CIC/MA/A/2006/00057 Dated, 29/03/2006

Request- The appellant has sought the details of loans already sanctioned and disbursed to a particular Company. He has however not indicated the bonafide public interest in seeking the information. Decision- The details of properties and securities submitted by the borrowers are in the nature of commercial confidence, the disclosure of which is exempted under Section 8(d) of the RTI Act. Also, the information sought relate to collateral and securities taken by the concerned Company and its directors, which are personal information. This has no relationship with any public activity or interest. Disclosure of such information would cause unwarranted invasion of privacy of individual / third party, as per Section 8(1) (j).

Decision No.1739/IC(A)/2007 F. No.CIC/MA/A/2007/00783 of 26/12/2007.

Request- The appellant had sought certain information about a company of which he was a shareholder. He had alleged that the Company, as identified in his application, has been conducting its business activities in an illegal manner and has thus earned profit through corrupt practices. In this context, he had sought inspection of the relevant documents, which was allowed. But, the identified documents had not been furnished to him. In response to his application for information, the CPIO sought concurrence of the Company (the third party) u/s 11 of the Act, which did not permit the disclosure of information asked for by the appellant. Not being satisfied, in his appeal before CIC, appellant pleaded that information sought should be furnished. Decision- “A major concern of the RTI Act is to contain corruption. The disclosure of information relating to corrupt practices of public/private companies is, therefore, largely in public interest. The allegations made by the appellant about the illegal activities of the Company in question should have been investigated by the competent body, mainly the respondent. It does not seem to have been done. The appellant is, therefore, advised to approach the competent authority to investigate the allegations made by him so as to find the facts in the matter or to establish that allegations, as above, are motivated for promoting personal interest of the appellant”. “As the matter pertains to alleged corruption, disclosure of information is largely in public interest. Denial of information u/s 8(1)(d) of the Act, after having shown the entire records to the appellant is, therefore, untenable”. Based on above, CIC directed the CPIO to acquire the information asked for u/ s.2(f) of the Act and furnish the same to the appellant within 15 working days from the date of issue of its’ decision.



13

(CIC/A/12/2006 dated 21.02.06)

The government cannot wrongly classify its documents as Secret and then claim exemption from disclosure.

Decision No. CIC/SG/A/2009/002343/5489 Appeal No.

CIC/SG/A/2009/002343

Appellant sought the details of movable property and immovable property and annual property returns of all the working staff in National Council for Teacher Education since 1995 to 30 May 2009 Information was provided by the PIO for the last 3 years and whose records are easily available had been complied by him and given. PIO mentioned that compiling such mammoth information from different files of the head quarters as well as its Regional offices for nearly 14 years would throw out of gear, the functioning of the NCTE. And further refused to provide the copies of Annual Property Returns, whether movable or immovable, sought by the Appellant in respect of each and every officer/official of NCTE, as not permitted in terms of Section 8(1) (J) of the RTI Act, 2005, as these are personal information. While allowing the appeal CIC held that disclosure of information such as assets of a Public servant, -which is routinely collected by the Public authority and

routinely provided by the Public servants,- cannot be construed as an invasion

on the privacy of an individual. There will only be a few exceptions to this rule

which might relate to information which is obtained by a Public authority while

using extraordinary powers such as in the case of a raid or phone-tapping. Any other exceptions would have to be specifically justified. Besides the Supreme Court has clearly ruled that even people who aspire to be public servants by getting elected have to declare their property details. If people who aspire to be public servants must declare their property details it is only logical that the details of assets of those who are public servants must be considered to be disclosable. Hence the exemption under Section 8(1) (j) cannot be applied in such a case.” Case No. CIC/AT/A/2009/000260 Dated: 30th September, 2009

Relating to the selection and appointment for the post of senior scientist at Indian Lac Research Institute, Ranchi, The appellant asked for certified copies of the score cards w.r.t. each of the candidate for above mentioned post and complete details (including name and designation) of the officers / employees who were responsible for scrutinizing the application form of individual candidates and awarding scores to the individual candidates. The application was rejected under section 8(1) (e), (g) & (j) of RTI Act. The Commission while directing to provide only the marks awarded to each candidate by the Screening Committee be disclosed, without disclosing the identity of experts who had awarded those marks and also the list showing names of the candidates who applied for the above post. It was observed that the present petition is covered by the ratio of Commission’s decision dated 4.4.2007 in the case of Dr. Vijendra Singh Vs. ASRB in Appeal No.CIC/AT/A/2006/00579, which is as follows:-

It should be possible to disclose considerable information without attracting Sections

8(1)(e) and 8(1)(g) of the exemptions. It should be possible to disclose the marks

awarded to each candidate by the Screening Committee without disclosing the identity of

experts who are awarding those marks. For example, it can be disclosed to the appellant



14

as to how many experts were associated with the preparation of the shortlist at the level

of the Screening Committee and, what marks each awarded to each candidate. The

names of the experts can be suitably camouflaged by identifying them by some number

or alphabet rather than by their actual names. It can be said for example that Expert

No.1 awarded so and so marks to so and so candidate and so on.

Similarly, in respect of the deliberations of the Interview Board, the candidates may be

apprised about the methodology of evaluation adopted by the members of the Board and

the marks awarded to each candidate without disclosing the identities of those awarding

these marks.

At the end of it all, only the candidates’ names with the marks received by each shall

stand disclosed, along with the methodology of evaluation; but the names of experts will

remain undisclosed. Where the names of the members of an Interview or Evaluation

Board or Committee are known, the marks awarded by such member to each candidate

shall be kept undisclosed. In all such cases only the aggregate marks received by each

candidate from all the members of Selection Committee / Interview Board shall be made

known, and not the break-down of the marks member-wise.

In consideration of the above, it is directed that the respondents will supply the

information to the appellant after suitably deleting under Section 10(1) of the RTI Act

those parts of the information which may disclose the identity of the persons and link

them to the marks awarded to the candidates.” Appeal No. CIC/MA/A/2008/01178 dt. 16/09/2009

An ex-UNICEF staffer sought information regarding the findings of the investigation in the complaint dated 04/12/2007 to the Hon’ble Minister for Woman & Child Development regarding sexual harassment and sexual assault against the Country Representative of UNICEF, India. The information has been denied u/s 8(1)(a) of the RTI Act. When queried as to under which part of clause 8 (a) the information has been denied, she would submit that the information has been denied on the ground that disclosure of requested information would prejudicially affect the relations of India with Unicef which is an International Body under the United Nations which, according to her, may be deemed to be a foreign State. CIC categorically held that the matter needs to be decided in the light of the Constitutional mandate as interpreted by the Hon’ble Supreme Court of India referred to hereinabove and the provisions of the RTI Act, 2005. It is noteworthy that both CPIO and AA have denied the requested information under section 8(1)(a) of the RTI Act “(a) Information, disclosure of which, would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the state, relation with foreign state or lead to incitement of an offence.” The Commission further reiterated and re-emphasised that sexual harassment is violation of the fundamental rights of the victim under Articles 14, 15, 19(1)(g) and 21 of the Constitution of India. On the question whether information has been correctly denied under clause (a) of section 8(1) of the RTI Act, CIC remarked that no evidence has been produced to establish that disclosure of information in the matter on hand would prejudicially affect relations of India with foreign state. On the contrary, denial of information is not only contrary to the constitutional mandate but also out of line with the Declaration of Human Rights and CEDAW. Ironically, denial of information is also not in conformity with the law laid down by the Supreme Court of India in Vishakha case. Needless to say, the matter in hand involves the dignity of a working woman. All that she has requested for is a copy of the Inquiry Report submitted to the Ministry of Woman and Child Development and



15

some other related material. The orders of the CPIO & FAA are held not sustainable in law and set aside.

Bihar State Information Commission

Case No. 77 / 06-07 Dt. 08.05.2007

Road permit is a public document. Information about road permits or commercial taxes is the right of very citizen. Such information has no bearing on the exemptions provided for in S. 8(1)(d) and S. 8(1)(g) of the ‘RTI Act, 2005’. The PIO’s argument about the possibility of such information being used for ‘looting-during-riots’, ‘ransom-demands’ etc was not accepted and hence these were not accepted as reasons for not disclosing said information. Goa State Information Commission

Appeal No. 99/2009

In view of section 8(1)(g) the details of station diary, case diary cannot be disclosed to a requester as it may have far reaching consequences in terms of confidentiality of the information received by the police and may even endanger the physical safety of those examined by the police authorities. The Advocate for the Appellant contends that the same Public Information Officer in another request for information by some other party has provided the copies of the station diary. Such a request for station diary or Police case diary normally cannot be given. However, as mentioned above, copy of station diary has been provided to different information seekers. In such a situation some information without unduly compromising with the principle, especially when they pertain to the law enforcement authorities, can be given.

Kerala State Information Commission

Ref: Applicant No. 94(2)/2009/SIC, dated 23 January 2009, Paul Thomas C. Vs.

Coir Development Director & S.S. Chanbibi, Project director & State PIO, Office of

the Coir project Officer

Request for information by the appellant pertaining to the period older than 20 years was rejected by the PIO on the grounds that information prior to the period being more than 20 years does not come within the period which RTI stipulates. The SIC observed that RTI does not stipulate any time bar for providing information and hence the opinion of the respondents was wrong1. The SIC therefore ordered the PA to provide all the information to the applicant irrespective of the time to which the information sought pertains. Ref: AP.No.860(4)/2008/SIC (File No.8317/SIC-Gen3/2008) : Shri. P. C. George M.L.A vs. Industries (H) Department : Order dated 4 March 2009:

Appellant had requested for a copy of the Techno Economic Feasibility Report for production of Titanium sponge. SPIO, Industries (H) Department had rejected the claim because the feasibility report was a joint venture of two companies for the production of

1 Under Sec 8 (3) of RTI act, the Public Authority, subject to the provisions of clauses (a), (c) and (i) of sub-section 8 (1), is

bound to provide any information relating to any matter which has taken place twenty years before the date on which any

request is made. However, this does not mean that information beyond 20 years should not be provided.



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Titanium sponge and the disclosure of the same would prejudicially affect the commercial confidence and trade secrets of the Governmental Organisations involved in it and, there was no public interest warranting the disclosure

Ref: AP. No. 804(4)/2008/SIC (File No.7917/SIC-Gen3/2008): Shri. P. G. K. Nair vs. KSEB, Kozhikode, Kerala: Order dated 5 February 2009

Appellant’s request for the report of the Chief Engineer, civil construction of a Composite Dam was denied u/s.8 of RTI act on the ground that the case was pending before the Hon. High Court. SIC observed thus: Section 8(i)(b) of the RTI Act had exempted documents

that were expressly forbidden by the Court of Law, Tribunal or the disclosure of which may

constitute contempt of court. Here, there was no express prohibition or express

pronunciation of any order by any court prohibiting the furnishing of the information. A

report alleged to have been prepared by a Chief Engineer was not a document or

information, publication of which would constitute contempt of court. Therefore, the

shelter taken u/s.8(i) (b) of the RTI Act was not available to the parties concerned. Therefore, Commission hereby directs the PIO to provide the information Ref: A.P. No. 927(5)/2008/SIC (File No. 9075/SIC-G1/2008): Shri. K.S. Rajan

Vs. Office of Director of Public Instruction, Thiruvananthapuram, Kerala : Order

dated 23 January 2009

&

A.P. No. 927(5)/2008/SIC (File No. 9075/SIC-G1/2008): Shri. K.S. Rajan Vs.

Office of Director of Public Instruction, Thiruvananthapuram, Kerala: Order dated

Appellant had requested for copy of the petition filed based on which the Super check Cell of DPI inspected and disallowed two divisions of the school of which he was the PTA president. Information was not provided u/s. 8(i)(g) as there was the possibility of endangering the life and physical safety of the person who submitted the petition against the school. The SIC observed that the disclosure of the information regarding ‘complaint

petitions’ may endanger the life and physical safety of the person sending such

complaints. Hence, the Commission upholds the decision of the State Public Information Officer and Appellate Authority.

Ref: A.P. No. 1005(5)/2008/SIC (File No. 9847/SIC-G3/2008): Sri.V.Sugathan

Vs. Office of Inspector General of Police, Thiruvananthapuram, Kerala : Order

dated 5 February 2009

The appellant submitted that he requested for the preliminary enquiry report and statement of witnesses as a detailed enquiry was ordered against him. The denial of the same u/s. 8(i)(h) was not tenable, as he was not facing any investigation envisaged u/s. 8(i)(h) of the RTI Act. No criminal case was charged against him. He was facing only a departmental enquiry. A copy of the enquiry report had to be given to him under natural justice.

The State Public Information Officer submitted that the enquiry report could not be provided, as the detailed enquiry was not over. The memo of charge was approved. Hence, the information required by the appellant could not be provided at this stage of enquiry.



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The Commission observed that the information requested was in no way connected with the investigation of any crime or apprehension or criminal prosecution of the offenders. The section 8(i)(h) clearly provides that the information, which would impede the process

of investigation or apprehension or prosecution of offenders, is exempted from disclosure. In the instant case, the departmental enquiry has been ordered against the appellant. The departmental enquiry is not an investigation as envisaged u/s. 8(i)(h) of the RTI Act. Hence, the denial of the information u/s. 8(i)(h) will not stand in the premises of law.

Ref: AP.No.01/2007/SIC (File No.4245/SIC-Gen2/2006): Smt. Geeta Sethu

Madhavan Vs. Kerala State Consumer Disputes Redressal Commission: Order

dated 16 June 2007

Appellant had field two separate applications for gathering details regarding the long pending cases before the Kerala State Consumer Redressal Commission. Interim reply: Secretary of the Kerala State Consumer Dispute Redressal Commission had intimated that the reply could be furnished only after collecting the requisite data from the Kerala State Consumer Redressal Commission. Information on her first request was fully provided while information on second request was mentioned as not available The commission noted thus: ‘The implications and impediments that are likely to arise out

of furnishing the information and the apprehended inconveniences in furnishing the

information are evident from the request itself. It could also be seen from the submissions

of the Secretary that this information could not be furnished without employing the entire

men and material available with the Consumer Dispute Redressal Commission. This is not

information as held by the Public Authority. Reference can be made to Section 7, sub-

section 9 of the RTI Act, in this regard. Information shall ordinarily be provided in the form

in which it is sought unless it would disproportionately divert the resources of the public

authority or would be detrimental to the preservation and safety of the record in question.

Therefore, the answers for the questions raised as Part (b) could be collected only with

much difficulty. However, because it is within the command of the public authority, the

information will have to be furnished by resorting to a sincere attempt to collect the

information within a reasonable time, however, difficult it might be’. Another request made by the appellant as corollary to part (a) was not provided citing that State Consumer Redressal Commission prohibiting disclosure of certain species of information u/s of RTI act. The Consumer Dispute Redressal Commission regrettably has mistaken the provisions of Section 8 of the RTI Act. There is no provision to anyone to issue an order prohibiting furnishing of information except on those conditions enumerated

in the exception clause of Section 8 of the RTI Act. Giving an order or passing an order giving instructions to the public information officer and appellate authority not to divulge

information was hence an exercise without jurisdiction. Therefore, the Commission finds that the Appellate Authority should have furnished the information in full, instead of withholding part of it based on such a legally infirm order. So the respondent is directed to provide all the information requested Ref: AP.78/2006/SIC (No.2458/SIC-Gen 1/2006): Shri. P. Raveendran Pillai Vs.

Kerala Financial Corporation: Order dated 16 May 2007

Part of the information requested by the appellant was denied on the grounds that Information against items (iv) to (viii) of the request were denied under section 8(e) and 8(j) of the Right to Information Act. According to the respondents, an employee has a fiduciary relationship with the employer and there shall not be any obligation to provide a citizen, information available to the Public Authority out of the fiduciary relationship unless the competent authority is satisfied that larger public interest warrants disclosure of such information. Secondly, property statements are personal information and hence exempted from disclosure under section 8(j) of the Right to Information Act.



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The Commission does not agree with the contention of the respondents that property statement of an employee of a Public Authority is information available to the Public Authority out of a fiduciary relationship. There cannot be an understanding between the Public Authority and its employees, whether written or unwritten, that the details of the

property statement will be kept confidential. The Commission is also of the view that property statement of employee of a Public Office is not personal information of the

employee. Employees of a Public Authority are public servants and the property

statements of a public servant cannot be deemed as personal information so long as the

employee is in the service of the Public Authority

Ref: AP.No.74/2006/SIC (File No.2230/SIC-G3/2006): Shri.K. Surendran Vs.

SC,ST and Backward Classes Development Department, Thiruvananthapuram,

Kerala: Order dated 17 May 2007

The Appellant in this case had made a request under Section 6 of the RTI Act to the State Public Information Officer, SC, ST, and Backward Classes Development Department. The request was for "copy of all the pages of the note file in file No.2245/G2/2005/SCSTDD". The request was rejected by the PIO with the following remarks:- "The file notings include the discussions of officers and their opinions. The Government has the privilege not to disclose the contents of the file notings".

The remarks of the Appellate Authority was called for. The main contentions could be reiterated as follows:- There was time bound disposal of the request and the first appeal. The details of the file and its notings cannot be disclosed to an outside party because it

contains note files pertaining to the discussions and notings of officers. Para 3of the remarks had highlighted the point that under S.8(1) (i) of the RTI Act, the cabinet papers including records of deliberations of council of Ministers, Secretaries and Officers are exempted from disclosure. Some of the papers were placed before the Council of Ministers including the Former Chief Minister, and Minister for Revenue and Welfare of SC/ST Community Department. It contained the opinion and consultation of Law Secretary and Advocate General. The matter is not yet completely over. The question of giving the part of the record as per Section 10(2) of the Act also does not arise.

The rejections were on three grounds:-

i. That the appellant was a party outside the purview of the file

ii. It was a file on which cabinet action is sought and action is not over

iii. The deliberations of Cabinet Ministers and Secretaries are exempted under Section 8(1)(i) of the RTI Act.

The first position that he is an out and out stranger to the proceedings

The RTI Act confers unfettered, unrestricted, and unlimited power on all citizens to have the right to information. Section (3) of the Act makes no condition precedent to claim information by way of right. It does not say that one should be connected with the information requested. When the matter in question and information can be sought, as it is held by the public authority, it need not be in any way necessary to have some personal link, personal connection or a personal interest in the matter requested for. In other words, every citizen is having the locus-standi to seek information and no one can be turned down merely on the ground that he is not having any locus-standi to the information sought for. Therefore, information that was sought by the Appellant could not be withheld under the pretext that he is a stranger to the information and not an interested party. The interest is public interest and not personal interest. This ground of rejection both by the PIO and Appellate Authority are on a wrong interpretation of the statute and the spirit of it.

Denying the file either under section 10(1) or under the proviso of Section 8(1)(i)



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Section 10(1) of the RTI Act deals with and visualizes a situation were information is already rejected on the ground that it is exempted from disclosure. In such cases, the PIO or the Appellate Authority must be doubly careful and can provide access to the information to that part of the record, which does not contain any information that is exempted from disclosure under this Act. In other words, the exempted portion remains well protected and insulated inside the information and all remaining portions can be made available to the requester.

Subject to this restriction, information can be provided. Sub-section 2 of Section 10 deals with the procedural formalities in the case of partial disclosure of information. Here in this case, deliberations of the cabinet was already over and discussions were all over a decision has been taken and what was awaited was a central notification. Perhaps those portion, which the Central Ministry was "expected" to scrutinize could have been kept away from the requester. But for that portion of the file, access to the entire file could not have been denied in the light of Sub-section (1) of Section (10). Interestingly, it was submitted by the Appellant during the hearing that a copy of the draft ordinance forwarded to the Government of India has been provided to him by the Central Public Information Officer of the Central Government.

Denial of information under the exempted clause of Section 8(1)(i) cannot be held as a correct interpretation. The PIO and the Appellate Authority were very vehement in saying that the file includes noting of Officers, Govt. Secretaries, deliberations of the Cabinet Ministers and also of Law Secretary and Advocate General. Of course, the Cabinet papers include records of deliberations of council of Ministers, Secretaries and other Officers and are privileged documents exempted from the purview of the RTI Act 2005 under Section 8(1) (i). But it is not a permanently exempted document because the Parliament has made it further clear with an elaborate proviso to this section.

The proviso reads "provided that the decisions of the Council of Ministers, the reasons there of and the materials on the basis of which the decisions were taken shall be made public after the decisions has been taken and the matter is complete or over". The decision had already been taken. The matter was complete and everything was over. This proviso is the soul of RTI Act. It is transparency that is indicated in this proviso. This is the most vital and sensitive position of the RTI Act. An ordinary citizen is given access to the file notings, the deliberations of Ministers, Secretaries and such other high officials. Without this proviso this Act would not have come into existence and the Act would not have accredited with so much of public acclaim and enthusiasm. Therefore, so plain and unambiguous a proviso is there to up-hold the case of the Appellant. By no means and by no stretch of imagination one can reject the case of the Appellant.

Hence information be provided to the appellant

Ref: AP.No.156/2006/SIC (File No.3578/SIC-Gen/2006): Shri. Deepak. J. MVs.

Police Headquarters, Thiruvananthapuram, Kerala: Order dated 22 June 2007

The appellant’s request for information was rejected by the PIO as the information pertained to a third party, who objected to disclosing the information. After having satisfied himself that the discloser of the information would adversely affect the interest of the third party, he had rejected the application for information. The PIO was also aware of the progress of an investigation and had resorted to clause ( h ) of Section 8 of the RTI Act and had found that the disclosure of the information would impede the progress of an investigation.

The information, even if it was a third party information, was a right, a civil right

ascertainable and the position can be usurped by the appellant in only one circumstance

where the same is out-witting and outweighing the personal interest in safe-guarding the



20

public interest. In other words, third party information could be disclosed in public interest

and, in the interest of the public at large in its importance.

Public interest and public importance are the only criteria to overlook and overshadow the

third party interest. In the present case, litigation after litigation between the two parties

is pending before competent courts. No public interest or public importance is involved in

this issue. The appellant had not attempted to bring about the prima facie case that the third party information requested and agitated was of some public importance. So information need not be provided.

Ref: AP.No.123/2006/SIC: Shri. Johnson Abraham vs. O/o the D.G. Police

Headquarters, Thiruvananthapuram, Kerala: Order dated 22 June 2007

The appellant’s request for information was rejected by the PIO under Section 8(1) (h) of the RTI Act, as the documents were highly confidential, and under Section 24 of the RTI Act, which exempts intelligence and security organisations specified in the 2nd Schedule. Under section of the RTI Act, Kerala Govt. has brought out a notification mentioned as GO (P) 43/06 (GAD) dated 7.2.2006 exempting 8 organizations including Crime Branch CID, from the purview of the RTI Act. All the documents mentioned by the appellant were held by the CBCID, an organisation that need not provide any information, by virtue of the notification made by the State Government under Section 24 of the RTI Act.

However, the Appellant disputed the confidentiality of the documents by arguing that the Kerala Legislative Assembly and magazines like "India Today" and "Kerala Kaumudi" had access to these ‘confidential’ documents. The contentions of the Respondent was that as far as the Police Department is concerned, these were still confidential reports and still kept by the confidential section of the Police Head Quarters and enjoy immunity from disclosure as provided under Section 24 of the RTI Act. Further, the Police Department or any of its Branches did not make available the records or the file purported to have been read or referred to in the Legislative Assembly. The requester ought to have made a request before the PIO of the Home Department of Govt. of Kerala or before the PIO of the Legislative Assembly instead of the PIO of PHQ.

The Commission, therefore, finds no ground to ask the respondent to part with this

information. In view of the total immunity granted to the CBCID in the Police Organisation,

as per the above-mentioned G.O and Section 24 of the Act, this the Commission finds that

the appellant is not entitled to access the documents from the Police Department, CBCID

Wing or from the PIO of the Police Headquarters. However, the Appellant is free to

approach the PIO of the Home Department or of the Legislative Assembly for obtaining the

documents required by him.

Maharashtra State Information Commission

Appeal No.2010/3815/02

Appeal No.2010/3816/02

Appeal No.2010/3851/02

The Hon High Court through various orders have held that copies of the question papers need not be given. In fact section 8(1)(b) clearly says that there shall be no obligation to give any information which has been forbidden to be published by any Court of Law. Appeal No.2009/2592/02

Appeal No.2009/1926/02

It will be totally unfair to disclose names of examiner, question setter and place of printing of the question paper. If all candidates start asking names of examiner place of printing of the question papers and who set the question papers that would mean



21

collapse of the whole system. Also, it would not be desirable to disclosure the findings of the examiner because the information has been given to the respondent in confidence. Appeal No./ KR- 2545/08

The request for information related to the criteria adopted for allowing some candidates to participate in the recruitment examination and disallowing others was denied by PIO on the ground that as per the guidelines of the Hon’ble High Court the recruitment process being confidential, the information about the same cannot be given. The First Appellate Authority has agreed with the decision of the Public Information Officer by referring to Section 8 (1) (b) of the R.T.I. Act, 2005. The First Appellate Authority added that without taking approval from High Court, this information cannot be given.

Appeal No.2006/406A/02 (Convict’s right to privacy)

Hon. High Court which had given verdict in favour of supremacy of RTI Act over regulations framed under the Indian Medical Council Act. Hon. High Court has given its verdict in para 17 of their Judgment which is quoted as follows: “ The law as discussed may now be set out. The confidentiality required to be maintained of the medical records of a patient including a convict considering the Regulations framed by the Medical Council of India cannot override the provisions of the Right to Information Act. If there be inconsistency between the Regulations and the Right to Information Act, the provisions of the Act would prevail over the Regulations and the information will have to be made available in terms of the Act. The Act, however, carves out some exceptions, including the release of personal information, the disclosure of which has no relationship to any public activity or interest or which would cause unwarranted invasion of the right to privacy. In such cases discretion has been conferred on the concerned PIO to make available the information, if satisfied that the larger public interest justifies the disclosure. This discretion must be exercised, bearing in mind the facts of each case and the larger public interest. Normally records of a person sentenced or convicted or remanded to police or judicial custody, if during that period such person is admitted in hospital and nursing home, should be made available to the person asking the information provided such hospital nursing home is maintained by the State or Public Authority or any other Public Body. It is only in rare and in exceptional cases and for good and valid reasons recorded in writing can the information may be denied. In those cases where the information sought cannot be denied to either Parliament or State Legislature, as the case may be, then the information cannot be denied unless the third person satisfies the authority that Parliament/Legislature, is not entitled to the information. There is no discretion in such cases to be exercised by the concerned Information Officer. The information has to be either granted or rejected, as the case may be. Every public authority, whose expenditure is met partly or wholly from the funds voted by the Parliament/Legislature or Government funds are availed off is accountable to Parliament/Legislature, as they have interest to know that the funds are spent for the object for which they are released and the employees confirm to the Rules. The conduct of the employees of such an organization subject to their statutory rights can also be gone into. If patients are to be admitted in hospital for treatment then those employees in the hospital are duty bound to admit only those who are eligible for admission and medical treatment.



22

The records of such institution, therefore, ought to be available to Parliament or the State Legislature. The Parliament/Legislature and/or its Committees are entitled to the records even if they be confidential or personal records of a patient. Once a patient admits himself to a hospital the records must be available to Parliament/Legislature provided there is no legal bar. We find no legal bar, except the provisions of the regulations framed under the Indian Medical Council Act. Those provisions, however, would be inconsistent with the proviso to Section 8(1)(j) of the Right to Information Act. The Right to Information Act would, therefore, prevail over the said regulations.” In one of its earlier decisions, the Commission had directed PIO to disclose information (about hospitalization of a convict) mainly on the following counts: 1) Since there is feeling in the minds of people that highly placed people and people with money power can spend their jail term not in the prison but in the hospital, public interest will be better served if this information about hospitalisation is disclosed even though this information is of a 3rd person and of a personal nature; 2) As per the proviso to section 8(1)(j) of the Act, “Information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person”. The information about hospitalization, medication and discharge report of a patient in the Government hospital, if required by the Legislature cannot be denied to them. Appeal No.2010/4337/02

Every citizen has right to privacy and that includes public servants. Appeal No.2008/1114/02

Appeal No.2008/1113/02

Appeal No.2008/1112/02 The appellant wanted details of the salary drawn by an individual employed with a public authority. This information is personal and its disclosure has no relationship to any public interest or activity. Hence, the information is rejected. Appeal No.2009/3337/02

Whether the cause of death could be disclosed under the RTI Act - the reason behind keeping the cause of death confidential is no longer valid. The RTI Act virtually supersedes other acts and the only exceptions are information contained in section 8 & 9 of the RTI Act. Appeal No.2009/3292/02

Appeal No.2009/2898/02 (Confidentiality)

The issue of confidentiality has undergone drastic change after the Act came into force. Now Courts have ruled that / confidential report / evaluated answer sheets should be shown to the candidate. In this area of transparency brought about by the RTI Act it has to be presumed that whatever is not exempted should be disclosed. Appeal no. 2006/557 /02

Though Section 8(1)(j) gives protection to the personal information, furnishing details about remuneration of the staff members of a public authority does not get covered under it. Section 41b(x) of the Act Stipulates that: 4. Obligation of public authority. (1) Every public authority shall publish within one hundred and twenty days from the enactment of this act the monthly remuneration received by each of its officers and



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employees including the systems of compensation as provided in its regulation. As per the preamble the Act aims at promoting transparency and accountability in the working of every public authority. If all the three provisions are read together it is clear that act does not give protection from disclosure to the remuneration received by the employee. In fact its disclosure is the prime requirement of the Act. Appeal No.2007/1145/02

Appellant sought some information related to the candidates who had been short listed and called for the interview for the post of lecturer in Chemistry (Open category) to the PIO, MPSC u/s 6 of RTI Act, 2005. This information pertains to date of birth, marks obtained in 10th, 12th, graduate level, P.G.level, whether NET and SET passed, research paper published, experience, etc. Furnishing this information was denied stating that in order to maintain the trustworthy relationship between the Commission and candidates, disclosure of information is not possible u/s 8(1)(d), 8(1)(e) and 8(1)(j). MPSC receives this information in fiduciary relationship. All these are definitely very cogent arguments. Those could only be overruled if the applicant can give cogent reasoning that disclosure of such information would be in the larger public interest. There is nothing in the appeal memo to show how the larger public interest would be served by disclosing this information except the general argument that it will lead to transparency. If it is decided to reveal this information, since it pertains to third party, 51 candidates who were qualified for interview will have to be asked about their concurrence or otherwise of giving this information. This will also put MPSC some extra burden. All this goes against the Appellant’s request.

Appeal No.877/2007

The commission has always held the view that whenever Govt. has ordered the inquiry into any significant issue, its report should be available to the public as early as possible. Such report need not be disclosed till Govt. examines the report. However there has to be some time limit to such examination. Appeal No.2008/2821/02

Disclosure of the documents / records pertaining to any subject matter pending before High Court as well as Arbitral Tribunal may constitute contempt of the court. Hence, these need not be furnished by the PIO. If applicant is still desirous of getting this information, he may apply for the copies from the count or Arbitral Tribunal. After the court proceedings are over, then papers could be revealed to the applicant. Appeal No.2007/1751/02 Rule 19 of the Bombay High Court RTI rules 2006 is as follows: “Rule 19 – The information/copy/ies/inspection with respect to the cases pending in Court shall be obtained from the Court, as per Bombay High Court Rules and Orders in force for the time being as applicable to the District Courts or as provided for in the Civil or Criminal Manuals, as the case may be.” The Commission finds that this rule specifically deals with the cases pending in the High Court and the instructions to the appellant to under these rules are in consonance with the provision of the Act. Appeal No.2009/2286/02

Appeal No.2009/2571/02

Appeal No.2009/1799/02



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Where the information is sought regarding cases still under investigation/charge sheets have been filed in the court of law, such information can be denied under section 8 of the Right to Information Act, 2005. The reason is such disclosure is likely to impede the process of investigation and apprehension of the accused. Appeal No.2008/612/02 (Info of judicial proceedings)

Information sought is in respect of judicial proceeding and the appellant has to obtain the said information as per the procedure prescribed for obtaining certified copy by the Bombay High Court Rules and orders. The RTI Act guarantees access to information already available. It is not expected to provide redressal of citizen’s grievances. It does not allow questions like why and how. In any case why a particular prayer has not been considered by the Hon High Court cannot come within the purview of the RTI Act. Appeal No.2009/1250/02 (Investigation under ACB)

Any matter under the investigation of ACB is not desirable to be furnished. Appeal No.2007/1429/02 The 2nd request of the Appellant is regarding information of name and designation of the person through whom the complaint was referred to Registrar (Legal) of High Court, Bombay, name of the person who directed the complaint to Registrar (Legal), name of the person who entered data upon the records pertaining to letters sent in the years 2004, 2005, 2006 and 2007, name of the person attached to the office of the Chief Justice who acknowledged receipt of the mail by EMS Speed Post and name and designation of the person attached to the office of His Lordship – Mr. Justice Rebello who acknowledged receipt of the mail by EMS speed post of the copy of complaint dated 9th March, 2005. The Respondent has denied this information u/s 8(g) of the Act. The Commission feels that such type of information need not be given due to the reasons stated u/s 8(g) of the Act. Appeal No.2008/1381/02

Appeal No.2008/1050/02

Appeal No.2008/1049/02

Appeal No.2008/1048/02

Appeal No.2008/1047/02

Appeal No.2008/1046/02

Appeal No.2009/3976/02 Appeal No.2010/4217/02 Appeal No.2009/2572/02

Appeal No.2008/916/02

Appeal No.2008/1051/02

Appeal No.2008/1052/02

Appeal No.2008/1053/02

Appeal No.2008/1054/02

The annual confidential reports have been traditionally confidential. There are circumstances under which it is communicated to the person concerned. It remains confidential otherwise. As far as the appellant’s case before the Tribunal is concerned, there have been instances where the courts have called for these reports and evaluated them and passed orders. Finally, giving copies of appellant’s annual confidential reports has no element of public interest, it is purely personal. Under these circumstances



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Commission is of the view that no public interest is likely to be served by furnishing copies of appellant’s annual confidential reports to him. In Appeal No.2009/2229/02, Commission further stated that: there are set procedures if someone feels aggrieved by the report. The procedure is well known to any govt. officers. Orissa State Information Commission

Ref: Second Appeal No. 70/2007, dated 07 August 2007, Shri Nigamananda Panda,

Cuttack vs. PIO, OPSC, Cuttack & First Appellate Authority, OPSC, Cuttack

Both the PIO and the First Appellate Authority of the Orissa Public Service Commission

(OPSC) denied the complainant of photocopies of evaluated papers of a candidate who

appeared in the Orissa Judicial Services examination. Therefore, the complainant made a

second appeal to the SIC. On hearing the case the SIC drawing reference from Section 22 and

Section 8 (1) (j) of the RTI Act ordered the OPSC to provide the photocopies of the evaluated

papers free of cost because of delay.

Responding to OPSC’s citing example of the Central Information Commission (CIC) denying

such information in a similar case, the SIC observed that the decisions of the CIC do not

apply to ICs of states/UTs as under the RTI Act all ICs stand at par with each other and there

is no “Superior-Subordinate forum” relationship.

5. Ss. 8, 9 and 10

Documents

Transcript of 5. Ss. 8, 9 and 10