Central Information Commission
Mr.K D Khera vs Government Of Nct Of Delhi on 2 June, 2011
CENTRAL INFORMATION COMMISSION
Club Building (Near Post Office)
Old JNU Campus, New Delhi - 110067
Tel: +91-11-26161796
Decision No. CIC/SG/C/2010/001353/12671
Complaint No. CIC/SG/C/2010/001353
Complainant : Mr. K. D. Khera,
General Secretary,
All India Punjab National Bank Officers' Association,
306, Kirti Mahal,
19, Rajendra Place,
New Delhi- 110008
Respondent : Public Information Officer &
Labour Officer,
Labour Department District South West,
GNCTD,
D. T. C. Colony,
Pratap Nagar, Hari Nagar,
New Delhi- 110064
Facts arising from the Complaint:
One Mr. Sham Sunder had sought certain information under the RTI Act from the Respondent in relation to the All India Punjab National Bank Officers' Association (the "Association"). This RTI application was received by the PIO on 31/05/2010. Vide letter dated 04/06/2010, the PIO sought objections from the Complainant, who was the relevant third party. However, vide letter dated 14/06/2010, the Complainant raised certain objections in relation to disclosure of the information sought.
Thereafter, the Complainant, vide letter dated 14/10/2010, enquired of the Respondent whether any information was supplied to Mr. Sham Sunder and if so, to provide a copy of the same. The PIO responded to the Complainant vide letter dated 21/10/2010 enclosing the information provided to Mr. Sham Sunder vide letter dated 08/07/2010. Aggrieved by the said disclosure, the Complainant filed a Complaint before the Commission on 08/11/2010. Vide notice dated 05/04/2011, both parties were directed to appear before the Commission on 05/05/2011 for a hearing.
Relevant Facts emerging during Hearing held on May 5, 2011:
The following were present:
Complainant: Mr. K. D. Khera;
Respondent: Mr. Sushil Kumar, PIO & Labour Officer.
"The Complainant stated that information pertaining to the activity of the Association such as its constitution, amendment of its constitution, annual returns, etc was provided to one Mr. Sham Sunder who had sought the same under the RTI Act. The Complainant contended that the information sought was supplied by the Association to the Respondent- public authority and the latter held the same in a fiduciary capacity. Moreover, there was no public interest in disclosure of the information to Mr. Sham Sunder. The Complainant referred to certain decisions of the Commission to support his contention. The Complainant requested the Commission to direct the PIO to not reveal such information."
The order was reserved during the hearing held on 05/05/2011.Page 1 of 5
Decision announced on 2 June 2011:
On perusal of the papers, the Commission noted that the PIO, vide letter dated 08/07/2010, had provided copies of the amendments made in the constitution of the Association, notices of meetings, agenda, annual returns, etc to Mr. Sham Sunder in response to the latter's RTI application. This information furnished to Mr. Sham Sunder appears to have been provided by the Association to the PIO in furtherance of certain regulatory compliances.
The Complainant has contended that the Association was registered under the Trade Unions Act, 1926 and therefore, the Central Trade Union Regulations, 1938 (the "Regulations") framed thereunder were applicable to the Association. As per Regulation 17(2) of the Regulations, any document in possession of the registrar received from a registered trade union may be inspected by any member of that union on payment of the prescribed fees. The Complainant has argued that since Mr. Sham Sunder was not a member of the Association, no information about the Association could be provided to him by the PIO.
Section 22 of the RTI Act expressly provides that the provisions of the RTI Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923, and any other law for the time being in force or in any instrument having effect by virtue of any law other than the RTI Act. Section 22 of the RTI Act, in no uncertain terms, lays down that the RTI Act shall override anything inconsistent contained in any other law. From a plain reading of Regulation 17(2) of the Regulations, documents/ records of a trade union may be inspected by any member of that union; any person who is not a member of the trade union may not access such documents/ records in control of the registrar. In other words, Regulation 17(2) of the Regulations appears to impose a restriction on access to information held by or under the control of a public authority, which is prima facie inconsistent with the RTI Act. Therefore, in accordance with Section 22 of the RTI Act, the provisions of the RTI Act shall override the provisions of the Trade Unions Act, 1926 and the Regulations framed thereunder. The contention of the Complainant that information about the Association could not be provided by the PIO to a non- member as per the Regulations is rejected.
In this regard, the Complainant placed reliance upon the decision of Mr. A. N. Tiwari, the then Information Commissioner dated 17/08/2007 in S. P. Goyal v. CIT CIC/AT/A/2007/00333 wherein it was observed that wherever a provision exists in a specific law to provide a set of information including documents to an applicant, not the RTI Act but the provisions of the specific law should be used for such disclosures. In view of the reasoning outlined above, this Commission does not see the relevance of the S.P. Goyal Case in the instant matter.
The Complainant has further contended that as per Section 11(1) of the RTI Act, information pertaining to a third party may not be provided, the disclosure of which was in no way related to any public action or interest. The Complainant has argued that neither the members of the Association nor the members of the All India Punjab National Bank Officers' Association General Council were "public" and therefore, no public interest was involved in disclosure of the information. Moreover, despite the objections raised by the Complainant in accordance with Section 11(1) of the RTI Act, the information was provided to Mr. Sham Sunder by the PIO. The Complainant has cited the decision of Mr. A. N. Tiwari, the then Information Commissioner in Ravinder Kumar v. Delhi Police CIC/AT/A/2006/00609 dated 09/02/2007. It was observed therein that information furnished to a public authority by a third party and held by that authority, is not liable to be disclosed unless that third party concurs in the disclosure, or if the public authority chooses to disclose it in public interest regardless of the third party's objection.Page 2 of 5
Section 11(1) of the RTI Act provides as follows:
"11. Third party information.- (1) Where a Central Public Information Officer or the State Public Information Officer, as the case may be, intends to disclose any information or record, or part thereof on a request made under this Act, which relates to or has been supplied by a third party and has been treated as confidential by that third party, the Central Public Information Officer or State Public Information Officer, as the case may be, shall, within five days from the receipt of the request, give a written notice to such third party of the request and of the fact that the Central Public Information Officer or State Public Information Officer, as the case may be, intends to disclose the information or record, or part thereof, and invite the third party to make a submission in writing or orally, regarding whether the information should be disclosed, and such submission of the third party shall be kept in view while taking a decision about disclosure of information:
Provided that except in the case of trade or commercial secrets protected by law, disclosure may be allowed if the public interest in disclosure outweighs in importance any possible harm or injury to the interests of such third party." (Emphasis added) As per Section 11 of the RTI Act, where the PIO intends to disclose any information, which relates to or has been supplied by a third party and has been treated as confidential by that third party, the PIO shall invite submissions from the third party whether such information shall be disclosed or not. The information or record sought must be either supplied by the third party or must relate to the third party and in both cases, must be treated as confidential by the third party. Section 11(1) of the RTI Act qualifies the nature of the information provided by the third party to the PIO; it does not bring within its purview every information provided by the third party to the PIO. Information provided to the PIO in compliance with law/ regulatory requirements may not come within the purview of 'information, which relates to or has been supplied by a third party and has been treated as confidential by that third party'. On receipt of submissions from the third party, Section 11(1) of the RTI Act requires that the PIO shall keep the submissions in view while taking a decision whether the information sought shall be disclosed or not.
Section 11(1) of the RTI Act is triggered once the PIO intends to disclose to the applicant any information/ record which relates to or has been supplied by a third party and has been treated as confidential by that third party. Once Section 11(1) of the RTI Act is applicable, the PIO shall follow the procedure of serving a notice to the third party for seeking objections whether such information shall be disclosed or not. On receipt of the submissions of the third party, the PIO shall keep the submissions in view and then decide whether the information sought shall be disclosed or not. If the PIO does not find any merit in the submissions of the third party, he shall disclose the information sought to the applicant. On the other hand, where the PIO decides that the information sought shall not be disclosed then the basis for denial of information must be in accordance with Sections 8 and 9 of the RTI Act only. However (except in the case of trade or commercial secrets protected by law) even where the PIO is of the view that there is possible harm or injury to the interests of the third party, but public interest in disclosure outweighs in importance any such harm or injury, he may disclose the information. However, Section 11 does not give the third party a right of veto in giving information. In light of the above arguments, this Commission respectfully disagrees with the observations of the then Information Commissioner in the Ravinder Kumar Case.ntions of the Complainant.
In this regard, it may be worthwhile to note the observations of Muralidhar, J. of the High Court of Delhi in Arvind Kejriwal v. CPIO W. P. (C) 6614/2008 and C. M. Appl. No. 12685/2008, W. P. (C) 8999/2008 and C. M. Appl. No. 7517/2008, W. P. (C) 8407/2009 and C. M. Appl. 5286/2009, in Paragraph 21, which are as follows:
"...It requires to be noticed that under the RTI Act information that is totally exempt from disclosure has been listed out in Section 8. The concept of privacy is incorporated in Section Page 3 of 5 8(1)(j) of the RTI Act. This provision would be a defense available to a person about whom information is being sought. Such defense could be taken by a third party in a proceeding under Section 11(1) when upon being issued notice such third party might want to resist disclosure on the grounds of privacy. This is a valuable right of a third party that encapsulates the principle of natural justice inasmuch as the statute mandates that there cannot be a disclosure of information pertaining to or which 'relates' to such third party without affording such third party an opportunity of being heard on whether such disclosure should be ordered. This is a procedural safeguard that has been inserted in the RTI Act to balance the rights of privacy and the public interest involved in disclosure of such information. Whether one should trump the other is ultimately for the information officer to decide in the facts of a give case."
The Complainant has cited the decision of the Commission in S. K. Kaushik v. Indian Oil Corporation Limited CIC/MA/A/2007/00055 dated 03/04/2007 wherein it was observed that the applicant therein had sought information for promotion of personal interest rather than public and that such requests should be discouraged. With due respect to the observations of Professor M. M. Ansari, the then Information Commissioner, this Commission disagrees with the same. As per Section 6(2) of the RTI Act, an applicant making a request for information under the RTI Act shall not give any reasons for requesting the information. The ruling of the then Information Commissioner in the S. K. Kaushik Case necessarily requires that the purpose/ reasons for which an applicant may seek information shall be enquired into, which is clearly contradictory to the statutory mandate of Section 6(2) of the RTI Act. In view of the same, this Commission does not understand the relevance of the S. K. Kaushik Case in the instant matter.
Furthermore, the Complainant has argued that the information supplied by the Association to the PIO is held by the latter in fiduciary capacity and was exempted from disclosure under Section 8(1)(e) of the RTI Act. This Commission, in a number of decisions, has held that for Section 8(1)(e) of the RTI Act to apply there must be a fiduciary relationship and the holder of information must hold the information in his fiduciary capacity. 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. The principal character of a fiduciary relationship is the trust placed by the provider of information in the person to whom the information is given. Further, the information must be given by the holder of information when there is a choice. Moreover, the provider of information gives the information for using it for the benefit of the giver. All relationships usually have an element of trust, but all of them cannot be classified as fiduciary.
In the instant case, the Commission is unable to understand how a fiduciary relationship is created between the Association and the PIO. It does not appear that the PIO holds a position of trust in relation to the Association thereby requiring it to act in the benefit of the latter. Further, the documents/ records are submitted by the Association to the PIO in discharge of statutory compliances and not out of choice. In other words, submission of documents/ records by the Association to the PIO in accordance with the existing laws cannot be considered to have been given in a fiduciary relationship. The documents/ records are not held by the PIO in a fiduciary capacity but only as a consequence of discharge of the Association's legal obligations. Therefore, the Commission does not find any merit in the arguments of the Complainant that disclosure of the information sought was exempted under Section 8(1)(e) of the RTI Act.
The Complainant relied upon the decision of Professor M. M. Ansari, the then Information Commissioner in Sadashiv Dattatraya Nikam v. Chief Commissioner of Income Tax- II, Pune CIC/MA/A/2006/00098 dated 10/05/2006. It was held that the information (i.e. audited balance sheets) was submitted by the third party to the Income Tax Department. Since the relevant document was neither created and prepared by the public authority nor was the outcome of its activities, the PIO had correctly withheld the information on the basis of Sections 8(1)(d) and 8(1)(e) of the RTI Act. This Commission respectfully disagrees with the Page 4 of 5 observations of the then Information Commissioner. Section 3 of the RTI Act mandates that all citizens shall have the right to information. Section 2(j) of the RTI Act defines "right to information" to mean the right to information accessible under the RTI Act which is held by or under the control of any public authority. In view of the same, as long as the information sought is held by or under the control of a public authority, the information sought must be provided (unless it is exempted under Sections 8 and 9 of the RTI Act); it is irrelevant whether such information was created and prepared or is an outcome of the activity of the public authority.
The Complainant has also attached the decisions of the Commission (along with written submissions) in P. K. Sharma v. Oriental Bank of Commerce CIC/MA/A/2006/00132 dated 09/06/2006, O. P. Arya v. Chief Commissioner, Customs & Central Excise CIC/MA/A/2006/00163 dated 28/06/2006 and Kandikonda Saibabu v. State Bank of India CIC/MA/A/2006/00219 dated 18/05/2006. However, the Complainant has failed to establish the relevance or significance of any of these decisions in the instant case before the Commission.
In view of the above, the third party's Complaint is disposed.
The information was not held by the PIO in a fiduciary relationship. The PIO has given the information in accordance with the law.
Notice of this decision be given free of cost to the parties.
Shailesh Gandhi Information Commissioner 02 June 2011 (In any correspondence on this decision, mention the complete decision number.)(MC) Page 5 of 5