Central Information Commission
Mr.K L Gandhi vs Ministry Of Labour And Employment on 28 December, 2010
CENTRAL INFORMATION COMMISSION
Club Building (Near Post Office)
Old JNU Campus, New Delhi - 110067
Tel: +91-11-26161796
Decision No. CIC/SG/A/2010/003005/10667
Appeal No. CIC/SG/A/2010/003005
Relevant Facts emerging from the Appeal:
Appellant : Mr. K. L. Gandhi,
18/85, Killa Mohalla,
Near Shekhar Medical,
Bahadurgarh, Haryana- 124507
Respondent : Mr. M. Pandey,
Public Information Officer & Section Officer, Ministry of Labour & Employment, Main Secretariat, Room no. 315, Shram Shakti Bhawan, New Delhi RTI application filed on : 19/07/2010 PIO replied on : 10/08/2010 First Appeal filed on : 26/08/2010 First Appellate Authority order of : 01/10/2010 Second Appeal received on : 22/10/2010 S. No. Information Sought Reply of the Public Information Officer (PIO)
a) Whether Shri V.S.A.S.P. Raju, Yes, Shri V.S.A.S.P. Raju Section Officer and Ex-
Section Officer and Ex- Protector of Protector of Emigrants, Chandigarh was convicted
Emigrants, Chandigarh was for his involvement in a criminal case registered by
convicted for his involvement in a the Chandigarh Administration and sentenced
criminal case registered by the imprisonment by the Court.
Chandigarh Administration in 1992
and sentenced imprisonment by the
Court?
b) Whether any action was taken Yes, action under Rule 19 of CCA (CCS) Rules,
against Shri Raju under Rule 19 of 1965 was taken against Shri Raju pursuant to the the Central Civil Services said conviction. The Competent Authority i.e. (Classification, Control and Appeal)Hon'ble LEM had approved of imposing major Rules, 1965 pursuant to the said penalty on Shri Raju and it was also approved to conviction? If so, the details thereof.
seek advice of the UPSC for deciding the exact quantum of penalty to be imposed on the officer.
However, before imposing the penalty Shri Raju applied for voluntarily retirement from Government service which was allowed.
c) Also provide copies of the relevant This information is covered under Section 8(j) of portion of the notes from the file the RTI Act as this information relates to personal Page 1 of 5 wherein this matter was examined. information to an officer and disclosure of which has no relationship to any public activity or interest and disclosure of the information is not in the larger public interest hence cannot be provided.
Grounds for First Appeal:
Unsatisfactory response received from the PIO in relation to query c).
Order of the First Appellate Authority (FAA):
"...As per the RTI Act, any application addressed to the CPIO needs to be responded by the CPIO only. Besides this, section 8(1) (j) of the RTI Act, 2005 has been invoked on frivolous grounds.
3. The following two (2) points need to be explained in this case:
a) The reply furnished by Shri H.K.Mathur, Under Secretary to the Government of India has any jurisdiction or not.
b) Section 8 (1) (j) of the RTI Act, 2005 should be invoked or not. (i.e. which would cause unwarranted invasion of the privacy of the individual or relates to personal information which has no relationship to public interest)
4. In so far as point (a) is concerned, it is mentioned that the Ministry has a central RTI Cell; headed by CPIO; which receives the RTI applications and forwards the same to the concerned Division/Officer under section 5(4) & (5) of RTI Act, 2005. Thus, the concerned officer is treated as the deemed CAPIO/PIO. Recently, all Under Secretary (ies)/Desk Officers/Deputy Directors/Equivalent Officers have been designated as CPIO of the respective division in respect of the work handled by them.
5. In so far as point (b) is concerned, it requires consideration, In similar cases on the right to privacy, Shri Wajahat Habibullah, Chief Information Commissioner has been guided b the U.K. Data Protection Act, 1988, as there is no clear definition of what i meant by "invasion of privacy' within the RTI Act 2005. In addition, we have no equivalent of UK's Data Protection Act, 1988, Section 2 of which, titled Sensitive Personal Data, reads as follows:
In this Act "sensitive personal data" means personal data consisting of information as to:
i). The racial or ethnic origin of the data subject
ii). His political opinions
iii). His religious beliefs or other beliefs of a similar nature
iv). Whether he is a member of a Trade Union
v). His physical or mental health or condition
vi). His sexual life
vii). The commission or alleged commission by him of any offence
viii). Any proceed for any offence committed or alleged to have been committed by him, the disposal of such proceedings or the sentence of any court in such proceedings
8. If I also construe privacy to mean protection of personal data, this would be a suitable reference point to help in defining the concept. It is quiet clear that the information sought by the appellant falls squarely within the personal data as defined at (vii) and (viii) and, therefore, section 8(1) (1) of the RTI Act, 2005 has rightly been invoked in this case."
The First Appeal was disposed of.
Grounds for Second Appeal:
Disposal of First Appeal on frivolous grounds.Page 2 of 5
Relevant Facts emerging during Hearing held on December 16, 2010:
The following were present:
Appellant: Mr. K. L. Gandhi;
Respondent: Mr. M. Pandey, PIO & Section Officer and Mr. Manoj, SO.
The Respondent refused to give information on query c) claiming exemption under Section 8(1)(j) of the RTI Act, which was upheld by the FAA. The Respondent stated that he relied on a decision of the Commission in Appeal No. CIC/WB/A/2007/00088 dated 26/11/2007 based on which he claimed that the information sought was covered under Section 8(1)(j) of the RTI Act. The Commission decided that it would peruse the aforementioned decision and then decide the instant matter.
The decision was reserved during the hearing held on December 16, 2010.
Decision announced on December 28, 2010:
The Appellant, in query c) of the RTI application dated 19/07/2010, sought copies of the relevant portion of the notes from the file wherein the matter pertaining to registration of a criminal case and/or action taken under CCA (CCS) Rules 1965 against Mr. Shri Raju was examined. The PIO refused to provide the said information by claiming the exemption contained in Section 8(1)(j) of the RTI Act, which was upheld by the FAA. At the hearing held before the Commission on 16/12/2010, the PIO placed reliance on Jagdish Chander v. DTC CIC/WB/A/2007/00088 decided on 26/11/2007 and contended that the information sought in query c) came within the purview of Section 8(1)(j) of the RTI Act.
In the Jagdish Chander case, the appellant had sought information about an officer of DTC regarding the number of cases registered against him by the DTC, names of depots whose employees had complained against him and the action taken thereunder. Information was denied to the appellant on the basis of Section 8(1)(j) of the RTI Act, which was upheld by the FAA. Mr. Wajahat Habibullah, the then Chief Information Commissioner observed in the decision that in the absence of any clear definition of "invasion of privacy" under the RTI Act, reliance must be placed upon the Data Protection Act, 1988 of U. K. (the "DPA"). It was noted that if one were to construe privacy to mean protection of personal data, then Section 2 of the DPA, which defines "Sensitive Personal Data" would be a suitable reference point for defining this concept. It was held that the information sought in the Jagdish Chander case clearly came within the meaning of Sections 2(g) and (h) of the DPA (as provided above in the order of the FAA dated 01/10/2010). However, complaints made against an official that are taken cognizance of by a public authority cannot be deemed private as they concern issues raised in the exercise of his public activity as a public servant. Any official action taken thereon is also necessarily a public activity. On this basis, the decisions of the PIO and the FAA were set aside and the PIO was directed to provide the information to the appellant.
The Commission, therefore, is unable to understand how the decision in the Jagdish Chander case is applicable to the instant matter. It appears that both the PIO and the FAA are not fully conversant with the ruling in the Jagdish Chander case and have sought to apply it to the instant case without applying their minds. Moreover, with due respect to the observations of Mr. Habibullah, the then Chief Information Commissioner in the Jagdish Chander case, this Commission observes that certain human rights such as liberty, freedom of expression or right to life are universal and therefore apply uniformly to all human beings worldwide. However, the concept of "privacy" is a cultural notion, related to social norms, and different societies look at these differently. Therefore referring to the DPA or the laws of other countries to define "privacy" cannot be considered a valid exercise to constrain the citizen's fundamental right to Page 3 of 5 information in India. The Parliament has not codified the right to privacy so far, hence in balancing the right to information of citizens and the individual's right to privacy, the citizen's right to information would be given greater weightage.
Further, Section 8(1)(j) of the RTI Act provides as follows:
"8. (1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,--
...
(j) information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information:
Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person."
This Commission, in a number of its decisions, has held that in order to qualify for the exemption contained in Section 8(1)(j) of the RTI Act, the information sought must satisfy the following criteria:
The information sought must be personal information. In common parlance, the adjective "personal" may be ascribed to an attribute which applies to an individual and not to an institution, organisation or a corporate.
The phrase 'disclosure of which has no relationship to any public activity or interest' means that the information must have been given in the course of a public activity. Various public authorities while performing their functions routinely ask for 'personal' information from citizens, and this is clearly a public activity. Public activities would typically include situations wherein a person applies for a job, or gives information about himself to a public authority as an employee, or asks for a permission, license or authorization, or provides information in discharge of a statutory obligation.
The disclosure of the information would lead to unwarranted invasion of the privacy of the individual. The State has no right to invade the privacy of an individual. There are some extraordinary situations where the State may be allowed to invade the privacy of a citizen. In those circumstances, special provisions of the law apply usually with certain safeguards. Therefore where the State routinely obtains information from citizens, this information is in relationship to a public activity and will not be an intrusion on privacy.
In the instant case, there is no doubt that the information sought is "personal" information as it pertains to one Mr. Shri Raju, Section Officer and Ex- Protector of Emigrants. Every public authority is required to have information including details of any criminal case registered or departmental enquiry initiated against any of its officers as a matter of record and more so because such officers are public servants discharging public function. Any criminal case registered, or any complaint made against a public servant, which is taken cognizance of or where an official action is taken by a public authority, is necessarily a public activity. Disclosure of such information would not cause unwarranted invasion of privacy of the officer concerned as it concerns issues raised in the exercise of his public activity as a public servant.Page 4 of 5
Moreover, a public servant is accountable to the public and therefore, every citizen has the right to obtain information that may affect such officer's credibility and integrity.
It is pertinent to mention that the Supreme Court of India in Union of India v. ADR in Appeal (Civil) 178 of 2001 and W. P. (Civil) 294 of 2001 decided on 02/05/2002, observed that persons who aspire to be public servants by getting elected have to declare inter alia their property details, any conviction/ acquittal of criminal charges, etc. If persons who aspire to be public servants are required to declare such details, it is only logical that the details of any criminal case registered or departmental enquiry initiated against any public servant must be considered to be disclosable. Therefore, the contention raised by the PIO that the information sought under query c) was exempted from disclosure under Section 8(1)(j) of the RTI Act is rejected.
The Commission hereby directs Mr. M. Pandey, PIO & Section Officer to provide the complete information in relation to query c) to the Appellant before January 17, 2011.
This decision is announced in open chamber.
Notice of this decision be given free of cost to the parties.
Any information in compliance with this Order will be provided free of cost as per Section 7(6) of the RTI Act.
Shailesh Gandhi Information Commissioner December 28, 2010 (In any correspondence on this decision, mention the complete decision number.)(AK) Page 5 of 5