Central Information Commission
Mr. Sujit Kumar Mazumder Advocate vs Cbi on 13 July, 2011
CENTRAL INFORMATION COMMISSION
Club Building (Near Post Office)
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Decision No. CIC/SM/A/2011/000318/SG/13429
Appeal No. CIC/SM/A/2011/000318/SG
Relevant Facts emerging from the Appeal:
Appellant : Mr. Sujit Kumar Mazumder, Advocate,
District & Sessions Court,
Port Blair, Andman & Nicobar Islands
Respondent : (1) Mr. S. R. Mazumder
PIO & Superintendent of Police , CBI- Anti Corruption Branch, 14th & 15th Floor, 2nd MSO Building, Nizam Palace, 234/4, AJC Bose Road, Kolkata, West Bengal- 700020 (2) PIO & Addl. Supdt. of Police/HOB, Special Police Establishment, CBI, Q- 2/3, Quarry Hill, Port Blair- 744101 (3) CPIO & Assistant Inspector General (P) - II, Policy Division, Vigilance Cell, CBI, C- 1/8, Hutments, Dalhousie Road, New Delhi- 110011 RTI application: 26/07/2010 Reply of PIO (CBI, Kolkata) reply: 30/08/2010 Reply of PIO (CBI, Port Blair): 08/09/2010 First appeal 08/09/2010 FAA order 27/09/2010 Second appeal 21/10/2010 SL. Information sought PIO's reply a Kindly provide Certified Xerox copy of the Case All records pertaining to RC 7/(A)/2008-Kol are not Diary and the supplementary case diaries in available in this branch because same have been connection with the case No RC 07 of 2008. sent to PIO at Port Blair. A copy of this application is being forwarded to CIII / Port Blair for providing necessary information with reference to this point.
b Kindly provide Certified xerox copy of visitor's Visitors Register containing entry of visits of Register of SP. ACB. CBI. Kolkata (having different witnesses and others cannot be provided as Jurisdiction over the Port Blair area) for the the same may hamper prosecution of offenders in following dates 18 to 20 February 2008 and 7 to 9 on going trial cases and would endanger physical April 2008 safety or identity of source of information or assistance given in confidence for law enforcement.
Hence, exemption is claimed u/s 8(1)(g) and (h) of Page 1 of 7 RTJ Act. However, if you want to ascertain the visit of a particular person on a particular date, the same may be considered for providing information to you.
c Certified Xerox copy of GD Register of SP ACB, Exempt under Section 8(1)(g) & (h).
CBI, Kolkatta office (Having Jurisdiction over the Port Blair area) for the period 18 to 20 February 2008and 8 to 10 April 2008 d Certified Xerox copy of receipt Diary register of Pay Rs.40/- @ Rs.2/- per page for information.
SP, ACB, CBI, Kolkatta office (Having Jurisdiction over the Port Blair area) for the dates 10 & 11 April 2008 and Dispatch Diary register of 11 & 12 April 2008 e Certified Xerox Copy of Trap Money Register of Exempt under Section 8(1)(g) & (h).
SP,ACB, CBI. Kolkatta office (Having Jurisdiction over the Port Blair area) for The period 1 April 2008 to 30 April 2008.
f Details of Expenditure incurred on the hiring of During the period from 1st April, 2008 to 30th June, vehicles by CBI officers of ACB. Kolkatta in 2008, no vehicle was hired by CBI / ACB I Kolkata connection with the investigation at Port Blair for Port Blair. during period l April 2008 to 30 Jun 2008 along with the certified Xerox copy of bills as claimed g Details of rewards given to the CBI officers of AC During the period from 1st April, 2008 to 30th June, B, Kolkotta for carrying out successful trap;, 2008, no reward was given to CBI Officers of indicating the name & designation of the officer ACB / Kolkata for carrying out successful traps. and the amount of' reward for the period of 1 April 2008 to 30 Jun 2008.
h Details of CBI officers whose name was placed in No such list is being maintained in this office.
the list of Doubtful integrity during period Jan 2006 to date. (only names no other details asked) i Detail of CBI officers against whom the complaint This information cannot be provided as this are registered or contemplated and inquiry information relates to personal information and the conducted or in progress (only name & no other disclosure of which has no relationship to any details are asked) public activity or interest moreover, the same would cause unwarranted invasion of the privacy of the individual Hence, exemption u/s 8(1)(j) is hereby claimed.
By letter dated 08/09/2010, the PIO (CBI, Port Blair), in relation to query a. replied that certified copy of the case diary and supplementary case diary in connection with case no. RC 7/2008 cannot be provided as it was exempted from disclosure under Section 8(1)(g) of the RTI Act.
Grounds for First appeal:
Complete information was not provided.
FAA order:
"It is ordered that:
(i) The orders of the CPIO's do not require any modification / interference with regard to the request made at 'A to 'G' herein above.
(ii) CPIO, ACB, Kolkata should transfer the request of the Appellant to the concerned CPIO for disposal of the request made at 'H' & 'I' herein above within 07 working days from receipt of this order under intimation to the Appellant. The Appeal is disposed of accordingly."Page 2 of 7
Grounds for Second appeal:
"All the information which has been sought for by me are very general and does not falls within the ambit of Section 8 of RTI Act, hence it is requested that I may kindly be provided the information immediately to expose the deep routed corruption among the CBI Officers of ACB, Kolkata and the ACB, Port Blair."
Relevant Facts emerging during Hearing held on May 23, 2011:
The following were present:
Appellant: Mr. Sujit Kumar Mazumder, Advocate on video conference from NIC- Andman Studio; Respondent: Mr. S. R. Mazumder, PIO & Superintendent of Police on video conference from NIC- Kolkata Studio.
Based on perusal of papers and the submissions of the Appellant, the Commission noted that information on queries (d), (f) and (g) appears to have been provided by the PIO, CBI (Kolkata). However, he has refused to provide information on queries (b), (c) and (e) on the basis of Sections 8(1)(g) and (h) of the RTI Act. The PIO, CBI (Port Blair) has refused to provide information on query (a) claiming Section 8(1)
(g) of the RTI Act.
The Commission further noted that vide letter dated 16/11/2010, the PIO, CBI (New Delhi) has refused to provide information on queries (h) and (i) on the basis of Section 8(1)(g) and (j) of the RTI Act. The PIO, CBI (New Delhi) has relied on the decision of the Commission in P. Thavasiraj v. Dept. of Atomic Energy dated 02/09/2008. The Appellant has relied on the decisions of the Commission in CIC/WB/A/2007/01366 dated 31/10/2007, CIC/WB/A/2007/01370-71 and 1492 dated 06/11/2007- dated 04/03/2009.
The order was reserved during the hearing held on 23/05/2011.
Decision announced on 13 July 2011:
The PIO, CBI (Kolkata) has refused to provide information on queries (b), (c) and (e) on the basis of inter alia Section 8(1)(h) of the RTI Act. Section 8(1)(h) of the RTI Act provides as follows:
"8. Exemption from disclosure of information.- (1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,-
...
(h) information which would impede the process of investigation or apprehension or prosecution of offenders;"
Section 8(1)(h) of the RTI Act exempts disclosure of information which would impede the process of investigation or apprehension or prosecution of offenders. Merely because the process of investigation or prosecution of offenders is continuing, the bar stipulated under Section 8(1)(h) of the RTI Act is not attracted; it must be clearly established by the PIO that disclosure of the information would impede the process of investigation or apprehension or prosecution of offenders. Ravindra Bhat, J. of the High Court of Delhi in Bhagat Singh v. CIC W.P. (C) No. 3114/2007 has observed as follows:
"13. Access to information, under Section 3 of the Act, is the rule and exemptions under Section 8, the exception. Section 8 being a restriction on this fundamental right, must therefore is to be strictly construed. It should not be interpreted in manner as to shadow the very right itself. Under Section 8, exemption from releasing information is granted if it would impede the process of investigation or the prosecution of the offenders. It is apparent that the mere existence of an investigation process cannot be a ground for refusal of the information; the authority withholding information must show satisfactory reasons as to why the release of such Page 3 of 7 information would hamper the investigation process. Such reasons should be germane, and the opinion of the process being hampered should be reasonable and based on some material. Sans this consideration, Section 8(1)(h) and other such provisions would become the haven for dodging demands for information.
14. A rights based enactment is akin to a welfare measure, like the Act, should receive a liberal interpretation. The contextual background and history of the Act is such that the exemptions, outlined in Section 8, relieving the authorities from the obligation to provide information, constitute restrictions on the exercise of the rights provided by it. Therefore, such exemption provisions have to be construed in their terms; there is some authority supporting this view (See Nathi Devi v. Radha Devi Gupta 2005 (2) SCC 201; B. R. Kapoor v. State of Tamil Nadu 2001 (7) SCC 231 and V. Tulasamma v. Sesha Reddy 1977 (3) SCC 99). Adopting a different approach would result in narrowing the rights and approving a judicially mandated class of restriction on the rights under the Act, which is unwarranted." (Emphasis added) It is clear from the ruling of Ravindra Bhat, J. that the PIO, who is denying information under Section 8(1)
(h) of the RTI Act, must show satisfactory reasons as to why disclosure of such information would impede the process of investigation or apprehension or prosecution of offenders. These reasons must be relevant and the opinion of the PIO that by disclosing the information, prosecution of offenders shall be impeded should be reasonable. The opinion of the PIO must be based on some material and cannot be a mere apprehension not supported by any evidence. Parliament did not intend exempting information while a process of investigation or prosecution was ongoing. It has stated that disclosure of information can be exempted only if it impedes the process of investigation or prosecution.
In the instant case, the PIO, CBI (Kolkata) has denied the information by simply quoting Section 8(1)(h) of the RTI Act and that such disclosure would impede the process of prosecution. However, he has failed to explain how such disclosure would actually be an impediment to the process of prosecution, as laid down above by the High Court of Delhi. The denial of information by the PIO appears to be a mere blanket statement not supported by any cogent evidence or material on the basis of which it can be clearly demonstrated that such disclosure would in fact attract the exemption contained in Section 8(1)(h) of the RTI Act. In other words, the PIO has failed to discharge the burden placed upon him under Section 19(5) of the RTI Act to prove that the denial of information under Section 8(1)(h) of the RTI Act was justified. On this basis, the Commission rejects the contention of the PIO that the information sought in queries (b),
(c) and (e) was exempted under Section 8(1)(h) of the RTI Act.
Further, the PIO, CBI (New Delhi) has denied the information sought in queries (h) and (i) on the basis of inter alia Section 8(1)(j) of the RTI Act. Under Section 8 (1) (j) of the RTI Act, information which has been exempted is defined as:
"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: ..."
To qualify for the exemption under Section 8(1)(j) of the RTI Act, the information must satisfy the following criteria:
1. It must be personal information: Words in a law should normally be given the meaning given in common language. In common language, we would ascribe the adjective 'personal' to an attribute which applies to an individual and not to an institution or a Corporate. Therefore, it flows that Page 4 of 7 'personal' cannot be related to institutions, organisations or corporates. Hence Section 8(1)(j) of the RTI Act cannot be applied when the information concerns institutions, organisations or corporates.
2. 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 in 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, licence or authorisation, or provides information in discharge of a statutory obligation.
3. 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, the Appellant, in queries (h) and (i), has sought names of CBI officers who have been placed in the list of 'doubtful integrity' during the period January 2006 till date and names of CBI officers against whom complaints are registered or contemplated and inquiry conducted or in progress. There is no doubt that the information sought is "personal" information as it pertains to individual CBI officers. Every public authority is required to have information including details of any complaints registered or contemplated or departmental enquiry initiated/ conducted against any of its officers as a matter of record and more so because such officers are public servants discharging public function. Any complaint registered and taken cognizance of, or inquiry conducted or in progress, by a public authority, is necessarily a public activity. Disclosure of such information cannot be construed as unwarranted invasion of privacy of the officer concerned, as it concerns issues raised in the exercise of his public activity as a public servant. Moreover, such officer 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 complaint registered or inquiry conducted or in progress against any officer must be considered to be disclosable. Therefore, the contention raised by the PIO, CBI (New Delhi) that the information sought under queries (h) and (i) was exempted from disclosure under Section 8(1)(j) of the RTI Act is rejected.
Furthermore, in relation to queries (a), (b), (c), (e), (h) and (i), information has also been denied on the basis of Section 8(1)(g) of the RTI Act. Section 8(1)(g) of the RTI Act 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;"
In query (b), the Appellant has sought a copy of the Visitor's Register of SP, ACB- CBI (Kolkata) for a specific period. The purpose of a Visitor's Register is to record the names of all persons entering the premises of an organisation. Typically, the very nature of a Visitor's Register is such that details of persons who have already visited a premise and recorded in the register can be viewed by a subsequent visitor while filling in his details. The Appellant has not sought information regarding a specific visitor(s) Page 5 of 7 and therefore, the Commission does not understand how the exemption under Section 8(1)(g) of the RTI Act is attracted in relation to query (b). As mentioned above, in queries (h) and (i), the Appellant has sought names of CBI officers who have been placed in the list of 'doubtful integrity' during the period January 2006 till date and officers against whom complaints are registered or contemplated and inquiry conducted or in progress. The Appellant has sought only the names of such officers and no other details whatsoever. Therefore, if only names of such officers are disclosed, the Commission does not accept that it would endanger their life or physical safety. In other words, the PIO, CBI (New Delhi) has failed to establish before the Commission that the denial of information in queries (h) and (i) under Section 8(1)(g) of the RTI Act was justified.
However, as regards queries (a), (c) and (e), the Commission is of the opinion that there is some merit in the contention raised by the PIOs and disclosure of the information sought may attract Section 8(1)(g) of the RTI Act, if it reveals names of persons who may have provided information or witnesses. Section 10(1) of the RTI Act provides as follows:
"10. Severability.- (1) Where a request for access to information is rejected on the ground that it is in relation to information which is exempt from disclosure, then, notwithstanding anything contained in this Act, access may be provided to that part of the record which does not contain any information which is exempt from disclosure under the RTI Act and which can reasonably be severed from any part that contains exempt information."
Under Section 10 of the RTI Act, it is possible to severe certain portions of the information before disclosing it to an applicant to ensure that information that is exempt from disclosure under the RTI Act is not disclosed. Therefore, this Commission has decided to apply Section 10 of the RTI Act to the information sought by the Appellant on queries (a), (c) and (e). The PIO is directed to provide the complete information sought on queries (a), (c) and (e) after severing the names and other particulars of persons, the disclosure of which would endanger their life or physical safety or identify the source of information or assistance given in confidence for law enforcement or security purposes.
The Commission has perused the decisions cited before it and in view of the reasons given above, the decisions in P. Thavasiraj v. Dept. of Atomic Energy dated 02/09/2008, CIC/WB/A/2007/01366 dated 31/10/2007, CIC/WB/A/2007/01370-71 and 1492 dated 06/11/2007- dated 04/03/2009 become irrelevant to the present matter.
The Appeal is allowed.
The PIO, CBI (Port Blair) is directed to provide the complete information sought on query (a) to the Appellant before 10 August 2011 after severing the names and other particulars of persons, the disclosure of which would endanger their life or physical safety or identify the source of information or assistance given in confidence for law enforcement or security purposes.
The PIO, CBI (Kolkata) is directed to provide the complete information sought on queries (c) and (e) to the Appellant before 10 August 2011 after severing the names and other particulars of persons, the disclosure of which would endanger their life or physical safety or identify the source of information or assistance given in confidence for law enforcement or security purposes.
The PIO, CBI (Kolkata) is further directed to provide the complete information in relation to query (b) to the Appellant before 10 August 2011.
Page 6 of 7The PIO, CBI (New Delhi) is directed to provide the complete information in relation to queries (h) and
(i) to the Appellant before 10 August 2011.
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 RTI Act.
Shailesh Gandhi Information Commissioner 13 July 2011 (In any correspondence on this decision, mention the complete decision number.)(SG) Page 7 of 7