Central Information Commission
Mr. Om Prakash vs Delhi Transport Corporation on 28 January, 2010
CENTRAL INFORMATION COMMISSION
Club Building (Near Post Office)
Old JNU Campus, New Delhi - 110067
Tel: +91-11-26161796
Decision No. CIC/SG/A/2009/002969/6580
Appeal No. CIC/SG/A/2009/002969
Relevant Facts emerging from the Appeal:
Appellant : Mr. Om Prakash,
S/ Sh. Kamal Singh,
Village Islam Pur, Post Fazil Pur,
Near Dr. Pradeep Clinic, Thana Sadar,
Sector - 38, Gurgaon- HR.
Respondent : Mr. M.L.Agarwal
Public Information Officer & Dy. Chief General Manager (Rural) Delhi Transport Corporation, O/o The Dy. CGM (Rural), Peeragarhi Depot; New Delhi.
RTI application filed on : 06-07-2009 PIO replied : 10-08-2009 First appeal filed on : 25-08-2009 First Appellate Authority order : 25-09-2009 Second Appeal received on : 24-11-2009 Date of Notice of Hearing : 26-12-2009 Hearing Held on : 28-01-2010 Information Sought:
The Appellant had sought following information from PIO - DTC regarding DTC employee named Roshni Devi / W/o Late Ram Kumar R/o 1036, Raj Nagar -II, Palam Colony, New Delhi posted at Peera Garhi Depot, Delhi.
1. Date of appointment of Roshni Devi?
2. Designation of Roshni Devi.
3. Date of last reporting on duty with time of arrival and departure.
4. Reason of absent from duty. (kind of leave if taken).
5. Did she informed the Deptt. That she is involved in FIR No. 191 dated 02-06-2009. If yes then certified copy of the same may be provided.
6. Qualification of Roshni Devi with documentary proof.
7. If she did not inform the department that she is involved in FIR No. 191 dated 02-06-2009, then what legal or disciplinary action initiated against her.
8. Duty schedule with reporting and departure time in R/o Roshni Devi from the last eight month along with documentary proof. (i.e. photocopy of attendance register). All the asked information may be provided in certified copies.
The PIO's order.
Information had been provided to the appellant but he has not attached copy of reply (enclosure) with the second appeal. Only cover page had attached with second appeal by appellant.
Cover page matter is follow:- it is to inform you that the desired information cannot be provided under section 11(1) of RTI Act as this is a personal matter/information of the employee who has given in writing that his personal information may not be provided to the applicant or any other person. (Photocopy of the statement of Smt. Roshni, Peon, T.No. 58978 is enclosed).
Page no. 1 of 4 Ground of the First Appeal:
Incomplete information had been provided to the appellant.
Order of the FAA:
"During the course of appeal proceedings, the Appellant contended that he has been denied the requested information on the grounds that the information asked is a personal information and therefore, can not be provided under section 11 (1) of the RTI Act, as the thirdparty i.e. Smt. Roshani Devi had given in writing that information regarding her personal data may not be disclosed. The RTI application filed by the appellant and reply furnished thereon perused and it is observed that the information regarding date of appointment, designation, educational qualification which are contained in the bio data of an employee cannot be stated as personal information because when a candidate submits his/her application for appointment to a post under a public authority, the same becomes a public document and he/she can not object for disclosure of the information on the grounds of invasion of the privacy. There is already decision of the Hon'ble CIC on the issue in the matter of Sh. Bhagwan Chand Saxena Vs. Export Inspection Council of India. I therefore, direct the concerned PIO i.e. Dy. CGM (Rural) to provide the information to the appellant in respect of point 2 (a), (b) & first part of 2 (f) with in 10 days of the issued of this appeal order.
As regard second part of point No. 02 (f), the appellant had demanded documentary proof of educational qualification. In this regard, it is observed that the document if any submitted by the candidate is in fiduciary relationship with the employer and no public interest appears to be served the information is exempted from disclosure, therefore, it is held that this part of the information as requested by me appellant is exempted from the disclosures under section 8 (i) (j) of the RTI Act, 2005. similarly with regard to points i.e. 02 ©, (d), (e), (g) & (h) of the RTI application. It is held that the requested information in respect of these points also are ecempted from disclosure".
Ground of the Second Appeal:
Incomplete information had been provided by the PIO and appellant had not satisfied with the FAA's order.
Relevant Facts emerging during Hearing:
The following were present:
Appellant : Mr. Om Prakash;
Respondent : Mr. Tarun Kumar Verma, APIO on behalf of Mr. M.L.Agarwal, Public Information Officer & Dy. Chief General Manager (Rural);
The Appellant states that he has received all the information except for the following: 1- Photocopy of the attendance register from 01/12/2008 to 31/06/2009. 2- Proof of the educational qualification of Ms. Roshni Devi.
The PIO states that this information has been denied on the ground that it is exempt under Section 8(1)(e) &(j) of the RTI Act. Section 8(1)(e) of the RTI Act exempts, "information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information;"
Section 8 (1) (e) of the RTI Act exempts from disclosure 'information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information;' 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. doctor, lawyer, 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, Page no. 2 of 4 a customer chooses a particular bank, 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 the benefit of the one who is providing the information. All relationships usually have an element of trust, but all of them cannot be classified as fiduciary. Information provided in discharge of a statutory requirement, or to obtain a job, or to get a license, cannot be considered to have been given in a fiduciary relationship.
From this it follows that photocopy of the attendance register or a photocopy of the certificate evidencing educational qualification of any employees cannot be considered to be information held by the a public authority in a fiduciary relationship.
Section 8(1)(j) of the RTI Act exempts, "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:"
Under Section 8 (1) (j) 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 this exemption the information must satisfy the following criteria:
1. It must be personal information.
Words in a law should normally be given the meanings 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. From this it flows that 'personal' cannot be related to Institutions, organisations or corporates. Hence Section 8 (1) (j) cannot be applied when the information concerns institutions, organisations or corporates.
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. When 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, all these are public activities. Also when a Citizen provides information in discharge of a statutory obligation this too is a public activity.
We can also look at this from another aspect. 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 provisionss 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. Certain human rights such as liberty, freedom of expression or right to life are universal and therefore would apply uniformly to all humanbeings worldwide. However, the concept of 'privacy' is a cultural notion, related to social norms, and different societies would look at these differently. Therefore referring to the UK Data protection act or the laws of other countries to define 'privacy' cannot be considered a valid exercise to constrain the Citizen's fundamental Right to Information in India. 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. The Supreme of India has ruled that Citizens have a right to know about charges against candidates for elections as well as details of their assets, since they desire to offer themselves for public service. It is obvious then that those who are public servants cannot claim exemption from disclosure of charges against them or details of their assets. Given our dismal record of misgovernance and rampant corruption Page no. 3 of 4 which colludes to deny Citizens their essential rights and dignity, it is in the fitness of things that the Citizen's Right to Information is given greater primacy with regard to privacy. Therefore we can state 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.
Thus information provided by individuals in fulfillment of statutory requirements will not be covered by the exemption under Section 8 (1) (j).
Thus the disclosure of the photocopy of the attendance register or a photocopy of the certificate evidencing educational qualification cannot be considered an invasion on the privacy of an individual and hence does not fall under the exemption of Section 8(1)(j) the RTI Act.
Decision:
The Appeal is allowed.
The PIO is directed to provide the photocopy of the attendance register and the photocopy of the certificate evidencing educational qualification of Ms. Roshni Devi to the Appellant before 10 February 2010.
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 RTI Act.
Shailesh Gandhi Information Commissioner 28 January 2010 (In any correspondence on this decision, mention the complete decision number.) (BK) Page no. 4 of 4