Kerala High Court
Public Information Officer vs The State Information Commission on 28 October, 2009
Author: V.Giri
Bench: V.Giri
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 9445 of 2009(A)
1. PUBLIC INFORMATION OFFICER,
... Petitioner
2. THE APPELLATE AUTHORITY UNDER THE
Vs
1. THE STATE INFORMATION COMMISSION,
... Respondent
2. RAJAN.P., O.M.BUILDING,
For Petitioner :SRI.P.C.SASIDHARAN, SC, CALICUT UTY.
For Respondent :SRI.M.AJAY, SC, STATE INFORMATION COMMN
The Hon'ble MR. Justice V.GIRI
Dated :28/10/2009
O R D E R
V.GIRI, J
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W.P.(C).9445/2009
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Dated this the 28th day of October, 2009
JUDGMENT
The Public Information Officer of the Calicut University and the Appellate Authority in relation to the Calicut University, under the Right to Information Act are the petitioners. They challenge an order passed by the State Information Commission, the 1st respondent, on an appeal filed by the 2nd respondent.
2. By Ext.P1 application which is seen to have been preferred on 9.6.2008, under Section 6(1) of the Right to Information Act (hereinafter referred to as 'the Act'), the 2nd respondent herein sought for the following information, regarding the re-valuation of the answer paper of one Kumari P.Deepa, English Literature, Government Arts and Science College, Kozhikode, for the year 2001-02.
(A).You have informed that the answer paper for Part-I English Part-II not traced out. So please inform me the name and designation of the officer who is the custodian of the answer paper.
W.P.(C).9445/09
2
(B).Please inform me that whether the
University has taken departmental action against the said officer for the lapse. If not the reason may be informed.
(C).Please inform me the name of the officer who is bound to take action for the loss of answer sheet.
(D).Please inform me the nature of punishment in the case of loss of answer sheet with relevant provisions of University Statute. (E).Please inform me whether you have taken any action to refund the revaluation charge remitted by the candidate.
(F).Please inform me the name and address of the person.
(G).Please issue me a true photo copy of answer paper Part-III English Main Paper, Part I (H).Please inform me the name and address of the Lecturer/Professor who valued the paper first and who revalued the paper on the application of the candidate.
W.P.(C).9445/09 3
3. By Ext.P2 communication dated 25.6.2008, the Assistant Public Information Officer of the University informed the 2nd respondent that the details requested can be considered only after getting the willingness from Kumari Deepa, since the matter is connected with her and the information is confidential. It was also pointed out that the University had issued to Deepa her original certificate after the settlement of re-valuation process on her request.
4. Dissatisfied with Ext.P2 reply, the 2nd respondent preferred an appeal before the Appellate Authority under the Act, as per Ext.P3. By Ext.P4 reply dated 26.7.2008, the following reply was given by the Appellate Authority to questions A to H. A. The answer papers collected from various centres after examination are kept under the custody of the Branch Officers of Pareeksha Bhavan.
B. In Calicut University about 2.5 lakhs students appear for the examination every year and the University is handling more than 10 W.P.(C).9445/09 4 lakhs of answer scripts in April/May Examinations. Maximum care is taken in handling the valued answer scripts. But at times the possibility of a few valued answer scripts collected from the various valuation camps being not traceable may occur. This can not be treated as loss of answer scripts. The fact is that these scripts could not be traced out from the lot.
C&D. Same as above.
E. The candidate has to apply for the refund
within a reasonable time.
F. Same as B.
G. The valued answer scripts of 2001-02
were disposed of.
H. This information regarding the examiners
are confidential and cannot be disclosed.
5. Apparently the 2nd respondent was dissatisfied with Ext.P4 also. Therefore, he preferred an appeal under Section 19(3) of the Act before the State Information Commission. 1st respondent, the State Information Commission, passed Ext.P6 W.P.(C).9445/09 5 order, operative portion of which reads as follows.
"The SPIO shall provide information with regard to item No.(A) the name and designation of the custodian of the paper, the reason being there should be somebody below the Controller of Examination who was personally responsible for handling the paper, the name and designation of that person being the custodian shall be provided. Question No. (B) - a satisfactory information should be provided with regard to the fact whether any action was taken against the person responsible for the custody of the answer sheet. For Question No.(C). the name of the Officer who was bound to take action was the Controller of Examination and the same should be furnished. Regarding Question No.(D), the action like debarring could be intimated. What was provided in the appellate stage for question No.(E) and (G) appears to be satisfactory. With regard to Question No.(F), the same need not be answered because it did not fall within the purview of the definition of information under Section 2(f) of the RTI Act.
Regarding Question No.(H), the Commission had taken a very consistent view that once the process of completion of examination was over W.P.(C).9445/09 6 the name, details of persons involved could not be treated as confidential and in case, the request was made in a case the information should be provided. The status of confidentiality ends with the completion of process of examination. The PIO is hereby directed to provide the information in the above said lines within 15 days of receipt of this order."
6. Ext.P6 has been challenged in this writ petition. Though served from this Court, no counter affidavit has been filed by the 2nd respondent. I heard learned counsel for the petitioner Mr.P.C.Sasidharan and learned counsel for the 1st respondent, State Information Commission, Mr.M.Ajay.
7. According to the University, Ext.P6 order is vitiated on several grounds. It is contended that details regarding the valuation of the answer scripts of the candidate are retained as confidential by the University. The name of the valuer or for that matter, the name of the custodian of the answer script cannot be compelled to be disclosed. Disclosure of the same is exempted under Section 8(1)(e) and 8(1)(j) of the Act. Disclosure of further information sought for by the applicant W.P.(C).9445/09 7 was not in public interest. The State Information Commission did not follow the procedure laid down under Section 11 of the Act while considering Ext.P5 appeal filed by the 2nd respondent. The information sought for was third party information and notice should therefore, have been issued to Kumari Deepa, the details of whose examination was sought for by the applicant herein. That has also not been done.
8. Learned counsel for the State Information Commission Mr.Ajay submits that since the valuation of the answer script of Kumari Deepa was over long time ago, there cannot be any confidentiality attached to the same. Similarly, the details of the valuation also cannot be considered as confidential. Non disclosure of the same cannot be justified or permitted under Section 8(1)(e) and 8(1)(j) of the Act. It was further contended that notice to a third party under Section 11 of the Act was not necessary in this case since the matter had reached the State Information Commission.
9. It will be appropriate to refer to the nature of the Information sought for by the 2nd respondent in the present case. Obviously the information sought for by the 2nd W.P.(C).9445/09 8 respondent had nothing to do with his answer papers. He has sought for the information regarding the re-valuation of the answer paper of Kumari Deepa. Information is one relating to a third party and therefore, it qualified itself as third party information within the meaning of Section 11 of the Act. I will consider the question relating to the necessity to follow the procedure under Section 11 of the Act while dealing with an application for information, at a later stage. But what is to be reiterated is that the information sought for by the 2nd respondent herein is in relation to a person other than the applicant himself.
10. The information sought for in paragraph A of Ext.P1 relates to the name and designation of the Officer who is the custodian of the answer paper. Though the Public Information Officer of the University did not give such information, the Appellate Authority had in Ext.P4 informed the applicant that the answer papers are collected from various centres after examination and are kept under the custody of the Branch Officers in Pareeksha Bhavan. Obviously this piece of information would have been sufficient and it is not known why the reply given in this regard under W.P.(C).9445/09 9 Ext.P4 should have been treated as inadequate either by the applicant or by the State Information Commission. I find force in the submission made by the learned counsel for the petitioner that lakhs of answer scrips are generated every year and it is not as if any single official can be treated as the custodian of one particular answer script or a group of answer scripts, as the case may be. Several officials would have had an opportunity to deal with such answer scripts. Ultimately, it is the University, a statutory authority and any nominated official of the University, who could be treated as the custodian of the answer scripts. This version given by the University was obviously acceptable and adequate and I am of the view that it should have been so treated by the 1st respondent.
11. It is seen from both Ext.P1 as also Ext.P4 that one of the answer scripts of Kumari Deepa was lost and it could not be traced out. Question 'B' in Ext.P1 was whether the University had taken any departmental action against the officer for the lapse. Obviously question 'B' is a sequel to question 'A'. With regard to question 'A', the University had made it clear that the answer scripts are collected from various centres and are W.P.(C).9445/09 10 kept under the custody of the Branch Officers in Pareeksha Bhavan. Relating to question 'B', they had further made it clear that the University is handling more than ten lakhs of answer scripts during April-May examinations. Some of the valued answer scripts may not be traced out. What is therefore' discernible from this answer is that since one particular officer cannot be treated as responsible for the loss of the answer scripts, obviously any departmental action against any particular person was neither possible nor warranted. Obviously, the correctness of any such action taken or not taken by the University was not germane for consideration while considering an application for information under the Act. In the circumstances, the answer given in Ext.P4 to question 'B' should have been treated as adequate and sufficient.
12. With regard to question 'C' and 'D', the State Information commission proceeded on the premise that the name of the officer who was bound to take action was the Controller of the Examinations. The Appellate Authority of the University had vide Ext.P4, conveyed the information that an action against a single individual officer was neither W.P.(C).9445/09 11 possible nor warranted, and obviously the said information should have been treated as comprehensive of questions 'C' and 'D' as well.
13. The State Information Commission itself had treated the answers given by the Appellate Authority to question 'E' and 'G' as satisfactory and insofar as question 'F' is concerned, Commission itself takes the view that the same need not be answered because it did not fall within the purview of the definition of Information. Insofar as question No. 'H' is concerned , the Appellate Authority had taken the view that the name and address of the Lecturer/Professor who re-valued the papers are confidential and it cannot be disclosed. The State Information Commission proceeded to hold that once the process of examination is over, the details of the persons involved could not be treated as confidential and status of the confidentiality ends with the completion of the process of examination. The said information was therefore, directed to be provided.
14. Learned counsel for the University submitted that details regarding the identity of the person who had valued a W.P.(C).9445/09 12 particular answer script and the person who had revalued the same answer script are confidential in nature and they cannot be compelled to be disclosed, both by reason of Section 8(1)
(e) and 8(1)(j) of the Act. Section 8(1)(e) and 8(1)(j) of the Act reads as follows.
8(1)(e) - 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 8(1)(j) - Information which relates to personal information the disclosure of which has not 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. W.P.(C).9445/09 13
15. University may not be treated as situated in a fiduciary relationship with the examinee. University is, no doubt, to discharge statutory functions and one of its functions is to conduct examinations. But a person who has been entrusted with the valuation of an answer script, by the University, enjoys a position of Trust and there would come into existence a fiduciary relationship between the University and the valuer of the answer script, in the context of the valuation of the answer script of an examinee. I am of the view that since the information available to the University as regards the details of the valuation or revaluation of an answer script is information so available with the University which is placed in a fiduciary relationship with the person entrusted with the task of valuing such answer scripts, the disclosure of such information can be compelled only when the competent authority is satisfied that there is a larger public interest that warrants a disclosure of such information.
16. Further more, the information regarding the details of the person who had valued or revalued the answer script of the third party in the present case would qualify itself as personal information, the disclosure of which has no W.P.(C).9445/09 14 relationship to any public activity or interest within the meaning of Section 8(1)(j) of the Act. Moreover, at the instance of a person like the applicant in the present case, such information would cause an unwarranted invasion of the privacy of the individual, namely the examinee in the present case and unless the competent authority is satisfied that there is a larger public interest which justifies the disclosure of such information, there cannot be a compulsory disclosure of the same.
17. It would also be appropriate in this context to refer to Section 11 of the Act. Section 11 deals with the procedure to be followed when the information sought for relates to or has been supplied by a third party and has been treated as confidential by that third party. In such cases, the competent authority under the Act, on receipt of a request for such information, is to give a written notice to such third party and invite the third party to make a submission in writing or orally regarding whether the information is to be disclosed. Views of the third party would also have to be kept in mind before such information is disclosed. In the present case, Ext.P6 order does not show that a notice had been issued on W.P.(C).9445/09 15 the appeal to the person in relation to whom the information has been sought. Since the State Information Commission is dealing with an appeal against the order passed by the Appellate Authority, it was bound to follow the procedure under Section 11 of the Act while dealing with the appeal, at the instance of the applicant, dissatisfied with the information that was given by the Appellate Authority of the Calicut University. That procedure has not been followed in the present case.
18. For all these reasons, I am of the view that the petitioners are entitled to succeed. Writ petition is therefore allowed. Ext.P6 order is set aside. It is declared that Ext.P4 reply given by the Appellate Authority of the Calicut University under the Act shall be treated as an adequate and sufficient reply to Ext.P1 application made by the 2nd respondent herein, under the Act.
There will be no order as to cost.
V.GIRI, Judge mrcs