Central Information Commission
Shri Vikas Kumar vs Union Public Service Commission, ... on 30 March, 2010
CENTRAL INFORMATION COMMISSION
Appeal No. CIC/WB/A/2009/000734 dated 21-7-2009
Right to Information Act 2005 - Section 19
Appellant: Shri Vikas Kumar
Respondent: Union Public Service Commission, (UPSC)
Decision announced
FACTS
By an application of 15-5-2009 Shri Vikas Kumar of Dwarka, New Delhi applied to the CPIO, UPSC seeking the following information:
"1. Can a person known or related to the applicant take the interview of an applicant? Also can a person be part of the panel whereas he knows the applicant before interview or in any way associated with the applicant in the past. What does the UPSC rulebook say on it?
2. A person named Chetna Harjai has been appointed to department of environment, Govt. of NCT of Delhi, 6th level, C-Wing, Delhi Secretariat, New Delhi effective 01st May, 2008 thru UPSC. Request you to provide the names of Panellists, with their organizations, who had conducted the interview with Chetna Harjai.
3. Does an applicant have to disclose his/ her involvement in any litigation? Initiated by the person or involvement in a trial as an accused. What does the UPSC rulebook say on it?
4. Was the post advertised thru which Chetna Harjai got selected?
5. How many candidates appeared in this interview?
Request you to provide the name & contact numbers of these applicants.
6. What was the procedure adopted to select her for the post?"
To this he received a response point-wise dated 11-6-09 from CPIO Shri Ashok Mehta, DS, UPSC informing him as follows:
"1. As per convention followed by the Commission, Advisers called to assist the Commission in the conduct of interviews, are advised not to sit in the interviews board if they have any relation or any body in whom they may be interested, appearing in the interview. If during the actual conduct of the interviews, it comes to the knowledge of the Adviser that a candidate is/ was his student, the Adviser is asked to reduce himself during the interview of that candidate. The Advisers also give a declaration to the effect that no relative or acquaintance of student of 1 their in whom they may be interested, is appearing as candidate, the interview for which they have been called.
2. It has been found in one case that one person namely Chetna Harjai was recommended for the post of Scientist in the Dep't. Of Environment, Forests & Wildlife, Govt. of NCT of Delhi by the commission. The names of panellists with their organizations cannot be enclosed as the same are confidential in nature.
3. No such disclosure was required as per application form prescribed for the relevant recruitment. However, an Attestation form is required to be filled in at the time of Interview wherein such disclosure is to be made. The filled in attestation form is sent to the Department to which the selected person is recommended for appointment along with the letter recommending his/ her name for further necessary action at their end.
4. Yes, Advt./ item no. 04/05 on 24.2.2007.
5. 13 candidates were called for interview of whom 7 appeared for the interview and five failed to appear while candidature of one candidate was cancelled on account of his not possessing the requisite educational qualification. The candidates furnish their personal information to the Commission in fiduciary relationship with the expectation that this information will not be disclosed to others. Hence the Commission took the view that the disclosure of this information held in fiduciary capacity is exempted under section 8.1 (e) of the RTI Act. Moreover the disclosure of the information has no relation to any public activity or interest and hence further exempted under section 8 (1) (j) of RTI Act, 2005.
6. The candidates were called for interview by adopting short listing criteria. They were selected on the basis of their performance at the interview."
Aggrieved with this response to question Nos. 2 and 5 Shri Vikas Kumar moved an appeal before Shri Nuruddin Ansari JS, UPSC on 18-6-09 pleading that "I am not satisfied with the grounds of denial of this information saying that the said information is confidential in nature (point-2) & under section 8.1 (e) & (j) of RTI Act, 2005 (point 5)". Upon this Shri Ansari in his order of 6-7-09 ruled as follows:
"The appellant under point no. 2 had sought names of panellists with their organizations who had interviewed Ms. Chetna Harjai. The appellant is informed that the individual identity of the Chairman and Members of the Selection Board cannot be revealed. So far as point No. 5 is concerned ,the appellant wanted to have names and contact numbers of applicants appeared for interview. The appellant has already been 2 informed that out of 13 candidates called for interview for the post of Scientist in the Dep't. Of Environment, Forests & Wild Life, Govt. of NCT of Delhi, 7 appeared for the interview and five failed to appear while candidature of one candidate was cancelled on account of his not possessing the requisite educational qualification. Contact numbers of these candidates cannot be disclosed to the appellant, as the same besides being third party information, constitutes personal information held in fiduciary capacity and is exempted from disclosure under section 8 (1) (e) and (j) of the RTI Act, 2005. However, in my opinion, the list of names of candidates appeared in the interview could have been provided to the appellant, which may be provided."
This order was complied with by CPIO, Shri Ashok Mehta, DS dated 8- 7-09. Shri Vikas Kumar has then moved a second appeal before us with the following prayer:
"1. Request you to direct the relevant authorities to give me the desired information.
2. Request you to penalize the CPIO, UPSC appropriately.' The grounds for this prayer are as follows:
"1. Reasoning given against point no. 2 whereas it is cited that information is confidential in nature. As per Honourable Court's order any information thru which there is threat to safety & integrity of nation is called CONFIDENTIAL in nature. Also, now the interviews have been conducted hence this information cannot be put under confidential information.
2. Information sought under point 2 of my letter does not fall under this category whereas providing such information would trigger threat to integrity & safety of nation."
& "6. Reasons given for denial of information against point 5 under section 8.1 (e) & (j) of RTI Act, 2005 are also not valid as I am enclosing a copy of CIC order dated 24th April, 2009 in similar case related to this person (Chetna Harjai- Third party)."
The appeal was heard on 19-3-2010. The following are present. Appellant Shri Vikas Kumar Respondents Shri P. P. Halder, DS (R.V.)/ CPIO Shri G. Roy, Under Secretary/R-V 3 Appellant Shri Vikas Kumar submitted that this Commission in its Decision pronounced on 24-4-2009 in CIC/SG/A/2009/000315/2913 Vikash Kumar vs. Dep't of Environment, GNCT Delhi ruled as follows:
"The Commission recognizes that its job is to decide matters as per the RTI act. Section 6 (2) of the Act categorically states: "An applicant making request for information shall not be required to give any reason for requesting the information or any other personal details except those that may be necessary for contacting him." Thus no Public authority or Commission has any authority to look at the antecedents or motives of an applicant.
This Commission is conscious of the fact that it has been established under the RTI Act 2005 and being an adjudicating body under the Act, it cannot take upon itself the role of the legislature and import new exemptions hitherto not provided. The Commission cannot of its own impose exemptions and substitute their own views for those of Parliament. The Act leaves no such liberty with the adjudicating authorities to read law beyond what it is stated explicitly. There is absolutely no ambiguity in the Act and tinkering with it in the name of larger public interest is beyond the scope of the adjudicating authorities. Creating new exemptions by the adjudicating authorities will go against the spirit of the Act. The Commission can therefore allow denial of information only based on the exemptions listed under Section 8 (1) of the act. The third party and the PIO have claimed that the information should not be disclosed since it is exempted from disclosure under Section 8 (1) (j).
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 we could state that Section 8 (1) (j) cannot 4 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 some relationship to 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. The information sought in this case by the appellant has certainly been obtained in the pursuit of 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 on the privacy of a Citizen. In those circumstances special provisos of the law apply, always with certain safeguards. Therefore it can be argued that 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 in all Countries uniformly. However, the concept of 'privacy' is a cultural notion, related to the society and different societies' would look at these differently. India has not codified this right 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.
Therefore we can accept that disclosure of information which is routinely collected by the Public authority and routinely provided by individuals, would not be an invasion on the privacy of an individual and 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 the information sought by the appellant in this case is not covered by the exemption of Section 8 (1) (j), and therefore the information would have to be provided."
The same principle, contended appellant, should be applicable in this case. Besides, he submitted that no reason has been given for refusal of information against point No.2.
CPIO Shri P.P. Haldar, DS (RV) submitted that the names of those sitting on interview board are kept confidential. He agreed, however, that 5 these cannot be exempted u/s 8 (1) (g) as the disclosure of such information was unlikely to endanger the physical safety of any person. Shri P.P. Haldar was then asked whether a person was appointed as the member of the selection committee on the basis of assurance that his participation in such a Board would remain confidential. Upon this Shri Haldar submitted that this was indeed the case. He also offered to submit a copy of such an invitation for the perusal of this Commission which is agreed to.
DECISION NOTICE On the question at S. No.5 there can be a little doubt that the telephone number of a private individual appearing for examination, which is not an official number of an official of the Government, is private information, the disclosure of which would serve no public interest and is not concerned with any public activity. It would, therefore, amount to invasion of privacy. The refusal to provide the telephone number of the candidates is, therefore, upheld.
On the other hand a letter of invitation to a member of the interview board is worded as follows:
"3. The Commission have a convention that no one should sit in the Board who has any relation or anybody in whom he may be interested, appearing at the Personality Test. In this connection a copy of the note, which is circulated to members of the Boards, is enclosed. It is presumed that there would be no such difficulty in your case. You are requested to bring to the notice of PT Board President before the commencement of the PT Board, if any of the candidates, who are being assessed, is/was your student. Further, if during the actual conduct of a PT also it comes to your knowledge that the candidate to be assessed was your student, you should inform the PT Board President about the same and you may be required to recuse yourself during the PT of that candidate.
4. The Commission maintains the highest standard of integrity throughout the recruitment process. We would request you to excuse yourself from this process in case any other circumstances like disciplinary case, criminal proceedings etc. are going on against you.6
5. I would also like to reiterate here once again that the proceedings of the PT Board and your participation in the same may please be treated as CONFIDENTIAL 1 ."
Or as below:
"The qualifications required and the duties attached to the post(s) are detailed in the statement of information for candidates enclosed herewith. The Commission desires to have the benefit of your advice in making the selection and shall be grateful if you kindly spare time for this piece of public work and assist the Commission at the interview. I am desired to add that the proceedings of the Interview Boards and as also the fact of your participation in the same should be treated as STRICTLY CONFIDENTIAL." 2 The above are extracts from letters issued by the UPSC Adv. Cell. From this it is clear that the participation of a Board Member is indeed on condition of this information being treated as confidential. Sub-section 8(1)(e) of the RTI Act permits screening and preservation of confidential and sensitive information made available due to fiduciary relationship.This Clause has been interpreted by S. Ravindra Bhat, J. in CPIO, Supreme Court of India, New Delhi versus Subhash Chandra Agarwal and another (Writ Petition No. 288/200) decided on 2nd September, 2009 as under:-
"57. The Advanced Law Lexicon, 3rd Edition, 2005, defines fiduciary relationship as "a relationship in which one person is under a duty to act for the benefit of the other on the matters within the scope of the relationship ....Fiduciary relationship usually arise in one of the four situations (1) when one person places trust in the faithful integrity of another, who is a result gains superiority or influence over the first, (2) when one person assumes control and responsibility over another, (3) when one person has a duty to act or give advice to another on matters falling within the scope of the relationship, or (4) when there is specific relationship that has traditionally be recognized as involving fiduciary duties, as with a lawyer and a client, or a stockbroker and a customer "
58. From the above discussion, it may be seen that a fiduciary relationship is one whereby a person places complete confidence in another in regard to a particular transaction or his general affairs or business. The relationship need not be "formally" or "legally" ordained, or established, like in the case of a written trust; but can be one of moral or personal responsibility, due to the better or superior knowledge or 1 Emphasis ours 2
-do-
7training, or superior status of the fiduciary as compared to the one whose affairs he handles."
The description of UPSC's convention regarding such participation, also laid down in the above letters, clearly establishes a mutual relationship existing between the Commission and the person invited to participate, in a relationship of mutual trust and hence decidedly fiduciary .Under the circumstances, we must agree that the order of Appellate Authority Shri Nuruddin Ansari, Joint Secretary with regard to the question at S. No.2 is fully in keeping with the requirements of Sec. 8(1) (e) of the RTI Act, although it will not qualify for exemption u/s 8(1) (j) for reasons elucidated in our Decision Notice of 24.4.'09 quoted above and relied upon by appellant. Having found then the appeal on this ground to be without merit, it is hereby dismissed.
Reserved in the hearing, awaiting the receipt of the promised copies from the CPIO, UPSC, this decision is now announced on this thirtieth day of March, 2010. Notice of this Decision be given free of cost to the parties.
(Wajahat Habibullah) Chief Information Commissioner, 30.3.2010 Authenticated true copy. Additional copies of orders shall be supplied against application and payment of the charges prescribed under the Act to the CPIO of this Commission.
(Pankaj K.P. Shreyaskar) Joint Registrar 30.3.2010 8