Central Information Commission
Mr. R. K, Nanda vs Delhi Transport Corporation, Govt. Of ... on 15 July, 2009
CENTRAL INFORMATION COMMISSION
Club Building (Near Post Office)
Old JNU Campus, New Delhi - 110067
Tel: +91-11-26161796
Decision No. CIC/SG/A/2009/001391/4139
Appeal No. CIC/SG/A/2009/001391
Relevant Facts emerging from the Appeal:
Appellant : Mr. R. K, Nanda
WZ-50A, Gali No. 10,
Krishna Park, New Delhi.
Respondent : Ms. Renu Popli
Public Information Officer Delhi Transport Corporation Govt. of NCT of Delhi B. B. M., Depot-I, Delhi-110009.
RTI application filed on : 17/10/2008 PIO replied : 07/11/2008 First appeal filed on : 26/11/2008 First Appellate Authority order : 23/12/2008 Second Appeal received on : 24/02/2009 Information Sought:
1) How many disciplinary actions were taken against Mr. S. K. Chillar during the last 10 years?
2) How many vigilance actions were taken against Mr. S. K. Chillar during the lat 10 years?
3) How many recommendations were made by the Department on the enquiry made by the Vigilance Department?
4) If no action has been taken, why not? Reasons be intimated.
Reply of PIO:
Not replied.
Ground of First Appeal:
Not mentioned.
First Appellate Authority ordered:
The First Appellate authority stated that the PIO had replied on 7/11/2008 that the information sought by him is covered under Section 11 of the RTI act 2005.' The FAA justified the denial of information by invoking Section 8 (1) (j) and stated that " There is no clear definition of what is meant by invasion of privacy within RTI act also there is no equivalent of UK's Data protection Act, 1998, Section 2 of which titled sensitive Personal Data, read as follows:- In this Act "sensitive personal data" means personal data consisting of information as to:-
a) The racial or ethnic origin of the data subject.
b) His political opinions
c) His religious beliefs or other beliefs of similar nature
d) Whether he is a member of a Trade Union
e) His physical or mental health of condition.
f) His sexual life.
g) The Commission or alleged commission by him of any offense.
h) Any proceedings of 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.
If it is to be construed as what is privacy to mean of protection of personal data, then the above case would be a suitable reference point to help define concept. As will be seen form the above, information sought by the applicant herein appellant falls squarely within the personal data as defined at (g) & (h) above. PIO has taken the precaution of referring the matter to Mr. S. K. Chillar, third party, as required under Section 11 (1) and on the basis of his response has with held the information sought. Therefore, the action of PIO is held to be clearly in accordance with the law."
Ground of the Second Appeal:
Unsatisfactory and incomplete answer received from the FAA.
Relevant Facts emerging during Hearing:
The following were present:
Appellant: Mr. R. K, Nanda Respondent: Ms. Renu Popli, PIO and Mr. J.D. Mishra (Vigilance) deemed PIO. The respondent has given written submissions in which it is stated that the PIO had given notice to Mr. S.K.Chillar -the third party,- on 19/12/2008, who had,-by his letter of 22/12/2008 objected to the information being provided to the appellant since it was his personal information. The written arguments basically reiterate the contention of the First appellate authority that based on the UK Data Protection Act, the information can be considered 'sensitive personal data' and hence can be denied.
The Commission can 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 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.
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. Any other exceptions would have to be specifically justified. The PIO did not first seek the third party's objection under Section 11 initially when the RTI Application was made on 17/10/2008 but chose to reject it on grounds of Section 11 which is completely flawed. Section 11 is a clause that gives the procedure but not an exempting clause by which information can be denied. The PIO has sought the approval of the third party only on 19/12/2008 i.e. just before the order of the First Appellate Authority. The information has not been provided by the third party but only relates to him. The information sought relates to disciplinary and vigilance actions taken against a public servant. These are clearly public activities and not personal activities. Hence it flows that the information cannot be treated to be personal information disclosure of which could be considered as unwarranted invasion of the privacy of the individual.
The reference of UK Data Protection Act by the First Appellate Authority and his reliance on Sub-Section g & h to deny information is not appropriate. 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. As a matter of fact the Supreme of India has ruled that Citizens have a right to know about charges against candidates for elections who wish 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 in their performance as public servants. Thus the claim that the information sought is third party and it is exempted under Section 8(1)(j) is quashed.
Decision:
The Appeal is allowed.
The PIO will provide the information to the Appellant before 30 July 2009.
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 15 July 2009 (In any correspondence on this decision, mention the complete decision number.) (GJ)