Central Information Commission
Shri S. K. Chaurasiya vs Central Vigilance Commission on 25 January, 2010
TO BE ISSUED IN HINDI
CENTRAL INFORMATION COMMISSION
Appeal No.CIC/WB/A/2008/01558 dated 18.8.2008
Right to Information Act 2005 - Section 19
Appellant - Shri S. K. Chaurasiya
Respondent - Central Vigilance Commission
Decision announced: 25.1.2010
Facts:
By an application of 28.4.08 Shri Sunil Kumar Chaurasiya in a beautifully written application applied to the CPIO, Central Vigilance Commission seeking the following information:
"1. Cases of how many Officers of the undertaking namely Coal India are under investigation by the Central Information Commission. Please provide company wise information about their names, designations, name of Department, details and types of cases under investigation and date of their registration.
2. Cases of how many officers of Coal India Undertaking are registered with C.V.C. and they have not been given clearance as on 30.4.2008. Information about their names, designations, place of posting, date of registration of case and details of case registered against them, may be provided.
3. Cases of how many officers of Coal India Undertaking have been cleared by C.V.C. during the last ten years. Information about their names, designations, place of posting, date of registration of case, date of clearance and details of case registered against them, may be provided. "
To this, Shri Sunil Kumar Chaurasiya received a response on 13.5.08 from CPIO Dr. Jaya Balachandran, as follows:
"In this connection, it is informed that this Commission has received complaints against Coal India Limited from different sources. Eight complaints sent to Chief Vigilance Officer, Coal India Ltd. are still pending for submission of inquiry report. Under Sec. 8(1)(h) of Right to Information Act, the information on above is refused, as it will impede the process of investigation.1
It has been found that information asked by you under Para 2 & 3 of your application is not clear/defined. Yet, please note that clearance is given only in cases of officers, who are considered for Board level posts. "
Shri Chaurasiya then moved an appeal on 20.6.08 before First Appellate Authority CVC with the following plea:
"1. Information sought under Q. No. 1 has been refused u/s 8(1)(h), whereas information sought by me does not fall u/s 8(1)(h)
2. Misleading and incomplete information has been provided to Q. No. 2 & 3.
It is, therefore, prayed to you that hearing be given under sec. 18 of RTI Act, 2005 and CPIO may be directed to provide me information free of cost."
This, however, was refused by Appellate Authority Shri Vineet Gupta, Addl. Secretary in his order of 28.7.08, as follows:
"Decision of the CPIO to refuse information u/s 8(1)(h) is correct because providing information will impede the process of investigation. I agree with the decision of the CPIO to refuse the information to Q. No. 1. The information sought under Q. No. 2 & 3 is not clear / specific. Therefore, the CPIO has given reply accordingly. The appellant has not specified the information required, therefore the CPIO could not provide the desired information. While seeking information, correct and specific details are required to be furnished, for want of which CPIO cannot be held responsible. Accordingly, on these points also, I agree with the decision of the CPIO."
The appeal was heard by videoconference on 25.1.2010. The following are present:
APPELLANT at NIC Studio, Annupur (MP) Shri Sunil Kumar Chaurasiya RESPONDENTS at CIC Studio, New Delhi Ms. Jyoti Mehta, Director, CVC Ms. Jyoti Mehta, Director, CVC submitted that the matter had been referred to Coal India at the time of responding to the application. No response had been received. Therefore, the plea of Sec. 8(1)(h) had been taken, the 2 matter still being under investigation. Appellant Shri Sunil Kumar Chaurasiya submitted that in addition to the response to Q. No.1, CPIO has in fact confirmed in response to Q.No.2 & 3 that the CVC does provide opinions on promotions at the Board level. This should be provided to him.
DECISION NOTICE We find that the decision to refuse information under sub sec. (h) of Sec. 8(1) gives no reasons except that "it will impede the process of investigation". As has been made clear in several earlier decisions of this Commission, relying on the definitive rulings of the High Court of Delhi, simply citing a clause of the Act cannot justify refusal of disclosure u/s 8(1)(h). In this case the judgment of the Delhi High Court in W.P.(C) No.3114/2007 - Shri Bhagat Singh Vs. Chief Information Commissioner & Ors is of relevance, since it deals with the application of sec. 8(1)(h):
11. "The Universal Declaration of Human Rights, adopted by the United Nations in 1948, assured by Article 19, everyone the right "to seek, receive and impart information and ideas through any media, regardless of frontiers". In Secretary Ministry of Information and Broadcasting, Govt. of India and others vs. Cricket Association of Bengal and others (1995 (2) SCC 161) the Supreme Court remarked about this right in the following terms:
"The right to freedom of speech and expression includes the right to receive and impart information. For ensuring the free speech right of the citizens of this country, it is necessary that the citizens have the benefit of plurality of views and a range of opinions on all public issues. A successful democracy posits an "aware" citizenry. Diversity of opinions, views, ideas and ideologies is essential to enable the citizen to arrive at informed judgment on all issues touching them."
This right to information, was explicitly held to be our fundamental right under Article 19(1)(a) of the Constitution of India for the first time by Justice K.K. Mathew in the State of U.P. vs. Raj Narain, (1975) (4) SCC 428. This view was followed by the Supreme Court on a number of decisions and after public demand, the Right to Information Act, 2005 was enacted and brought into force.
312. The Act is an effectuation of the right to freedom of speech and expression. In an increasingly knowledge based society, information and access to information holds the key to resources, benefits, and distribution of power. Information, more than any other element, is of critical importance participatory democracy. By one fell stroke, under the Act, the make of procedures and official barriers that had previously impeded information, has been swept aside. The citizen and information seekers have, subject to a few exceptions, an overriding right to be given information on matters in the possession of the state and public agencies that are covered by the Act. As is reflected in its preambular paragraphs, the enactment seeks to promote transparency, arrest corruption and to hold the government and its instrumentalities accountable to the governed. This spirit of the Act must be borne in mind while construing the provisions contained therein.
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 self. Under Section 8,exemption from releasing information is granted if it would impede the process of 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 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 vs. Radha Devi Gupta 2005(2) SCC201; B. R. Kapoor vs. State of Tamil Nadu 2001 (7) SCC 231 and V. Tulasamma vs. Sesha Reddy 1977(3) SCC
99). Adopting a different approach would result in narrowing the rights and approving a judicially mandated class of restrictions on the rights under the Act, which is unwarranted."
In this case the Court took serious notice of the two-year delay in releasing of information and the lack of adequate reasoning of the orders of PIO 4 and appellate authority. S Ravinder Bhat J specifically notes, "As held in the preceding part of the judgment, without a disclosure as to how the investigation process would be hampered by sharing the materials collected till the notices were issued to the assessee, the respondents could not have rejected the request for granting information 1 . The CIC, even after overruling the objection, should not have imposed the condition that information could be disclosed only after recovery was made 2 "
The present case has not been examined from this point of view at all. It is, therefore, remanded to First Appellate Authority Shri Vineet Gupta, Addl. Secretary who will re-examine the request in light of the above ruling on Sec. 8(1)(h) and would also specifically elucidate on whether, since the case is not under investigation by the CVC, the investigating authority considers that the disclosure of this information will impede the process, and if so why.
On the other two questions, appellant Shri Chaurasiya has asked for information on names, designations and places of posting of those against whom cases had been registered and those who have been cleared. This information qualifies as personal information. We have no clear definition of what is meant by 'invasion of privacy" with the RTI Act. As per our orders in similar cases we have been guided by the U.K. Data Protection Act 1998 Sec 2 of which, titled 'Sensitive Personal Data', reads 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 a similar nature
d) Whether he is a member of a Trade Union.
e) His physical or mental health or condition.
f) His sexual life.
g) The commission or alleged commission by him of any
offence.
1
Underlined by us to highlight relevance to the present case 2 Para 15 of the judgment.5
h) Any proceedings for 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 we were to construe privacy to mean protection of personal data, this would be a suitable starting point to help define the concept. As will be clear from the above, although indeed the clearance or refusal to clear names is a public activity and cannot, therefore, claim disclosure under that portion of Sec. 8(1)(j), it nevertheless provide information which will qualify for invasion of privacy as defined in Sec 2(h) above read with sub-section g). Therefore, although the questions of appellant Shri Chaurasiya are indeed clear, and we do not agree with the responses of both CPIO and Appellate Authority that the information sought is not clear, refusal for disclosure nevertheless could qualify for exemption u/s 8(1)(j). The refusal of information regarding questions 2 & 3 is, will therefore be re-examined in this light in remand, with respect to such category of officials that the CVC holds.
Announced in the hearing. The Appellate Authority Shri Vineet Gupta, Addl. Secretary will now respond within ten working days of the date of receipt of this decision notice on the lines directed above, under intimation to Shri Pankaj KP Shreyaskar, Jt. Registrar in this Commission. Notice of this decision be given free of cost to the parties.
(Wajahat Habibullah) Chief Information Commissioner 25.1.2010 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 Shreyaskar) Joint Registrar 25.1.2010 6