Central Information Commission
Mr. Sirajul Islam vs Assam University, Silchar on 27 November, 2009
CENTRAL INFORMATION COMMISSION
Room no.415, 4th Floor, Block IV,
Old JNU Campus, New Delhi 110066.
Tel: + 91 11 26161796
Decision No. CIC /SG/C/2008/00096/0727Adjunct
Complaint No. CIC/SG/C/2008/00096
SHOWCAUSE HEARING:
Complainant : Mr. Sirajul Islam
C/o Senior Principal,
ITI Srikona P.O. Srikona,
Dist- Cachar Assam, Pin- 788026
Respondent : Dr. Alok Sen ,
First Appellate Authority Assam University, Silchar, P.O. Assam University, Dist- Cachar-788011, Assam Commission's Decision:
The complainant had filed an application with the PIO on 15/04/2008 asking for certain information. Since the complainant had not used the alternate and efficacious remedy of the First Appeal available under Section 19 (1) of the RTI Act. Therefore the matter was remanded to the First Appellate Authority with a direction to decide the matter in accordance with the provisions of the RTI Act, 2005, after giving both sides an opportunity of a hearing.
The Complaint was disposed.
The complainant had complained vide complaint of 27/07/2009 that the FAA had not given any decision in the matter, inspite of holding a hearing. Hence a showcause was noticed was issued to FAA to showcause why disciplinary action should not be recommended against him. Relevant Facts emerging during Showcause Hearing on 27 November 2009:
The following were present:
Appellant : Absent;
Respondent Dr. Alok Sen, Associate Prof. First Appellate Authority;
The Respondent has submitted his written submission in which he has stated that the then FAA Mr. S. Sen Gupta had issued an order after the hearing. The FAA has rejected the disclosure of the information by upholding the PIO's claim of exemption under Section 8(1)(e) & (g). However, no reasoning has been advanced in the order to justify this. The Commission cannot accept the claim of fiduciary relationship because no argument has beenadvanced to shows how a fiduciary relationship exists in the instant matter. 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;' Given the fact that the FAA has passed an order the showcause proceedings against the First Appellate Authority are dropped.
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, 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." Hence the Commission holds that the disclosure of marks does not violate any fiduciary relationship. The Respondent has claimed exemption under Section 8(1)(g) which will apply if it can be shown that disclosing the information would endanger the life or physical safety of any person. This is an extremely far fetched possibility. Internal examiners in school and colleges regularly give marks to the Students and it is not common to hear that the physical safety of the examiners has been threatened. When restricting a fundamental right of a citizen be harmed that is claimed must be fairly probable and not a conjecture of a remote possibility. In view of this the exemption claimed under Section 8(1)(g) by the PIO is struck down.
Decision:
The PIO is directed to give the complete information to the Complainant before 15 December 2009.
Shailesh Gandhi Information Commissioner 27 November 2009