Central Information Commission
Shri P. Thavasiraj vs Dept. Of Atomic Energy on 2 September, 2008
CENTRAL INFORMATION COMMISSION
Appeal No.CIC/WB/A/2007/00467 dated 24.4.2007
Right to Information Act 2005 - Section 19
Appellant - Shri P. Thavasiraj
Respondent - Dep't. of Atomic Energy
Facts:
By an application of 22.9.06 Shri Thavasiraj of Sattankulam Taluk, Tuticorin Distt. Tamilnadu applied to the Director, I&M, Dep't. of Atomic Energy Mumbai seeking the following information:
"1. Is there any complaints received against Mr. Siva Subramanian, Chairman cum Managing Director of Indian Rare Earths Ltd, Mumbai during last four years.
2. IF yes, kindly furnish the nature of complaints, persons who enquired the complaint and result of the enquiry.
3. Is there any complaints received against Mr. Sreenivasan Plant In-charge of Indian Rare Earths Limited, Manavalakurichi during last four years.
4. If yes, kindly furnish the nature of complaints, persons who enquired the complaint and result of the enquiry.
5. Kindly furnish the detail, whether the CBI has requested Department of Atomic Energy for registering a Criminal case against Mr. Siva Subramanian for purchasing some materials without call far tender when he was working as Director- Technical, IRE Ltd, Mumbai.
6. If yes, kindly furnish the CBI request copy and DAE final order copy.
7. Is there any criminal cases charge sheeted against the above two officers under the provisions of Indian Penal Code (IPC) on complaint of any third party."
To this he received a response on 8.11.06 from Smt. Veena R. Srinivas, Director I&M as follows:
"(1) Yes.
(2) The complaints related to allegations of irregularities in purchase of machines for the OSCOM unit of IREL. The allegation was 1 enquired into by this Department and it was found that there was no substance in the allegations.
(3) Complaints were received against Shri K. P. Sreenivasan, retired Chief General Manager and Head, Manavalakurichi Plant of IREL.
(4) Complaints alleged that Shri K. P. Sreenivasan indulged in favouritism and caused loss to the Manavalakurichi Plant due to in efficiency and ill planning. Facts were called for from IREL and the detailed report furnished by IREL was examined in the Department of atomic Energy. It was observed that the performance of the Manavalakurichi Unit of IREL has been improving during the last four years. After detailed examination, it was concluded that the allegations made against Shri K. P. Sreenivasan was without any substance.
(5) Central Bureau of Investigation (CBI) sought approval of the Central Government for registering regular case and taking legal action against Shri S. Sivasubramanian, the then Director (Technical) (Currently Chairman and Managing Director), Indian Rare Earths Limited (IREL), a Public Sector Undertaking under the administrative control of the Department of Atomic Energy.
After calling for all the relevant documents from IREL, the issues raised by the CBI were examined in detail and it was found that no irregularities have been committed by Shri Sivasubramian in placing tenders in his capacity as Director (Technical), IREL. Further, all decisions have been taken by the Board of IREL after full deliberation. Therefore, the Department with the approval of the competent authority did not accord permission for registering a case against Shri S. Sivasubramanian. (6) The copies of CBI request and DAE final Order is not being supplied as no public interest would be served in its disclosure and hence the same is denied under section 8 of the Right to Information Act, 2005.
(7) As per Department's records, no criminal cases have been registered against Shri S. Sivasubramanian. However, a criminal complaint has been filed against Shri k. P. Sreenivasan for his actions in his capacity as Head, MK Plant."
This response also indicated that the Dep't. had received the application only on 9.10.06, which made the response within the time limit mandated under sec. 7(1) of the RTI Act. Aggrieved with response to Q. No. 6, however Shri Thavasiraj moved a first appeal to the Addl. Secy. to the Govt. of India, Dep't. of Atomic Energy on 7.12.06 upon which he received an order from Sh. V.P. Raj, Addl. Secretary I&M dated 15.1.07, who after detailed examination decided as follows:
"The Public Information Officer had rightly denied copies of the "documents" sought by the appellant as both sub-sections 8(d) and 8(j) are attracted in this particular case. These sub-sections need to be read along with the preamble of the Right to Information Act. I am 2 satisfied that no larger public interest would be served by disclosure of the information contained in the documents sought. On the other hand, revelation of the information sought is likely to have an adverse effect on the efficient operation and management of Indian Rare Earths Limited (IREL), which has to function as a commercial organization in a competitive environment and where decisions have to be taken in the best business interests of the company."
The prayer of appellant Shri Thavasiraj in his second appeal before us is as follows:
"The appeal may be allowed and the PIO may kindly be directed to furnish the information to the appeal petitioner."
The appeal was heard on 6.8.08 by videoconference. The following are present at NIC Studio, Mumbai.
Respondents at NIC Studio, Mumbai.
Ms. Revti, Jt. Secretary, Ms. Latika Goel, Director.
Shri Anand Padmanabhan, representative of appellant Shri Thavasiraj appeared before us at NIC Studio Delhi but he appeared after the hearing was over. In his statement before us Shri Anand Padmanabhan, authorized representative of Shri Thavasiraj submitted that the information sought cannot be described as private information, since what he has sought is the recommendations of the CBI in a matter of malfeasance in administration and is, therefore, of public interest and the response of the Dep't. of Atomic Energy on that. He submitted that it is the right of a citizen to know such facts. Shri Padmanabhan also submitted that he would wish to present further Court rulings in this regard and sought time for the purpose, which was allowed.
DECISION NOTICE These written statements of appellant have been received through the letter of Shri P. Thavasiraj of 13.8.08. In this he has submitted as follows:
"The PIO by its letter dated 16.1.2007 declined to give information by invoking section 8 (1) (d) of the RTI Act, 2005 stated that the documents called for from IREL by CBI contains commercial details of purchases made by the company and disclosure of the same is likely to harm business interest of the company.3
First appellate authority confirmed the above order and rejected the appeal filed by the appellant herein.
The issue, therefore, before this Hon'ble Commission is whether the first appellate authority and the PIO were justified in invoking section 8(1) (d) of the RTI Act to refuse information.
Admittedly in the present case there was an investigation by the CBI. Again admittedly CBI found irregularities in purchase of Machineries of OSCOM Project; However, the permission sought by CBI for registering a regular case against the officers involved was declined by the Govt."
He has gone on to quote Sec. 8(1) (d), 8(1) (j) and Sec 11 of the R.T.I. Act and has concluded that it is clear that the exemption clause cannot override the larger public interest. Besides, he states that the orders does not disclose in what way the commercial interest of IREL would be compromised by the information sought.. In this case he has cited the decision of the Hon'ble Supreme Court of India in P.U.C.L. vs. Union of India (2003) 4 SCC 399. He has gone on to quote extensively from the decision of the Supreme Court of India in Secretary, Ministry of Information & Broadcasting, Govt. of India vs. Cricket Association & ors. (1995) 2 SCC 161. However, the quotation that he has given is actually the quotation from the Delhi Court's decision of Ravinder Bhat J. in Bhagat Singh vs. Central Information Commission in W.P. 3114/2007 He has quoted as follows, which is Para 14 of this Decision:
"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 have to be construed in their terms; (See Nathi Devi v Radha Devi Gupta 2005 (2) SCC 201; B. R. Kapoor v State of Tamil Nadu 2001 (7) SCC 231 v. Tulasamma v. Sesha Reddy 1977 (3) SCC 99). Adopting a different approach would result in narrowing the rights and approving a judicially mandated class of restriction on the rights under the Act, which his unwarranted."
In the above case submitted by appellant, although we regard this as the definitive judgment of application of sec. 8(1)(h) for exemption in particular and exemption u/s 8(1) in general, it would not apply in the present case, since this is to be examined in the light of the issue of invasion of privacy. We have no clear 4 definition of what is meant by "invasion of privacy" within the RTI Act. We have no equivalent of UK's 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
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 reference point to help define the concept. In this context, as may be seen the questions sought by appellant at 4, 5, 6 & 7 are of private information as defined at g) and h) above. The action of PIO is clearly in accordance with this law.
The US Restatement of the Law, Second, Torts, § 652 define the Intrusion to Privacy in the following manner:
One, who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.
Hence, as discussed above, we find that the information sought in this case falls within the definition of private information and is exempt from disclosure u/s 8(1)(j) of the R.T.I. Act.
Reserved in the hearing, decision is announced in open chamber on this 2nd day of September 2008.
Notice of this decision be given free of cost to the parties.
(Wajahat Habibullah) Chief Information Commissioner 2.9.2008 5 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 2.9.2008 6