Central Information Commission
Shri Patanjali Sharma vs Union Public Service Commission (Upsc) on 4 January, 2010
CENTRAL INFORMATION COMMISSION
Appeal No.CIC/WB/A/2008/01054 dated 13.6.2008
Right to Information Act 2005 - Section 19
Appellant - Shri Patanjali Sharma
Respondent - Union Public Service Commission (UPSC)
Decision announced: 4.1.2010
Facts:
By an application of 18.2.08 Shri Patanjali Sharma of R. K. Puram, New Delhi applied to the CPIO, UPSC seeking the following information:
"1. Inspection of file(s): in which proposal of Ministry of Personnel, Public Grievances and Pensions, DOPT to amend Rule 12(2) of CSS Rules, 1962 and the CSS (Promotion to Grade 1 and Selection) Regulations, 1964 deleting the part of rule regarding eligibility condition of feeder grade officers of Grade A & B (merged) of CSSS was examined and approved in UPSC during 2007-08 and approval communicated to DOPT.
2. Certified copies of the file notings and of the references of UPSC communicating its decision to DOPT may kindly be given on payment of charges, as per RTI Act."
To this, Shri Patanjali Sharma received a response dated 17.3.08 from Shri R. S. Raghavan, CPIO, UPSC, as follows:
"Giving copies of these notings would result in likely identification of these officials through their handwritings and signature which could have an impact in their free and fair functioning.
Accordingly, while copies of notings cannot be given, there is no objection to permit the applicant to examine the full file personally. Hence, you may inspect the file in question, including the file notings on 28.3.08 at 3.30 p.m. if convenient to you. The file can be inspected in the chamber of the undersigned (Room No. 21, Main Building, UPSC, Dholpur House, Shahjahan Road, New Delhi-69). It is requested that telephonic confirmation be made in advance so that necessary intimation at the reception / In-Gate can be given in time."1
Aggrieved Shri Sharma moved an appeal before Shri S. Balachandra Iyer, Dy. Secretary & Appellate Authority on 25.3.08 pleading as follows:
"Firstly, the inspection of files is meaningless if the UPSC do not provide me a copy of notings on the file(s). Secondly, the inspection of files and subsequent providing information is to be completed within 30 days as per RTI Act, but the UPSC has failed to do so."
Upon this Shri Patanjali Sharma has received a detailed order from Shri Balachandra Iyer concluding as follows:
"a) Inspection of full file has already been done by the applicant.
b) Certified copies of the correspondence as referred to in Para 4.3 above, to be sent immediately to the applicant free of cost, by Speed Post.
c) For the reasons recorded in the preceding paragraphs, 4.4, 4.4.1 & 4.4.2 certified copies of the noting as sought in this case cannot be supplied to the Applicant."
However, in this order the Appellate Authority Shri Balachandra Iyer has dealt in detail with the question of disclosure of file noting sought, as below:
"4.4 As regards furnishing of certified copies of the relevant noting portion, the CPIO in his reply has mentioned, "notings are only inputs for the Commission to consider and record their approval. Notings only allow the officials of the concerned Branch to record their opinion freely and frankly sometimes with reference to other cases or precedents. Giving copies of these notings would result in likely identification of these officials through their handwriting and signature which could have an impact in their free and fair functioning". This is an observation that I consider to be pertinent. During the personal hearing with the applicant also, this issue was discussed in detail. It was explained that as per Constitutional provisions, the role of the UPSC is Advisory. On receipt of a self contained proposal from the Government Department for framing / amendment of RRs this is initially examined by the RR Branch on its own internal file, and not on the concerned Ministry / Department's file. Clarifications, wherever required, are sought from the Department and no objection has been raised to certified copies of such letters to the Department being made available on request under RTI Act. However, decision on approval of the RRs is taken by the Commission, for which the notings of the concerned 2 officials in the Commission's Secretariat is an input. Amendment of RRs often deals with contentious issues involving determination of methods of recruitment, essential qualifications for the post etc. Government's proposals on such amendments are often perceived to affect various classes / group of employees differently. In the instance case, for example, the applicant had mentioned in the course of the personal hearing that he belonged to the Stenographic Cadre and was aggrieved with the amendment in the relevant Rule of the CSS Rules that he mentioned would affect his promotional prospects to Under Secretary. This only underscores the point that (a) the dealing officers of the RR Branch often have to examine RRs whose various provisions would impact different categories / groups of officials. To enable these officers in the Commission to examine such proposals freely and fairly, it is imperative that they are not subjected to avoidable external pressures. Furnishing all the certified copies of the note sheets of the internal file (that is not made available to the concerned Ministry / Department either) would result in not only the identity of the dealing officers being made known but their professional views written on files would be available in the public domain. When the dealing officers examine the proposal and record their views in the noting portion of the file, they do so with the knowledge and confidence that their views in this internal file are an input only for the Commission and such noting portion would not be made known to others. The relationship that exists in this case tan therefore be said to be in the nature of a fiduciary relationship and is thus exempted from disclosure under Rule 8(1)(e) of the RTI Act.
4.4.1 The general principle that file notings are also covered under information and the same cannot be refused without specified valid reasons, as mentioned in the two judgment order of the Hon'ble CIC listed by the appellant, are not being disputed here. However, in the instant case, the issue is whether certified copies of file notings as sought by the applicant can be furnished to him. It can safely be held that for the UPSC to discharge its Constitutional functioning of rendering advice to the Government on framing / amendment of Recruitment Rules in the best possible manner, the concerned dealing officers should be able to express themselves freely and frankly and cite other cases / precedents wherever required. If their identity with their specific views on noting portion of the file would be in the public domain, they would be under tremendous pressure 3 from various affected groups whenever any proposal for framing / amendment of RRs is sent by the concerned Government Ministry / Department to the UPSC. 4.4.2 It has been mentioned by the applicant in his letter dated 31.3.2008 that he is a Government employee and if the information as desired by him is supplied to him, it will not affect adversely the officers who had written the notings. It is pointed out that the applicant was allowed full and free perusal of the entire file, including the noting portion. Therefore, there is no apparent lack of transparency and the applicant cannot say that he has not had access to the records. Therefore, access to the records has not been denied to him in this case.
4.4.3. However, it is seen that while asking for certified copies of the notings in his letter dated 31.3.2008, the applicant has himself mentioned the names of officials who had written the notes. This clearly proves that the identity of the officials who had written the notes is easily ascertained on a perusal of the relevant notes. If certified copies of these notes are furnished to the applicant there is no check / bar on their being accessible to all outsiders and there is a legitimate apprehension that the resultant likely pressure on the dealing officers could certainly impact their effective functioning in examining and recording their views on proposals received from the Government for framing / amendment of Recruitment Rules in future. In the present case, it may be mentioned that this is all the more pertinent when a comprehensive amendment to the CSS Rules (of which the amendment dealt with in the file inspected by the applicant is a part) is under examination at the moment in the Recruitment Rules Branch of the UPSC.
The Hon'ble CIC have also observed in several judgment orders that the fiduciary relationship is a relationship of trust which has to be given a broader interpretation. This, it is felt, is applicable in the instant case as a valid and justifiable reason for not furnishing certified copies of the noting portion sought by Shri P. Sharma."
As will be seen from the above, the plea taken for non-disclosure of file noting in this case is exemption u/s 8(1)(e). Appellant's prayer before us in second appeal is as below:
"I request the Hon'ble CIC to give its considered judgment on the following issues:4
1. Whether the CPIO should complete the process of inspection of file and later on supply of information within a period of 30 days or not?
2. The CPIO may be asked to produce a copy of the decision of the UPSC to not give certified copies of notings under the RTI Act. And the same may be examined as to whether it is in contravention of the provisions of the RTI Act.
3. Whether in this case, there exists a fiduciary relationship between the Commission and its officers and the Commission and DOPT?
4. Whether there is a willful denial of information on the part of the CPIO and the First Appellate Authority or not?
(keeping in view the fact that they denied me information in spite of my handing over to them two judgments of the CIC on the subject.)
5. Whether it is right that in UPSC the CPIO and AA are the officers of the same division, deciding the RTI matters pertaining to their own division?
6. The CPIO and the FAA willfully denied me information. Hence action against them as per RTI Act may be taken and the Hon'ble Central Information Commission may allow me cost of this avoidable appeal.
7. Because the CPIO and the FAA denied me information, which is otherwise to be provided by them as per RTI Act, they may be directed to provide me certified copies of notings as mentioned in Para 9(1) above, free of charges as per Sec. 7(6) of the RTI Act."
The appeal was heard on 4.1.10. The following are present:
Appellant Shri Patanjali Sharma Respondents Shri R. S. Raghavan, Under Secretary Shri Hage Tari, Jt. Secretary CPIO Shri Raghavan, Under Secretary submitted that at the point of time that the information was sought, the file noting constituted only the recommendation of the UPSC to the DOPT. This recommendation was not binding on the DOPT and, therefore, such disclosure would have been pre- mature. Hence the plea of fiduciary relationship had been taken. However, the DOPT has accepted the recommendations of UPSC in this regard and, therefore the CPIO has no objection to disclosing the information now, as sought. In 5 earnest of his good faith, CPIO submitted that inspection of the file had been agreed to in the very first instance.
DECISION NOTICE We find that the approach of the UPSC in this case had been contradictory. If the file noting was indeed not disclosable as exempt u/s 8(1)(e), it could not have been opened to inspection. On the other hand, if the matter had indeed been disclosed by inspection, we cannot see how disclosing it in written form would violate the exemption u/s 8(1)(e). Besides, if the advice provided by the UPSC to DOPT had been asked for through a question in Parliament, there is no way in which it could have been denied. Under the proviso to sec. 8(1), the same would apply to a question by 'any person' under the RTI Act.
Moreover, now we have definitive rulings on the application of exemption under sub sec. (e) of Sec. 8(1), which deal with the fiduciary relationship in the RTI Act. In the Delhi High Court decision announced on 30.11.'09 in W.P. Nos 8396/2009,16907/2006,4788/2008.9914/209,6085/2008,7304/2007,7930/2009 & 3607/2007; UoI through Ministry of Defence & Ors vs. Central Information Commission & Ors. learned Sanjeev Kumar, J. has, with regard to 'fiduciary relationship', held as follows:
14. Fiduciary relationship in law is ordinarily a confidential relationship; one which is founded on the trust and confidence reposed by one person in the integrity and fidelity of the other and likewise it precludes the idea of profit or advantage resulting from dealings by a person on whom the fiduciary obligation is reposed.
15. The object behind Section 8(1) (e) is to protect the information because it is furnished in confidence and trust reposed. It serves public purpose and ensures that the confidence, trust and the confidentiality attached is not betrayed. Confidences are respected.
This is the public interest, which the exemption under Section 8(1)(e) is designed to protect. It should not be expanded beyond what is desired to be protected. Keeping in view the object and purpose behind Section 8(1)(e) of the RTI Act, where it is possible to protect the identity and confidentiality of the fiduciary, information can be furnished to the information seeker. This has to be 6 examined in case to case basis, individually. The aforesaid view is in harmony and in consonance with Section 10 of the RTI Act which reads as under:- ― Section 10.
(1) Where a request for access to information is rejected on the ground that it is in relation to information which is exempt from disclosure, then, notwithstanding anything contained in this Act, access may be provided to that part of the record which does not contain any information which is exempt from disclosure under this Act and which can reasonably be severed from any part that contains exempt information. (2) Where access is granted to a part of the record under sub-section (1), the Central Public Information Officer or State Public Information Officer, as the case may be, shall give a notice to the applicant, informing--
(a) that only part of the record requested, after severance of the record containing information which is exempt from disclosure, is being provided;
(b) the reasons for the decision, including any findings on any material question of fact, referring to the material on which those findings were based;
(c) the name and designation of the person giving the decision;
(d) the details of the fees calculated by him or her and the amount of fee which the applicant is required to deposit; and
(e) his or her rights with respect to review of the decision regarding non-disclosure of part of the information, the amount of fee charged or the form of access provided, including the particulars of the senior officer specified under sub-section (1) of section 19 or the Central Information Commission or the State Information Commission, as the case may be, time limit, process and any other form of access.―
16. Thus, where information can be furnished without compromising or affecting the confidentiality and identity of the fiduciary, information should be supplied and the bar under Section 8(1)(e) of the Act cannot be invoked. In some cases principle of severability can be applied and thereafter information can be furnished. A purposive interpretation to effectuate the intention of the legislation has to be applied while applying Section 8(1)(e) of the RTI Act and the prohibition should not be extended beyond what is required to be protected. In cases where it is not possible to protect the identity and confidentiality of the fiduciary, the privileged information is protected under Section 8(1)(e) of the RTI Act. In 7 other cases, there is no jeopardy and the fiduciary relationship is not affected or can be protected by applying doctrine of severability."
Under the circumstances, we cannot agree with the refusal of information on this ground to appellant Shri Patanjali Sharma. The information will now be supplied to him within ten working days from the date of receipt of this decision notice. The appeal is allowed.
Shri Sharma, while accepting this decision, has submitted that it has come nearly two years after his moving the application. Thus the very purpose of seeking this information is infructuous. He has thus concluded that in the initial stage the denial of information was malafide and, therefore, penalty requires being imposed u/s 20(1) on CPIO Shri R. S. Raghavan, Under Secretary.
As already discussed by us above, the refusal of information by CPIO was ill founded. However, we cannot see what interest CPIO might have had in refusing the information sought by Shri Patanjali Sharma, particularly in light of the fact that he has in the first instance opened the file to inspection by appellant Shri Sharma. Since Shri Sharma was, therefore, conversant with the contents of the file, there was nothing to prevent him from using these facts in his contention before the authority where he was agitating his matter of appointment/promotion. If the relevant adjudicating authority had found such material, to be of relevance, these could have been summoned for the purpose under the Civil Procedure Code. We cannot accept the plea, therefore, that deliberate harm was sought to be done to the case of appellant Shri Patanjali Sharma, and must instead conclude that although the CPIO has committed an error in law in denying the information, no malafide stands established, or any evidence of his "knowingly" giving incomplete information. But because the information sought had not been supplied within the time frame mandated by sub sec. (1) of Sec. 7, the information now provided will be provided free of cost.
8Announced in the hearing. Notice of this decision be given free of cost to the parties.
(Wajahat Habibullah) Chief Information Commissioner 4.1.2010 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 4.1.2010 9