Central Information Commission
Smt.Sunita Sharma vs Oriental Bank Of Commerce on 30 December, 2011
CENTRAL INFORMATION COMMISSION
Club Building (Near Post Office)
Old JNU Campus, New Delhi - 110067
Tel: +91-11-26161796
Decision No. CIC/SG/A/2011/002936/16672
Appeal No. CIC/SG/A/2011/002936
Relevant facts emerging from the Appeal:
Appellant : Smt. Sunita Sharma,
House No. 252/6, Street No. 6,
Preet Nagar Opp. New Civil Hospital,
District Patiala, Punjab.
Respondent : Mr. Virender Arora
Public Information Officer & Chief Manager
Oriental Bank of Commerce,
Regional Office
Improvement Trust Complex,
SCO 146, FF, The Mall, Patiala -147001.
RTI application filed on : 23-05-2011
PIO replied on : 10-06-2011
First Appeal filed on : 10-08-2011 (Commission's Remand Decision)
First Appellate Authority order of : 19-09-2011
Second Appeal received on : 20-10-2011
Information sought:
The copy of final annual performance appraisal along with marks awarding details of the rating and the reviewing authorities of all the branch incumbents of your region for the year 2008-09 and 2009-10.
The PIO reply:
With reference to your application dated 23.05.2011 on the subject, seeking information under RTI Act 2005, it is to inform that the information sought by you is pertaining to third party under section 8 (1)(j) of the RTI Act as such the same can not be provided by bank.
Grounds for the First Appeal:
The appellant is not satisfied with the PIO reply.
Order of the First Appellate Authority:
"This has reference to your appeal pertaining to CIC order dated 10-08-2011 under the RTI Act, 2005 against the order of SPIO of Bank, I have carefully gone through the contents of your original application dated 23-05-2011 the reply submitted by the SPIO and facts relating to the appeal's matter in question.
On perusal of the relevant facts, case documents and provision applicable, I do not find any infirmity with the order passed by the SPIO and hence reject the appeal accordingly".
Ground of the Second Appeal:
The appellant was not satisfied with PIO reply and FAA Order.Page 1 of 4
Relevant Facts emerging during Hearing:
The following were present Appellant: Smt. Sunita Sharma on video conference from NIC-Patiala Studio; Respondent: Mr. Virender Arora, Public Information Officer & Chief Manager on video conference from NIC-Patiala Studio;
The Appellant is seeking information about the ACRs of other employees and the PIO has claimed exemption under Section 8(1)(j) of the RTI Act. The Commission has already decided on this earlier in decision no. Decision No. CIC/SG/A/2011/000464/12432 on 18 May 2011.
Under Section 8 (1) (j) of the RTI Act, 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 the exemption under Section 8(1)(j) of the RTI Act, the information must satisfy the following criteria:
1. It must be personal information: Words in a law should normally be given the meaning 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. Therefore, it flows that 'personal' cannot be related to institutions, organisations or corporates. Hence Section 8(1)(j) of the RTI Act cannot be applied when the information concerns institutions, organisations or corporates.
2. The phrase 'disclosure of which has no relationship to any public activity or interest' means that the information must have been given in the course of a public activity. Various public authorities in performing their functions routinely ask for 'personal' information from citizens, and this is clearly a public activity. Public activities would typically include situations wherein 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, or provides information in discharge of a statutory obligation.
3. The disclosure of the information would lead to unwarranted invasion of the privacy of the individual. 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 the privacy of a citizen. In those circumstances special provisions of the law apply usually with certain safeguards. Therefore 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.
Certain human rights such as liberty, freedom of expression or right to life are universal and therefore would apply uniformly to all human beings worldwide. However, the concept of 'privacy' is a cultural notion, related to social norms, and different societies would look at these differently. Therefore referring to the Data Protection Act, 1988 of U. K. or the laws of other countries to define 'privacy' cannot be considered a valid exercise to constrain the citizen's fundamental right to information in India. Parliament has not codified the right to privacy 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.
In the instant case, there is no doubt that the information sought is "personal" information inasmuch as it is the Annual Confidential Report of a government officer. The ACR is a report that evaluates the work and performance of a public servant. The public authority concerned, must necessarily have this information so to make an assessment of its officers' performance. The ACR, containing certain information about the officer is disclosed by the officer to the public authority and such report is prepared by the public authority. This is necessarily done in the course of a public activity. Disclosure Page 2 of 4 of such information cannot be construed as unwarranted invasion of privacy of the officer concerned as it concerns issues raised in the exercise of his public activity as a public servant. Moreover, a public servant is accountable to the public and therefore, every citizen has the right to obtain information that may assess his credibility, integrity and performance.
It is pertinent to mention that the Supreme Court of India in Union of India v. ADR in Appeal (Civil) 178 of 2001 and W. P. (Civil) 294 of 2001 decided on 02/05/2002, observed that persons who aspire to be public servants by getting elected have to declare inter alia their property details, any conviction/ acquittal of criminal charges, etc. It follows that persons who are already public servants cannot claim exemptions from disclosure of charges against them or details of their assets. Given our dismal record of misgovernance and rampant corruption which colludes to deny citizens' their essential rights and dignity, it is imperative for achieving the goal of democracy that the citizens' right to information is given greater primacy with regard to privacy.
Therefore, disclosure of information such as property details, any conviction/ acquittal of criminal charges, etc of a public servant, which is routinely collected by the public authority and provided by the public servants, cannot be construed as an invasion of the privacy of an individual and must be provided an applicant under the RTI Act. Similarly, citizens have a right to know about the strengths and weaknesses as well as performance evaluation of all public servants. The government is elected by the citizens of India and it is the duty of such government through its officers to protect the rights of the citizens. The salary of such government officers is also paid from the public exchequer. For these reasons, every citizen has the right to know and obtain information about the performance of every public servant or government officer to ascertain whether the duties entrusted to such public servant or government officer are being carried out.
It would not be out of place to mention that the terminology "Annual Confidential Report" has been used since the British times when 'secrecy' was the guiding notion for the government and consequently, the work done by the latter was not for the citizens' perusal and kept confidential. This was evidenced by the enactment of the Official Secrets Act, 1923. Over the years, this trend has undergone a drastic change inasmuch as the Indian judiciary recognised the citizen's right to have access to information under the control of government entities in order to bring about transparency and accountability in the functioning of every government department. This was given a statutory ratification by way of the Right to Information Act, 2005, which recognised the citizen's fundamental right to information. The RTI Act endeavours to do away with the notion of 'secrecy' which was prevalent in the British era and carried forwarded thereafter inasmuch as Section 22 of the RTI Act specifically provides that the RTI Act shall override the Official Secrets Act, 1923 irrespective of any inconsistency contained in the latter.
In view of the foregoing arguments this Commission holds that performance appraisals,- known as annual confidential reports since the days of British Raj,- are not covered by Section 8(1)(j) of the RTI Act and disclosure of these cannot be construed as invasion on the privacy of an individual.
Decision:
The Appeal is allowed.
The PIO is directed to provide the information sought by the Appellant to her before 20 January 2012.
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 Page 3 of 4 30 December 2011 (In any correspondence on this decision, mention the complete decision number.)(AS) Page 4 of 4