Central Information Commission
Shri A. K. Chohdda vs Union Public Service Commission (Upsc) on 8 September, 2009
CENTRAL INFORMATION COMMISSION
Appeal No.CIC/WB/A/2008/00609 dated 31.3.2008
Right to Information Act 2005 - Section 19
Appellant - Shri A. K. Chohdda
Respondent - Union Public Service Commission (UPSC)
Decision announced: 8.9.2009
Facts:
By an application of 24.12.08 Shri A. Chohdda of Sheikh Sarai, New Delhi applied to the CPIO, UPSC seeking the following documents:
"1. Check list of proposals for DPC at page 1-5 of the subject file.
2. Note dated 26.4.2002 at page 9-10/ noting of the subject file.
3. Note dated 27.5.2002 at page 14-15/ noting of the subject file.
4. Note at page 17/noting of the subject file is relating to ACR of 1999-2000 of Shri A. K. Saxena list in transit.
5. page 1 correspondence complaint regarding ACR of Shri A. K. Saxena.
6. Note of Department of Commerce (Supply Division) for holding DPC at page 3-14 correspondence of your file.
7. Seniority list at page 20-23 correspondence of your file.
8. Page 37 of the subject file.
9. Page 37 of the subject file.
10. UPSC letter dated 14.3.2002 addressed to Dep't. Of Commerce (Supply Division).
11. Dep't. Of Commerce (Supply Division) Letter No. A-
32013/2/2001-ES-1 dated 19.3.2002."
To this Shri A. Chohdda received a response from CPIO Shri Rajesh Gupta, US, UPSC dated 8.1.08, as follows:
1. The documents listed at Sl. No. 1, 6, 7, 8 and 11 were emanated from the DGS&D. You are, therefore, advised to obtain the documents from the Directorate General of supplies and Disposals. Their File number is A-
32013/2/2001-ESI.
2. A sum of Rs. 8/- (Rs. Eight only) Rs. 2/- for one page, may please be deposited with the Accounts officer, UPSC in any made of payment stipulated in Right to Information 1 (Regulation of Fee and Costs) Rules, 2005 before the documents listed at Sl. No. 3, 9 and 10 are provided to you.
3. The remaining documents listed at Sl. No. 2, 4 and 5 contain information about other person. Such information has been received by the Commission in a fiduciary relationship.
Disclosure of such information has been exempted under provision of Section 8 (1) (e) & (g) of the RTI Act, 2005."
Aggrieved with this response Shri Chohdda moved an appeal on 7.2.08 specifically with regard to answers to points 2, 4 & 5, pleading as follows:
"I appeal to you to provide me copies of these documents at S. No. 2, 4 and 5 of my request dated 24.12.2007 at the earliest, as exemption under section 8(1)(e) and (g) of RTI Act 2005 will not apply in the present case in view of the facts given above."
Shri Chohdda expanded on this prayer in the following words:
"In the present case my claim for documents at S. No. 2, 4 and 5 is better placed on the merits as I am not seeking the ACR of any body in respect of DPC held on 28.5.2002. However, I am seeking the documents those have already been seen and inspected by me in the UPSC file mentioned above. Therefore, providing such documents is neither contrary to the public interest nor would cause prejudice to the individual concerned but have caused great prejudice to me as much as I have been denied legitimate right to promotion to higher post."
Shri Dhananjay Kumar, Jt. Secy. (Apptts) and Appellate Authority allowed only part of the appeal dismissing the rest, as follows:
"I do not find any ground to issue direction to the CPIO to provide documents listed at S. Nos. 2, 4 & 5 of the Appellant's letter dated 24.12.2007, except page 9 of the notes in the subject file, as requested by the appellant under Sl. No. 2 of the said letter. I direct the CPIO to supply only page 9 of the notes on this subject file alongwith the copy of this order."
In doing this Shri Dhananjay Kumar has closely argued that sub sec. (e) &
(g) of sec. 8(1) will apply in this case. This has brought Shri Chohdda in his second appeal before us with the following prayer :
"Since in the present case documents at Sr. No. 2, 4 & 5 of my request dated 24.12.2007 are not the ACRs of any officer, but 2 are normal correspondence and noting of DPC file of UPSC which excludes ACRs and were accordingly shown to me on 19.12.2007 in line with directions of CIC in other cases to share with applicants documents relating to DPC excluding ACRs by applying the principle of severability. As principle of severability is not applicable to the documents at Sr. No. 2, 4 & 5 and accordingly these were shown to me on 19.12.2007, denying copies of these documents now after showing them on 19.12.2007 is against the existing directions of CIC and is against public interest."
This was followed by a supplementary appeal dated 3.9.'09 in which Shri Chohdda concludes as follows:
"It is, therefore, prayed that the above additional submissions / documents may be considered in the hearing on 7.9.2009 and documents at S. No. 2, 4 & 5 of my application dated 24.12.2007 under RTI Act 2005 may be allowed and UPSC may be directed to send copy of these documents directly to Commerce Secretary with directions to investigate the matter regarding loss of 1 original copy of ACR of 1999-2000 of Shri A. K. Saxena and completion of 2nd original copy of ACR of 1999-2000 by Accepting Authority in August, 2002, after the original DPC of 28.5.2002 for further necessary action. Copy of this communication may be sent to me for information since action on the above documents not provided earlier was to be taken by Commerce Secretary and UPSC."
The appeal was heard on 7.9.09. The following are present in the hearing:
Appellant Shri A. K. Chohdda Respondents Shri Narsingh Dev, Dy. Secy., UPSC Shri S. C. Srivastav, U.S. & CPIO, UPSC The issue hinges on the question why information, which has been allowed to be inspected by appellant Shri Chohdda, is refused in hard copy. In this context, the papers sought were examined.
Appellant Shri Chohdda submitted that he has found on inspection of the assessment sheet that the heading "grading" had been struck off and substituted with the word "fitness". This would imply that whereas originally the candidate 3 was considered for his abilities but that he was now being considered only for his qualifications. He, therefore, suspected that he had been passed over although his abilities were deemed fit for promotion. It is for this reason that he required to have the copies of the records because the person selected was so selected even though there was a missing ACR and it had unjustifiably been assumed that the ACR had declared him outstanding since the remaining ACRs under consideration concerning the same individual were 'outstanding.' The missing ACR was for the year in which there had been a serious complaint made against the concerned individual., which in the thrust of his argument appellant sought to imply was being deliberately covered up.
Shri Narsingh Dev, DS UPSC submitted that as was seen by us in the papers, there was no mention in noting that the missing ACR would be presumed to be outstanding. It is correct that the complaint against appellant Shri Saxena is on file and so is its examination and dismissal. But these are of information that concerns a third party and their disclosure may sully his reputation. Hence the plea of sec. 8(1)(g) has been taken. He further stated that this information is held in confidence and, therefore, qualifies for exemption u/s 8(1)(e).
DECISION NOTICE While examining the file, we find that the note dated 26.4.2002 consists of two pages 9 & 10. Under orders of Appellate Authority page 9 has been provided to appellant. Only the note on page 10 had been disallowed on the ground that it mentions charges of corruption and various other adverse matters against some officers. However, it is quite possible to sever that portion of the paragraph, as has been marked by us on the file at Shri Dev's request and provide the rest of the noting to appellant without compromising the privacy of those mentioned. CPIO Shri S. C. Srivastav will, therefore, provide information to appellant in this matter accordingly.4
Insofar as the noting sought at point 4 is concerned, this is in the noting on page 17 and discusses the complaint made against candidate Shri A. K. Saxena. This has indeed exonerated Shri A. K. Saxena but makes no mention of a missing ACR being treated as outstanding, but only mentions this as not being available. The decision has, therefore, been taken on the five other ACRs, which were on file. As Shri Narsingh Dev explained in the hearing also, the deletion of 'grading' and its substitution with 'fitness' has been in practice across the Board in DPCs now but the old format was still in use, which requires correction by hand.
Whereas the UPSC is advised to so format record of proceedings as will not allow for such misunderstandings in maintaining the record, in the present case, we cannot see that disclosing the information sought is in any way violative of sec. 8(1)(e) or 8(1)(g), as it cannot under any circumstances compromise the security of third party Shri A. K. Saxena. Besides now we have a definitive ruling on the application of a fiduciary responsibility in Krishan Gopal Kakanan vs. Bank of Baroda 2008(13) SCALE, drawing upon which the High Court of Delhi in WP (C) 288/2009 dated 2.9.09 Supreme Court of India vs. Subhash Chandra Agrawal & Ar., has held that the following relationships can be categorized, as fiduciary:
• "Trustee/ beneficiary (Section 88, Indian Trusts Act, 1882). • Legal guardians/ wards (Section 20, Guardians and wards Act, 1890).
• Lawyer/ Client.
• Executors and administrators/ legatees and heirs. • Board of directors/ company.
• Liquidator/ company.
• Receivers, trustees in bankruptcy and assignees in insolvency/ creditors.
• Doctor/ Patient • Parent/ Child.
On this basis Hon'ble Ravindra Bhat J has in this case expanded on this relationship as below 5
57. The advanced law Lexicon, 3rd Edition 2005, defines fiduciary relationship as 'a relationship in which one person is under a duty to act for the benefit of the other on the matters within the scope of the relationship..... Fiduciary relationship usually arise in one of the four situations (1) when one person places trust in the faithful integrity of another, who as a result gains superiority or influence over the first, (2) when one person assumes control and responsibility over another, (3) when one person has a duty to act or give advice to another on matters falling within the scope of the relationship, or (4) when there is specific relationship that has traditionally be recognized as involving fiduciary duties, as with a lawyer and a client, or a stockbroker and a customer.'
58. From the above discussion, it may be seen that a fiduciary relationship is one whereby a person places complete confidence in another in regard to a particular transaction or his general affairs or business. The relationship need not be 'formally' or 'legally' ordained, or established, like in the case of a written trust but can be one of moral or personal responsibility, due to the better or superior knowledge or training or superior status of the fiduciary as compared to the one whose affairs he handles.' If viewed from this prospective, it becomes immediately clear that the UPSC does not owe a fiduciary responsibility to the third party in this case. Yet there is no doubt that the information sought is third party and held in confidence by the UPSC. For this reason, before disclosing the information the CPIO Shri S.C. Srivastav will exercise his authority u/s (1) of Sec 11 and obtain from the third party Shri A. K. Saxena any objection that he may have to disclosure of such information and after examining such objection if any received n light of Sec 8 (1) of the Act, disclose to appellant Shri Chohdda contents of this noting. This issue is disposed of accordingly.
The information sought at point 5 is a copy of the complaint regarding Shri A. K. Saxena, which we also perused. This complaint, which was later found to be unfounded is reckless in its allegations. The grounds of withholding the information in this case can only be invocation of Section 8 (1) (j) of the RTI Act 2005 on the basis of invasion of privacy. We have no clear definition of what is meant by "invasion of privacy" within the RTI Act. We have no equivalent of UK's 6 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, we have used this as a suitable starting point to help define the concept. As can be seen the impugned document makes allegation which will brig it clearly under sub-section (g) The US Restatement of the Law, Second, Torts, 652 on the other hand, is far wider and defines the invasion of 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.
The broad principles concerning the law of privacy were summarized by the Hon'ble Apex Court in the case of Rajagopal v. State of Tamil Nadu, 1994(6) SCC 632 and accordingly, it was held that:
(1) A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, childbearing and education among other matters. (2) None can publish anything concerning the above matters without his consent - whether truthful or otherwise and whether laudatory or critical. If he does so, he would be violating the right to privacy of the person concerned. But a publication concerning the above aspects becomes unobjectionable, if such publication is based upon public records including 7 court records. Once something becomes a matter of public record, the right of privacy no longer exists.
The only exception to this could be in the interest of decency.1 (3) In the case of public officials, it is obvious that right of privacy or for that matter, remedy of action for damages is simply not available with respect to their acts and conducts relevant to the discharge of their official duties. This is so even where the publication is based upon the acts and statements that are not true unless the official establishes that the publication was made with reckless disregard for truth.2 (4) So far as the Government, local authority or other organization and institution exercising governmental power are concerned, they cannot maintain suit for damages for defaming them.
This case was concerned to an extent with publication of material that was part of court records. Based upon the highlighted portions in the quotation above, however, we are of the view that disclosure of the umpugned document in the present case would not be "in the interest of decency" and has been established by the UPSC enquiry to have demonstrated a "reckless disregard of truth." The right to privacy, characterized by US Justice Brandeis in his memorable dissent, in Olmstead v. United States, 277 US 438 (1928) as "right to be let alone... the most comprehensive of rights and the right most valued by civilised men" is recognized under our Constitution by the Supreme Court in four rulings - Kharak Singh v. State of U.P. (1964) 1 SCR 332; Gobind v. State of M.P., (1975) 2 SCC 148; R. Rajagopal v. State of T.N., (1994) 6 SCC 632, cited earlier; and District Registrar and Collector v. Canara Bank,(2005) 1 SCC 496. As pointed out by Ravindra Bhat J in his landmark ruling in WP C() 288/2009 dated 2.9.09 Supreme Court of India vs. Subhash Chandra Agarwal & Ar, "these judgments, however did not explore the latent tension between the two values of information rights and privacy rights."
1Highlighted by us for coming reference 2
-do-
8Hon'ble Ravindra Bhat J then goes on to deal specifically with the right to privacy of public servants as below:
"65. It has been held by a Constitution Bench of the Supreme Court that an individual does not forfeit his fundamental rights, by becoming a public servant, in O.K. Ghosh v. E.X. Joseph AIR 1963 SC 812. In Kameshwar Prasad v. State of Bihar AIR 1962 1166, the Supreme Court repelled an argument that public servants do not possess fundamental rights."
On this ground, therefore, disclosure of information sought at point 5 of a document, which has not been disclosed even to third party Shri A. K. Saxena will certainly amount to invasion of privacy and is, therefore, exempt from disclosure u/s 8 (1) (j).
On this basis, CPIO Shri S. C. Srivastav will provide information sought in points 2 & 4 in the application of 24.12.07 submitted by appellant Shri Chohdda with the qualification described above. There will be no disclosure against point
5. The appeal is thus allowed in part. There will be no costs.
Reserved in the hearing this Decision is announced in open chamber this eighth day of September 2009. Notice of this decision be given free of cost to the parties.
(Wajahat Habibullah) Chief Information Commissioner 8.9.2009 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 8.9.2009 9