Central Information Commission
Mr. Amarjeet vs Union Public Service Commission on 19 July, 2011
CENTRAL INFORMATION COMMISSION
Club Building (Near Post Office)
Old JNU Campus, New Delhi - 110067
Tel: +91-11-26161796
Decision No. CIC/SM/A/2011/000347/SG/13530
Appeal No. CIC/SM/A/2011/000347/SG
Relevant Facts emerging from the Appeal:
Appellant : Mr. Amarjeet,
S/o Mr. Mange Ram,
Village Gudhana, PO Sherpur Teh. Pataudi,
District Gurgaon- 123502
Respondent : Mr. N. K. Sharma,
PIO & Deputy Secretary (R- II),
Union Public Service Commission,
Dholpur House, Shahjahan Road,
New Delhi
RTI application : 18/05/2010
PIO replied on : 17/06/2010
First Appeal filed on : 09/07/2010 (Not enclosed)
FAA order of : 05/08/2010 (Complete order not enclosed)
Second Appeal filed on : 11/11/2010
Information soughtregarding recruitment of Meteorologists in the year 2001- 02:
1. Provide list of names and addresses of the candidates who qualified in the written examination for the post of meteorologists in the year 2001- 02;
2. Marks obtained by theses candidates in written exam and interview;
3. List of finally selected candidates.
Reply of Public Information Officer (PIO):
"Item No. 1 & 2: 186 candidates were called for interview for the posts of meteorologists held from 4 th March 2002 to 18th March 2002. There is need to get 8 pages got typed for the names of the called candidates. The marks obtained by these candidates in written exam as well as in the interview cannot be shared as this information falls under core functioning area of the Commission. The addresses of these candidates cannot be provided as the application dossiers of recommended candidates have been sent to the requisitioning department and the remaining application dossiers of non- recommended candidates have been weeded, out as per record retention schedule.
Item No.3: There is need to get 2 pages typed for the list of selected candidates. In total 10 pages are to be photocopied hence you are required to provide Rs 20/- (Rupees twenty) at the rate of Re 2/- per page."
Grounds for First Appeal:
Not enclosed.
Order of First Appellate Authority (FAA): (As per the record filed before the Commission) "4. In response to point No.1 and 2, the CPIO had asked the appellant to deposit Rs.20/- for supplying him list of names (excluding addresses) of the called candidates and list of selected candidates. The CPIO Page 1 of 5 had also conveyed to the appellant the valid reasons for not providing addresses of candidates called for interview. In this regard, the appellant is informed that since he has deposited P.s.20/-, the lists in question are being sent to him shortly. Information on point No.2 above was not provided by the CPIO on the ground that the information falls under core functioning..."
Vide letter dated 13/08/2010, the PIO replied that further to the order of the FAA dated 05/08/2010, the relevant information was as follows:
"Point No. 1 & 3: List of names and roll numbers of 186 candidates qualified in the written examination and list of names and roll number of 54 finally selected candidates are enclosed.
Point No. 2: Your request is under consideration in consultation with the competent authority and a reply will follow."
Grounds for Second Appeal:
In reference to the order of the FAA, the Appellant, vide letter dated 13/09/2010, requested the Respondent to provide the complete information. However, the PIO, vide letter dated 08/10/2010 informed that the marks obtained by the candidates in the written examination and interview was third party information of a private nature and constituted personal information. In other words, no information has been received in relation to point no. 2.
Relevant Facts emerging during Hearing held on May 12, 2011:
The following were present:
Appellant: Mr. Amarjeet;
Respondent: Mr. N. K. Sharma, PIO & Deputy Secretary (R - II).
The Commission noted that the Appellant has not been provided with information on point no. 2. The information was denied by the PIO on the basis that it was third party information and exempted under Section 8(1)(j) of the RTI Act. The Respondent relied on the Commission's decision in Raj Bahadur v. UPSC CIC/WB/A/2009/000114 dated 27/04/2010, wherein it was observed:
"The breakup of marks obtained by the candidates in the personality test is third party information of a private nature and will qualify for exemption from disclosure u/s 8(1)(j) in terms of the disclosure of the original charter of marks. The total marks obtained, however, cannot be so termed."
The Appellant further stated that the PIO had not claimed any exemption in his reply dated 17/06/2010. The PIO, on the other hand, stated that he had informed the Appellant on 08/10/2010 that he was claiming the exemption under Section 8(1)(j) of the RTI Act.
The Commission observed that if any exemption was to be claimed by the PIO, he should do so within 30 days, failing which information shall be provided to the applicant. The PIO stated that he was required to first ascertain whether disclosure of information was as per the policies of UPSC and then furnish the same. The Commission warned the PIO that his duty was to ensure that information was provided to citizens as per the provisions of the RTI Act and policies of a public authority cannot be claimed to supersede the mandate of the RTI Act.
Further, the Appellant brought to the Commission's notice that Mr. Kamal Bhagat, FAA & Joint Secretary (R - II) did not state that information on point no. 2 was exempted but had ruled- "in view of above the appeal is partly allowed and the case is remanded back to the CPIO to reconsider the request of the Appellant for point no.2 and to send the satisfactory reply to the Appellant within 15 days of passing the order".Page 2 of 5
The Commission reserved the order at the hearing held on 12/05/2011.
Decision announced on 19 July 2011:
The Commission noted that no information has been provided to the Appellant in relation to point no. 2 of the RTI application i.e. marks obtained by candidates in the written examination and interview. Based on the papers before the Commission and the contentions of the parties, it appears that the said information was refused as it was third party information and on the basis of Section 8(1)(j) of the RTI Act.
The PIO has argued inter alia that the information sought in point no. 2 could not be provided as it was third party information. Section 11(1) of the RTI Act provides as follows:
"11. Third party information.- (1) Where a Central Public Information Officer or the State Public Information Officer, as the case may be, intends to disclose any information or record, or part thereof on a request made under this Act, which relates to or has been supplied by a third party and has been treated as confidential by that third party, the Central Public Information Officer or State Public Information Officer, as the case may be, shall, within five days from the receipt of the request, give a written notice to such third party of the request and of the fact that the Central Public Information Officer or State Public Information Officer, as the case may be, intends to disclose the information or record, or part thereof, and invite the third party to make a submission in writing or orally, regarding whether the information should be disclosed, and such submission of the third party shall be kept in view while taking a decision about disclosure of information:
Provided that except in the case of trade or commercial secrets protected by law, disclosure may be allowed if the public interest in disclosure outweighs in importance any possible harm or injury to the interests of such third party." (Emphasis added) As per Section 11 of the RTI Act, where the PIO intends to disclose any information, which relates to or has been supplied by a third party and has been treated as confidential by that third party, the PIO shall invite submissions from the third party whether such information shall be disclosed or not. The information or record sought must be either supplied by the third party or must relate to the third party and in both cases, must be treated as confidential by the third party. Section 11(1) of the RTI Act qualifies the nature of the information provided by the third party to the PIO; it does not bring within its purview every information provided by the third party to the PIO. On receipt of submissions from the third party, Section 11(1) of the RTI Act requires that the PIO shall keep the submissions in view while taking a decision whether the information sought shall be disclosed or not.
Section 11(1) of the RTI Act is triggered once the PIO intends to disclose to the applicant any information/ record which relates to or has been supplied by a third party and has been treated as confidential by that third party. Once Section 11(1) of the RTI Act is applicable, the PIO shall follow the procedure of serving a notice to the third party for seeking objections whether such information shall be disclosed or not. On receipt of the submissions of the third party, the PIO shall keep the submissions in view and then decide whether the information sought shall be disclosed or not. If the PIO does not find any merit in the submissions of the third party, he shall disclose the information sought to the applicant. On the other hand, where the PIO decides that the information sought shall not be disclosed then the basis for denial of information must be in accordance with Sections 8 and 9 of the RTI Act only. However (except in the case of trade or commercial secrets protected by law) even where the PIO is of the view that there is possible harm or injury to the interests of the third party, but public interest in disclosure outweighs in importance any such harm or injury, he may disclose the information. Thus Section 11 does not give the third party a right of veto in giving information.Page 3 of 5
In this regard, it may be worthwhile to note the observations of Muralidhar, J. of the High Court of Delhi in Arvind Kejriwal v. CPIO W. P. (C) 6614/2008 and C. M. Appl. No. 12685/2008, W. P. (C) 8999/2008 and C. M. Appl. No. 7517/2008, W. P. (C) 8407/2009 and C. M. Appl. 5286/2009, in Paragraph 21, which are as follows:
"...It requires to be noticed that under the RTI Act information that is totally exempt from disclosure has been listed out in Section 8. The concept of privacy is incorporated in Section 8(1)(j) of the RTI Act. This provision would be a defense available to a person about whom information is being sought. Such defense could be taken by a third party in a proceeding under Section 11(1) when upon being issued notice such third party might want to resist disclosure on the grounds of privacy. This is a valuable right of a third party that encapsulates the principle of natural justice inasmuch as the statute mandates that there cannot be a disclosure of information pertaining to or which 'relates' to such third party without affording such third party an opportunity of being heard on whether such disclosure should be ordered. This is a procedural safeguard that has been inserted in the RTI Act to balance the rights of privacy and the public interest involved in disclosure of such information. Whether one should trump the other is ultimately for the information officer to decide in the facts of a give case."
In the present matter, it follows that information sought in point no. 2 cannot be denied by stating merely that it is third party information. As per Section 11(1) of the RTI Act, as described above, if the PIO intended to disclose the same, he should have followed the procedure mentioned therein. However, it appears that the PIO did not intend to disclose the information sought in point no. 2 and consequently did not invoke the procedure mentioned in Section 11(1) of the RTI Act. In such circumstance, if information is to be denied, it must be on the basis of Sections 8 and 9 of the RTI Act only. In this regard, the PIO has also claimed that the information sought in point no. 2 was exempted under Section 8(1)(j) of the RTI Act.
This Commission, in a number of decisions, has held that in order 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 Page 4 of 5 to the UK Data Protection Act 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. The Supreme Court of India has ruled that Citizens have a right to know about charges against candidates for elections as well as details of their assets, since they desire to offer themselves for public service. It is obvious then that those who are public servants cannot claim exemption 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 in the fitness of things that the Citizen's Right to Information is given greater primacy with regard to privacy.
In the instant case, the marks obtained in the written examination and interview is, no doubt, personal information of the candidates concerned. This information bears a relationship with a public activity carried out by the Respondent- public authority. However, the Commission is unable to understand how disclosure of marks obtained would cause an unwarranted invasion on the privacy of the individual. Candidates appearing and qualifying for the post of a public officer/ government servant are accountable to the citizens and consequently, the basis on which they are appointed to such post must be transparent in nature. Therefore, the PIO's contention that the information sought in point no. 2 was exempted from disclosure under Section 8(1)(j) of the RTI Act is rejected.
Further, the Commission has perused the decision in Raj Bahadur v. UPSC CIC/WB/A/2009/000114 dated 27/04/2010. The issues and the information sought therein are different from the facts in the present matter. Therefore, the decision in the Raj Bahadur Case is not relevant to the instant matter.
The Appeal is allowed.
The PIO is directed to provide the complete information on point no. 2 to the Appellant before 15 August 2011.
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 19 July 2011 (In any correspondence on this decision, mention the complete decision number.)(HA) Page 5 of 5