Central Information Commission
Mr. Rajesh Gauhari vs Educational Consultants India Ltd. on 18 January, 2011
CENTRAL INFORMATION COMMISSION
Club Building (Near Post Office)
Old JNU Campus, New Delhi - 110067
Tel: +91-11-26161796
Decision No. CIC/SG/A/2010/000643/11027
Appeal No. CIC/SG/A/2010/000643
Relevant Facts emerging from the Appeal:
Appellant : Mr. Rajesh Gouhari,
A-1/107, Janak Puri,
New Delhi- 110058
Respondent : Mr. U. S. Gaikwad,
Public Information Officer & Deputy General Manager (HR), EdCIL (India) Ltd., Ministry of HRD, 18A, Sector- 16A, Noida-201301 RTI application filed on : 12/09/2009 PIO replied on : 15/10/2009 and 22/01/2010;
First Appeal filed on : 18/12/2009
First Appellate Authority order of : No order
Notice of Hearing sent on : 22/12/2010
Hearing held on : 15/01/2011
S. No. Information Sought Final Reply of the Public Information
Officer (PIO)
1. Copy of agenda items having been discussed in the Information cannot be provided as these 117th board meeting. are not accessible as placed on website under Sections 4(1)(b)(viii) and 8(1)(d). th
2. Copy of the minutes of 117 board meeting. Same as above.
3. Names of directors who attended 117th board meeting. Mr. A. K. Anand;
Mr. P. R. Dassgupta; and Mrs. Anju Banerjee, CMD.
4. Copy of file noting relating to issue of office No file notings exist.
memorandum no. 11(181)/96- Admin dated 03/08/2009.
5. Copy of file noting relating to issue of office Same as above.
memorandum no. 11(181)/96-Admin dated 28/08/2009.
6. Copy of ACR for 2008-09 in which remarks were made ACR cannot be provided under Section vide office memorandum no. 11(181)/96- Admin dated 8(1)(j). 03/08/2009.
7. Copy of ACR for 2008-09 in which adverse remarks Same as above.
were made vide office Memorandum no. 11(181)/96- Admin dated 28/08/2009.
8. Copy of rules with regard to submission of self- Same would be provided after payment appraisal and writing of ACR. of Rs. 24. Grounds for First Appeal:
Unsatisfactory information provided by the PIO.
Order of the First Appellate Authority (FAA):
Not order appears to have been passed by the FAA Grounds for Second Appeal:
Unsatisfactory information provided by the PIO and inaction on the part of the FAA.
Relevant Facts emerging during Hearing held on January 15, 2011:
The following were present:
Appellant: Mr. Rajesh Gouhari;
Respondent: Mr. U. S. Gaikwad, PIO & Deputy General Manager (HR).
The Respondent relied on Section 4(1)(b)(viii) of the RTI Act, which states as follows:
"4. Obligations of public authorities.- (1) Every public authority shall-
...
(b) publish within one hundred and twenty days from the enactment of this Act,- ...
(viii) a statement of the boards, councils, committees and other bodies consisting of two or more persons constituted as its part or for the purpose of its advice, and as to whether meetings of those boards, councils, committees and other bodies are open to the public, or the minutes of such meetings are accessible for public;"
The Respondent argued that Section 4(1)(b)(viii) of the RTI Act envisages that minutes of meetings mentioned therein may or may not be accessible to the public. The Respondent claimed that in case of the EDCIL, such minutes would not be accessible as disclosure of the same would harm the competitive position of the public authority and hence was exempted under Section 8(1)(d) of the RTI Act. Thus the respondent claimed exemption for all minutes of meetings as a class based on this. The Appellant stated that the minutes of the meeting of a public authority must necessarily be in the public domain. Further, information on queries 6 and 7 had been denied to the Appellant wherein the latter had sought a copy of his own ACR. The Respondent claimed that he had provided the contents of the ACR. The Respondent argued that he had denied the copies of the ACR based on Sections 8(1)(j) and (g) of the RTI Act. In this regard, the Respondent relied on a decision of the Commission in CIC/MA/A/2008/00053 dated 31/03/2008.
The decision was reserved during the hearing held on 15/01/2011.
Decision announced on January 18, 2011:
In the instant case, the Respondent has relied on Section 4(1)(b)(viii) of the RTI Act and contended that a public authority has the power to determine whether its board minutes shall be open or accessible to the public and publish the same. The Respondent has argued that under Section 4(1)(b)(viii) of the RTI Act, it has determined that minutes of its board meetings shall not be open or accessible to the public and therefore, is a basis for denial of the information sought by the Appellant.
The Commission observed that Section 4(1)(b)(viii) of the RTI Act confers power on a public authority to determine whether minutes of meetings of its board, councils, committees and other bodies are open or accessible to the public and publish the same. This power of the public authority to determine whether minutes of meetings of its board, councils, committees and other bodies shall be open or accessible to the public is solely for the purposes of suo moto disclosures by the public authority, as mandated under Section 4 of the RTI Act. Further, Section 7(1) of the RTI Act stipulates that on receipt of a RTI application, the PIO shall either provide the information within 30 days or reject the request for information on the basis of the reasons specified in Sections 8 and 9 of the RTI Act. Moreover, the High Court of Delhi in CPIO, Supreme Court of India v. S.C. Agarwal W. P. (C) No. 188/2009 held that the RTI Act was premised on disclosure being the norm, and refusal, the exception. According to the RTI Act, information may be exempted from disclosure in accordance with Sections 8 and 9 only and no other exemptions can be claimed while rejecting a demand for disclosure. In other words, Section 4(1)(b)(viii) of the RTI Act cannot be used as an exemption for denying any information sought under Section 7(1) of the RTI Act. Therefore, the argument of the Respondent that the information sought by the Appellant may be denied on the basis of Section 4(1)(b)(viii) of the RTI Act is rejected.
Furthermore, the Respondent has contended that disclosure of the minutes of its board meeting would harm the competitive position of the Respondent public authority and hence was exempted from disclosure under Section 8(1)(d) of the RTI Act. From a plain reading of Section 8(1)(d) of the RTI Act it follows that the PIO is exempted from furnishing information, the disclosure of which would harm the competitive position of a third party. Therefore, in order to come within the exemption under Section 8(1)(d) of the RTI Act, the critical test to be applied is whether the disclosure of the information sought would harm the competitive position of a third party.
In the instant case, the Respondent has failed to produce any cogent documents/ evidence to establish before this Commission how disclosure of minutes of its board meeting shall harm the competitive interest of the Respondent public authority or a third party. The Respondent has failed to discharge its burden of proving that the exemption under Section 8(1)(d) of the RTI Act is applicable to the instant case. The Respondent has claimed that the public authority has decided not to disclose suo moto all minutes of board meetings since some of them may contain discussions which would be of commercial confidence. Hence, the Respondent claims such information is also exempted from disclosure under Section 7(1) of the RTI Act. Such a class exemption cannot be carved out to claim that information which may not have been disclosed under Section 4 would automatically be exempt. Therefore, the contention of the Respondent that the information sought was exempted under Section 8(1)(d) of the RTI Act is rejected.
Moreover, information on queries 6 and 7 has been denied to the Appellant wherein the latter had sought a copy of his own ACR. The Respondent claimed that he had provided the contents of the ACR. The Respondent argued that he had denied the copies of the ACR based on Sections 8(1)(j) and (g) of the RTI Act. In this regard, the Respondent relied on a decision of the Commission in CIC/MA/A/2008/00053 dated 31/03/2008 wherein copy of the ACR of an individual was denied to him on the basis of Section 8(1)(j) of the RTI Act. This bench respectfully disagrees with the ruling of the then Information Commissioner on the basis that no individual can intrude on his own privacy.
As far as exemption under Section 8(1)(g) of the RTI Act is concerned, for any company to claim that its employees are capable of physically harming its senior officers is an extremely poor reflection on the company. It appears that Section 8(1)(g) of the RTI Act has been claimed by the Respondent evidently to refuse the information sought by the Appellant. If an organization really believes that its employees are capable of 'endangering the life or physical safety' of its senior officers, it should take steps to remove such officers. The Supreme Court of India has clearly enunciated the principle that a person must be shown his ACR. If the annual report, which evaluates the strengths and weaknesses of an officer and his performance, is not being shown to the person evaluated, it displays a lack of understanding of the fundamentals of how to run any organization. The purpose of such evaluation is to improve the working of all officers in an organization. Therefore, the contention of the Respondent that information sought in queries 6 and 7 was exempted from disclosure under Sections 8(1)(g) and (j) of the RTI Act is rejected.
The Appeal is allowed. The Commission hereby directs Mr. U. S. Gaikwad, PIO & Deputy General Manager (HR) to provide the complete information on queries 1, 2, 6, 7 and 8 to the Appellant before February 15, 2011.
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 the RTI Act.
Shailesh Gandhi Information Commissioner January 18, 2011 (In any correspondence on this decision, mention the complete decision number.)(ND)