Central Information Commission
Dr Vinoda vs National Highways Authority Of India ... on 20 September, 2022
Author: Saroj Punhani
Bench: Saroj Punhani
के ीय सूचना आयोग
Central Information Commission
बाबागंगनाथमाग , मुिनरका
Baba Gangnath Marg, Munirka
नई द ली, New Delhi - 110067
File No : CIC/NHAIN/A/2022/624574
DR Vinoda ......अपीलकता /Appellant
VERSUS
बनाम
CPIO,
NHAI, Project Implementation
Unit, Near JMIT, NH 48 (Old NH4),
(KM202) Chitradurga-577502,
Karnataka .... ितवादीगण /Respondent
Date of Hearing : 19/09/2022
Date of Decision : 19/09/2022
INFORMATION COMMISSIONER : Saroj Punhani
Relevant facts emerging from appeal:
RTI application filed on : 15/03/2022
CPIO replied on : 21/04/2022
First appeal filed on : 30/03/2022
First Appellate Authority order : Not on record
2nd Appeal/Complaint dated : NIL
Information sought:
The Appellant filed an RTI application dated 15.03.2022 seeking the following information:
1) "I request CPIO D Srinivasulu Naidu to furnish the details of the third party whom he consulted with.1
2)I want to know whether CPIO D Srinivasulu Naidu followed the due procedure of "Section 11, sub section 1" by giving a written notice to the third party? in terms of "Yes/No"
3) If he has given the written notice to the third party, I request the CPIO to furnish a copy of the written notice that he sent to the third party. I also request him to the furnish the representation that the third party made in reply to the written notice according to "Section 11, subsection 2".
4) I request CPIO to furnish the reasoning behind his decision as to how the information I have sought is a "trade or commercial secret of the third party" and could be rejected as such, upon the submission made by the third party for privacy.
5) I request CPIO to furnish a copy of the notice that he has given to the third party, according to the "Section 11, subsection 3", informing about the decision he made upon the submission of the third party."
Having not received any response from the CPIO, the appellant filed a First Appeal dated 30.03.2022. FAA's order, if any, is not available on record.
The CPIO furnished a point wise reply to the appellant on 21.04.2022 stating as follows:-
Point No. 1:- Concessionaire M/s IRB Tumkur Chitradurga Tollway Ltd., Point no. 2:- Yes Point No. 3:- Copy of the letter annexed.
Point No.4 & 5:- Copy of the Concessionaire letter annexed.
Feeling aggrieved and dissatisfied, the appellant approached the Commission with the instant Second Appeal on the following arguments -
"I raised another RTI request seeking the reply of the third party (bearing RTI registration number NHAIN/R/E/22/01405, I have attached the reply for that RTI in this second appeal as additional document). Here the Concessionaire IRB Tumkur Chitradurga Tollway limited, replies in a letter (IRBTCTL(O&M)/HYR/2022-718) and I quote " With reference to the above subject and letter under reference we can't provide any concerned details as required CCTV Footages etc to 3rd party". They don't object to the information sought under section 11 or Section 8(1) or section 9. Their reasoning is that they can't provide it to the third party and not that the details sought contains third party information. Notice the dissonance between the reasoning of the IRB Tumkur Chitradurga Tollway Ltd and the CPIO D S Naidu. How did CPIO D S Naidu interpret the reasoning provided by IRB Tumkur Chitradurga Ltd so wrongly 2 that he invoked section 11? IRB Tumkur Chitradurga Ltd's concerns are not in line with any of the sections of RTI, let alone section 11 of RTI act 2005. Concessionaire isn't a third party, hence IRB Tumkur Chitradurga Ltd doesn't have a locus standi to object to the information sought IRB Tumkur Chitradurga Tollway is a concessionaire holding the rights for maintenance and toll collection from NHAI, and hence it falls under the ambit of NHAI. IRB Tumkur Chitradurga Tollway is not a third party at all. Even if you consider IRB Tumkur Chitradurga Tollway Ltd as a third party for the sake of argument, the information cannot be denied under section 11 of RTI act 2005, unless it is a trade secret. IRB Tumkur Chitradurga Tollway Ltd fails to explain how the video footages of a toll gate is their trade secret. Hence their reasoning is not justified.
Notice that they didn't mention any of the exemptions mentioned in section 8(1) or section 9 of RTI act 2005.When CPIO D S Naidu puts out the third party reference in his reply, he has to establish that the objection from the third party is in line with the section 11 which he has Quoted and also section 8(1) or Section 9 if the third party expresses any of the exemptions mentioned in section 8(1) or section 9. CPIO D S Naidu fails to establish that that objection is in line with any of the sections mentioned above...."
Relevant Facts emerging during Hearing:
The following were present:-
Appellant: Not present.
Respondent: Sirish Gangadhar, Addl. Director & CPIO present through video- conference.
The CPIO submitted that the Appellant in his earlier RTI Application bearing reference no. NHAIN/R/E/22/01405 had sought details of the CCTV footage etc. of the third parties which has been denied to the Appellant under Section 8(1)(j) of RTI Act. Now, by giving reference to the reply of his earlier RTI Application, the Appellant has sought clarifications through the instant RTI Application. He further submitted that however, a point wise reply along with permissible relevant information has already been furnished to the Appellant and no additional information is left at their end.
Decision:
The Commission observes from a perusal of records and after scrutinizing the contents of RTI Application that the information sought by the Appellant majorly does not conform to Section 2(f) of RTI Act and also contains the elements of personal information of the third parties which is hit by Section 8(1)(j) of RTI Act. In this regard, the Appellant shall note that outstretching the interpretation of Section 2(f) of the RTI Act to include deductions and inferences to be drawn by 3 the CPIO is unwarranted as it casts immense pressure on the CPIOs to ensure that they provide the correct deduction/inference to avoid being subject to penal provisions under the RTI Act.
In this regard, his attention is also drawn towards a judgment of the Hon'ble Supreme Court on the scope and ambit of Section 2(f) of RTI Act in the matter of CBSE vs. Aditya Bandopadhyay & Ors [CIVIL APPEAL NO.6454 of 2011] wherein it was held as under:
"35. At this juncture, it is necessary to clear some misconceptions about the RTI Act. The RTI Act provides access to all information that is available and existing.........A public authority is also not required to furnish information which require drawing of inferences and/or making of assumptions. It is also not required to provide `advice' or `opinion' to an applicant, nor required to obtain and furnish any `opinion' or `advice' to an applicant. The reference to `opinion' or `advice' in the definition of `information' in section 2(f) of the Act, only refers to such material available in the records of the public authority. Many public authorities have, as a public relation exercise, provide advice, guidance and opinion to the citizens. But that is purely voluntary and should not be confused with any obligation under the RTI Act." (Emphasis Supplied) Similarly, in the matter of Khanapuram Gandaiah vs Administrative Officer & Ors [SLP (CIVIL) NO.34868 OF 2009], Hon'ble Supreme Court held as under:
"6. Under the RTI Act "information" is defined under Section 2(f) which provides:
"information" means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, report, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force."
This definition shows that an applicant under Section 6 of the RTI Act can get any information which is already in existence and accessible to the public authority under law. Of course, under the RTI Act an applicant is entitled to get copy of the opinions, advices, circulars, orders, etc., but he cannot ask for any information as to why such opinions, advices, circulars, orders, etc. have been passed...."
"7....Public Information Officer is not supposed to have any material which is not before him; or any information he could have obtained under law. Under Section 6 of the RTI Act, an applicant is entitled to get only such information 4 which can be accessed by the "public authority" under any other law for the time being in force. The answers sought by the petitioner in the application could not have been with the public authority nor could he have had access to this information and Respondent No. 4 was not obliged to give any reasons as to why he had taken such a decision in the matter which was before him...."
(Emphasis Supplied) And, in the matter of Dr. Celsa Pinto, Ex-Officio Joint Secretary,(School Education) vs. The Goa State Information Commission [2008 (110) Bom L R 1238], the Hon'ble Bombay High Court held as under:
"..... In the first place, the Commission ought to have noticed that the Act confers on the citizen the right to information. Information has been defined by Section 2(f) as follows.
Section 2(f) -Information means any material in any form, including records, documents, memos e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force;
The definition cannot include within its fold answers to the question why which would be the same thing as asking the reason for a justification for a particular thing. The Public Information Authorities cannot expect to communicate to the citizen the reason why a certain thing was done or not done in the sense of a justification because the citizen makes a requisition about information. Justifications are matter within the domain of adjudicating authorities and cannot properly be classified as information." (Emphasis Supplied) Further, as regards the applicability of exemption clause of Section 8(1)(j) of RTI Act is concerned, attention of the Appellant is invited towards a judgement of Hon'ble Supreme Court of India in the matter of Central Public Information Officer, Supreme Court of India Vs. Subhash Chandra Agarwal in Civil Appeal No. 10044 of 2010 with Civil Appeal No. 10045 of 2010 and Civil Appeal No. 2683 of 2010 wherein while explaining the import of "personal information" envisaged under Section 8(1)(j) of RTI Act has been exemplified in the context of earlier ratios laid down by the same Court in the matter(s) of Canara Bank Vs. C.S. Shyam in Civil Appeal No.22 of 2009; Girish Ramchandra Deshpande vs. Central Information Commissioner &Ors., (2013) 1 SCC 212 and R.K. Jain vs. Union of India &Anr., (2013) 14 SCC 794.The following was thus held:5
"59. Reading of the aforesaid judicial precedents, in our opinion, would indicate that personal records, including name, address, physical, mental and psychological status, marks obtained, grades and answer sheets, are all treated as personal information. Similarly, professional records, including qualification, performance, evaluation reports, ACRs, disciplinary proceedings, etc. are all personal information. Medical records, treatment, choice of medicine, list of hospitals and doctors visited, findings recorded, including that of the family members, information relating to assets, liabilities, income tax returns, details of investments, lending and borrowing, etc. are personal information. Such personal information is entitled to protection from unwarranted invasion of privacy and conditional access is available when stipulation of larger public interest is satisfied. This list is indicative and not exhaustive..."
(Emphasis Supplied) Having observed as above and considering the absence of the Appellant during hearing to plead his case, the Commission finds no scope of further intervention in the matter.
The appeal is disposed of accordingly.
Saroj Punhani (सरोजपुनहािन) हािन) Information Commissioner (सूचनाआयु ) Authenticated true copy (अिभ मािणत स#यािपत ित) (C.A. Joseph) Dy. Registrar 011-26179548/ [email protected] सी. ए. जोसेफ, उप-पंजीयक दनांक / 6