Central Information Commission
Dr. Mahesh Mangalat vs Union Public Service Commission on 20 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/2011/000270/SG/13574
Appeal No. CIC/SM/A/2011/000270/SG
Relevant Facts emerging from the Appeal:
Appellant : Dr. Mahesh Mangalat,
Mangalat, S. K. B. S. Road,
Mahe - 673 310.
Respondent : Mr. N. K. Sharma
Public Information Officer & Dy. Secretary
Union Public Service Commission, UPSC
Dholpur House,
New Delhi
RTI application filed on : 24/04/2010
Reply of the PIO : 20/05/2010
First appeal filed on : 21/06/2010
FAA order : 16/07/2010
Second appeal received on : 08/09/2010
Information soughtin the RTI Application :
1. A copy of the List of Selected Candidates, sent to the Government of Puducherry, prepared based on the interview held on 23 and 24th of April 2009, for the post of two Principals in Government Colleges under Puducherry Administration, vide UPSC Notification No.21/2008.
2. A photo copy of the Minutes of the Selection Committee constituted for the above mentioned interview held on 23rd and 24th of April 2009, along with subsequent file notings.
3. A photo copy of the application and its annexure submitted to UPSC by the selected candidates.
4. Whether any query has been sent to Government of Puducherry in connection with the finalisation of selected candidates, between 15th April 2010 and 21st April 2010. If yes, a copy of that communication and its reply from Government of Puducherry.
5. Name, designation and address of the members of the Selection Committee.
Reply of the PIO:
Item No.1:- The names of the following two selected candidates were recommended to the Puducherry Government for appointment to the Two posts of Principal under Government of Puducherry in Government Arts and Science Colleges1 Puducherry against Advt. No.21/Item No 14 of 2008:-
i) Shri Sasi Kanta Dash (Roll No.17) ii) Dr. (Mrs) Thamzharasj Tamizhmani (Roll No.48)
Item No.2:- This information pertain to core areas of functioning of the Commission and disclosure of the same does not serve any public interest or activity and rather disclosure of the same would harm the protected interest of the Commission. Further, these records are kept in the nature of secret documents an intellectual property of the Commission and cannot be shared under Section 8(1) (d) of the RTI Act, 2005. Item No.3 :- The candidates have giver their personal details to the UPSC in a fiduciary relationship with the expectation that this information would not be disclosed to others Page 1 of 5 Hence, disclosure of information held by UPSC in a fiduciary capacity, is exempted from disclosure under Section 8(1)(e)of the RTI Act. 2035. Application dossiers of the Recommended candidates have already been sent to the Government of Puducherry.
Item No.4: This information pertains to the core areas of functioning of the Commission and disclosure of the same does not serve any public interest or activity and rather disclosure of these information would harm the protected interest of the Commission. Further these records are kept in the nature of secret documents and intellectual property of the Commission under Section 8(1 )(d) of the RTI Act, 2005. Item No.5:- The Members of Selection Committee furnish their personal details to the UPSC in a fiduciary relationship with the expectation that this information would not be disclosed to others. Hence, disclosure of information held by UPSC in a fiduciary capacity is exempted from disclosure under Section 8(1)(e) of the RTI Act, 2005.
Grounds for First appeal:
Information provided incomplete, misleading and unsatisfactory.
FAA order:
Satisfactory reply has been sent to the appellant.
Grounds for Second appeal:
The information provided is unsatisfactory.
Relevant Facts emerging during hearing held on 22/06/2011:
The following were present Appellant: Dr. Mahesh Mangalat on video conference from NIC- Kannur Studio; Respondent: Mr. N. K. Sharma, PIO & Dy. Secretary and Mr. Kamal Bhagat, FAA.
The Appellant stated that the denial of information by the PIO on query nos. 3 and 5 on the ground that the information was exempted under Section 8(1)(e) of the RTI Act was not justified. He also contested the PIO's denial of information on query no. 4 on the ground that exemption was claimed under Section 8(1)(d) of the RTI Act. The PIO also refused to furnish information on query no. 2. The PIO stated that his claim for exemption on query nos. 2 and 5 was upheld by the Commission's decision in CIC/WB/A/2009/000734 of 21/07/2009. The PIO admitted that his claim for query-3 being exempt was denied by the CIC in an earlier decision. The PIO however stated that they have obtained a stay order against the implementation of the Commission's orders for disclosing the information.
Regarding query no. 4 the FAA stated that there was no query that was sent by UPSC in this matter. However, the PIO stated that on 20/04/2010 two communications were sent in this matter and he had no objections in giving them to the Appellant. The Appellant insisted that there was a query in existence but the PIO categorically denied the same.
The Appellant submitted that as regards query no. 2 the Commission in an earlier decision no. CIC/WB/A/2007/00185 dated 19/02/2007 had decided that the proceedings/minutes of selection committee meeting were disclosable.
The Commission reserved the order during the hearing held on 22/06/2011.
Decision announced on July 20, 2011:
Based on perusal of the papers and submissions of the parties, the Commission noted that information on query no. 2 was denied to the Appellant on the basis of Section 8(1)(d) of the RTI Act. Further, information on query nos. 3 and 5 was denied on the basis of Section 8(1)(e) of the RTI Act. Moreover, at Page 2 of 5 the hearing held on 22/06/2011, the PIO argued that his claim for exemption of the information sought in query nos. 2 and 5 had been upheld by the decision of the Commission in Appeal No. CIC/WB/A/2009/000734. He also stated that information relevant to query no. 4 (although denied initially) would be provided to the Appellant.
Section 8(1)(d) of the RTI Act exempts from disclosure- "information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information;". From a plain reading of Section 8(1)(d) of the RTI Act it follows that the PIO is exempted from furnishing information including commercial confidence, trade secrets, intellectual property, 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. The burden of establishing that the information sought was exempted from disclosure under Section 8(1)
(d) of the RTI Act shall lie on the PIO.
The Commission has perused the website of UPSC. As per the website, UPSC is a Constitutional body established under Article 315 of the Constitution of India set up for ensuring unbiased recruitment to various government services in the territory at federal and provincial levels. UPSC has been entrusted with the following duties and role under the Constitution of India:
1. Recruitment to services and posts under the Union through conduct of competitive examinations;
2. Recruitment to services and posts under the Central Government by selection through interviews;
3. Advising on the suitability of officers for appointment on promotion as well as transfer- on- deputation;
4. Advising the Government on all matters relating to methods of recruitment to various services and posts;
5. Disciplinary cases relating to different civil services; and
6. Miscellaneous matters relating to grant of extra ordinary pensions, reimbursement of legal expenses, etc. In view of the aforementioned functions, it is apparent that UPSC is not a commercial organization, which competes with other organizations. It is a Constitutional body primarily set up for the purpose of recruiting persons for Government posts. Moreover, the expenses of the Union or a State Public Service Commission, including any salaries, allowances and pensions payable to or in respect of its members or staff, is charged on the Consolidated Fund of India or, as the case may be, the Consolidated Fund of the State. The Appellant, in query no. 2, has sought information regarding minutes of the Selection Committee constituted for a certain interview along with subsequent file notings. In order to claim the exemption under Section 8(1)(d) of the RTI Act, the PIO must establish that the information sought must relate to commercial or trade secrets, intellectual property or similar information. If the information sought satisfies this condition, then the PIO must establish that disclosure of this information would result in harming the competitive position.
In the present matter, the information sought in query no. 2 does not relate to commercial or trade secrets, intellectual property or similar information. Given that UPSC is not in a competitive business, any claim of harm to its competitive position may not be tenable. In view of the same, the contention of the PIO that information sought in query no. 2 was exempted under Section 8(1)(d) of the RTI Act is rejected.
Further, the PIO has relied on the decision of the Commission in Appeal No. CIC/WB/A/2009/000734 dated 30/03/2010, which has been perused by this Commission. In the said matter, it was held that names of panelists along with their organizations, who had conducted the relevant selection interview could not be provided as it was exempted under Section 8(1)(e) of the RTI Act. It was observed that- "The Page 3 of 5 description of UPSC's convention regarding such participation, clearly establishes a mutual relationship existing between the Commission and the person invited to participate, in a relationship of mutual trust and hence decidedly fiduciary. Under the circumstances, we must agree that the order of the Appellate Authority with regard to the question at Query No. 2 is fully in keeping with the requirements of Sec. 8(1)
(e) of the RTI Act". The then Chief Commissioner has also quoted the observations of S. Ravindra Bhat, J. of the High Court of Delhi in CPIO, Supreme Court of India v. S. C. Aggarwal & Anr. W. P. No. 288/200 decided on 02/09/2009 wherein the meaning of "fiduciary" was explained as follows:
"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 is 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."
Section 8(1)(e) of the RTI Act exempts from disclosure "information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information;". Though this Commission agrees with the observations of S. Ravindra Bhat, J., as mentioned above, it is unable to understand how it was applied by the then Chief Information Commissioner. Moreover, this Commission in a number of decisions has held that the traditional definition of a fiduciary is a person who occupies a position of trust in relation to someone else, therefore requiring him to act for the latter's benefit within the scope of that relationship. In business or law, we generally mean someone who has specific duties, such as those that attend a particular profession or role, e.g. doctor, lawyer, financial analyst or trustee. Another important characteristic of such a relationship is that the information must be given by the holder of information who must have a choice- as when a litigant goes to a particular lawyer, a customer chooses a particular bank, or a patient goes to particular doctor. An equally important characteristic for the relationship to qualify as a fiduciary relationship is that the provider of information gives the information for using it for the benefit of the one who is providing the information. All relationships usually have an element of trust, but all of them cannot be classified as fiduciary. Information provided in discharge of a statutory requirement, or to obtain a job, or to get a license, cannot be considered to have been given in a fiduciary relationship.
In the present matter, names, designation and address of the members of the Selection Committee is not held by UPSC in a fiduciary capacity. UPSC does not appear to be holding a position of trust in relation to the members of the Selection Committee thereby requiring it to act for the benefit of the latter. Merely because the participation of the members of the Selection Committee is expected to be kept confidential does not mean that a fiduciary relationship is created between UPSC and the members of the Selection Committee. In the functioning of the Government, there may be various instances where certain documents, records, procedures, etc have been treated as confidential and at times, explicitly so provided. However, with the advent of the RTI Act, such information has to be provided subject only to the exemptions of the RTI Act viz. Sections 8 and 9. The criteria defining a fiduciary relationship, as described above, must be satisfied which does not appear to have been done in the present matter.
Page 4 of 5Therefore, the decision of the Commission in Appeal No. CIC/WB/A/2009/000734 is not relevant to the instant case.
As regards query no. 3, the information was denied by the PIO claiming Section 8(1)(e) of the RTI Act. Given the meaning of fiduciary (described above), the Commission is of the considered view that the said information was made available by the selected candidates to UPSC in compliance of procedural requirements to obtain certain posts; the candidates did not have any choice in providing the information to UPSC. In view of the same, the contention of the PIO that information on query no. 3 was exempted under Section 8(1)(e) of the RTI Act is rejected.
The Appeal is allowed. The PIO is directed to provide the complete information sought by the Appellant in query nos. 2, 3 and 5 as per available records before 16 August 2011. Further, as regards query no. 4, the PIO is directed to furnish a copy of the two communications sent on 20/04/2010 (as mentioned by the FAA) to the Appellant before 16 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 20 July 2011 (In any correspondence on this decision, mention the complete decision number.)(SS) Page 5 of 5