Central Information Commission
Mrmanish Tandon vs Ministry Of Health & Family Welfare on 4 August, 2014
CENTRAL INFORMATION COMMISSION
ROOM NO. 329, SECOND FLOOR, C-WING
August Kranti Bhawan, Bhikaji Cama Place,
New Delhi-110066
Tel. No. 91-11-26717356
F.No.CIC/YA/A/2014/001212
Date of Hearing : 11.07.2014
Date of Decision : 04.08.2014
Appellant : Shri Manish Tandon,
Faridabad (Haryana)
(Third Party)
Respondent : Shri Ajit Kumar, CPIO
Shri R.C. Dandey, Dir./FAA Ministry of Health & Family Welfare, New Delhi Information Commissioner : Shri Yashovardhan Azad Decision The appeal has been filed by the Third Party, i.e. the husband of the applicant whose details regarding his appointment as a legal advisor in the Ministry of Health & Family Welfare, his job responsibilities, last salary/remuneration drawn, family particulars, etc. had been sought vide RTI application dt. NIL.
The RTI application, filed by the applicant/wife, was received in the respondent authority's office on 13.03.2014. The PIO, on 20.03.2013, requested the appellant (Third Party) to submit his objections, if any, in writing for disclosure of information within the meaning of Section 11(1) of the RTI Act. The appellant submitted his objections dt. 28.03.2014 stating that the information sought should not be provided to the applicant.
The PIO in his reply to the applicant dt. 04.04.2014 stated:-
"...(i) That the information sought by you regarding Shri Manish Tandon, are personal information u/s 8(1)(j) of the RTI Act, disclosure of which has no relationship to any public activity or interest, and there is no larger public interest involved to justify the disclosure of such information.
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(ii) And that the information sought by you is also third party information under section 11 of the RTI Act, which has been treated as confidential by the third party.
Further, the third party has also submitted objection against the disclosure of the information sought by you."
Aggrieved by the decision of the CPIO, the applicant/wife filed first appeal before the First Appellate Authority, who disposed of the appeal vide order dt. 05.06.2014 and in the said order, disclosed all information as sought by the applicant/wife, in a para- wise manner.
Hence, the present appeal has been filed by the Third Party, wherein, he has mainly prayed as under :-
1. Quashing and setting aside the order of the FAA.
2. Pass order/direction for recalling information.
3. Pass order/direction directing the applicant/wife not to use the information provided.
4. Pass orders in view of provisions of third party procedure as prescribed in the Act and in accordance with Reliance Industries judgement AIR 2007 Guj 203.
The appellant was present and respondent authority was represented by CPIO & FAA. Having heard the submissions of both the parties, the issue before this Commission is whether the details sought by the applicant/wife should be allowed or denied, since the appellant has taken the plea that disclosure of such information amounts to invasion of his privacy and will adversely impact his case in the court viz-a-viz his estranged wife.
From the plain reading of the CPIO's reply, the intent of the CPIO was not to disclose the information sought by the applicant/wife, as he has mentioned that the information is personal in terms of section 8(1)(j) and that objections against disclosure have been made by the third party. The CPIO's reply dt. 04.04.2014 was, in effect, an order u/s 11(3) of the RTI Act.
The matter travelled to First Appellate Authority, who then, instead of taking note of the ambivalence in the decision of the CPIO, chose to step into the shoes of CPIO and decided to provide information, without taking into consideration that the information was indeed, third party information and it is a settled law that such information which has been supplied by a "third party" or pertains to a "third party" and the CPIO decides to disclose the same, in public interest, even then the said disclosure should be in accordance with provisions of Section 11 of the RTI Act.
2 | P a g e In the present case, the FAA should have remanded the matter back to CPIO for him to determine whether the information should not be disclosed u/s 8(1)(j) as the information relates to third party, disclosure of which has no relationship to any public activity or interest or which would cause unwarranted invasion of the privacy of the individual unless the CPIO was satisfied that the larger public interest justifies the disclosure of such information; or whether CPIO intended to disclose the information relating to third party.
The FAA, instead, has provided complete information to the applicant, who is spearheading a private interest -- her own interest -- rather than any public interest. Therefore, order passed by the FAA is contrary to law and non-speaking in nature. The Gujarat High Court in Reliance Industries Ltd. V. Gujarat State Information (AIR 2007 Guj 203) held, "8. ...it is a duty vested in the Public Information Officer to give an opportunity of personal hearing to the third party, to get his submissions, whether he treats the information as confidential and whether information should be disclosed, if the information is relating to or is supplied by the third party...
10. Speaking order to be passed, when information relating to or supplied by the third party and has been treated as confidential by that third party.
...if the information supplied is pertaining to third party, reasons for imparting such information to the applicant ought to be given, otherwise, appellate authority cannot know the mind of Public Information Officer. An appeal is provided under Section 19(2) of the Act, 2005. Third party can prefer an appeal. Reasons reveal the mind of the Lower Authority. Reasons of an order is like soul of an order, without order must be declared ineffective. If the reasons are not given for disclosure of the information relating to third party or supplied by third party, the order can be known as non-speaking order...
12. In fact, Public Information officer if discloses the information in violation of the provisions of the Act, 2005 and if the appeal is preferred by the third party and if he succeeds, it is difficult to get back such information from the original applicant. Public Information Officer or any authority under the Act, 2005 if is deciding the disclosure of the information relating to third party or supplied by the third party, which has been treated as confidential by that third party and if any application for stay of the order is applied, it ought to be granted for a reasonable period, so that the third party can prefer First Appeal or Second Appeal."
3 | P a g e The Delhi High Court in Vijay Prakash V. UOI & Ors. held, "22. A private individual's right to privacy is undoubtedly of the same order as that of a public servant. Therefore, it would be wrong to assume that the substantive rights of the two differ. Yet, inherent in the situation of the latter is the premise that he acts for the public good, in the discharge of his duties, and is accountable for them. The character of protection, therefore, which is afforded to the two classes public servants and private individuals, has to be viewed from this perspective. The nature of restriction on the right to privacy is therefore of a different order; in the case of private individuals, the degree of protection afforded is greater; in the case of public servants, the degree of protection can be lower, depending on what is at stake. Therefore, if an important value in public disclosure of personal information is demonstrated, in the particular facts of a case, the protection afforded by Section 8(1)(j) may not be available; in such case, the information officer can proceed to the next step of issuing notice to the concerned public official, as a "third party" and consider his views on why there should be no disclosure. The onus of showing that disclosure should be made, is upon the individual asserting it; he cannot merely say that as the information relates to a public official, there is a public interest element. Adopting such a simplistic argument would defeat the object of Section 8(1)(j); the legislative intention in carving out an exception from the normal rule requiring no "locus" by virtue of Section 6, in the case of exemptions, is explicit through the non obstante clause...."
The applicant has, at no stage of the proceedings under the RTI Act, been able to prove any "public interest" associated with her queries. Her only plea, at the time of seeking information was that her husband is a public servant, which the appellant has denied and the respondent authority itself has stated that the appellant has not been employed by the Ministry directly. The fact is that the applicant is in litigation with the appellant, and requires information, in the course of a private dispute to establish the truth of her allegations.
4 | P a g e It is therefore clear that there is no public interest element in the disclosure of such personal information, in the possession of the information provider, i.e. the Ministry of Health & Family Welfare. The litigation is, pure and simple, a private one. Therefore, the basic protection afforded by virtue of the exemption (from disclosure) enacted under Section 8(1)
(j) cannot be lifted or disturbed.
In Reliance Industries, the Gujarat High Court explained the procedure to be followed when the order is against the third party, "16. Procedure to be followed when order is against third party:
Right to get information and right to treat the particular information as confidential is to be seen through the provisions of the Act, 2005 by Public Information Officer before disclosing the information because once the information is disclosed, which is confidential, it is extremely difficult for the higher/Appellate Courts to put the clock back. Release of information is like air or smell. Once it is allowed to spread over, it cannot be called back, by Appellate Forums. Therefore if the stay is prayed, by third party, against disclosure of information, relating to or supplied by third party and has been treated as confidential by that third party, it ought to be given, at least till appeal period is over. There is no restriction upon applicant, for further transmission of information, after getting the same. If stay is not granted, perhaps, no fruits of favourable order in Appeal can be enjoyed by third party. In practical sense, order cannot be upset by higher forums. Once information is allowed to go in the hand of applicant, it is irreversible process. It makes practically First Appeal or Second Appeal or Writ petition, infructuous or every time relief will have to be moulded. Therefore, to make First Appeal or Second Appeal, effective, stay ought to be granted, if the decision is against the third party under Right to Information Act, 2005. Confidential information ought not be disclosed by the Public Information Officer except for the situation, which are referred to hereinabove. Exceptions are mentioned in the Act, 2005 especially in Sections 8 and 9 of the Act, 2005. As stated hereinabove, Public Information Officer should keep in mind public 5 | P a g e interest outweigh harm or injury to the protected interest or Public Information Officer has to draw attention of his mind that larger public interest warrants disclosure of such information."
The appellant has prayed to quash and set aside the FAA's order, recall information already supplied to the applicant and applicant not to use the information provided and to stay operation of the FAA's order. However, keeping in view, the peculiar facts and circumstances of the case where information is already in public domain and therefore, it is incumbent upon the Commission to caution the Appellate Authority and make him conscious of the Rights of the third party, which are as much important and fundamental as the right of an individual to seek information. The due process prescribed in revealing third party information ought to have been strictly followed and while stepping into the place of the CPIO, the FAA should have taken due note of the process for revealing third party information, as prescribed under the RTI Act, 2005.
In these circumstances, the Commission is unable to provide any substantive relief to the appellant as the information is already in the hands of the contending party/wife, and recalling it will be an infructuous exercise.
However, the order of the FAA is quashed and set aside and this fact may be taken note of during future litigation, between the parties, by the concerned Court The Commission u/s 19(8)(a)(v) directs the respondent public authority to provide adequate training to CPIOs & FAAs so that they can discharge their duties with greater responsibility and do not commit such fatal errors that can change the course of private litigation in favour of a particular party.
(Yashovardhan Azad) Information Commissioner 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.
6 | P a g e (Tarun Kumar) Joint Secretary & Additional Registrar 7 | P a g e