Central Information Commission
Ms.Sakshi Mathur vs Ministry Of Health And Family Welfare on 25 January, 2012
CENTRAL INFORMATION COMMISSION
Club Building (Near Post Office)
Old JNU Campus, New Delhi - 110067
Tel: +91-11-26161796
Decision No. CIC/SG/A/2011/003226/17096
Appeal No. CIC/SG/A/2011/003226
Relevant Facts emerging from the Appeal:
Appellant : Ms. Sakshi Mathur,
D/o Mr. Kiran Narain Mathur,
H.No.737, Lawan Ka Gher,
Bandri Ka Nasik,
Jaipur-302002,
Rajasthan
Respondent : Dr. Nand Kumar,
CPIO (Examination Section) & Sub-Dean (Examination)
& Associate Professor of Psychiatry,
All India Institute of Medical Sciences,
Ansari Nagar, New Delhi-110608
RTI application filed on : 16/07/2011
PIO replied on : 05/07/2011
First Appeal filed on : 22/08/2011
First Appellate Authority order of : 20/09/2011
Second Appeal received on : 15/11/2011
Information sought:
The Appellant had appeared in the AIIMS-MBBS Entrance Examination, 2011 held on 01/06/2011 at Rukmini Devi Public School, CD-Block (Near TV Tower), Pitampura, Delhi under roll number 1257802, regarding which, she sought the following information:
1. Certified copy of question booklet of AIIMS-MBBS Entrance Examination, 2011 of roll number 1257802.
2. Certified copy of OMR answer sheet of roll number 1257802.
3. Certified copy of Answer Key of AIIMS-MBBS Entrance Examination, 2011.
4. Certified copy of marks obtained and the rank secured by roll number 1257802.
Reply of Public Information Officer (PIO):
"Point no. 1, 2 & 3:
The Questions and their answers are prepared and edited by AIIMS, thus, the product remains "intellectual property" of AIIMS. Since these questions constitute part of Question Bank and likely to be used for development of online examination system, the supply of questions and their answers booklet would be against larger public interest.
In this regard the AIIMS has filed a Letters Patent Appeal (LPA) before the Hon'ble Delhi High Court which has been admitted, and the matter is Sub-Judice.Page 1 of 5
Point no.4:
As per the provision of prospectus on page no.11 under section 4:3, para-2, the marks of the individual candidates will be available on the AIIMS website after completion of admission process."
Grounds for First Appeal:
Incomplete and unsatisfactory information provided by the PIO.
Order of the First Appellate Authority (FAA):
The FAA informed the Appellant that it was in larger public interest that information with respect to question papers and their answer keys was not provided. AIIMS had filed a LPA against the order passed by the Hon'ble High Court of Delhi ("Delhi High Court") on 22/12/2010, which was admitted. Since the matter was sub-judice, no information could be provided. As far as the marks obtained and the rank secured by roll number 1257802 was concerned, the admission process for the MBBS course at AIIMS would be complete on 30/09/2011. Marks of the individual candidates would be available on the AIIMS website after completion of admission process.
Grounds for Second Appeal:
Incomplete and unsatisfactory information provided by the PIO and unfair disposal of the First Appeal by FAA.
Relevant Facts emerging during Hearing held on 19 January 2012: The following were present:
Appellant: Ms. Sakshi Mathur, via video-conference from NIC Studio-Jaipur; Respondents: Dr. Nand Kumar, CPIO & Associate Professor of Psychiatry and Mr. Sheikh Faraz Iqbal, Advocate.
"The PIO stated that information regarding queries 2 and 4 was provided to the Appellant on receipt of the Commission's notice. However, a copy of the question booklet of AIIMS-MBBS Entrance Examination, 2011 of roll number 1257802 and the answer key of AIIMS-MBBS Entrance Examination, 2011 has not been provided. The Respondents submitted written explanations and claimed that the information was exempt from disclosure under Sections 8(1)(d), (e) and 9 of the RTI Act. The Respondents argued that the question booklets are prepared by the faculty members who are experts in the field and therefore the information was held by the Respondent- public authority in a fiduciary capacity. The Respondents further stated that there was a stay on the Commission's decision in LPA 487/2011."
The order was reserved at the hearing held on 19/01/2012.
Decision announced on 25 January 2012:
The Commission has perused the written submissions of the Respondents and has addressed the contentions raised by them below.
The Respondents have argued that the question papers, which were prepared by subject experts for AIIMS are original literary works, copyright to which vests in AIIMS. Further, as per Section 57 of the Copyright Act, 1957, AIIMS is statutorily required to protect the rights of the authors.
This was also reflected in the examination instructions to the candidates and also by way of explicit declarations. Since copyright vests with AIIMS, it can legitimately restrict the circulation of question papers or exclude others from doing it. Since copyright is a part of 'intellectual Page 2 of 5 property right', which is covered under Section 8(1)(d) of the RTI Act, AIIMS cannot be compelled to disclose the information. In fact, AIIMS is under no obligation to disclose any such material unless it is satisfied that larger public interest warrants disclosure of information-which was not so in the present case. Moreover, such disclosure would hamper the position of experts who were 'third parties' by enabling others in their field to replicate their work and use it for their own commercial purposes.
Section 8(1)(d) of the RTI Act provides as follows:
"8. (1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,--
...
(d) 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;"
Section 8(1)(d) of the RTI Act exempts the PIO from furnishing information including 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 disclosure of such information. 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. To claim this exemption, the PIO must establish that the information sought relates 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 of a third party.
In the instant case, it has been stated that the information sought is the intellectual property of AIIMS. Section 8(1)(d) of the RTI Act is attracted only where disclosure of information would harm the competitive position of a third party and not of AIIMS itself. Moreover, it is apparent that AIIMS is not a commercial organisation that competes with other organisations. Further, it is stated that question papers are prepared by experts for AIIMS. It does not appear that these experts are in a competitive business such that disclosure of these question papers along with their keys could harm their competitive position. Furthermore, it may not be out of place to mention that Section 57 of the Copyright Act, 1957 is attracted in specific circumstances only, none of which have been demonstrated by the Respondents and therefore, is not relevant to the present matter. In view of the same, the Respondents' contention that the information sought was exempt under Section 8(1)(d) of the RTI Act is rejected.
The Respondents have also claimed that the information sought was exempt from disclosure under Section 9 of the RTI Act. Section 9 of the RTI Act states- "Without prejudice to the provisions of section 8, a Central Public Information Officer or State Public Information Officer, as the case may be may reject a request for information where such a request for providing access would involve an infringement of copyright subsisting in a person other than the State". Section 9 of the RTI Act may be claimed as an exemption from disclosure of information where such disclosure would infringe a copyright subsisting in a person other than the State. Given that Page 3 of 5 the Respondents have already stated that the information sought is the intellectual property of AIIMS, Section 9 of the RTI Act is not applicable to the instant matter.
The Respondents have further contended that the information sought was exempt from disclosure under Section 8(1)(e) of the RTI Act. They have relied on certain definitions of the term "fiduciary" and argued that the experts entrusted their intellectual work to AIIMS necessitating a high degree of confidence, trust and good faith.
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;". 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, since question papers are prepared by experts for AIIMS, there may be some element of trust between such experts and AIIMS. But even then, all relationships which have an element of trust need not necessarily be classified as 'fiduciary'. There does not appear to be a fiduciary relationship between the experts and AIIMS where the latter is required to act for the benefit of the former. 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. Therefore, the Respondents' contention that the information sought was exempt under Section 8(1)(e) of the RTI Act is rejected.
The Respondents have also raised certain ancillary contentions that disclosure of the information sought would serve the commercial interests of few persons. This Commission is of the considered view that whether disclosure of information would serve the commercial interest of few persons would necessarily entail examination of the purpose for seeking the information, which is prohibited under Section 6(2) of the RTI Act. The Respondents have also argued that since the question bank was limited, disclosure of information would no longer render such questions secret, compromise on the high standard of the selection procedure and selection of meritorious candidates. At this juncture, it is relevant to mention that it is legally well- established that information under the RTI Act may be denied only on the basis of Sections 8 and 9 of the RTI Act only. These additional contentions raised by the Respondents for denying the Page 4 of 5 information do not come within the purview of either Section 8 or 9 of the RTI Act and therefore, are not tenable.
The Respondents further stated that there was a stay on the Commission's decision in LPA 487/2011. It appears that the issue before the Commission in the said matter as well as the High Court is in relation to a set of information, which is different from that in the present matter. Therefore, the Respondents' submissions are not relevant.
The Appeal is allowed. The PIO is directed to provide the complete information as available on record on queries 1 and 3 to the Appellant before 20 February 2012.
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 25 January 2012 (In any correspondence on this decision, mention the complete decision number.)(SH) Page 5 of 5