Central Information Commission
Mr. Rakesh K Gupta vs Directorate General Of Income Tax ... on 30 October, 2009
CENTRAL INFORMATION COMMISSION
Club Building (Near Post Office)
Old JNU Campus, New Delhi - 110067
Tel: +91-11-26161796
Decision No. CIC/LS/A/2009/000972/SG/5338
Appeal No. CIC/LS/A/2009/000972
Relevant Facts emerging from the Appeal
Appellant : Mr. Rakesh K Gupta,
159 SFS Flats DDA, C & D
Block Shalimar Bagh,
Outer Ring Road,
New Delhi - 110088
Respondent : Mr L K S Dehiya
Addl. Dir. of Income Tax (Vig) & CPIO, Directorate General of Income Tax (Vig.), Dayal Singh Public Library Building 1, Deen Dayal Upadhyay Marg, New Delhi - 110002 RTI application filed on : 09/06/2009 PIO replied : 08/07/2009 First appeal filed on : 13/07/2009 First Appellate Authority order : 10/08/2009 Second Appeal received on : 25/08/2009 S. No Information Sought Reply of the PIO
1. Request for facilitating inspectionThe complaints filed by the appellant are of all vigilance complaints filed by being dealt with in the File No DGIT the appellant including CVC (V)/NZ/Com/127/05. The complaints references. have been investigated and closed with the approval of Central Vigilance (CVC Complaint no 89/5 dated Commission order no OM No 4/5/2005, 194/04 dated 23/11/2004, 005/ITX/103 dated 20/03/2008. 202/05 dated 13/10/2005) The other complaints are under process in file no DGIT (V)/NZ/Con/60/04 and therefore inspection of the same cannot be allowed under section 8(1) (h) The information is exempt from disclosure under section 8(1)(e) of the RTI Act, 2006 since it contains information on various issues which has been received in confidence from various authorities like CBI, CVC etc. Further the information may expose officials against whom vigilance inquiries were ordered and which are pending. Any inspection etc. of such records would cause unwarranted invasion of the privacy of the individual as long as charges against the officials are proved and section 8(1)(j) of the RTI Act gets invoked.
2. The copy of documents mentioned The complaints filed by the appellant are at the time of inspection. being dealt with in the File No DGIT (V)/NZ/Com/127/05. The complaints have been investigated and closed with the approval of Central Vigilance Commission order no OM No 005/ITX/103 dated 20/03/2008.
The other complaints are under process in file no DGIT (V)/NZ/Con/60/04 and therefore inspection of the same cannot be allowed under section 8(1) (h)
3. Request for facilitating the The information is exempt from inspection of register maintained by disclosure under section 8(1)(e) of the DGIT Vigilance office. RTI Act, 2006 since it contains information on various issues which has been received in confidence from various authorities like CBI, CVC etc. Further the information may expose officials against whom vigilance inquiries were ordered and which are pending. Any inspection etc. of such records would cause unwarranted invasion of the privacy of the individual as long as charges against the officials are proved and section 8(1)(j) of the RTI Act gets invoked.
4. The copy of file notings in cases no The complaints filed by the appellant are 89/5 dated 4/5/2005, 194/04 dated being dealt with in the File No DGIT 23/11/2004, 202/05 dated (V)/NZ/Com/127/05. The complaints 13/10/2005. have been investigated and closed with the approval of Central Vigilance Commission order no OM No 005/ITX/103 dated 20/03/2008.
The other complaints are under process in file no DGIT (V)/NZ/Con/60/04 and therefore inspection of the same cannot be allowed under section 8(1) (h) The other complaints are under process in file no DGIT (V)/NZ/Con/60/04 and therefore inspection of the same cannot be allowed under section 8(1) (h) of RTI.
5. The list of officers along with their The decisions on vigilance matters in phone numbers, email address and case of Group A officers are taken by a designations, responsible for the chain of officers and in the office the cases no 89/5 dated 4/5/2005, authority concerned is DGIT (Vig) whose 194/04 dated 23/11/2004, 202/05 details have been mentioned. dated 13/10/2005.
6. The list of each complaint filed by The information is exempt from the general public against the disclosure under section 8(1)(e) of the officers of the department during the RTI Act, 2006 since it contains period 1/1/2000 to 31/12/2008. information on various issues which has
7. Request for facilitating the been received in confidence from various inspection of all records in the above authorities like CBI, CVC etc. Further the said case. information may expose officials against whom vigilance inquiries were ordered and which are pending. Any inspection etc. of such records would cause unwarranted invasion of the privacy of the individual as long as charges against the officials are proved and section 8(1)(j) of the RTI Act gets invoked.
First Appeal:
Unsatisfactory information provided by the PIO.
Order of the First Appellate Authority:
It was held that the CPIO has rightly denied the information to the Appellant. The FAA relied on two decision of the Central Information Commission. In the first decision CIC/MA/A/2006/00281 dated 19/07/2006, where the Commission has held that as the information related to alleged irregularities in discharge of specific duties and responsibilities by the public servants, a well established procedure under law is duly followed in all such matters to ensure natural justice to all those who are affected. Therefore, it was held that the information was exempt under Section 8(1)(g) and (j). In the second decision CIC/SG/A/2009/00417 the Commission had upheld the reply of the PIO which claimed exemption under Section 8(1)(j) in disclosing information about disciplinary proceedings against another officer and the complaint filed by that officer against the Appellant. The CIC had held that there was no overriding public interest in disclosure of information sought.
Ground of the Second Appeal:
Unfair disposal of the case by the FAA.
Relevant Facts emerging during Hearing:
The following were present Appellant: Mr. Rakesh Kumar Gupta Respondent: Mr. L.K.S. Dehiya, Addl. Director of Income Tax (Vig.), PIO The PIO has denied the information since investigation by the Vigilance dept. is ongoing in the matter of the complaints of the Appellant. The PIO has claimed exemption under Section 8(1)(h) of the RTI Act. Section 8(1)(h) exempts "information which would impede the process of investigation or apprehension or prosecution of offenders".
The Respondent has claimed exemption under Section 8(1)(e), (h) and (j) for the various information sought by the Appellant.
The Commission asked the PIO to justify these exemptions and the PIO was directed to give an explanation as to how these exemptions apply. The PIO stated that he had nothing further to add to the reasons stated in the First Appellate Authority's order. The Appellant claimed that even if the exemptions apply, there was a larger public interest in the disclosure for which he had given written submission. The Appellant claimed that the exemptions under Section 8(1)(e)(h) and (j) are not applicable in the view of the Bhagat Singh v. Chief Information Commissioner & Ors. and CPIO, Supreme Court v. Subhash Ch. Agarwal for Section 8(1)(e).
The decision was reserved during hearing.
Decision announced on 30/10/2009:
The Department has claimed exemptions under Section 8(1)(e), (h) and (j). The application of each of these clauses needs to be discussed separately. Relevant provisions of Section 8(1) of the RTI Act are as follows:
8. (1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,--
(e) 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;
(h) information which would impede the process of investigation or apprehension or prosecution of offenders;
(j) information which relates to personal information the 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 Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information:
For Section 8(1)(e) of the RTI Act to apply there must be a fiduciary relationship and holder of information must hold the information in his fiduciary capacity. 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. financial analyst or trustee. The information must be given by the holder of information when there is a choice- as when a litigant goes to a particular lawyer, or a patient goes to particular doctor. It is also necessary that the principal character of the relationship is the trust placed by the provider of information in the person to whom the information is given. 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 giver. All relationships usually have an element of trust, but all of them cannot be classified as fiduciary.
In the present case, the information the Appellant is seeking information which the Department has received from members of the public who are complaining against various officers of the Department. Members of the public who have sent these complaints did not have choice with regard to who they would like to file a complaint with. Complaints of such nature would have to be filed with the Department which has the powers to investigate such complaints. Furthermore, the Department would not be acting on these complaints based on any loyalty towards the persons who have filed the complaints but because of the statutory duties entrusted with the Department. These duties require the Department to investigate such complaints. The element of trust involve in such a situation is not the one required for a fiduciary relationship. The complainants trust the Department to take action and to discharge its statutory duty. Traditionally, lawyer-client relationship and doctor-patient relationship have been considered to be examples of fiduciary relationship. In both these relationships, the lawyer and the doctor act on behalf and in the interest of their client and patient. But in the present case the Department would be investigating the complaints not on behalf of the Complainant or in the Complainant's personal interest. It is possible that while discharging its duties, the Department may benefit the Complainant but that does not amount to a fiduciary relationship between the Complainants and the Department.
During the hearing the PIO was asked to explain the application of the exemptions in the present case and he stated that he did not have anything further to add to the order of the First Appellate Authority. Interestingly, the First Appellate Authority has not even referred to Section 8(1)(e) of the RTI Act in its order. Therefore, information sought by the Appellant cannot be denied on the basis of Section 8(1)(e).
Section 8(1)(h) of the RTI Act would only apply if the investigation is underway and the disclosure of the information would impede the process of investigation or apprehension/prosecution of offenders. The PIO stated in his reply that some of the complaints with regard to which information has been sought are still under investigation, the information cannot be supplied in accordance with Section 8(1)(h). However, he has not explained how the disclosure of information would impede the investigation procedure. Even the First Appellate Authority has not invoked or justified the application of Section 8(1)(h) in its order. According to Section 19(5) of the RTI Act, the onus to prove that a denial of a request was justified shall be on the PIO who denied the request. The Commission has not been shown any justification for the application of Section 8(1)(h) in the present case. In Writ Petition WP( C) 3114/2007 in the Delhi High Court in Bhagat Singh vs. Chief Information Commissioner & Ors., the Court had ruled, "13. Access to information, under Section 3 of the Act, is the rule and exemptions under Section 8, the exception. Section 8 being a restriction on this fundamental right, must therefore is to be strictly construed. It should not be interpreted in manner as to shadow the very right itself. Under Section 8, exemption from releasing information is granted if it would impede the process of investigation or the prosecution of the offenders. It is apparent that the mere existence of an investigation process cannot be a ground for refusal of the information; the authority withholding information must show satisfactory reasons as to why the release of such information would hamper the investigation process. Such reasons should be germane, and the opinion of the process being hampered should be reasonable and based on some material. Sans this consideration, Section 8(1)(h) and other such provisions would become the haven for dodging demands for information.
14. A rights based enactment is akin to a welfare measure, like the Act, should receive a liberal interpretation. The contextual background and history of the Act is such that the exemptions, outlined in Section 8, relieving the authorities from the obligation to provide information, constitute restrictions on the exercise of the rights provided by it. Therefore, such exemption provisions have to be construed in their terms; there is some authority supporting this view ( See Nathi Devi v.
Radha Devi Gupta 2005 (2) SCC 201; B. R. Kapoor v. State of Tamil Nadu 2001 (7) SCC 231 and V. Tulasamma v. Sesha Reddy 1977 (3) SCC 99). Adopting a different approach would result in narrowing the rights and approving a judicially mandated class of restriction on the rights under the Act, which is unwarranted."
No explanation has been given by the PIO which would show that the process of investigation would be impeded. Hence the Commission concludes that the exemption claimed under Section 8 (1) (h) have not been justified by the respondent.
The PIO has relied on Section 8(1)(j) to protect the identity of the officials against whom complaints have been filed till the charges has been proven. The Commission does not see any merit in this argument. Information with regard to complaints filed against any public officer with regard to the discharge of his official duties have relationship to a public activity or interest and therefore cannot fall within the ambit of Section 8(1)(j), unless it is shown that it is an unwarranted invasion on the privacy of the individual. Charges or complaints against a Public servant cannot be considered to fall in the domain of his private life. Transparency demands that charges against a Public servant against his performance as a Public servant be known to the Citizens and these cannot be called an intrusion on his privacy. The Supreme Court has also held that charges against those who want to become Public servants must also be revealed to Citizens. Under these circumstances there can be no justification to claim exemption for not disclosing charges against a Public servant.
To justify the application of Section 8(1)(j), the First Appellate Authority has relied on two decisions of the Commission. Perusal of both decisions reveal that application of Section 8(1)(j) has not been explained and therefore the Commission is unable to accept the precedential values of these decisions.
In view of the arguments advanced above, the exemptions of Section 8 (1) (e),(h) and
(j) are held to be inapplicable in the present case.
The Appeal is allowed.
The PIO is directed to facilitate an inspection of the records as sought in the RTI application and provide the photocopies required by the Appellant. 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 RTI Act.
Shailesh Gandhi Information Commissioner 30 October 2009 (In any correspondence on this decision, mention the complete decision number.) (RR)