2012 (6) TMI 661 - SC - Indian Laws

RTI - Evaluation of mark sheet - re-evaluation / re-verification - Whether the instructions and solutions to questions (if any) given by ICAI to examiners and moderators, are intellectual property of the ICAI, disclosure of which would harm the competitive position of third parties and therefore exempted under section 8(1)(d) of the RTI Act? - held that - section 8(1)(d) of the RTI Act does not bar or prohibit the disclosure of question papers, model answers (solutions to questions) and instructions if any given to the examiners and moderators after the examination and after the evaluation of answer scripts is completed, as at that stage they will not harm the competitive position of any third party. We therefore reject the contention of the appellant that if an information is exempt at any given point of time, it continues to be exempt for all time to come. Whether providing access to the information sought (that is instructions and solutions to questions issued by ICAI to examiners and moderators) would involve an infringement of the copyright and therefore the request for information is liable to be rejected under section 9 of the RTI Act? - held that - The information sought is a material in which ICAI claims a copyright. It is not the case of ICAI that anyone else has a copyright in such material. In fact it has specifically pleaded that even if the question papers, solutions/model answers, or other instructions are prepared by any third party for ICAI, the copyright therein is assigned in favour of ICAI. Providing access to information in respect of which ICAI holds a copyright, does not involve infringement of a copyright subsisting in a person other than the State. Therefore ICAI is not entitled to claim protection against disclosure under section 9 of the RTI Act. Whether the instructions and solutions to questions are information made available to examiners and moderators in their fiduciary capacity and therefore exempted under section 8(1)(e) of the RTI Act? - held that - nformation sought under queries (3) and (5) were exempted under section 8(1)(e) and that there was no larger public interest requiring denial of the statutory exemption regarding such information. The High Court fell into an error in holding that the information sought under queries (3) and (5) was not exempted. Whether the High Court was justified in directing the appellant to furnish to the first respondent five items of information sought (in query No. 13) relating to Regulation 39(2) of Chartered Accountants Regulations, 1988? - held that - it is necessary to make a distinction in regard to information intended to bring transparency, to improve accountability and to reduce corruption, falling under section 4(1)(b) and (c) and other information which may not have a bearing on accountability or reducing corruption. The competent authorities under the RTI Act will have to maintain a proper balance so that while achieving transparency, the demand for information does not reach unmanageable proportions affecting other public interests, which include efficient operation of public authorities and Government, preservation of confidentiality of sensitive information and optimum use of limited fiscal resources. Appeal is allowed in part and the order of the High Court is set aside and the order of the CIC is restored, subject to one modification in regard to query (13) ICAI to disclose to the first respondent, the standard criteria, if any, relating to moderation, employed by it, for the purpose of making revisions under Regulation 39(2).

Summary

Issues Involved:
1. Disclosure of information under the Right to Information Act, 2005 (RTI Act).
2. Exemption under Section 8(1)(d) and (e) of the RTI Act.
3. Infringement of copyright under Section 9 of the RTI Act.
4. Moderation process under Regulation 39(2) of the Chartered Accountants Regulations, 1988.

Detailed Analysis:

Issue 1: Disclosure of Information under RTI Act
The appellant, Institute of Chartered Accountants of India (ICAI), refused to disclose certain information requested by the respondent under the RTI Act. The respondent sought information on examiners' qualifications, evaluation procedures, instructions to examiners, model answers, remuneration, and the number of students appearing and passing the exams. The ICAI provided partial information but withheld details related to instructions to examiners, model answers, and moderation criteria under Regulation 39(2).

Issue 2: Exemption under Section 8(1)(d) and (e) of the RTI Act
Section 8(1)(d): The ICAI claimed that the instructions and solutions provided to examiners are intellectual property and their disclosure would harm the competitive position of third parties. The Supreme Court held that while the information is intellectual property, the exemption does not apply once the examination is over, as it would not harm the competitive position of any third party.

Section 8(1)(e): The ICAI argued that the information is held in a fiduciary capacity. The Court agreed, stating that the instructions and solutions given to examiners and moderators are held in confidence and thus fall under the fiduciary relationship exemption. Consequently, this information is exempt from disclosure.

Issue 3: Infringement of Copyright under Section 9 of the RTI Act
The ICAI contended that providing the requested information would infringe its copyright. The Court clarified that Section 9 protects against infringement of copyright held by a person other than the State. Since ICAI, a statutory body, holds the copyright, Section 9 is inapplicable. Furthermore, furnishing information under RTI does not constitute copyright infringement under the Copyright Act, 1957.

Issue 4: Moderation Process under Regulation 39(2)
The respondent sought details on the moderation process, including the number of times marks were revised, criteria for revisions, and the authority responsible. The Court explained the moderation process as essential for maintaining uniformity in evaluation. The ICAI was directed to disclose the standard criteria for moderation if it exists. However, the ICAI was not required to provide data not maintained in its records.

Conclusion:
The Supreme Court allowed the appeal in part, setting aside the High Court's order and restoring the Central Information Commission's (CIC) order with a modification. The ICAI was instructed to disclose the standard criteria for moderation under Regulation 39(2) if available. The Court emphasized the balance between transparency and the efficient functioning of public authorities, ensuring that the RTI Act's objectives are met without compromising other public interests.