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TMI Blog2012 (4) TMI 424X X X X Extracts X X X X X X X X Extracts X X X X ..... e held that the information sought by the appellant herein is "the third party information" wherein the third party may plead a „privacy‟ defence and the proper question would be as to whether divulging of such an information is in the public interest or not. Thus, the matter has been remitted back to the Chief Information Commissioner to consider this issue after following the procedure prescribed in Section 11 of the RTI Act and then decide the same. The learned Single Judge has relied upon the Division Bench judgment of this Court in the case of Arvind Kejriwal Vs. CPIO, AIR 2010 Delhi 216 for taking the aforesaid course of action. 3. Undeterred, the appellant has filed the instant intra-Court appeal questioning the manner in which the writ petition is disposed of as the appellant pleads that without further ado he is entitled to information sought for. Though indicated above in brief, we may reiterate that as per the appellant, there was certain complaints qua corruption against Ms. Jyoti Balasundaram, Member/CESTAT. After examining this complaint, the then President of CESTAT who was former Chief Justice of High Court made certain adverse entries in the ACR of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n file of the comments made by the reporting and the reviewing officers in the ACRs of a public servant, stands on the same footing as the ACRs itself. It cannot, therefore, be authorized to be disclosed to a third-party. In fact, even disclosure of such files to the public servant to whom the ACRs may relate is itself open to debate." 5. Before the learned Single Judge, the appellant argued that he wanted information in a separate file than the ACR file, viz., the "follow up action" which was taken by the Ministry of Finance about integrity remarks in the ACR of the Member and that was distinguished and different from asking for copy of the ACR itself. The learned Single Judge had directed production of original record and after perusing the same, came to the conclusion that the information sought was not different or distinguished from ACR as is clear from the following remarks: "8. Upon a perusal of the file produced by the respondent, to me it appears that the said follow up action file cannot be said not to be connected with, or related to the Annual Confidential Report file of Ms. Jyoti Balasundaram. The said file contains correspondence in relation to the remark recorded b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terest justifies disclosure of such information. What is immune from disclosure as personal information is not one relating to any public activity or interest and what is prohibited is furnishing of information which causes unwarranted invasion of the privacy of the individual. In this case we notice that the information sought by the first respondent pertains to copies of documents furnished in a domestic enquiry against one of the employees of the appellant-organisation. Domestic enquiry is an open trial which is essentially initiated as part of disciplinary proceedings against the employee. Domestic enquiry involves production of evidence including documents, some of which are even public documents. We do not know how documents produced in a domestic enquiry can be treated as documents relating to personal information of a person, the disclosure of which will cause unwarranted invasion of his privacy. Similar is the position with regard to the particulars of Confidential Reports maintained in respect of co-employees of the first respondent all of whom are Scientists. Confidential Reports are essentially performance appraisal by higher officials which along with other things cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontrasted with a situation where a government employee is seeking information concerning his own grading, ACR etc. That obviously does not involve "third party" information. 23. What is, however, important to note is that it is not as if such information is totally exempt from disclosure. When an application is made seeking such information, notice would be issued by the CIC or the CPIOs or the State Commission, as the case may be, to such "third party‟ and after hearing such third party, a decision will be taken by the CIC or the CPIOs or the State Commission whether or not to order disclosure of such information. The third party may plead a „privacy‟ defence. But such defence may, for good reasons, be overruled. In other words, after following the procedure outlined in Section 11(1) of the RTI Act, the CIC may still decide that information should be disclosed in public interest overruling any objection that the third party may have to the disclosure of such information. 24. Given the above procedure, it is not possible to agree with the submission of Mr. Bhushan that the word „or‟ occurring in Section 11 (1) in the phrase information "which relates ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CRs, grading, vigilance clearance etc., the mandatory procedure outlined under Section 11(1) cannot be dispensed with. The short question framed by this Court in the first paragraph of this judgment was answered in the affirmative by the CIC. This Court reverses the CIC‟s impugned order and answers it in the negative. 27. The impugned order dated 12th June 2008 of the CIC and the consequential order dated 19th November 2008 of the CIC are hereby set aside. The appeals by Mr. Kejriwal will be restored to the file of the CIC for compliance with the procedure outlined under Section 11 (1) RTI Act limited to the information Mr. Kejriwal now seeks" 9. In the aforesaid case also, information sought was in the personal files of officers which included ACRs, albeit, in the context of promotion of such officers. Comparative assessment of relative merits of the officers by the Departmental Promotion Committee (DPC)/Selection Committee based on the evaluation of the past performance contained in the ACRs. Since the petitioner in that case wanted information contained in personal files relating to ACRs as well, the Division Bench held that this information was personal officers viz-a-v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecision about disclosure of information: Provided that except in the case of trade or commercial secrets protected by law, disclosure may be allowed if the public interest in disclosure outweighs in importance any possible harm or injury to the interests of such third party." 11. The information can be supplied only, when on following the mandatory procedure outlined under Section 11(1), opinion is formed by the CIC that the disclosure of information would be in public interest. Thus, the learned Single Judge has rightly held that except in cases involving overriding public interest, the ACR record of the officer cannot be disclosed.................." Since the matter was not looked into by the CIC, the learned Single Judge remitted the case back to the CIC in the following manner: "13. Accordingly, the matter is remanded back to the CIC for considering the issue whether, in the larger public interest, the information sought by the petitioner could be disclosed. If the CIC comes to a conclusion that larger public interest justifies the disclosure of the information sought by the petitioner, the CIC would follow the procedure prescribed in Section 11 of the Act." 12. We are of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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