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TMI Blog2012 (6) TMI 661X X X X Extracts X X X X X X X X Extracts X X X X ..... yright 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r scripts. The appellant informed the first respondent accordingly. 3. On 18-1-2008 the appellant submitted an application seeking the following information under 13 heads, under the Right to Information Act, 2005 ('RTI Act' for short) : "(1)Educational qualification of the examiners Moderators with subject-wise classifications. (you may not give me the names of the examiners moderators). (2)Procedure established for evaluation of exam papers. (3) Instructions issued to the examiners, and moderators oral as well as written if any. (4)Procedure established for selection of examiners moderators. (5) Model answers if any given to the examiners moderators if any. (6)Remuneration paid to the examiners moderators. (7)Number of students appearing for exams at all levels in the last 2 years ( i.e. PE1/PE2/PCC/CPE/Final with break up) (8)Number of students that passed at the 1st attempt from the above. (9)From the number of students that failed in the last 2 years ( i.e. PE1/PE2/PCC/CPE/Final with break up) from the above, how many students opted for verification of marks as per regulation 38. (10)Procedure adopted at the time of verification of marks a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is regretted that the number of students who passed Final Examination at the 1st attempt cannot be made available. 9. The number of students who applied for the verification of answer books is as follows:- Month Year Number of students who applied for verification from among the failed candidates* PE-I PE-II PCC CPE FINAL Nov., 2005 598 4150 Not held Not held 4432 May, 2006 1607 4581 Not held Not held 4070 Nov., 2006 576 4894 Not held 205 3352 May, 2007 204 5813 07 431 3310 *This figure may contain some pass candidates also. 10. Each request for verification is processed in accordance with Regulation 39(4) of the Chartered Accountants Regulation, 1988 through well laid down scientific and meticulous procedure and a comprehensive checking is done before arriving at any conclusion. The process of verification starts after declaration of result and each request is processed on first come first served basis. The verification of the answer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant cannot be without seriously and perhaps irretrievably compromising the entire examination process. An instruction issued by a public authority - in this case, examination conducting authority - to its examiners is strictly confidential. There is an implied contract between the examiners and the examination conducting public authority. It would be inappropriate to disclose this information. This item of information too, like the previous one, attracts section 8(1)( d ) being the intellectual property of the public authority having being developed through careful empirical and intellectual study and analysis over the years. I, therefore, hold that this item of query attracts exemption under section 8(1)( e ) as well as section 8(1)( d ) of the RTI Act. Re : Query No. 5. Decision: Respondents have explained that what they provide to the examiners is "solutions" and not "model answers" as assumed by the appellant. For the aid of the students and examinees, "suggested answers" to the questions in an exam are brought out and sold in the market. It would be wholly inappropriate to provide to the students the solutions given to the questions only for the exclusive use of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner. The principal defence of the respondent No. 2 is that the information is confidential. Till the result of the examination is declared, the information sought by the petitioner has to be treated as confidential, but once the result is declared, in our opinion, that information cannot be treated as confidential. We were not shown anything which would even indicate that it is necessary to keep the information in relation to the examination which is over and the result is also declared as confidential." 7. The said order of the High Court is challenged in this appeal by special leave. The appellant submitted that it conducts the following examinations: ( i ) the common proficiency test; ( ii ) professional education examination-II (till May 2010); ( iii ) professional competence examination; ( iv ) integrated professional competence examination; ( v ) final examination; and ( vi ) post-qualification course examinations. A person is enrolled as a Chartered Accountant only after passing the common proficiency test, professional educational examination-II/professional competence examination and final examination. The number of candidates who applied for various examinatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r evaluation issued by the ICAI. In addition, performance of each examiner, to ascertain whether the said examiner has complied with the instructions issued as also the general guidelines of the Institute, is assessed by the Head Examiner at two stages before the declaration of result. The said process has been evolved based on the experience gained in the last 60 years of conducting examinations and to ensure all possible uniformity in evaluation of answer sheets carried out by numerous examiners in a particular subject and to provide justice to the candidates. The examination process/procedure/systems of the ICAI are well in place and have been evolved over several decades out of experience gained. The said process/procedure/systems have adequate checks to ensure fair results and also ensure that due justice is done to each candidate and no candidate ever suffers on any count." 8. The appellant contends that the information sought as per queries (3) and (5) - that is, instructions and model answers, if any, issued to the examiners and moderators by ICAI cannot be disclosed as they are exempted from disclosure under clauses ( d ) and ( e ) of sub-section (1) of section 8 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thorized circulation of Question Papers set for the Chartered Accountants Examinations as well as the solutions thereto. With that object in view, the Council proposes to reserve all copyrights in the question papers as well as solutions. In order to enable the Council to retain the copyrights, it has been suggested that it would be advisable to obtain a specific assignment of any copyrights or rights of publication that you may be deemed to possess in the questions set by you for the Chartered Accountants Examinations and the solutions thereto in favour of the Council. I have no doubt that you will appreciate that this is merely a formality to obviate any misconception likely to arise later on." In response to it, the paper setters/authors give declarations of assignment, assigning their copyrights in the question papers and solutions prepared by them, in favour of ICAI. Insofar as instructions prepared by the employees of ICAI, the copyright vests in ICAI. Consequently, the question papers, solutions to questions and instructions are the intellectual properties of ICAI. The appellant contended that if the question papers, instructions or solutions to questions/model answers are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll be different once the examination is held. Disclosure of the question papers, model answers and instructions in regard to any particular examination, would not harm the competitive position of any third party once the examination is held. In fact the question papers are disclosed to everyone at the time of examination. The appellant voluntarily publishes the "suggested answers" in regard to the question papers in the form of a book for sale every year, after the examination. Therefore 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. Re : Question ( ii ) 13. Section 9 of the RTI Act provides that a Central or State Public Information Officer may reject a request for information where providing access to such informat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tral Board of Secondary Education v. Aditya Bandopadhyay [2011 (8) SCALE 645] considered the meaning of the words information available to a person in his fiduciary capacity and observed thus : "But the words 'information available to a person in his fiduciary relationship' are used in section 8(1)( e ) of RTI Act in its normal and well recognized sense, that is to refer to persons who act in a fiduciary capacity, with reference to a specific beneficiary or beneficiaries who are to be expected to be protected or benefited by the actions of the fiduciary - a trustee with reference to the beneficiary of the trust, a guardian with reference to a minor/physically/infirm/mentally challenged, a parent with reference to a child, a lawyer or a chartered accountant with reference to a client, a doctor or nurse with reference to a patient, an agent with reference to a principal, a partner with reference to another partner, a director of a company with reference to a shareholder, an executor with reference to a legatee, a receiver with reference to the parties to a lis, an employer with reference to the confidential information relating to the employee, and an employee with reference to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the instructions and solutions to questions communicated by the examining body to the examiners, head-examiners and moderators, are information available to such persons in their fiduciary relationship and therefore exempted from disclosure under section 8(1)( d ) of RTI Act. 18. The information to which RTI Act applies falls into two categories, namely, ( i ) information which promotes transparency and accountability in the working of every public authority, disclosure of which helps in containing or discouraging corruption, enumerated in clauses ( b ) and ( c ) of section 4(1) of RTI Act; and ( ii ) other information held by public authorities not falling under section 4(1)( b ) and ( c ) of RTI Act. In regard to information falling under the first category, the public authorities owe a duty to disseminate the information widely suo motu to the public so as to make it easily accessible to the public. In regard to information enumerated or required to be enumerated under section 4(1)( b ) and ( c ) of RTI Act, necessarily and naturally, the competent authorities under the RTI Act, will have to act in a pro-active manner so as to ensure accountability and ensure that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... power of the competent authority under the RTI Act in larger public interest, to direct disclosure of such information. The information referred to in clause ( i ) relates to an exemption for a specific period, with an obligation to make the said information public after such period. The information relating to intellectual property and the information available to persons in their fiduciary relationship, referred to in clauses ( d ) and ( e ) of section 8(1) do not enjoy absolute exemption. Though exempted, if the competent authority under the Act is satisfied that larger public interest warrants disclosure of such information, such information will have to be disclosed. It is needless to say that the competent authority will have to record reasons for holding that an exempted information should be disclosed in larger public interest. 20. In this case the Chief Information Commissioner rightly held that the information 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 u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed examiners receive equal batches of answer scripts, there is difference in average marks and the range of marks awarded, thereby affecting the merit of individual candidates. This apart, there is 'Hawk-Dove' effect. Some examiners are liberal in valuation and tend to award more marks. Some examines are strict and tend to give less marks. Some may be moderate and balanced in awarding marks. Even among those who are liberal or those who are strict, there may be variance in the degree of strictness or liberality. This means that if the same answer script is given to different examiners, there is all likelihood of different marks being assigned. If a very well written answer script goes to a strict examiner and a mediocre answer script goes to a liberal examiner, the mediocre answer script may be awarded more marks than the excellent answer script. In other words, there is 'reduced valuation' by a strict examiner and 'enhanced valuation' by a liberal examiner. This is known as 'examiner variability' or 'Hawk-Dove effect'. Therefore, there is a need to evolve a procedure to ensure uniformity inter se the Examiners so that the effect of 'examiner subjectivity' or 'examiner variabilit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... examiner are revalued either by the Head Examiner or any other Examiner who is found to have followed the agreed norms. ( vi ) Where the number of candidates is very large and the examiners are numerous, it may be difficult for one Head Examiner to assess the work of all the Examiners. In such a situation, one more level of Examiners is introduced. For every ten or twenty examiners, there will be a Head Examiner who checks the random samples as above. The work of the Head Examiners, in turn, is checked by a Chief Examiner to ensure proper results. The above procedure of 'moderation' would bring in considerable uniformity and consistency. It should be noted that absolute uniformity or consistency in valuation is impossible to achieve where there are several examiners and the effort is only to achieve maximum uniformity." Each examining body will have its own standards of 'moderation', drawn up with reference to its own experiences and the nature and scope of the examinations conducted by it. ICAI shall have to disclose the said standards of moderation followed by it, if it has drawn up the same, in response to part ( ii ) of first respondent's query (13). 23. In its commu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing bodies are required to frequently furnish various kinds of information as sought in this case to several applicants, it will add an enormous work load and their existing staff will not be able to cope up with the additional work involved in furnishing information under the RTI Act. It was submitted by ICAI that it conducts several examinations every year where more than four lakhs candidates participate; that out of them, about 15-16 per cent are successful, which means that more than three and half lakhs of candidates are unsuccessful; that if even one per cent at those unsuccessful candidates feel dissatisfied with the results and seek all types of unrelated information, the working of ICAI will come to a standstill. It was submitted that for every meaningful user of RTI Act, there are several abusers who will attempt to disrupt the functioning of the examining bodies by seeking huge quantity of information. ICAI submits that the application by the first respondent is a classic case of improper use of the Act, where a candidate who has failed in an examination and who does not even choose to take the subsequent examination has been engaging ICAI in a prolonged litigation by s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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