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TMI Blog2013 (3) TMI 442X X X X Extracts X X X X X X X X Extracts X X X X ..... he Act, before the 1st Appellate Authority of the Petitioner. The Appellate Authority dismissed the Appeal on the same ground. Being aggrieved by the said decision, the Respondent preferred an appeal before the CIC. Setting aside the decision of the ‘First Appellate Authority’, the CIC held as follows. CIC are of the view that the CPIO was not right in denying this information. Being aggrieved by the order of CIC Petitioner filed the writ petition. Petitioner submits that the information sought by the Respondent in his RTI application is not with the Petitioner and stated that the said information relates to the actions of the concerned Ministry/Department and as such no record thereof is available and rest of the Information sought by the Respondent is exempt from disclosure under Section 8(1)(e), 8(1)(g) and 8(1)(j) of the Act. The Respondent, on the other hand, has at the outset submitted that the CIC has merely directed the disclosure of the records in possession of the UPSC. It has not directed the Petitioner to procure records from the concerned Ministries and the same is not exempted under Section 8(1)(e), 8(1)(g) or 8(1)(j) of the Act. Held that : - After Examini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion under Section 8(1)(j) of the Act. 4. The Respondent, consequently, filed an appeal under Section 19 of the Act, before the 1st Appellate Authority of the Petitioner. The Appellate Authority dismissed the Appeal on the same ground that the information sought was exempted from disclosure under Section 8(1)(j) of the Act. 5. Being aggrieved by the said decision, the Respondent preferred an appeal before the CIC. Setting aside the decision of the First Appellate Authority , the CIC held as follows : 4. After carefully considering the facts of the case and the submissions made by both parties, we are of the view that the CPIO was not right in denying this information. As far as the UPSC is concerned, the Respondent informed, it receives references from the Ministries and Departments in disciplinary matters to give its comments and recommendations on individual cases. In this case too, the UPSC had been consulted and that it had offered its comments and views to the Government. Whatever records it holds in regard to this case will have to be disclosed because this cannot be classified as personal information merely on the ground that it concerns some particular officer. Our ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 : Provided that the information, which cannot be denied to the Parliament or a State Legislature shall not be denied to any person; x x x x x x x x 7. The Petitioner claims exemption under Section 8(1)(j) of the Act on the basis that the disclosure of the information sought would cause unwarranted invasion of the privacy of the concerned charged officer. The Petitioner also submits that disclosure would not serve any larger public interest and would rather expose and make public- vulnerable and sensitive information relating to third party(s). The petitioner submits that the CIC erred in relying upon the decision of the Kerala High Court in WA No. 2781/2009 titled Centre for Earth Science Studies v. Dr. Mrs. Anson Sebastian the State Information Commission. 8. It is submitted by the Petitioner that the information sought for by the Respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annot, at this stage, be permitted to introduce new grounds by claiming exemption under Section 8(1)(g) and 8(1)(e) of the Act. It is also contented that there is no fiduciary relationship involved in the present case and the disclosure of information would not endanger the life and safety of anyone. Hence, the information sought is not exempt under Section 8(1)(e) and 8(1)(g) of the Act. It is also submitted that the exemption under Section 8(1)(e) and (j) is not available as it would be in the larger public interest to disclose the same. 13. As regards the exemption under Section 8(1)(j), it is submitted by the Respondent that disclosure of the information permitted by the impugned order relates to the public activity of public servants. It can, by no stretch of imagination, be treated as personal information of a public servant. The information sought is not personal information relating to a third party, but is contained in the records of the UPSC itself. It is further submitted that the disclosure of the information sought is in the larger public interest, since the case not only relates to serious irregularities committed in the administration of taxation cases and adjudica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any private body which can be accessed by a public authority under any other law for the time being in force . 19. Therefore, personal information under the Act, would be information, as set forth above, that pertains to a person. As such it takes into its fold possibly every kind of information relating to the person. Now, such personal information of the person may, or may not, have relation to any public activity, or to public interest. At the same time, such personal information may, or may not, be private to the person. 20. The term personal information under Section 8(1)(j) does not mean information relating to the information seeker, or the public authority, but about a third party. The section exempts from disclosure personal information, including that which would cause unwarranted invasion of the privacy of the individual . If one were to seek information about himself, the question of invasion of his own privacy would not arise. It would only arise where the information sought relates to a third party. Consequently, the exemption under Section 8(1)(j) is as regards third party personal information only. 21. Further, the personal information cannot be that of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 8(1)(j) of the Act. 24. Public activity qua a person are those activities which are performed by the person in discharge of a public duty, i.e. in the public domain. There is an inherent public interest involved in the discharge of such activities, as all public duties are expected to be discharged in public interest. Consequently, information of a person which is related to, or has a bearing on his public activities, is not exempt from disclosure under the scheme and provisions of the Act, whose primary object is to ensure an informed citizenry and transparency of information and also to contain corruption. For example, take the case of a surgeon employed in a Government Hospital who performs surgeries on his patients who are coming to the Government Hospital. His personal information, relating to discharge of his public duty, i.e. his public activity, is not exempt from disclosure under the Act. Such information could include information relating to his physical and mental health, his qualifications etc., as the said information has a bearing on the discharge of his public duty, but would not include his other personal information such as, his taste in music, sport, ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat in which a class of the community have a pecuniary interest, or some interest by which their rights or liabilities are affected. The expression public interest is not capable of a precise definition and has not a rigid meaning and is elastic and takes its colors from the statute in which it occurs, the concept varying with the time and the state of the society and its needs. [See Advanced Law Lexicon, Third Edition]. 29. The second part of clause (j) of Section 8(1) appears to deal with the scope of defence founded on the right of privacy of an individual. The tussle between the right of privacy of an individual and the right of others to seek information which may impinge on the said right of privacy, is what the said clause seeks to address. 30. The right to privacy means the right to be left alone and the right of a person to be free from unwarranted publicity. Black s Law Dictionary says that the terms right to privacy is a generic term encompassing various rights recognized to be inherent in concept of ordered liberty, and such rights prevent Government interference in intimate personal relationship s or activities, freedoms of individual to make fundamental choice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... personal intimacies of the home, the family, marriage, motherhood, procreation and child rearing. This catalogue approach to the question is obviously not as instructive as it does not give analytical picture of the distinctive characteristics of the right of privacy. Perhaps, the only suggestion that can be offered as unifying principle underlying the concept has been the assertion that a claimed right must be a fundamental right implicit in the concept of ordered liberty.... There are two possible theories for protecting privacy of home. The first is that activities in the home harm others only to the extent that they cause offence resulting from the mere thought that individuals might be engaging in such activities and that such harm is not constitutionally protectible by the State. The second is that individuals need a place of sanctuary where they can be free from societal control. The importance of such a sanctuary is that individuals can drop the mask, desist for a while from projecting on the world the image they want to be accepted as themselves, an image that may reflect the values of their peers rather than the realities of their natures. [See 26 Stanford Law Rev. 11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subject for comment by press and media among others. We are, however, of the opinion that in the interest of decency [Article 19(2)] an exception must be carved out to this rule, viz., a female who is the victim of a sexual assault, kidnap, abduction or a like offence should not further be subjected to the indignity of her name and the incident being publicised in press/media. (3) There is yet another exception to the Rule in (1) above - indeed, this is not an exception but an independent rule. In the case of public officials, it is obvious, right to privacy, or for that matter, the remedy of action for damages is simply not available with respect to their acts and conduct relevant to the discharge of their official duties. This is so even where the publication is based upon facts and statements which are not true, unless the official establishes that the publication was made (by the defendant) with reckless disregard for truth. In such a case, it would be enough for the defendant (member of the press or media) to prove that he acted after a reasonable verification of the facts; it is not necessary for him to prove that what he has written is true. Of course, where the publicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the disclosure of the private information, serves a large section of the public, and not just a small section thereof. Therefore, if the information has a bearing on the state of the economy; the moral values in the society; the environment; national safety, or the like, the same would qualify as larger public interest . 36. Take for instance, a case where a person is employed to work in an orphanage or a children s home having small children as inmates. The employer may or may not be a public authority under the Act. That person, i.e. the employee, has a background of child abuse, for which he has undergone psychiatric treatment in a Government hospital. A querist could seek information regarding the medical and psychiatric treatment undergone by the person concerned from the Government hospital where the person has undergone treatment, in larger public interest, even though the said information is not only personal, but private, vis- -vis. the employee. The larger public interest in such a case would lay in protecting the children living in the orphanage/children s home from possible child abuse. 37. In light of the above discussion, the following principles emerge for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n cannot be regarded as invasion of his privacy. 41. Even otherwise, the disclosure of such information would be in the larger public interest, keeping in view the object of the Act, which is to promote transparency and accountability and also to contain corruption. The preamble of the Act, inter alia, states : An Act to provide for setting out the practical regime of right to information for citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority, . And Whereas democracy requires an informed citizenry and transparency of information which are vital to its functioning and also to contain corruption and to hold Governments and their instrumentalities accountable to the governed; And Whereas revelation of information in actual practice is likely to conflict with other public interests including efficient operations of the Governments, optimum use of limited fiscal resources and the preservation of confidentiality of sensitive information; And Whereas it is necessary to harmonise these conflicting interest while preserving the paramountancy of the dem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... referred to a sea of judgments and scholarly excerpts, the Division Bench of this Court held as follows : 60. The decisions cited by the learned Attorney General on the meaning of the words held or control are relating to property and cannot be relied upon in interpretation of the provisions of the Right to Information Act. The source of right to information does not emanate from the Right to Information Act. It is a right that emerges from the constitutional guarantees under Article 19(1)(a) as held by the Supreme Court in a catena of decisions. The Right to Information Act is not repository of the right to information. Its repository is the constitutional rights guaranteed under Article 19(1)(a). The Act is merely an instrument that lays down statutory procedure in the exercise of this right. Its overreaching purpose is to facilitate democracy by helping to ensure that citizens have the information required to participate meaningfully in the democratic process and to help the governors accountable to the governed. In construing such a statute the Court ought to give to it the widest operation which its language will permit. The Court will also not readily read words which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon by the Petitioner, can be met by resort to Section 10 of the Act. However, those concerns cannot be a good reason to altogether deny information which, otherwise, is not exempt from disclosure under the law. Consequently, the defence set up by the petitioner, founded upon clause (j) of Section 8(1) is not tenable in this case. 49. The defences under Section 8(1)(e) and Section 8(1)(g) of the Act would also be of no avail to the Petitioner in the present case. This is so, not merely on account of it being an afterthought of the Petitioner to raise the same, but also because they are untenable in the facts of the present case. 50. The overriding public interest involved in the present case, as aforesaid, would render inoperative the exemption under Section 8(1)(e) of the Act. Even otherwise, the exemption under Section 8(1)(e) of the Act would not apply since the information sought by the Respondent is not held by, or available with the petitioner in its fiduciary capacity. The Supreme Court in CBSE v. Aditya Bandopadhyay, (2011) 8 SCC 497, laid down the test of determining fiduciary relationship as follows; 41. In a philosophical and very wide sense, examining bodies ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d solutions to questions issued to the examiners and moderators in connection with evaluation of answer scripts, as noticed above, is the intellectual property of ICAI. These are made available by ICAI to the examiners and moderators to enable them to evaluate the answer scripts correctly and effectively, in a proper manner, to achieve uniformity and consistency in evaluation, as a large number of evaluators and moderators are engaged by ICAI in connection with the evaluation. The instructions and solutions to questions are given by the ICAI to the examiners and moderators to be held in confidence. The examiners and moderators are required to maintain absolute secrecy and cannot disclose the answer scripts, the evaluation of answer scripts, the instructions of ICAI and the solutions to questions made available by ICAI, to anyone. The examiners and moderators are in the position of agents and ICAI is in the position of principal in regard to such information which ICAI gives to the examiners and moderators to achieve uniformity, consistency and exactness of evaluation of the answer scripts. When anything is given and taken in trust or in confidence, requiring or expecting secrecy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity purposes , as aforesaid. Therefore, that part of the clause would be inapplicable and irrelevant in the present case. So far as the petitioner s submission-that the disclosure of information would endanger the life and safety of the officers who tendered their opinion/advices- is concerned, the same in my considered opinion, as aforesaid, in the facts of the present case, may be addressed- by resort to Section 10 of the Act. The exemption under Section 8(1)(g) of the Act, therefore, as claimed by the Petitioner, would be no ground for disallowing the disclosure of the information (sought by the Respondent) in the facts of the present case. 57. At this stage, I may take note of the fact that the petitioner herein tendered to this court, after the judgment in the present case had been reserved, decisions of the CIC- wherein information sought by RTI applicants with regard to disciplinary proceedings of charged officers, were held to be exempt from disclosure under Section 8(1)(h) of the Act on the grounds that the disciplinary proceedings/investigation were ongoing, and as such, disclosure of information sought would impede the process of investigation. 58. The said argument ..... X X X X Extracts X X X X X X X X Extracts X X X X
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