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TMI Blog2009 (7) TMI 1364X X X X Extracts X X X X X X X X Extracts X X X X ..... ce. The petitioner caused to be served, through his counsel, an application to the Station Commander, 4 AFSB, requesting for information in respect of his wife's service records pertaining to all leave application forms submitted by her; attested copies of nomination of DSOP and other official documents with financial implications, and the changes made to them; record of investments made and reflected in the service documents of his wife, along with nominations thereof. 3. The information application was declined by the Public Information Officer, i.e. the Wing Commander of the 4, AFSB by his letter dated 25.04.2007 on the ground that the particulars sought for related to personal information, exempted under Section 8(1)(j) of the Information Act; that disclosure of such information had no relation with any public activity or interest and that it would cause unwarranted invasion into the privacy of the individual. The petitioner felt aggrieved and preferred an appeal under Section 19 of the Information Act. The appeal was rejected by an order dated 25.01.2008 by the Air Vice Marshal, Senior Officer Incharge, Administration, of the Indian Air Force, who was the designated App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the widest possible manner and that the question of exceptions should be construed from the perspective of the right rather than the exemptions, which has been done in this case. Reliance was placed upon Division Bench ruling in Surup Singh Hrya Naik v. State of Maharashtra AIR2007Bom121 to submit that ordinarily information sought for by person must be made available without disclosure by him about the reason why he seeks it. It is submitted further that a close reading of the decision would show that the public right to information ordinarily prevails over the private interest of a third party, who may be affected. Particularly, it was emphasized that the Court should always keep in mind the object of the Act, which is to make public authorities accountable and open and the contention that the information might be misused is of no consequence. It was submitted lastly that even if there is a rule prohibiting disclosure of information, that would yield to the dictates of the Information Act, as the latter acquires supremacy. 6. It was consequently urged that in the context of this case, the information sought for was not really of a third party, but pertained to the petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such information (which is meant purely for the records and for the use of the employer), during inappropriate instances, is bound to cause unwarranted loss of privacy to the individual. Therefore, in the overall conspectus of the facts of this case, even though the parties were married to each other, as a policy matter, the IAF acted within the bounds of law in denying access to the information submitted by the petitioner's wife. 10. The relevant provisions of the Information Act, in the context of this case, are extracted below: 2. Definitions.- In this Act, unless the context otherwise requires,- (f) information means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; XXXXXX XXXXXX XXXXXX (j) right to information means the right to information accessible under this Act which is held by or under the control of any public authority and includes the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice is served by the Central Public Information Officer or State Public Information Officer, as the case may be, under Sub-section (1) to a third party in respect of any information or record or part thereof, the third party shall, within ten days from the date of receipt of such notice, be given the opportunity to make representation against the proposed disclosure. (3) Notwithstanding anything contained in Section 7, the Central Public Information Officer or State Public Information Officer, as the case may be, shall, within forty days after receipt of the request under Section 6, if the third party has been given an opportunity to make representation under Sub-section(2), make a decision as to whether or not to disclose the information or record or part thereof and give in writing the notice of his decision to the third party. (4) A notice given under Sub-section (3) shall include a statement that the third party to whom the notice is given is entitled to prefer an appeal under Section 19 against the decision. 11. The precise question to be decided here is whether records relating to investments of, and financial disclosure made during the course of employment by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te agencies and governments, in democracies is an accountability measure empowering citizens to be aware of the actions taken by such state actors . This transparency value, at the same time, has to be reconciled with the legal interests protected by law, such as other fundamental rights, particularly the fundamental right to privacy. This balancing or reconciliation becomes even more crucial if we take into account the effects of the technological challenges which arise on account of privacy. Certain conflicts may arise in particular cases of access to information and the protection of personal data, stemming from the fact that both rights cannot be exercised absolutely. The rights of all those affected must be respected, and no right can prevail over others, except in clear and express circumstances. 15. To achieve the above purpose, the Information Act outlines a clear list of the matters that cannot be made public. There are two types of information seen as exceptions to access; the first usually refers to those matters limited to the State in protection of the general public good, such as security of State, matters relating to investigation, sensitive cabinet deliberations ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... party. Simply put, this exception is that if the information concerns a third party (i.e. a party other than the information seeker and the information provider), unless a public interest in disclosure is shown, information would not be given; information may also be refused on the ground that disclosure may result in unwarranted intrusion of privacy of the individual. Significantly, the enactment makes no distinction between a private individual third party and a public servant or public official third party. 18. It is interesting to note that paradoxically, the right to privacy, recognized as a fundamental right by our Supreme Court, has found articulation - by way of a safeguard, though limited, against information disclosure, under the Information Act. In India, there is no law relating to data protection, or privacy; privacy rights have evolved through the interpretive process. The right to privacy, characterized by Justice Brandeis in his memorable dissent, in Olmstead v. United States 277 US 438 (1928) as right to be let alone... the most comprehensive of rights and the right most valued by civilised men has been recognized under our Constitution by the Supreme Court i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raw the inference that the other Articles in which there was no specific reference to Government servants were inapplicable to them. He realised however, that the implication arising from Article 33 would run counter to this line of argument but as regards this Article his submission was that it was concerned solely to save Army Regulations which permitted detention in a manner which would not be countenanced by Article 22 of the Constitution. We find ourselves unable to accept the argument that the Constitution excludes Government servants as a class from the protection of the several rights guaranteed by the several Articles in Part III save in those cases where such persons were specifically named. 14. In our opinion, this argument even if otherwise possible, has to be repelled in view of the terms of Article 33. That Article select two of the Services under the State-members of the armed forces charged with the maintenance of public order and saves the rules prescribing the conditions of service in regard to them - from invalidity on the ground of violation of any of the fundamental rights guaranteed by Part III and also defines the purpose for which such abrogation or rest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ii) whether the disclosure of the personal information is with the aim of providing knowledge of the proper performance of the duties and tasks assigned to the public servant in any specific case; iii) whether the disclosure will furnish any information required to establish accountability or transparency in the use of public resources. 21. An important and perhaps vital consideration, aside from privacy is the public interest element, mentioned previously. Section 8(1)(j) 's explicit mention of that concept has to be viewed in the context. In the context of the right to privacy, Lord Denning in his What next in Law, presciently said that: English law should recognise a right to privacy. Any infringement of it should give a cause of action for damages or an injunction as the case may require. It should also recognise a right of confidence for all correspondence and communications which expressly or impliedly are given in confidence. None of these rights is absolute. Each is subject to exceptions. These exceptions are to be allowed whenever the public interest in openness outweighs the public interest in privacy or confidentiality. In every instance it is a balancing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can be accessed by Parliament, Section 8(1)(j) would be devoid of any substance, because the provision makes no distinction between public and private information. Moreover there is no law which enables Parliament to demand all such information; it has to be necessarily in the context of some matter, or investigation. If the reasoning of the Bombay High Court were to be accepted, there would be nothing left of the right to privacy, elevated to the status of a fundamental right, by several judgments of the Supreme Court. 23. As discussed earlier, the public interest argument of the Petitioner is premised on the plea that his wife is a public servant; he is in litigation with her, and requires information, - in the course of a private dispute - to establish the truth of his allegations. The CIC has held that there is no public interest element in the disclosure of such personal information, in the possession of the information provider, i.e. the Indian Air Force. This Court concurs with the view, on an application of the principles discussed. The petitioner has, not been able to justify how such disclosure would be in public interest : the litigation is, pure and simple, a pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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