Moneylife: New Delhi: Wednesday,
May 29, 2013.
The Central
Information Commission (CIC), while allowing an appeal, directed the Public
Information Officer (PIO) of the ministry of labour and employment (MLE),
Government of India to provide information about annual confidential reports
(ACRs) of 17 officers from the Central Labour Service (CLS) category.
While giving
this judgement on 18 September 2011, Shailesh Gandhi, the then Central
Information Commissioner said, “...this Commission holds that performance
appraisals—known as annual confidential reports since the days of British
Raj—are not covered by Section 8(1)(j) of the RTI Act and disclosure of these
cannot be construed as invasion on the privacy of an individual.”
Kolkata
resident VR Sharma, on 20 October 2010 sought information regarding annual
confidential reports (ACRs) of 17 officers who were promoted to Grade III based
in these reports, from the Public Information Officer (PIO) of MLE. Here is the
information he sought under the Right to Information (RTI) Act...
ACR of Central
Labour Service (CLS) officers contains eight pages only. Certain officers add a
large number of pages in their ACRs having details of the work they have done
during the year. Such additional pages are part of Part II of the ACRs. Copies
of these additional pages are not required.
Kindly supply
copies of following documents/ACRs for the relevant years based on which these
officers got promotion to Grade III.
Kindly
provide all five years ACRs of the following officers (except additional pages added
by them) sent/ forwarded/ submitted by the ministry of labour to the Department
Promotion Committee (DPC) for their promotion to grade III of CLS.
Please also
indicate when DPC was held for promoting these officers to Grade III-please
give dates.
Name of the
officers are as follows-
(1) Jag Moran
Sharma (2) Devebrata Sinha (3) Prakash Benjamin (4) G Rama Rao (5) MPS
Shivkumarswami (6) AA Gilani (7) Lallan Singh (8) KD Saha (9) PP Sarkar (10) S
Nagraj (11) G Gopal (L2) BK Sanwarya (13) GM Kadwan (L4) TK Rao (15) Naresh
Chandra (16) BK Bhise (17) Smt Mary C Jaikar
Cost of
photocopy comes to Rs16 per ACR (8 Pages per year X 2) x5 years=Rs 80 per
person.
Rs80 X 17 =
Rs1,360 + Rs10 towards RTI fee= Total Rs1,370
IPO of value
Rs1,370 enclosed for supply information by registered post at following
address: VR SHARMA, LW Commissioner (c), Section A/LW, 4 Floor, RNo-3, Ayudh
Bhavan, ORDNANCE FACTORY BOARD, 10-A, SK BOSE Road, KOLKATA-700001(WB)
In his reply,
the PIO denied to supply copies of ACRs of the 17 officers. He stated, “With
regard to supply of copies of the ACRs of the 17 Grade IV CLS officers on the
basis of which they were promoted to Grade III, it is mentioned that seeking
personal information of other officers which would cause unwarranted invasion
of their privacy and has no relationship to public activity or interest, can
not be supplied under Section 8(1)(J) of the RTI Act, 2005.”
Not satisfied
with the reply, Sharma, the applicant, filed his first appeal.
In his order,
the First Appellate Authority (FAA) stated...
1.
“1.
The appellant has now submitted an appeal dated 14 December 2010 (received in
this ministry on 20 December 2010) under Rule 19(1) of RTI Act, 2005 mentioning
that he has not been furnished the required information.
2.
I
have examined the matter and found that the CPIO has rightly denied the
information under section 8(1)(j) of the RTI Act, 2005. The appellant is
entitled to get the information regarding the grading of his ACR but not of the
other officers.
3.
The
appeal is thus disposed of. If the appellant is aggrieved by this order, second
appeal against the decision shall lie within ninety days from the date of this
order, with the Central Information Commission under Section 19(3) of the RTI
Act, 2005."
Sharma then
approached the CIC with his second appeal.
During the
hearing, Mr Gandhi, the then CIC, noted that the appellant was seeking ACRs of
17 officers and the PIO refused to provide this information claiming exemption
under Section 8(1)(j) of the RTI Act.
Under
Section 8 (1)(j) of the RTI Act, information which has been exempted is defined
as:
“information
which relates to personal information the disclosure of which has no
relationship to any public 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: …”
To qualify
for the exemption under Section 8(1)(j) of the RTI Act, the information must
satisfy the following criteria:
1.
It
must be personal information: Words in a law should normally be given the
meaning given in common language. In common language, we would ascribe the
adjective 'personal' to an attribute, which applies to an individual and not to
an institution or a Corporate. Therefore, it flows that 'personal' cannot be
related to institutions, organisations or corporates. Hence Section 8(1)(j) of
the RTI Act cannot be applied when the information concerns institutions,
organisations or corporates.
2.
The
phrase 'disclosure of which has no relationship to any public activity or
interest' means that the information must have been given in the course of a
public activity. Various public authorities in performing their functions
routinely ask for 'personal' information from citizens, and this is clearly a
public activity. Public activities would typically include situations wherein a
person applies for a job, or gives information about himself to a public
authority as an employee, or asks for a permission, licence or authorisation,
or provides information in discharge of a statutory obligation.
3.
The
disclosure of the information would lead to unwarranted invasion of the privacy
of the individual. The State has no right to invade the privacy of an
individual. There are some extraordinary situations where the State may be
allowed to invade the privacy of a citizen. In those circumstances special
provisions of the law apply usually with certain safeguards. Therefore where
the State routinely obtains information from citizens, this information is in
relationship to a public activity and will not be an intrusion on privacy.
Mr Gandhi
observed that the concept of ‘privacy’ is a cultural notion, related to social
norms, and different societies would look at these differently. “Therefore
referring to the Data Protection Act, 1988 of UK or the laws of other countries
to define ‘privacy’ cannot be considered a valid exercise to constrain the
citizen's fundamental right to information in India. Parliament has not
codified the right to privacy so far, hence, in balancing the right to
information of citizens and the individual's right to privacy, the citizen's
right to information would be given greater weightage,” he said.
The ACR,
containing certain information about the officer, is disclosed by the officer
to the public authority and such report is prepared by the public authority.
This is necessarily done in the course of a public activity. Disclosure of such
information cannot be construed as unwarranted invasion of privacy of the
officer concerned as it concerns issues raised in the exercise of his public
activity as a public servant, the CIC noted.
The Supreme
Court of India in Union of India vs ADR in Appeal (Civil) 178 of 2001 and WP
(Civil) 294 of 2001 decided on 2 February 2002 observed that persons who aspire
to be public servants by getting elected have to declare inter alia their
property details, any conviction/ acquittal of criminal charges, etc. It
follows that persons who are already public servants cannot claim exemptions
from disclosure of charges against them or details of their assets. “Given our
dismal record of mis-governance and rampant corruption which colludes to deny
citizens' their essential rights and dignity, it is imperative for achieving
the goal of democracy that the citizens' right to information is given greater
primacy with regard to privacy,” the apex court had said.
Citing the
judgement, Mr Gandhi said, “...disclosure of information such as property
details, any conviction/ acquittal of criminal charges, etc of a public
servant, which is routinely collected by the public authority and provided by
the public servants, cannot be construed as an invasion of the privacy of an
individual and must be provided an applicant under the RTI Act. The salary of
such government officers is also paid from the public exchequer. For these
reasons, every citizen has the right to know and obtain information about the
performance of every public servant or government officer to ascertain whether
the duties entrusted to such public servant or government officer are being
carried out.”
The
Commission also noted that the terminology ‘Annual Confidential Report’ has
been used since the British times when ‘secrecy’ was the guiding notion for the
government and consequently, the work done by the latter was not for the
citizens' perusal and kept confidential. This was evidenced by the enactment of
the Official Secrets Act, 1923.
Over the
years, this trend has undergone a drastic change inasmuch as the Indian
judiciary recognised the citizen's right to have access to information under
the control of government entities in order to bring about transparency and
accountability in the functioning of every government department. “The RTI Act
endeavours to do away with the notion of ‘secrecy’ which was prevalent in the
British era and carried forwarded thereafter inasmuch as Section 22 of the RTI
Act specifically provides that the RTI Act shall override the Official Secrets
Act, 1923 irrespective of any inconsistency contained in the latter,” the CIC
noted.
While
allowing the appeal, Mr Gandhi, the then CIC, directed the PIO to provide
information about the ACRs of 17 officers sought by the applicant Sharma.
.JPG)
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