CENTRAL INFORMATION COMMISSION Appeal No. CIC/AT/A/2008/00707 dated 29.05.2008 Right to Information Act 2005 - Section 19 PARTIES TO THE CASE: Appellant : Shri P.P. Rajeev Public Authority : Cochin Port Trust Date of Decision : 22.02.2010 FACTS
OF THE CASE:
The origins of this second-appeal lie in the appellant's RTI-application dated 05.01.2008 comprising the following request:-
"Copies of the Statement of Assets filed by the Class I & II Officers of Dock Labour Division of Traffic Department of Cochin Port Trust, Cochin ⎯ for the calendar year 2006 & 2007 (2 years)."
2. CPIO, Cochin Port Trust, through his reply dated 23.01.2008, declined to disclose the information as, according to him, these were personal information of third-parties.
3. Appellate Authority upheld the decision of the CPIO, in the process of which he quoted CIC decision in Appeal No.CIC/MA/A/ 2007/00654 dated 31.12.2007 in Shiv Bali Singh vs. Bharat Sanchar Nigam Limited, to say that appellant did not have an automatic right to AT-22022010-01.doc Page 1 of 17 be revealed the information he had sought and that there was no public interest cited by him that would warrant disclosure of admittedly personal information of third-parties. Both the CPIO and the Appellate Authority were apparently referring to the provision of Section 8(1)(j) of the RTI Act in coming to the decision which they did in this case.
4. Appellant, through his second-appeal petition dated 10.05.2008, has questioned the respondents' (the Appellate Authority's and the CPIO's) reasoning and stated that not only the requested information does not qualify to be personal information, it ought to be disclosed even otherwise in public interest.
5. This second-appeal first came up for hearing on 25.11.2008 before the Single Bench of Shri A.N.Tiwari, Central Information Commissioner, who referred the matter to the Chief Information Commissioner for constituting a larger Bench of the Commission to hear the matter as, according to him, the issues involved were important with wider implications. Accordingly, a Division Bench consisting of the Central Information Commissioners, Shri A.N. Tiwari and Shri M.L. Sharma was constituted. The Bench heard the matter on 09.01.2009, when the Commission invited the views of the Cabinet Secretary, the Central Vigilance Commission, the Comptroller & Auditor General of India, Department of Personnel & Training, Ministries of Home Affairs, External Affairs and Defence as well as Central Boards of Direct Taxes and Excise & Customs and the Railway Board, to enable the Commission come to a conclusion regarding whether property returns of public servants needed to be disclosed.
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6. The gist of the responses received from some of the Cadre Controlling Departments is as follows:-
Sl.No. Department Gist of the Response 1. Cabinet Secretariat Property Returns should not to be disclosed. The
financial worth of Govt. employee is likely to be misused as it may reach to wrong hands and may result in family disputes, social problems, property disputes, even extortion / abduction for money, etc.
2. Central Vigilance CIC may decide the matter in accordance with the Commission provisions of Section 8(1)(j) of the RTI Act.
4. Ministry of Home Property Returns should not to be disclosed under RTI Affairs provisions as it would serve very little public purpose than adverse repercussion like settling scores / harm to concerned Government employee.
5. Ministry of External Property Returns are classified documents and should Affairs be barred under Section 8(1)(j). Disclosure should not be made in a routine manner. However, in cases where it is deemed necessary to disclose the property returns under RTI Act, it is proposed to follow the provisions of Section 11 of the RTI Act.
6. Ministry of Defence Details furnished in property returns are of personal nature divulging of which are certainly not in public or personal interest. Divulging of such information is certainly an impingement on the privacy and security of the person concerned. It would, therefore, not at all be in the interest of public or otherwise to allow divulgence of such information.
7. Railway Board Disclosure of property returns amounts to disclosure of personal information in respect of Railway servant concerned, which is not permissible under sub-section
(j) of section 8(1) of the RTI Act. The disclosure of such personal information is also not expected to serve any public interest. On the contrary, it may lead to some undesirable situations such as family disputes, extortion / kidnapping for money, etc.
8. Central Board of Property Returns filed annually is not a public Excise & Customs document and neither is the information so furnished accessible to any other employee, except the AT-22022010-01.doc Page 3 of 17 administration; the information is personal in nature and, therefore, may not be disclosed.
9. Central Board of CBDT is fully in support to bring sunlight in the working Direct Taxes of Govt. of India to act as disinfectant but it should be applicable to all Departments. The senior most officers should act as role models to first disclose their assets on the website. The information about the assets of all the officers of the rank of Additional Secretary and above should be on the net. However this should be applicable to all Departments and not only to the Income Tax Department alone.
10. Department of A communication from Shri R.K. Girdhar, Under Personnel & Secretary, DoPT dated 06.05.2009 had been received, Training in which it has been mentioned that the matter was being examined in consultation with Ministry of Law & Justice. However, no formal views have yet been received from their end.
7. Thereafter, the Commission referred the matter, along with comments of the Cadre Controlling Departments, to the Cabinet Secretary for him to obtain the considered view of the Government. Commission had on the basis of averments before it summarized the pros and cons of disclosing property-related information of public employees as follows:-
"5. In favour of disclosing the Property Returns / Assets details of public servants, the following points were urged:-
(i) Such disclosures would promote honesty and deter those prone to conceal their assets.
(ii) It will improve the image of public administration and will contribute to good governance.
(iii) It will check the tendency towards corruption, especially among those who are risk-takers ⎯ believing that the risk of concealing incomes and assets was so minimal that it was worth taking.
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(iv) The honest public employee has no fears if his asset details are brought out into the public domain while the hesitancy of the dishonest servants cannot be a basis for not disclosing asset details.
(v) There is no reason why the asset details of public employees should be withheld from disclosure whereas Members of Parliament and State Legislatures and those contesting in Elections are required to make public the details of their assets, including cash holdings, jewellery, etc.
(vi) The theory of harm that may be caused to the civil servants and public employees by busybodies and blackmailers who may colourably use the disclosed assets- related information, is far too exaggerated to merit consideration.
(vii) Disclosure of assets of civil servants in the context of endemic and embedded corruption is undoubtedly in public interest.
6. The arguments urged against its disclosure are summarized below:-
(i) Public disclosure of civil servants' assets details can be a grist to rumour-mills and shall be an instrument in the hands of blackmailers and busybodies to harass, intimidate and browbeat the civil servants, using the disclosed information about assets. The civil servants may eventually come out unscathed but the trauma in the interim can be demoralizing.
(ii) No matter what valuation a civil servant puts on his assets, or no matter what the actual value of the assets be, it could be questioned for its correctness and baseless charges against him levelled for holding assets disproportionate to his known income. The mocking media analyses and publicity, innuendoes and snide remarks may reduce even the most honest civil servant to a mental wreck.
(iii) The comparison between the political class, MPs, MLAs and those contesting in Elections on the one hand and the civil servants on the other is misconceived. The civil servants are required to take permission of the competent authority for every transaction in asset AT-22022010-01.doc Page 5 of 17 transfers / acquisition. They are also required to inform higher authorities about transactions above certain monetary levels. These are done in the usual course of business throughout the civil servant's service.
The Property Returns are very often a culmination of these permissions or disclosures which he regularly makes to the public authority. No such compulsion applies to public figures such as MPs, MLAs and those contesting in Elections.
(iv) Assets disclosure may bring employees to the attention of lawless elements and can expose these employees and their families to physical risk. This was especially true of disturbed areas where armed groups are known to intimidate Government employees to extort money.
7. During the hearing, the point generally made on behalf of the Cadre Controlling Authorities was that unless there was an identifiable public interest in disclosing the Property Returns, there was merit in maintaining its confidentiality.
8. It was their view that the practice adopted in the Western Countries, where civil servants' Property Returns were all disclosed, could not be adopted wholesale in India, given the conditions here, where society was deeply fractured and civil servants faced far greater pressures and dangers than their Western counterparts.
9. The representatives of the Cadre Controlling Authorities, however, were not unanimous as to why making disclosure of asset-details of public servants automatic be so harmful that it should remain barred under the Official Secrets Act. This needs further reflection in the light of experience at all levels in the Government."
8. Cabinet Secretariat, vide its communication dated 25.11.2009, intimated to the Commission the considered view of the Government, which, inter-alia, read as follows:-
"The meeting of the Committee of Secretaries was held under the Chairmanship of the Cabinet Secretary on 9.11.2009 to consider the matter relating to disclosure of assets of civil servants and public employees under the RTI Act in which the following decisions were taken viz.
AT-22022010-01.doc Page 6 of 17 (1) The law in the matter under discussion is clearly laid down by section 8(1), read with section 11 of the RTI Act, 2005 and it is within the domain of the CPIO of each department or office to take a decision on the RTI applications received by him."
9. Matter was again heard by the Division Bench on 26.11.2009 in the presence of the representatives of the Cadre Controlling Departments, including the Department of Personnel & Training (DoPT). Appellant was called, and was absent.
10. The following issues were posed:-
1. (A) Do Property Returns filed by employees before public authorities qualify to be personal information within the meaning of Section 8(1)(j) of the RTI Act?
(B) Is there a commitment by the public authority to keep these returns confidential except when required under specified conditions to be disclosed, which brings the matter within Section 11(1).
2. If Property Returns are categorized as personal information, what conditions are to be satisfied before their disclosure can be authorized?
11. As regards Sl.No.1 of the issues, it is instructive to refer to the meaning of the word 'personal' occurring in Section 8(1)(j) of the RTI Act. This Section read as follows:-
AT-22022010-01.doc Page 7 of 17 Section 8(1)(j):
"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: Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person."
12. The Oxford Reference Dictionary defines 'personal' as an adjective "having to do with or belonging to a particular person; done by a particular person rather than someone else."
13. According to the Law Lexicon by T. Ramanatha Iyer, the word 'personal' means "pertaining to the person"; "of or relating to a particular person [S.81, CPC]"; "exclusively for a given individual [S.171F, IPC]"; "relating to the person or body [S.2(P), Gold (Control) Act]"; "relating to an individual, his character, conduct, motives or private affairs [S.60(1), prov.(A), CPC]".
14. It follows from it that the expression 'personal' when occurring in a statute or a legal document would refer to all such material which pertains to, relates to, belongs to, or a person or an individual.
16. Section 8(1)(j) contains two expressions 'personal' and 'private' in a subtly differentiated way. While this Section grants exemption to all personal information, the disclosure of which has no relationship to any public activity or interest; personal information disclosure of which would cause invasion of privacy is also barred from disclosure except in AT-22022010-01.doc Page 8 of 17 public interest. It, therefore, acknowledges that within a broad category of "personal information", a certain class of information may cause invasion of privacy if disclosed and hence should be exempted except of course in the interest of an acknowledged public interest. Outside this narrow category of private information, there remains a large expanse of personal information which may find its way into the hands of the public authority under a variety of statutes, rules or regulations. According to the wordings of this Section, once it is established that a certain category of information is personal, the only reason for its disclosure should be it serving public interest. Therefore, public interest is an essential precondition for disclosure of a category of information recognized and designated as personal.
17. Section 11(1) refers to disclosure of "any information or record, or part thereof...... which relates to or has been supplied by a third- party and has been treated as confidential by that third-party...". This Section enjoins that such third-parties should be necessarily consulted and their "submission... shall be kept in view while taking a decision about disclosure of information...". Disclosure in all such cases can be allowed "if the public interest in disclosure outweighs in importance any possible harm or injury to the interest of such third- party."
18. In Section 8(1)(j), public interest allows overriding of the exemption to disclosure of personal information. In Section 11(1), public interest is to be evaluated vis-à-vis the injury any disclosure of information might cause to the interest of the third-party. In other words, if a public authority holds a set of personal information of a third-party in confidence, that third-party can argue against its AT-22022010-01.doc Page 9 of 17 disclosure even if disclosure is merited on grounds of public interest, citing the injury such disclosure would cause to him or to his interests. It is for the CPIO and the Appellate Authority to decide whether the possibility of the injury to the interest of the third-party in the disclosure of the information is superseded by the larger public interest such disclosure would serve. It implies that should it be warranted by larger public interest, the possible injury to the third-party by the disclosure of personal information, could be ignored.
19. Any disclosure of personal information under Section 8(1)(j) and information of third-party held confidentially by a public authority, is to be authorized only after a CPIO carefully weighs the pros and cons of public interest (as also any injury to the third-party) before taking a decision about whether to disclose a given set of personal and / or third-party information partly or fully.
20. From the wordings of these two Sections, it can be fairly inferred that while the RTI Act uses 'public interest' as generally the reason for overriding the exemptions which might apply to an information, in the matter of personal information, it uses 'public interest' as the essential precondition which needs to be satisfied before CPIO authorizes disclosure of this category of information. The evaluation of disclosure of a confidential third-party information has been made even more stringent in Section 11(1) where a CPIO is also to assess imperatives of public interest vis-à-vis possible injury to a protected interest before deciding on the disclosure of a confidential-third-party-information.
21. The signal provided in the Act, therefore, is that extra care and caution should be exercised before an acknowledgedly personal information or a third-party information is authorized to be disclosed. AT-22022010-01.doc Page 10 of 17
22. That brings up the question, whether Property or Assets Returns or statements filed by public servants qualified to be their personal information or whether these are personal information of such public servants, who as third-parties hand these over to the public authority confidentially?
23. Asset Returns Statements are a declaration of the assets owned by a public servant as also all transactions in such assets / property from time to time. Assets or immovable properties owned by or belonging to a person ⎯ civil servant or not ⎯ is doubtless his personal matter and, therefore, in the domain of personal information. An owner of an immovable property or an asset is not obliged to share information about his ownership with anyone except when so required under specific laws. All such interactions are exclusive and linear between the State and the property or asset owner.
24. Filing of Asset or Property Returns by public servants before their respective public authorities, is most often a requirement under the Service or the Conduct Rules of such civil servants. Most such rules provide that all such Property or Assets Returns shall be tendered to the designated public authority and shall be held confidentially by that public authority. Disclosure of Property / Asset Return-related information is authorized only when certain set conditions are met, which may include the public servant facing an enquiry about irregularity in assets acquisition and so on. The key-point is that the public servant concerned hands over an admittedly personal information ⎯ in this case the statement of his immovable assets ⎯ on condition / assurance of its confidentiality given by public authority under appropriate Rules.
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25. Therefore, a statement of immovable assets of a public servant held by a public authority meets the two conditions laid-down in Section 11(1), viz. (1) It is a third-party information and (2) It is held confidentially. Therefore, any decision to disclose or not to disclose such information will have to be made in the context of Section 11(1). The parties to whom such information might relate to will have to be consulted and their objection, if any, to the disclosure of such information will have to be factored in by the CPIO before he decides to disclose or not to disclose such an information.
26. Apart from Section 11(1), Section 8(1)(j) is also relevant for the purpose of this category of information, i.e. personal information. It follows, that once it is established that a set of information is personal, the only reason why it should be disclosed is that it serves larger public interest. There is a noticeable congruence between Section 8(1)(j) and Section 11(1) regarding the modality of disclosing personal, private or third-party information. Both allude to public interest as the pre-requisite for authorizing their disclosre.
27. In our view, recourse to Section 11(1) is a better course of action since it gives to the CPIO the means to evaluate the pros and cons of disclosure of an information more closely through wider consultation.
28. It has also been brought to our notice that there had been some decisions made by the Commission in which it was stated that once an individual is required to submit an information under a statute, that information ceases to be personal. With respect, we are unable to accept this reasoning. The character of a set of information would not undergo change merely because it has been passed on to a government AT-22022010-01.doc Page 12 of 17 or to a public authority under a statute. For example, the details of immovable assets of a civil servant or an employee of the public authority, would not cease to be personal merely because the conduct rules of such civil servant or employee required him to periodically submit these to the public authority he serves. Once an information is characterized as personal, it remains so regardless of who holds such information. In fact, if personal information of an individual comes in the control of the public authority, it requires exercising of greater care and caution by that public authority before sharing it openly, and sharing it, if at-all, under pre-determined conditions and specific circumstances.
29. In our view, therefore, any disclosure of personal information ⎯ immovable assets of an employee being one such ⎯ can be authorized only if the conditions laid-down in Section 8(1)(j) and Section 11(1) are met on a case to case basis.
30. In this regard, we also refer to the decision dated 02.09.2009 of the Delhi High Court in the CPIO, Supreme Court of India Vs. Subhash Chandra Agarwal & Anr.; W.P.(C) No.288/2009, given by Justice S.Ravindra Bhat, in which the following finds mention:-
"67. ................. Therefore, if an important value in public disclosure of personal information is demonstrated, in the particular facts of a case, by way of objective material or evidence, furnished by the information seeker, the protection afforded by Section 8(1)(j) may not be available; in such case, the information officer can proceed to the next step of issuing notice to the concerned public official, as a "third party" and consider his views on why there should be no disclosure. The onus of showing that disclosure should be made, is upon the individual asserting it; he cannot merely say that as the information relates to a public official, there is a public interest element.
AT-22022010-01.doc Page 13 of 17 Adopting such a simplistic argument would defeat the objective of Section 8(1)(j); Parliamentary intention in carving out an exception from the normal rule requiring no 'locus' by virtue of Section 6, in the case of exemptions, is explicit through the non-obstante clause.
68. This court cannot be unmindful of the fact that several categories of public servants, including Central and State Government servants, as well as public sector employees and officers of statutory corporations are required by service rules to declare their assets, periodically. Settled procedures have been prescribed, both as to periodicity as well as contents of such asset disclosure. The regime ushered under the Act no doubt mandates, by Section 4, disclosure of a wide spectrum of information held by each public authority to be disseminated to the public; it can even be through the medium of the internet. Yet, that provision is overridden by Section 8 - by virtue of the non-obstante clause. This means that such personal information - regarding asset disclosures, need not be made public, unless public interest considerations dictate it, under Section 8(1)(j)................"
"70. ................. Now, Section 8 (1) (j) clearly alludes 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. If public servants - here the expression is used expansively to include members of the higher judiciary too - are obliged to furnish asset declarations, the mere fact that they have to furnish such declaration would not mean that it is part of public activity, or "interest". As observed earlier, a public servant does not cease to enjoy fundamental rights, upon assuming office. That the public servant has to make disclosures is a part of the system's endeavor to appraise itself of potential asset acquisitions, which may have to be explained properly. However, such acquisitions can be made legitimately; no law bars public servants from acquiring properties, or investing their income. The obligation to disclose these investments and assets is to check the propensity to abuse a public office, for private gain. If the information applicant is able to demonstrate what Section 8(1) (j) enjoins the information seeker to, i.e. that "the larger public interest AT-22022010-01.doc Page 14 of 17 justifies the disclosure of such information" the authority deciding the application can proceed to the next step, after recording its prima facie satisfaction, to issue notice to the "third party" i.e. the public servant who is the information subject, why the information sought should not be disclosed. After considering all these views and materials, the CPIO or concerned State PIO, as the case may be can pass appropriate orders, including directing disclosure. This order is appealable.
71. Section 8 (1) in the opinion of the court, confers substantive rights even while engrafting procedural safeguards, because of the following elements:
(1) Personal information and privacy rights being recognized by Section 8 (1) (j), as the substantive rights of third parties;
Due satisfaction of the CPIO or the State PIO, that disclosure of such personal information is necessary and in the public interest - which is to be arrived at on the basis of objective materials;
The satisfaction being recorded after hearing or considering the views of the third party whose information is in issue, in accordance with the procedure prescribed in Section 11;
(2) The satisfaction being recorded in writing, through an order, under Section 11 (3);
(3) The order, if adverse to the third party, is appealable (Section 11(4))."
"74. In this In this court's opinion Section 8(1)(j) is both a check on the power of requiring information dissemination, (having regard to its potential impact on individual privacy rights,) as well as a mechanism whereby individuals have limited control over whether personal details can be made AT-22022010-01.doc Page 15 of 17 public. This safeguard is made in public interest in favour of all public officials and public servants......."
"75. In view of the above discussion, it is held that the contents of asset declarations, pursuant to the 1997 resolution - and the 1999 Conference resolution- are entitled to be treated as personal information, and may be accessed in accordance with the procedure prescribed under Section 8(1)(j); they are not otherwise subject to disclosure..............."
31. In this connection, we also refer to the Delhi High Court decision dated 30.11.2009 in Union of India Vs. Bhabaranjan Ray & Another; W.P.(C) No.7304/2007, in which Justice Sanjiv Khanna observed as below:-
"28. ................. As observed by S. Ravindra Bhat, J. the third part of Section 8(1)(j) reconciles two legal interests protected by law i.e. right to access information in possession of the public authorities and the right to privacy. Both rights are not absolute or complete. In case of a clash, larger public interest is the determinative test. Public interest element sweeps through Section 8(1)(j). Unwarranted invasion of privacy of any individual is protected in public interest, but gives way when larger public interest warrants disclosure. This necessarily has to be done on case to case basis taking into consideration many factors having regard to the circumstances of each case."
32. We, therefore, reiterate that there cannot be an omnibus order about the disclosure of all immovable assets-related information of employees of public authorities. The government or the public authorities may frame rules about disclosure of this class of information held by them as filed by their employees, but till such time as these Rules are framed and, the condition of confidentiality in which such information is handed over to the public authority holds good, the AT-22022010-01.doc Page 16 of 17 request for their disclosure will have to be considered on a case-by-case basis under the provisions of Sections 8(1)(j) and 11(1) of the Act. Similarly, it shall be open to any public authority or the Government to voluntarily undertake to disclose this variety of information, fully or in part.
33. Accordingly, the present case is remitted back to the CPIO, Cochin Port Trust, with the direction that he will consider this matter under the provisions of Section 8(1)(j) and/or Section 11(1) of the RTI Act and then take a view as enjoined by either or both Sections, which shall be communicated to the appellant within 6 weeks from the date of the receipt of this order.
33. Appeal disposed of with the above directions.
(A.N. TIWARI) ( M.L. SHARMA ) Information Commissioner Information Commissioner
Authenticated true copy. Additional copies of orders shall be supplied against application and payment of the charges, prescribed under the Act, to the CPIO of this Commission.
(D.C. SINGH) Deputy Registrar AT-22022010-01.doc Page 17 of 17