RTI Judgement Series: Disclosure of CR is not invasion on the privacy of a government servant
Performance appraisals or annual confidential reports of government servants are not exempted under Section 8(1)(j) of the RTI Act and should be disclosed, ruled the CIC. This is the 101st in a series of important judgements given by former Central Information Commissioner Shailesh Gandhi that can be used or quoted in an RTI application
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. 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.
CENTRAL INFORMATION COMMISSION
Decision No. CIC/SG/A/2011/000464/12432
Appeal No. CIC/SG/A/2011/000464
Appellant : VR Sharma
LW Commissioner (C),
Ordinance Factory Board, 10-a,
SK Bose Road, Kolkata-700001 (WB)
Respondent : Prakash Tamrakar
Under Secretary & CPIO;
Ministry of Labour & Employment,
Govt. of India
Shram Shakti Bhavan, Rafi Marg
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