CENTRAL INFORMATION COMMISSION
Club Building (Near Post Office),
Old JNU Campus, New Delhi - 110067.
Tel: +91-11-26161796
Decision No. CIC/SG/A/2011/001809/15259
Appeal No. CIC/SG/A/2011/001809
Relevant Facts
emerging from the Appeal
Appellant : Mr. Tanmoy Samajdar
Flat No. A1, 381 & 382a,
M.G. Road, Kolkata-700082..
Respondent : Mr. S. K. Dhar,
Registrar & CPIO
Satyajit Ray Film and Television Institute,
E.M. Bypass Road, P.O.Panchasayar.,
Kolkata-700094.
RTI application filed on : 01/03/2011
PIO replied : 17/03/2011
First appeal filed on : 22/03/2011
First Appellate Authority order : 18/04/2011
Second Appeal received on : 12/07/2011
Sl. Information Sought Reply
1. Proceedings of the D.P.C. which was held on 08 A copy of the minutes of the DPC is enclosed.
Jan. 2010 for the post of Senior Manager (IT)
2. Assessment of Shri Samajdar's confidential An ACR is a confidential document, and hence,
reports for the last 6 years from the year 2004- disclosure of the same is protected by the Official
2009 with the copy of the ACR reports for the Secrets Act, 1923. Moreover, disclosure of these
mentioned period. documents will not serve any public interest. In
view of this, the copies of the ACRs can not be
provided.
3. Consent letter of the Dean of Shibpur BE Copies of letter dated 01.12.2010 of Dean, BESU,
College, the HOD of Computer Science Shibpur and letter dated 03.11.2010 of Professor
department of Jadavpur University for eligibility & Head, Jadavpur University are enclosed.
of M Tech Computer Technology in the post of
Senior Manager (IT)
Grounds for First Appeal:
Unsatisfactory reply was given by the FAA.
Order of the First Appellate Authority:
“Clause (j) of sub-section (1) of Section 8 of RTI Act provides that that is no obligation to give any citizen
information which relates to personal information and disclosure of which has no relationship to any
public activity or interest or which would cause unwarranted invasion of privacy of the individual unless
the Public Information Officer or the Appellate Authority, as the ease may be, is satisfied that the larger
public interest justifies the disclosure of such information.
DOPT’s O.M. No. 10/20/2006-1R dated the 21’st September, 2007, states that the public authority is not
under obligation to disclose ACRs of any employee to the employee himself or to any other person
inasmuch as disclosure of ACRs is protected by clause(j) of sub-section (1) of Section of RTI Act and an
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ACR is a confidential document, disclosure of which is protected by the Official Secrets Act, 1923..
However, the public authority has disruption to disclose the Annual Confidential Reports of an employee
to the employee himself or to any other person, if the public authority is satisfied that the public interest in
disclosure outweighs the harm to the protected interests. If it is felt that public interest in disclosure of
ACR of any employee outweighs the protected interests, decision to disclose the ACRs ; should be taken
with the approval of the competent authority.
The undersigned, after careful consideration of the submissions made by the appellant in his appeal
petition dated 22-03-2011, provisions under Clause (j) of sub-section (1) of Section 8of RTJ Act, 2005
and DoPT’s ON. No10/20/20061R dated the 2l September, 2007, referred to above, holds that the records
of service including ACRs are maintained in public interest and ACRs being confidential documents, are
protected from disclosure as per the Official Secrets Act, 1923 Since the disclosure of the ACRs in the
instant case is not in public interest, the undersigned dens the information to the appellant.”
Grounds for Second Appeal
Unsatisfactory reply was received by the Applicant.
Relevant Facts emerging during Hearing:
The following were present
Appellant : Mr. Tanmoy Samajdar on video conference from NIC-Kolkata Studio;
Respondent : Mr. S. K. Dhar, Registrar & CPIO on video conference from NIC-Kolkata Studio;
The appellant has sought copies of his ACR and the PIO and FAA have refused to give this
information claiming exemption under Section 8(1)(j) & (e) of the RTI Act. The FAA has also upheld the
decision of the PIO. Firstly the Commission notes that when a person asks for information about himself it
cannot be denied to him on the grounds of Section 8(1)(j) since a person cannot invade his own privacy.
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
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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.
Certain human rights such as liberty, freedom of expression or right to life are universal and therefore
would apply uniformly to all human beings worldwide. However, 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 U. K. 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.
In the instant case, there is no doubt that the information sought is “personal” information inasmuch as it
is the Annual Confidential Report of a government officer. The ACR is a report that evaluates the work
and performance of a public servant. The public authority concerned, must necessarily have this
information so to make an assessment of its officers’ performance. 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. Moreover, a public servant
is accountable to the public and therefore, every citizen has the right to obtain information that may assess
his credibility, integrity and performance.
It is pertinent to mention that the Supreme Court of India in Union of India v. ADR in Appeal (Civil) 178
of 2001 and W. P. (Civil) 294 of 2001 decided on 02/05/2002, 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
misgovernance 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.
Therefore, 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. Similarly, citizens have a right to know about the strengths and
weaknesses as well as performance evaluation of all public servants. The government is elected by the
citizens of India and it is the duty of such government through its officers to protect the rights of the
citizens. 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.
It would not be out of place to mention 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. This was given a statutory ratification by way of the Right to
Information Act, 2005, which recognised the citizen’s fundamental right to information. The RTI Act
endeavours to do away with the notion of ‘secrecy’ which was prevalent in the British era and carried
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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.
In view of the foregoing arguments 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.
The PIO had stressed exemption under Section 8 (1) (e) of the RTI Act. Section 8(1)(e) exempts from
disclosure ‘information available to a person in his fiduciary relationship, unless the competent authority
is satisfied that the larger public interest warrants the disclosure of such information;’
The traditional definition of a fiduciary is a person who occupies a position of trust in relation to
someone else, therefore requiring him to act for the latter’s benefit within the scope of that relationship. In
business or law, we generally mean someone who has specific duties, such as those that attend a particular
profession or role, e.g. doctor, lawyer, financial analyst or trustee. Another important characteristic of
such a relationship is that the information must be given by the holder of information who must have a
choice,- as when a litigant goes to a particular lawyer, a customer chooses a particular bank, or a patient
goes to particular doctor. An equally important characteristic for the relationship to qualify as a fiduciary
relationship is that the provider of information gives the information for using it for the benefit of the one
who is providing the information. All relationships usually have an element of trust, but all of them cannot
be classified as fiduciary. Information provided in discharge of a statutory requirement, or to obtain a job,
or to get a license, cannot be considered to have been given in a fiduciary relationship.
In view of the above the Commission does not uphold the contention of the PIO that the ACRs are held in
a fiduciary capacity by the Public Authority.
Decision:
The Appeal is allowed.
The PIO is directed to provide the information sought by the Appellant to him
before 10 November 2011.
This decision is announced in open chamber.
Notice of this decision be given free of cost to the parties.
Any information in compliance with this order will be provided free cost as per Section 7(6) of RTI Ac.
Shailesh Gandhi
Information Commissioner
21 October 2011
(In any correspondence on this decision, mentioned the complete decision number.)(ved)
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