CENTRAL INFORMATION COMMISSION
.....
F.No.CIC/AT/A/2009/000617
Dated, the 16th September, 2009.
Appellant : Shri K.L. Bablani
Respondents : Directorate General of Vigilance, Customs & Central
Excise.
This matter was heard through videoconferencing (VC) on
02.09.2009 with the appellant present at NIC VC facility at Nagpur and
the respondents, represented by Shri Avinash Pushkarna, Joint
Commissioner & Appellate Authority and Shri Rajender Kumar, Assistant
Commissioner & CPIO, at the Commission’s New Delhi office, from
where the Commission conducted its hearing.
2. The present second-appeal is for the limited purpose of disclosure
of file-notings in a vigilance file on the basis of which an administrative
warning to the appellant was issued as listed in appellant’s
RTI-application dated 06.02.2009.
3. Respondents declined to disclose the file-notings in the vigilance
file arguing that it was important to preserve and protect the identity
of the officers making notings in sensitive files in order to allow them
the space and the freedom to record their notes unencumbered by
scrutiny of the very person against, or in respect of, whom such notes
might have been recorded. They urged that in a hierarchical system, a
file-noting is the expression of informed opinion of each officer
authorized to process the file as an aid to the competent authority, who
makes the final decision. These officers perform an unenviable task ⎯
very often examining the conduct of their friends and colleagues ⎯ and
without the protection of confidentiality, they would never be able to
discharge their responsibility in an unbiased, fearless and objective
manner. The net upshot of these psychological pressures on the officers
will be that decision-making will cease to be objective and governance
will suffer.
4. Appellant argued that if the respondents wished to protect the
identity of the officers recording the notes, they might very well sever
the identities of those officers from the documents provided to the
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appellant. He objected to any attempt to block disclosure of a part of
the file, i.e. the file-noting.
5. CPIO responded by saying that given the complex to-and-fro
movement of files and recordings on the file-notes, deleting the names
of the officers recording the notes will not be easy. Apart from the
above, even if the names are hidden, it would not be difficult to
identify the officer making the note on the basis of his position on the
hierarchy and even his handwriting. Transcribing the notes wholesale
will be both a time-consuming and an expensive process.
Decision:
6. This is not the first case in which employees of a public authority
have demanded disclosure of file-notings in matters of vigilance and
disciplinary enquiries held against them. In most cases, the purpose is
to find out the identity of those officers who had taken favourable and
those who had taken unfavourable view of the conduct of such
employees in recording the file-notes. The employees are aware that it
is these notes, which eventually lead to decisions for, or against, them
by the competent authority and want, for their own different purposes,
to gain access to the identities of those recording the notes as well as
the notes recorded to pursue their agendas about, or against, the
officers recording those notes. It has happened in a few cases that
even bona-fide comments made in such sensitive files by officers, when
disclosed to the person in respect of whom such comments were made,
brought retribution to the officer recording the note in the shape of a
court preceding, a notice for damages and so on. In some cases, even
intimidation was resorted to. Frequently, officers recording such notes
were juniors to those in respect of whom the case was being processed.
Naturally, no officer recording the note wanted his identity to be
disclosed lest he became the victim himself later at the hands of the
senior person, whose conduct it became his duty to examine at some
stage. Confidentiality of note-files, therefore, is an entirely wholesome
principle conducive to good governance. Any compromise with
objectivity in processing matters extant in the file, is potentially
damaging to governance by exposing those entrusted with the charge of
processing the matter to, undue, and sometimes, intimidating, scrutiny
by interested parties.
7. It is my belief, therefore, that a public authority which is
authorized to hold file-notings in sensitive files, such as vigilance and
disciplinary matters, confidential under the provisions of Section 124 of
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the Indian Evidence Act can also hold such documents (file-notings)
confidential under Section 11(1) of RTI Act read with Section 2(n), on
satisfying certain conditions. Section 2(n) of RTI Act, which states that a
“third party” means a person other than the citizen making a
request for information and includes a public authority.
renders a public authority holding the information a “third-party” in
respect of the confidential information it holds. Since the information
satisfies the requirement of being a third-party information, it being
confidential as well as it comes within the scope of Section 11(1), which
reads as follows:-
“Where a Central Public Information Officer …………. intends to
disclose any information or record, or part thereof on a request
made under this Act, which relates to or has been supplied by a
third party and has been treated as confidential by that third
party, the Central Public Information Officer …………………. shall,
within five days from the receipt of the request, give a written
notice to such third party of the request and of the fact that the
Central Public Information Officer …………………intends to disclose
the information or record, or part thereof, and invite the third
party to make a submission in writing or orally, regarding
whether the information should be disclosed, and such
submission of the third party shall be kept in view while taking a
decision about disclosure of information:
Provided that except in the case of trade or commercial
secrets protected by law, disclosure may be allowed if the public
interest in disclosure outweighs in importance any possible harm
or injury to the interests of such third party.”
8. Since the matter comes squarely within the purview of Section
11(1) being a confidential third-party information, the reason why it can
be disclosed is that it is in public interest and, not otherwise. It needs
to be proved that public interest supersedes the protected interest if
such information were to be disclosed.
9. In the present case, I do not find that the requirement of public
interest is satisfied. The appellant’s urge to know ‘who-recorded-what’
in the file-noting of the file relating to disciplinary proceedings against
him, serves no public interest but is rooted only in the appellant’s
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eagerness and, his curiosity to access those file-notings and, more
particularly, their authors.
10. I do not think that applying Section 10(1) and hiding the names of
the authors of the file-notings will serve any purpose. As has been
rightly pointed out by the respondents, even without the authors’
names, the identity of the authors of the notes could be disclosed by
reference to the hierarchies through which the file passed as well as the
handwriting in which the notes were recorded.
11. I, therefore, hold that there are substantial grounds not to
disclose the information as requested by the appellant.
12. The appeal is, therefore, disallowed.
13. Copy of this direction be sent to the parties.
( A.N. TIWARI )
INFORMATION COMMISSIONER
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