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
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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.AT-22022010-01.doc
Page 2 of 176. 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. Thefinancial 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.3. Comptroller & Property Returns are covered under Section 8(1)(j) read
Auditor General of with Section 8(1)(e) of the RTI Act. The provisions of
India Section 11(1) would also be attracted.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
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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.AT-22022010-01.doc
Page 4 of 17(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
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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.
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(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:-
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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.
15. The RTI Act uses the word ‘personal’ in the context of a person to
whom the information might relate (as in Section 8(1)(j)).
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
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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
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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.
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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
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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.
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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
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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
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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
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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
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