UOI v. Central Information Commission & Anr

JUDGMENT

¶1A short but interesting question arises for determination in these petitionsarising out of an order dated 12^*' June 2008, passed by the Central Information Commission ('CIC'). That question is whether the information seeker Mr. Arvind Kejriwal can be provided with copies of documents in the files concerning appointments at the levels of Deputy Secretary, Director, Joint Secretary, Additional Secretary and Secretary in the Government of India without the procedure outlined in Section 11(1) of the Right to Information Act, 2005 ('RTI Act') having to be followed?

¶2The CIC allowed Mr. Kejriwal inspection of the relevant files concerning empanelment of Additional Secretaries and Secretaries to the Government of India and he was to be provided by the Department of Personnel and Training ('DoPT'), Government of India copies of the documents and records, as might be specified by him after inspection. Further, it was held that since Mr. Kejriwal had already been allowed inspection of the files of the appointments of officers in the rank of Deputy Secretary, Director and Joint Secretary, the denial of photocopies of the documents was not justified. These documents included the annual confidential rolls ('ACRs'), the grading of the officers, their vigilance clearance etc.. However, since Mr. Kejriwal fV.P. (Civil)Nos. 6614 of2008, 8999 of2008 and 8407 of2009 Page 2 of16 V ; I himself stated that he did not want copies of the ACRs of each of the officers "but required only the chart which contained the grading of the officers" and "since such chart would not contain any personal information", the CIC directed the DoPT to provide copies of the chart to him within 20 working days.

¶3Mr. Kejriwal has filed Writ Petition (Civil) No. 6614 of 2008 seekingimplementationof the aboveorder dated 12"" June 2008 of the CIC. The Union of India ('UOI') has filed Writ Petition (Civil) No. 8999 of 2008 challenging the said order. It has also filed Writ Petition (Civil) No. 8407 of 2009 challenginga subsequentorder dated 27^*^ November 2008 passed by the CIC taking exception to the DoPT's non-complianceof its earlierorderdated 12"" June 2008 and directing complianceby 30^*^December2008.

¶4While directing notice to be issued in the Writ Petition (C) No. 8999 of 2008 filed by the Union of India, this Court stayed the operationof the impugned order dated 12^*^ June 2008 of the CIC. Likewise, in Writ Petition (Civil) No. 8407 of 2009 while directing notice to be issued, this Court stayed the operation of the impugned order dated 27^*^ November 2008.

¶5The background to the proceedings before the CIC has been set out elaboratelyin the impugnedorder dated 12^*^ June 2008 of the CIC. Mr. Kejriwal sought information from the DoPT by filing three separateapplicationson 17'^November2005 underthe RTI Act. This W.P. (Civil)Nos. 6614of2008,8999of2008and8407of2009 Page3of16 J information related to empanelment of officers in the Government of India at the level of (i) Deputy Secretary and Director (ii) Joint Secretary (iii) Additional Secretary and above. Under each category the Petitioner sought the following information: "(i) Service-wiselist of all the officers empanelledduring Financial Years 2004-05 and 2005-06 for the posts of Deputy Secretary, Director, Joint Secretary and Additional Secretary & above' and date of empanelment of each officer.

(ii) List of all posts of Deputy Secretary, Director, Joint Secretary and Additional Secretary & above on which, appointments were made under Central Staffing Scheme

(CSS) during the Financial Years 2004-05 and 2005-06.

(iii)Afler the panels of suitable officers have been made, what is the procedure for appointing officers at various posts falling vacant at these levels. Which clause of the Central Staffing Scheme deals with the selection of officers from the panels and their final appointment? Please give copies of all Rules, Regulations etc. which guide this process.

(iv) Inspection of all files, including file notings, through which the officers were picked up fi-om panels for particular posts during the period from January, 2005 till date.

(v) For each of the appointments done at these levels during the Financial Years 2003-04 and 2004-05 and till date in the current year, please indicate how the bio-data of appointed officer was considered more suitable than the others for that post."

¶6While some of the information was provided, the Central Public Information Officers ('CPIOs') justified the withholding of the remaininginformationstatingthat informationrelatingto the Cabinet Secretaryand the Secretariesof the other departmentswas exempted under Section 8 of the RTI Act. Secondly, the information concerning W.P. (Civil)Nos. 6614of2008,8999of2008and8407of2009 Page4of16 empanelment of the officers was personal to those officers and had no relationship with any public activity or interest. It would constitute an unwarranted invasion of the privacy of the individuals and, therefore, could not be disclosed under Section 8(1)G) of the RTI Act. Thirdly, the records which form part of the decision of the Appointments Committee of the Cabinet (hereafter 'the ACC) and the recommendations thereon were 'privileged' and could not be disclosed under Section 8 of the RTI Act.

¶7The Appellate Authority remanded the matter to the CPIOs by separate orders passed on 3'^'' February 2006 and 13^*^ March 2006. Among the observations made by the Appellate Authority was that the information sought by Mr. Kejriwal pertained to a third party and fell within the provisions of Section 11(1) of the RTI Act. Therefore, it was obligatory on the part of the CPIOs to issue notice to such third parties and invite them to make submissions, in writing or orally, as to whether the information could be disclosed. Further, since the information sought would involve compilation of a huge amount of data, this aspect was also required to be considered by the CPIOs.

¶8Aggrieved by the above order, Mr. Kejriwal filed a second appeal before the CIC. During the course of the said appeal, Mr. Kejriwal submitted that "he did not require the information in any particular format" and that "he may simply be allowed inspection of all files so that he could specify the documents, copies whereof he desired to have." In response to the submission of the UOI that allowing W.P. (Civil) Nos. 6614 of2008, 8999 of2008 and 8407 of2009 Page 5 of16 inspection of so many files could disrupt the normal functioning of the DoPT as there would be more than 600 files, Mr. Kejriwal suggested that "he should be allowed inspection of 10-20 files everyday in such a way that it did not disrupt the functioning of the Department".

¶9On 14^*^ July 2006, the CIC noted that during the course of the hearing, the CPIOs agreed to dispose of the cases remanded by the Appellate Authority within one month and that "the CPIO would find ways and means to provide information to the Appellant in the light of these discussions". It was noted that "there seems to be no objection on the part of DoPT to provide information. The only issue is how to provide it considering its voluminous nature."

¶10When the Petitioner went back to the CIC complaining of non-implementation of its directions, notices were again issued to the CPIOs by the CIC asking for a compliance report. As regards information concerning the appointments of Deputy Secretaries and Directors, the concerned CPIO informed the CIC by his letter dated 27'*^ February2007 that Mr. Kejriwalhad already examined all the files, noted down their details and, therefore, the order of the CIC dated 14"^ July 2006 stood complied with. It was further submitted that "copies of the examination report, files and notings include personal information of the officers and, as such, furnishing of the said information would attract Section 11(1) of the RTI Act. Since it was a major exercise it would also attract the provisions of Section 7(9) of the RTI Act." W.P. (Civil) Nos. 6614 of2008, 8999 of2008 and 8407 of2009 r \ \

¶11As regards appointments at the level of Joint Secretary, the concerned CPIO informed the CIC that Mr. Kejriwal had been allowed to inspect those files as well. However, the copies of the examination report as sought by Mr. Kejriwal included the officers' ACRs, gradings, their vigilance clearance reports etc. Therefore, providing that information would attract Section 11(1) of the RTI Act. As regards appointments at the level of Additional Secretary and Secretary, the CPIO informed that the Cabinet Secretariat had been asked to provide the information and Mr. Kejriwal had been requested to inspect the files relating to the appointments at the level of Additional Secretary and Secretary.

¶12The CIC apparently was satisfied and the Petitioner was informed by a letter dated 18'*^ April 2007 that with the above complianceno further action was required. However, on 20^^ April 2007 Mr. Kejriwal filed an application before the CIC seeking a review. The CIC on 14^^ July 2007 passedan orderdismissingthe reviewpetition. This was challenged by the Petitioner by filing Writ Petition No. 6777 of 2007 in this Court. By an order dated September 2007 this Court remanded the case to the CIC to be heard by a Bench constituted by the CIC.

¶13Duringthe hearingafter remandbeforethe CIC on 19'^ February 2008 the Section Officer and the CPIO in the DoPT informed the CIC that the copies of the examination reports, file notings and W.P. (Civil)Nos. 6614 of2008, 8999 of2008 and 8407 of2009 o \ / correspondence sought by Mr. Kejriwal included personal information of the officers which apart from being voluminous would also attract Section 11(1) of the RTI Act. Seeking prior permission of such officers would itself be a major exercise. It was noted that in any case, Mr. Kejriwal had already examined all the files and noted down the details which had been brought to the notice of the CIC by an order dated 17^*^ December 2007.

¶14The other CPIO informed the CIC that Mr. Kejriwal had examined all the files pertaining to appointments at the level of Deputy Secretary and Director for the years 2004 and 2005 "for about two hours each day for several days." Mr. Kejriwal "was also provided a list of all appointments made during 2005 at the levels of Deputy Secretaries and Directors". Mr. Kejriwal's request to provide "copies of the files for the year 2006" could not be acceded to as it was voluminous attracting Section 7(9) of the RTI Act. As regards the empanelment of officers in the select list of Joint Secretary, Mr. Kejriwal was informed that "the grounds for determining the eligibility had been laid down in the provisions of the Central Staffing Scheme ('CSS'), a copy of which had been provided to if. Mr. Kejriwal was informed that "all the officers from a given batch were not sponsored by the respective cadre controlling authorities of Group 'A' services in the earlier years". The reasons why the remaining officers were not sponsored for empanelment would be available with the respective cadre controlling authorities. Accordingly Mr. Kejriwal was provided a list of the services and the respective cadre controlling W.P. (Civil)Nos. 6614 of2008, 8999 of2008 and 8407 of2009 Page 8 of16 J i: authorities. As regards the DoPT which was the cadre controHing authority in respect of the IAS, information was provided to Mr. Kejriwal.

¶15Consequently, the only point that remained to be considered by the CIC was whether Mr. Kejriwal should be given copies of the documents which he had already inspected. As regards the information being of a voluminous nature, Mr. Kejriwal limited the information sought to the appointmentof senior officers over a period of three years. Therefore, as regards the information concerning the officers at the level of Deputy Secretary, Director and Joint Secretary, inspection of the files had already been done and the CIC noted that "the only question that now remained was whether photocopies of the concerned files could be given or not". Since the DoPT had not furnished any proper information, the CIC ordered that Mr.Kejriwal should be furnished with copies of the documents he was seeking within 20 days.

¶16As regards the files concerning the empanelment of Additional Secretaries and Secretaries, the CIC again directed that Mr. Kejriwal should be provided the copies of the documents and records after inspection.

¶17In view of the narrow issue that was examined by the CIC in its impugned order, both Mr. Prashant Bhushan, learned counsel appearing on behalf of Mr. Arvind Kejriwal and Mr. S.K. Dubey, W.P. (Civil) Nos. 6614 of2008, 8999 of2008 and 8407 of2009 Page 9 of16 \ learned counsel appearing for the Union of India confined their arguments to the question whether providing copies of the above documents, as sought by Mr. Kejriwal, would attract the provisions of Section 11(1) of the RTI Act.

¶18In order to appreciate their respective contentions, it is first necessary to refer to Section 11(1) of the RTI Act which reads as under: "11. Third party information

(l)Where a Central Public Information Officer or the State Public information Officer, I I as the case may be, intends to disclose any information or record, or part thereof on a request made under this Act, wliich 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 or State Public Information Officer, as the case may be, 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 or State Public (, ' Information Officer, as the case may be, 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." (emphasis supplied) W.P. (Civil)Nos. 6614 of2008, 8999 of2008 and 8407 of2009 Page 10 of16 ( \ \ /

¶19According to Mr. Bhushan, the 'third party information' is that information which is in fact provided by the third party and further should be asked by the said third party to be kept confidential. It is only when both these conditions are fulfilled that Section 11(1) of the RTI Act is attracted. In other words, although Section 11(1) of the RTI Act indicates that where the information sought "relates to or has been supplied by a third party" the word 'or' should be read as 'and' for only then the provision would be workable. It was submitted that unless the above interpretation is placed on Section 11(1), it will not be possible for a person to access information relating to appointments to the various posts in the Government of India.

¶20On the other hand, it was submitted by Mr. Dubey that there was no scope to substitute the word 'or' with the word 'and' and that since the statute was unambiguous it had to be read as such. He submitted that information pertaining to ACRs, vigilance reports etc., of an individual officer and their collation even in the form of a chart would be information personal to such officers and has to he viewed as 'third party information'. It is submitted that in such event the mandatory procedure outlined under Section 11(1) of the RTI Act has to be followed.

¶21This Court has considered the above submissions. It requires to be noticed that under the RTI Act information that is totally exempt from disclosure has been listed out in Section 8. The concept of privacy is incorporated in Section 8(l)(j) of the RTI Act. This provision would fV.P. (Civil) Nos. 6614 of2008, 8999 of2008 and 8407 of2009 Page 11 of16 o J A be a defense available to a person about whom information is being sought. Such defence could be taken by a third party in a proceeding under Section 11(1) when upon being issued notice such third party might want to resist disclosure on the grounds of privacy. This is a valuable right of a third party that encapsulates the principle of natural justice inasmuch as the statute mandates that there cannot be a disclosure of information pertaining to or which 'relates to' such third party without affording such third party an opportunity of being heard on whether such disclosure should be ordered. This is a procedural safeguard that has been inserted in the RTI Act to balance the rights of privacy and the public interest involved in disclosure of such information. Whether one should trump the other is ultimately for the information officer to decide in the facts of a given case.

¶22Turning to the case on hand, the documents of which copies are sought are in the personal files of officers working at the levels of Deputy Secretary, Joint Secretary, Director, Additional Secretary and Secretary in the Government of India. Appointments to these posts are made on a comparative assessment of the relative merits of various officers by a departmental promotion committee or a selection committee, as the case may be. The evaluation of the past performance of these officers is contained in the ACRs. On the basis of the comparative assessment a grading is given. Such information cannot but be viewed as personal to such officers. Vis-a-vis a person who is not an employee of the Government of India and is seeking such information as a member of the public, such information has to W.P. (Civil) Nos. 6614 of2008, 8999 of2008 and 8407 of2009 Page 12 of16 be viewed as constituting 'third party information'. This can be contrasted with a situation where a government employee is seeking information concerning his own grading, ACR etc. That obviously does not involve 'third party' information.

¶23What is, however, important to note is that it is not as if such information is totally exempt from disclosure. When an application is made seeking such information, notice would be issued by the CIC or the CPIOs or the State Commission, as the case may be, to such 'third party' and after hearing such third party, a decision will be taken by the CIC or the CPIOs or the State Commission whether or not to order disclosure of such information. The third party may plead a 'privacy' defence. But such defence may, for good reasons, be overruled. In other words, after following the procedure outlined in Section 11(1) of the RTI Act, the CIC may still decide that information should be disclosed in public interest overruling any objection that the third party may have to the disclosure of such information.

¶24Given the above procedure, it is not possible to agree with the submission of Mr. Bhushan that the word 'or' occurring in Section 11

(1) in the phrase information "which relates to or has been supplied by a third party" should be read as 'and'. Clearly, information relating to a third party would also be third party information within the meaning of Section 11(1) of the RTI Act. Information provided by such third party would of course also be third party information. These two W.P. (Civil)Nos. 6614 of2008, 8999 of2008 and 8407 of2009 Page 13 of16 distinct categories of third party information have been recognized under Section 11(1) of the Act. It is not possible for this Court in the circumstances to read the word 'or' as 'and'. The mere fact that inspection of such files was permitted, without following the mandatory procedure under Section 11(1) does not niean that, at the stage of furnishing copies of the documents inspected, the said procedure can be waived. In fact, the procedure should have been followed even prior to permitting inspection, but now the clock cannot be put back as far as that is concerned. f "A

¶25The logic of the Section 11(1) RTI Act is plain. Once the information seeker is provided information relating to a third party, it is no longer in the private domain. Such information seeker can then disclose in turn such information to the whole world. There may be an officer who may not want the whole world to know why he or she was overlooked for promotion. The defence of privacy in such a .case cannot be lightly brushed aside saying that since the officer is a public servant he or she cannot possibly fight shy of such disclosure. There may be yet another situation where the officer may have no qualms about such disclosure. And there may be a third category where the credentials of the officer appointed may be thought of as being in public interest to be disclosed. The importance of the post held may also be a factor that might weigh with the information officer. This exercise of weighing the competing interests can possibly be undertaken only after hearing all interested parties. Therefore the W.P. (Civil)Nos. 6614 of2008, 8999 of2008 and 8407 of2009 Page 14 of16 J procedure under Section 11(1) RTI Act.

¶26This Court, therefore, holds that the CIC was not justified in overruling the objection of the UOI on the basis of Section 11(1) of the RTI Act and directing the UOI and the DoPT to provide copies of the documents as sought by Mr. Kejriwal. Whatever may have been the past practice when disclosure was ordered of information contained in the files relating to appointment of officers and which information included their ACRs, grading, vigilance clearance etc., the mandatory procedure outlined under Section 11(1) cannot be dispensed with. The short question framed by this Court in the first paragraph of this judgment was answered in the affirmative by the CIC. This Court reverses the CIC's impugned order and answers it in the negative.

¶27The impugned order dated 12^*^ June 2008 of the CIC and the consequentialorder dated 19'^ November2008 ofthe CIC are hereby set aside. The appeals by Mr. Kejriwal will be restored to the file of the CIC for compliance with the procedure outlined under Section 11

(1) RTI Act limited to the information Mf^. Kejriwal now seeks.

¶28Writ Petition (Civil) No. 6614 of 2008 filed by Mr. Arvind Kejriwal is dismissed and Writ Petition (Civil) Nos. 8999 of 2008 and 8407 of 2009 filed by the Union of India are accordingly allowed, W.P. (Civil) Nos. 6614 of2008, 8999 of2008 and 8407 of2009 Page 15 of16 with no order as to costs. All the pending applications stand disposed of. JULY 30, 2010 ak S. MURALIDHAR, J W.P. (Civil) Nos. 6614 of2008, 8999 of2008 and 8407 of2009 Page 16 of16

•U IN THE HIGH COURT OF DELHI AT NEW DELHI W.P. (C) 6614/2008 & CM APPL No. 12685/2008 Reserved on: July, 2010 Decisionon: 30^^ July,2010 ARVIND KEJRJWAL Petitioner Through Mr. Prashant Bhushan with Ms. Girija Kishan Verma and Mr. Rishikesh Kumar, Advocates. versus CENTRAL PUBLIC INFORMATION OFFICER, CABINET SECRETARIAT Respondent Through Mr. S.K. Dubey with Mr. Vanshdeep Dalmia and Mr. Abhinav Rao, Advocates. WITH 8999/2008 & CM APPL. No. 7517/2008 UNION OF INDIA Petitioner Through Mr. S.K. Dubey with Mr. Vanshdeep Dalmia and Mr. Abhinav Rao, Advocates. versus ARVIND KEJRIWAL Respondent Through Mr. Prashant Bhushan with Ms. Girija Kishan Verma and Mr. Rishikesh Kumar, Advocates. AND W.P.(C) 8407/2009 & CM APPL. 5286/2009 UNION OF INDIA Petitioner Through Mr. S.K. Dubey with Mr. Vanshdeep Dalmia and Mr. Abhinav Rao, Advocates. versus ARVIND KEJRIWAL Respondent Through Mr. Prashant Bhushan with Ms.Girija Kishan Verma and Mr. Rishikesh Kumar, Advocates. W.P. (Civil) Nos. 6614 of2008, 8999 of2008 and 8407 of2009 Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. CORAM: JUSTICE S. MURALIDHAR 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? 3. Whetherthe judgment shouldbe reported in Digest?