Historical Moment - Indian Public / Citizens can access/see ACRs ( Annual Confidential Report) of Public servents under RTI Act (RTI 8 (1)(j) "Annual Confidential Reports" ACRs)
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.
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.
See decision -
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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 Jan. 2010 for the post of Senior Manager (IT) A copy of the minutes of the DPC is enclosed.
2. Assessment of Shri Samajdar’s confidential reports for the last 6 years from the year 2004-2009 with the copy of the ACR reports for the mentioned period.
An ACR is a confidential document, and hence, disclosure of the same is protected by the Official Secrets Act, 1923. Moreover, disclosure of these 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 College, the HOD of Computer Science department of Jadavpur University for eligibility of M Tech Computer Technology in the post of Senior Manager (IT) Copies of letter dated 01.12.2010 of Dean, BESU, Shibpur and letter dated 03.11.2010 of Professor & Head, Jadavpur University are enclosed.
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 in as much as disclosure of ACRs is protected by clause(j) of sub-section (1) of Section of RTI Act and an 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 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 in as much 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 recognized 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 endeavors 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.
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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Information source - http://rti.india.gov.in/cic_decisions/CIC_SG_A_2011_001809_15259_M_69114.pdf
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