RTI Judgement Series: Burden of establishing applicability of exemption lies on the PIO
Moneylife Digital Team 25 April 2014

Merely stating that the information sought is confidential in nature cannot be a reason and the PIO needs to establish the applicability of the exemption under RTI Act, the CIC ruled. This is the 201st in a series of important RTI judgements given by former Central Information Commissioner Shailesh Gandhi


The Central Information Commission (CIC), while allowing an appeal, directed the Public Information Officer (PIO) of Pondicherry-based Jawaharlal Institute of Post Graduate Medical Education and Research (JIPMER) to provide complete information available on record to the complainant.

 

While giving the judgement on 12 March 2012, under the Right to Information (RTI) Act, Shailesh Gandhi, the then Central Information Commissioner, said, "The respondent (PIO) has not adduced any arguments/ explanations to show how the nature of the information sought falls within the ambit of Section 8(1)(e) of the RTI Act and was held by the PIO-public authority in a fiduciary capacity. In other words, the burden required to be discharged by the respondent under Section 19(5) of the RTI Act has not been done."

 

Pondicherry resident, Dr Prasanna T, on 18 December 2011, sought from the PIO information regarding actions taken on his letters and complaints. Here is the information he sought...

 

1. Actions taken on following letters/ complaints of the Complainant:

a. Letter dt 8 August 2010 regarding disturbing and disappointing acute events in the department of PSM (and strike by faculty) from all residents of PSM

b. Letter dt 09 August 2010 regarding open discrimination by faculty

c. Letter dt 26 August 2010 Discrimination and Victimization by Dr KC Premarajan

d. Letter dt 31 August 2010 reply to Note from director (with complaint against Dean)

e. Letter dt 31 August 2010 Discrimination and Victimization by Dr KC Premarajan, threatening and pressuring to withdraw my complaints

f. Letter dt 05 October 2010 harassment manipulation and instigations of other residents against me by faculty

g. Letter dt 6 October 2010 open discrimination by faculty incidents in May 2010

h. Letter dt 15 October 2010 apprehension about potential misuse of signature

i. Letter dt 22 November 2010 threatening by faculty.

j. Letter dt 05 February 2011 uncertainty in exam

k. Letter dt 21 February 2011 issue of details for exam reminder

l. Letter dt 01 March 2011 issue of details for exam reply to note part 1

m. Letter dt 02 March 2011 issue of details for exam reply to note part 2

n. Curriculum copy of MD Community Medicine circulated on 05 March 2011

o. Letter of protest dt 14 March 2011

 

2. Actions taken till date for the following correspondence from NCSC state Office dt 28 February 2011 (F.No.1/416/2010 rep)

 

3. Copies of all documents (correspondences/letters! memos/file notes/email or electronic media if any) based on which the reply (No.EDN.41 (5)/2010 dt 23 November 2010 from the Director JIPMER) to the Director NCSC State Office Chennai (Ref: F.No.1/416/2010 rep dt 4 October 2010) was given.

 

4. Copies of all documents (correspondences/letters! memos/file notes/email or electronic media if any) related to letter from the Director NCSC State Office Chennai (Ref: F.No.1/416/2010 rep dt 28 February 2011) and action taken till date.

 

5. Who is the deciding authority regarding MD examinations in Autonomous JIPMER?

 

6. What are the duties and responsibilities of Dean in the conduct of MD examinations March 2011?

 

7. Who are the executive authority/ies in the conduct of MD Exams March 2011:

a. In JIPMER into to

b. In Dept of PSM, JIPMER.

 

8. Provide the copies of all documents related to conduct of MD Examination in PSM Dept from Office of Dean, academic section and examination section.

 

9. Letters/other correspondences related to External Examiners asking them to be examiners for MD Community Exam march 2011.

 

10. Provide copies of all complaints received from Dr M Bala Soudarssanane HOD PSM against

a. Dr KS Reddy, Dean

b. Dr Gautam Roy

c. Dr KC Premarajan

d. Dr Sonali Sarkar

e. Dr Ganesh Kumar

 

11. Provide all documents regarding action taken against the five persons mentioned in Question 10.

 

12. Copies of all documents (correspondences/letters! memos!filenotes!email or electronic media if any)based on which Dr KC Premarajan Nas removed as co-guide for Dr Prasanna T’s thesis.

 

13. Provide the list of examiners (external and internal examiners) for MD Community Medicine Exam in the past 5 years.

 

14. Provide the copy(s) of complaint received from Dr M Bala Soudarssanane against Dr Zile Singh regarding promotion of Dr KC Premarajan in 2010.

 

15. Provide the copies of other complaints received from other residents (JR/SR) against the five faculty of PSM in the past one year.

 

16. Copies of circulars/mark sheets for conduct of two model exams for MD candidates in PSM dept. with my signature.

 

17. Provide the details of marks obtained by Dr Prasanna T in each section of MD Exam (for both theory and clinical exam) in March 2011 with copies of documents and assessment made by individual exams for the same.

 

In his reply on 3 August 2011, the PIO stated, "the entire matter is sub-judice vide Writ Petition WP No.9612 of 2011 and before the High Court of Judicature at Madras. It is also stated that the requested information regarding MD Examination is confidential information relating to examinations and is not provided under 8 (1) (e) of the RTI Act, and it also attracts provision under 8 (1) (b) of the RTI Act."

 

In his second reply sent on 8 August 2011, the PIO said, "the entire matter is sub-judice vide Writ Petition WP No, 9612 of 2011, before the High Court of Judicature at Madras, wherein you have impleaded as respondents the director, dean, two professors (internal examiner), two asst. professors (supervisor, department of P&SMI JIPMER), Dr Zile Singh, professor of community medicine (external examiner), Pondicherry Institute of Medical Sciences, Puducherry, professor (examinations) & registrar (academic) seeking a direction from the High Court to set aside the results declared on 26 March 2011 and also seeking a direction to conduct a fresh examinations without involving any of the respondents. Hence, the information you have sought attracts the provisions of 8(1) (b) of the RTI Act, 2005. Further, it is also stated that the requested information regarding MD Examination is confidential in nature relating to examinations and is held in fiduciary relationship. Hence, the information you have sought also attracts the provisions of 8(1)(e) of the RTI Act."

 

The PIO sent another reply on 11 August 2011 in which he stated that the information had been provided in office letter dated 28 April 2011. "The matter is sub-judice and the matter is pending in the court. Information can not be disclosed under section 8 (1) (b) of the RTI act," he said.

 

Dr Prasanna T, the applicant, not satisfied with the replies provided by the PIO, filed a complaint before the CIC.

 

During the hearing, Mr Gandhi the then Central Information Commissioner, asked the PIO to justify denial of information under Section 8(1)(b) of the RTI Act. The PIO could not show any evidence that there was any specific prohibition or ban by any court on disclosure of information.

 

The PIO stated that in this regard he was relying on a decision dated 16 December 2008 of the CIC in appeal No CIC/PB/A/2008/00453/SM dated 22 February 2008. He referred to the following statements in the said order:

 

“This Commission has consistently taken a view that if the information sought relates to a pending proceeding before a competent court/tribunal, then the said information should be obtained only through court/tribunal and not under the provisions of the RTI Act.”

 

The Bench then reserved its order.

 

During the hearing on 13 March 2012, Mr Gandhi said, based on submissions of both the parties, the issue before the Bench was whether the information sought is protected from disclosure under Section 8(1)(b) of the RTI Act.

 

The PIO argued that since the matter in relation to which information has been sought is sub- judice before a Court, the information would be exempt under Section 8(1)(b) of the RTI Act.

 

Section 8(1)(b) of the RTI Act exempts from disclosure “information which has been expressly forbidden to be published by any court of law or tribunal or the disclosure of which may constitute contempt of court”.

 

"From a plain reading of Section 8(1)(b) of the RTI Act," Mr Gandhi said, "it is clear that it does not include sub- judice matters; only information which has been expressly forbidden to be published by any court, or disclosure of which may constitute a contempt of court is protected under Section 8(1)(b) of the RTI Act."

 

"In the instant matter, no evidence was adduced by the PIO to show that there was a specific prohibition or ban by any court/ tribunal on disclosure of the information sought. Moreover, the PIO has not advanced any argument to show that disclosure of the information sought would constitute a contempt of court. Hence, disclosing information on matters which are sub-judice cannot constitute contempt of court, unless there is a specific order forbidding its disclosure. The mere claim that a matter is sub-judice cannot be used as a reason for denying information under the RTI Act. Therefore, the contention of the Respondent cannot be accepted by the Bench," he said.

 

During the previous hearing the PIO had placed reliance on the decision of the Commission in Vinay Satishkumar Verma vs. State Bank of India CIC/PB/A/2008/00453/SM dated 22 February 2008, the relevant portion of which has been extracted above. "On perusal of this decision, the Bench noted that it does not deal with Section 8(1)(b) of the RTI Act and therefore, is not relevant in determining whether the information sought is protected under Section 8(1)(b) of the RTI Act," Mr Gandhi said.

 

The Bench also noted that the PIO vide replies dated 3 August 2011 and 8 August 2011 had denied the information on the basis of Section 8(1)(e) of the RTI Act.

 

Section 8(1)(e) of the RTI Act 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 PIO also stated that the information regarding MD Examination is confidential in nature relating to examinations and held in fiduciary relationship.

 

Mr Gandhi said, "This Bench, in a number of decisions, has held that 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. 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."

 

"Therefore, the PIO was required to establish the aforementioned criteria in order to seek the protection of Section 8(1)(e) of the RTI Act. As per Section 19(5) of the RTI Act, the burden of establishing the applicability of the exemption lies on the PIO. The PIO had merely stated that the information sought is confidential in nature. It is relevant to mention that in the functioning of the government, there may be various instances where certain documents, records, procedures, etc have been treated as confidential and at times, explicitly so provided. However, with the advent of the RTI Act, such information has to be provided subject only to the exemptions of the RTI Act viz. Sections 8 and 9," the Bench added.

 

While allowing the appeal, Mr Gandhi said the information sought by Dr Prasanna T cannot be exempt from disclosure under Sections 8(1)(b) and (e) of the RTI Act. He then directed the PIO to provide complete information as per record to Dr Prasanna T, the complainant before 10 April 2012.

 

CENTRAL INFORMATION COMMISSION

 

Decision No. CIC/AD/C/2011/901017/SG/17642

http://ciconline.nic.in/cic_decisions/CIC_AD_C_2011_901017_SG_17642_M_77981.pdf

Complaint No. CIC/AD/C/2011/901017/SG

 

 

Complainant :                      Dr Prasanna T,

                                                 24, Citizen Avenue, Mahaveer Nagar Extension,

                                                 Lawspet, Pondicherry 605008

 

Respondent :                        Dr Gautam Roy,

                                                Public Information Officer & Professor (PSM),

                                               Jawaharlal Institute of Post Graduate Medical Education and
                                               Research,

                                               Pondicherry-605006

Comments
Free Helpline
Legal Credit
Feedback