Our participatory democracy requires to give access to its citizens for a role
in governance to the governed. The Democracy required that the Public
Authorities should be transparent in their functioning and decision making. The
Right to Information Act 2005 (herein after referred as RTI Act) was enacted for
very purpose to establish a practical regime for the openness and transparency
in functioning of Public Authority by giving the access of information to the
citizens held by the Authorities.
There is debatable issue regarding the
information held by Public Authority in respect of Public Servant/ Employees of
the Public Authority. In this Article we will examine the legal provisions
regarding the personal information of Employees/Public Servants such as service
records, ACRs, departmental proceeding etc which is held and are under the
control of Public Authorities, whether the same can be disclosed or denied to
be disclosed to Public.
Public Servant / Employees of the Public Authority: All the Public Authority are the judicial person constituted under
the respective laws and functioning through various minds employed who are the
employees of the Public Authority and coming under, the definition of Public
Servant. Public Authority are not made of machines but consist of various
citizens employed by the Public Authority as its employees. Therefore even after
becoming the employees, the Public Servants are also citizen and having various
enjoyable rights under the Constitution of India and other laws.
Authority are under the duties to provide the access to the information to the
citizens without violating rights of the person whose information is held by the
Public Authority whether the others are their employees or any third persons.
Since the Employees / Public Servant of Public Authority are appointed through
the Public recruitment process, performing official duties, getting salary from
Public exchequer and are also responsible for Public at large, there is always
arguments that the information of Public Servant should be disclosed to the
Public like their educational qualification. Marks obtained in recruitment
process, appointment details, ACR grading, DPC proceeding, SR Records, Family
details, Salary received, vigilance case, penalty imposed etc.
Right to Information: Section 3 of the RTI Act provides that all citizens shall have right
to information subject to provision of their Act. Therefore it is clear that the
Right to Information of the citizen is not an absolute right and it is subject
to the provisions of the Act. It is well established that the Right to
Information is not mainly a statutory right provided under the RTI Act for the
reason that the Supreme Court vide its various decisions already declared Right
to Information as implied fundamental right under the Article 19 (1) (a) of
Constitution of India. (Indian Express Newspapers (Bombay) (P) Ltd. v. Union of
In State of U.P. v. Raj Narain, Reliance Petrochemicals Ltd. v.
Indian Express Newspapers Bombay (P) Ltd). Therefore, RTI Act has not created
a new right but enacted only for setting out the practical regime of Right to
Information for citizen to provide access to information under the control of
Public Authority. Part III of the Constitution of India has incorporated and
provides various fundamental rights secured for citizen of India and all
fundamental rights are subject to the various reasonable restrictions provided
under the Constitution of India. Similarly reasonable restrictions are also
incorporated under the Section 8 and 9 of the RTI Act. Therefore Public
Information Officer (hereinafter referred as PIO) is under the duty to examine
the application that in case the information sought which relates to the
personal information of the Public Servant whether the same may be disclosed or
denied under Section 8 (1) (j) of the RTI Act.
Public Interest: Section 8 (1) (j) provides for exemption from disclosure of information which relates to personal information, the disclosure which has not
relationship to any Public activity or interest, or which could cause
unwarranted invasion of the privacy of the individual unless the Central Public
Information or State Public Information Officer or Appellate Authority as the
case may be is satisfied that larger Public interest justifies the disclosure of
Therefore while examining the applicant’s request of
information which if found relates to the personal information of Public
Servant, PIO has to examine that whether there is larger Public interest
justified that disclosure of such information. The PIO has to examine the issue
in light of various contentious issues like personal information, Public
interest, privacy of individual etc.
The RTI Act has not defined the word Public Interest. The Public Interest is
very wider word and is not possible to define the same. There is a Public
interest in the disclosure of information for the betterment of society,
democratic values and transparency of Government. On the other side there is
also Public Interest in non disclosure of information for protecting the
reputation and dignity of individual and also privacy and social values of the
individual. Therefore both Public interests are required to be weighed and harmonise.
PIO has to take care and weigh the Public Interests which shall prevail in case
the information is disclosed or denied to disclose. It is further required to
keep in mind that there is difference between the matter which are in the
interest of Public to know and the matter which were merely interesting to the
The former is related to the welfare of Public, for example:
contribution to debate on matter of Public importance, accountability of
officials, openness in expenditure of public fundamental, the performance of
Public Authority in its regularity function, the handling of complaint by Public
Authority, exposure of wrong doing etc. of the Public however the later is only
for the purpose of entertaining, for example: entertainment, curiosity and
amusement. In former case, the information is required to be disclosed to
citizen since it is for their betterment and democracy at large.
Right to Privacy: Supreme Court has in its landmark judgement of Justice K.S.Puttuswamy (Retd) v. Union of India held that Right to Privacy is a
fundamental right under Article 21 of the Constitution of India. Both the Right
to Information and Right to Privacy are not a fundamental right originally under
the Constitution of India however declared implied fundamental rights vide
various judgements of Supreme Court.
It may be noted that both rights are not in
contradiction to each other but both are co existing rights of the individual
citizen of India.
The mere fact that a citizen when joined the services of the Public Authority
does not meant that their Right to Privacy were taken away. The Public servant
also have the Right to Privacy at par with other citizen of India. Therefore PIO
while taking his decision either to deny or disclose the personal information of
a public servant should have to weigh the larger Public Interest in seeking the
information by the Information Applicant.
It is also important to note that
under RTI Act, information applicant does not require to give any reason for
seeking the information. However the applicant may give reason voluntarily.
Therefore PIO has to apply his mind even in absence of any reason given by the
information applicant that whether information if disclosed whether will serve
larger Public Interest or not.
In case PIO intends to disclose, he has to comply with the provision of Section
11 of the RTI Act which provides that the Public Servant may be given an
opportunity to object such disclosure of his personal information and PIO while
taking its final view has to take into account the objection of Public Servant.
Definition of Personal Information: Under the RTI Act ‘Personal information’ is not defined. However
personal information has been defined in Statute which may be useful source of
guidance in understanding. Section 2(i) of the Information Technology
(Reasonable Security Practices and Procedures & Sensitive Personal Data or
Information) rules 2011 defines the term personal information as follows:
Personal Information means any information that relates to a natural person
which either directly or indirectly, in combination with other information
available or likely to be available with a body corporate, is capable of
identifying such person.
Thus any information which is capable of identifying a natural person is
classified as personal information. The Courts in India have interpreted the
scope of information which constitutes Personal information under the RTI Act.
In Girish Ramachandra Deshpande v. Central Information Commissioner,
Supreme Court has rejected the claim of the information applicant who sought
copies of memos, show cause notice and punishment awarded to employee by his
employer along with the details of movable and immovable properties,
investments, lending and borrowing from banks and other financial
institutions. The information also sought for the details of gift stated to
have been accepted by the employee. A large portion of information sought
was located in the income tax returns of the employee.
The Supreme Court held as follows:
The performance of an employee/ officer in an organisation is primarily a
matter between the employee and the employer and normally those aspects are
governed by the service rules which fall under the expression personal
information, the disclosure of which has no relationship to any public activity
or public interest. On the other hand, the disclosure of which would cause
unwarranted invasion of privacy of that individual.
Of course , in a given case,
if the Central Public Information Officer or the appellate authority is
satisfied that the larger public interest justifies that disclosure of such
information, appropriate orders could be passed but the petitioner cannot claim
those details as a matter of right.
The details disclosed by a person in his income tax returns are Personal
information which stand exempted from disclosure under clause (j) of Section 8
(1) of the RTI Act, unless involves a larger public interest and Central Public
Information Officer or the State Public Information Officer or the appellate
authority is satisfied that the larger public interest justifies the disclosure
of such information.
The observation of Supreme Court is also applicable to service record maintain
by Public Authority of his employees as personal record.
In the case of R.K Jain v. Union of India the Supreme Court has rejected an RTI application seeking copies of note sheets and files relating to a member of
CESTAT. The Supreme Court has also rejected the claim of the information for
inspection of documents relating to annual confidential reports of the member of
CESTAT including documents relating to adverse entry in the annual confidential
reports and follow action taken.
Further, in the case of Canara Bank v. C.S
Shyam wherein the information applicant has sought information relating to
transfer and posting of clerical staffs employed by the bank including other
personal details such as Date of Joining, designation of employee, details of
promotion and date of joining to the branch.
The Supreme Court held that the
information are personal information and are exempted from disclosure. In the
case of Subash chandra Agarwal v. Registrar, Supreme Court of India, it was
held by the Supreme Court that the details of medical facilities of Judges are
personal information and the disclosure of the same will amount to invasion of
privacy and it was held that such disclosure is exempted from disclosure under RTI Act.
In the recent case of CPIO, Supreme Court of India v. Subash chandra
Agarwal wherein the information applicant has sought information about
declaration of assets of members of judiciary and official file noting and
correspondence with respect to the elevation of judges to the Supreme Court. The
Supreme Court has held that information sought is personal information.
Therefore even assets details of public servant under the control of Public
Authorities are personal information and is entitled for exemption from
disclosure. The DPC proceedings in respect of the employees are personal
Proportionality and Severability Test:The test is to examine for purpose of providing only such information which will
serve the larger public interest and which is not exempted from disclosure. The
PIO may allow to access such information after serving the same from the
exempted information by complying the procedure mentioned in Section-10 of the
RTI Act. The disclosure of the personal information may be allowed only to the
extent which will serve larger public interest of disclosure. The very purpose
is to limit the infringement into the privacy of the public servant only to the
extent which is unavoidable and require to serve the beneficial public interest
at large. In case the information is inservable, PIO may deny to disclose the
entire information to RTI applicant.
Official details of Public Servant:The Supreme Court in case of CBSE v. Aditya Bandopadhyay observed as
When an examining body engages the services of an examiner to evaluate the
answer-books, the examining body expects the examiner not to disclose the
information regarding evaluation to anyone other than the examining the body.
Similarly the examiner also expects that his name and particulars would not be
disclosed to the candidates whose answer-books are evaluated by him.
event of such information being made known, a disgruntled examinee who is not
satisfied with the evaluation of the answer books, may act to the prejudice of
the examiner by attempting to endanger to his physical safety. Further, any
apprehension on the part of the examiner that there may be danger to his
physical safety, if his identity becomes known to the examinees, may come in the
way of effective discharge of his duties.
The above applies not only to the
examiner, but also to the scrutiniser, co-ordinator, and head-examiner who deal
with the answer book. The answer book usually contains not only the signature
and code number of the examiner, but also the signature and code number of the
The information as to the name or
particulars of the examiners/co-ordinators/scrutinisers/head examiners are
therefore exempted from disclosure under section 8(1)(g) of RTI Act, on the
ground that if such information is disclosed, it may endanger their physical
Therefore, if the examinees are to be given access to evaluated
answer-books either by permitting inspection or by granting certified copies,
such access will have to be given only to that part of the answer book which
does not contain any information or signature of the examiners/co-ordinators/scrutinisers/head-examiners,
exempted from disclosure under section 8(1)(g) of RTI Act.
Those portions of the answer books which contain information regarding the
examiners/co-ordinators/scrutinisers/head-examiners or which may disclose their
identity with reference to signatures or initials, shall have to be removed ,
covered or otherwise severed from the non-exempted part of the answer books;
under section 10 of RTI Act.
The same principle is applicable to the public servant. In the sensitive cases
where there is chance of revenge or retaliation by the member of the public
against the public servant who are involved in decision making process, the
name, signature, initials and identity of the public servant may be removed
while disclosing the information to the information seeker since the disclosure
of identity may cause physical threat to the public servant by the disgruntled
In light of the above, it is very clear that the personal
information of the Public servant enjoy the protection from the disclosure to
the public under RTI Act and they enjoy the right to privacy as guaranteed under
the constitution of India. PIO has to take following steps on receiving the RTI
application seeking the information related to a public servant.
- To determine whether information sought is personal information.
- In case, it is personal information, whether the same has no relation to
any public activity or interest or would cause any unwarranted invasion of
privacy of public servant
- In case, above (2) is yes then PIO has no obligation to provide
information and may be denied to disclose under section 8(1)(j) unless PIO
satisfy itself in larger public interest.
- In satisfying larger public interest, PIO has to weigh the benefit to be
served to the public at large on receiving the information and harm might be
caused to public servant on violating his right to privacy. For this purpose he
may take into account any reasons, if any, given by the RTI applicant
- In case, PIO satisfy in favour of disclosing the personal information,
he is require to give a written notice as per Section 11 of RTI Act to the
concerned public servant about his intention to disclose and seek his objection
orally or in writing.
- PIO has to take final decision after taking into account the due
consideration of objection if any filed by the concerned public servant.
- After taking decision to disclose, PIO has to disclose only such part of
information which serve larger public interest.
- In case , above (2) is no, then information may be disclosed.
It may be noted that PIO cannot take exemption on ground of personal information
of the public servant under section 8(1)(j) in case the public servant himself
seeking his personal information held by or under control of the Public
- (1985) 1 SCC 641
- (1975) 4 SCC 428
- (1988) 4 SCC 592
- Moira Paterson and Maeve McDonagh, Freedom of information and the public
interest: the Commonwealth experience, Oxford University Commonwealth Law
Journal, 17:2, 189-210 pp. 201.
- (2017) 10 SCC 1
- (2013) 1 SCC 212
- (2013) 14 SCC 794
- (2018) 11 SCC 426
- (2018) 11 SCC 634
- Writ Petition (C) 288/2009
- (2011) 8 SCC 497