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Personal Information of Public Servant and Right to Information Act

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.
  1. 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.

    The Public 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.

  2. 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 India[1],

    In State of U.P. v. Raj Narain[2], Reliance Petrochemicals Ltd. v. Indian Express Newspapers Bombay (P) Ltd[3]). 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.
     
  3. 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 such information.

    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 Public.

    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[4]. In former case, the information is required to be disclosed to citizen since it is for their betterment and democracy at large.
     
  4. Right to Privacy:

    Supreme Court has in its landmark judgement of Justice K.S.Puttuswamy (Retd) v. Union of India[5] 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.
     
  5. 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[6], 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[7] 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[8] 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[9], 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[10] 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 information.
     
  6. 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.
     
  7. Official details of Public Servant:

    The Supreme Court in case of CBSE v. Aditya Bandopadhyay[11] observed as follows:
    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.

    In the 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 scrutiniser/co-ordinature/head examiner.

    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 safety.

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 person.

Conclusion:
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.
  1. To determine whether information sought is personal information.
  2. 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
  3. 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.
  4. 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
  5. 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.
  6. PIO has to take final decision after taking into account the due consideration of objection if any filed by the concerned public servant.
  7. After taking decision to disclose, PIO has to disclose only such part of information which serve larger public interest.
  8. 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 Authorities.

End-Notes:
  1. (1985) 1 SCC 641
  2. (1975) 4 SCC 428
  3. (1988) 4 SCC 592
  4. 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.
  5. (2017) 10 SCC 1
  6. (2013) 1 SCC 212
  7. (2013) 14 SCC 794
  8. (2018) 11 SCC 426
  9. (2018) 11 SCC 634
  10. Writ Petition (C) 288/2009
  11. (2011) 8 SCC 497

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