Appellant sough inspection of the file in which the passport request of a particular officer was processed - CIC: Provide a copy of paragraph XV (ii) of appendix 38 of the Passport Manual; Request for inspection of passport file turned down u/s 8(1)(j)

Order

This matter, pertaining to an RTI application dated 23.12.2013 filed by the Appellant, came up today. The Appellant had sought inspection of the file in which the passport request of an officer was processed as well as of the file No. INDP00018413 in which the case against the officer concerned under Section 12 (1) (b) of the Passport Act 1967 was processed and decision taken thereon. He also wanted to inspect the Passport Manual 2010 and in particular Appendix 38 Para XV (ii).

Hearing on 26.6.2015

2. The Appellant submitted that a passport was issued to the officer concerned under the Tatkal Scheme, even though he had a criminal case pending against him and the Anti Corruption Branch had come to the conclusion that he should be punished. The information was denied on the ground that it pertained to a third party. The third party ground was invoked by the FAA in his order dated 21.3.2014 and not in the CPIO’s reply dated 20.1.2014, in which it was stated that it was not obligatory on his part to disclose personal particulars of public servants under the RTI Act unless larger public interest was established by the Appellant. The Appellant cited Section 2 (n) of the RTI Act and argued that the officer, about whom information was sought, did not qualify to be described as a third party. He is a citizen of the country and as per Section 2 (n), third party means a person other than a citizen. The Appellant also alleged that action was not taken in the matter under Section 12 (1) (b) of the Passport Act 1967.

3. Shri Jagga Rao, Assistant Secretary (Passport), who was present on behalf of the Respondents, was unable to make submissions on their behalf. Other than saying that the information sought was third party information and that disclosure of the Passport Manual was not required in the light of a 2008 decision of the Commission, he did not say anything else to respond to the submissions made by the Appellant. He was also incoherent. On being asked as to what subject the Appendix 38 Para XV (ii) of the Passport Manual 2010 deals with, he was unable to provide a reply.

4. In view of the foregoing, this matter is adjourned to be heard again on 14 th July , 2015 at 12.15 p.m . through video conferencing. The First Appellant Authority should either be present personally at the next hearing or depute a sufficiently senior officer, who can explain the stand of the Respondents in a coherent manner. Shri Jagga Rao, Assistant Secretary, is directed to put up a copy of this interim order to the FAA immediately on its receipt. The venue for video conferencing for the Appellant and the Respondents for the hearing on 14th July, 2015 will be as follows:

National Informatic Centre, 1st floor, ‘A’ block,

General Pool Office Accommodation Complex

(GPOA) Complex, Ranchi Basti (Near Dairy Farm),

Port Blair, A & N Island – 744103.

(Mr. Narasimha Rao, Scientist C Contact No. 03192232733

Hearing on 14.7.2015

5. The matter came up again on 14.7.2015. Shri R. A. Swami, Assistant Secretary (Passport) stated that appendix 38 of the Passport Manual deals with penalties and that a penalty, as required, was imposed. However, he referred to the Commission’s decision No. CIC/OK/A/2007/01356 dated 24.3.2008 to claim exemption from disclosure of appendix 38 of the Passport Manual to the Appellant. With regard to inspection of the passport file and another file regarding the case under Section 12 (1) (b) of the Passport Act, 1967, he cited the following cases in support of the decision of the Respondents not to allow the said inspection:

(i) Union of India vs. Rajesh Bhatia [High Court of Delhi, W.P. (C) 2232/2012].

(ii) Union of India vs. Jerald Rebello [High Court of Delhi, W. P. (C) 1263/2012].

(iii) The Supreme Court judgment dated 3.10.2012 in Girish Ramchandra Deshpande vs. Central Information Commissioner & Ors. [Special Leave Petition (Civil) No. 27734 of 2012].

6. The Appellant contested the denial of inspection of appendix 38 of the Passport Manual in the light of the above mentioned decision dated 24.3.2008 of the Commission. He stated that this was a matter in which information concerning a criminal case was concealed by a passport seeker and the information concerning it ought to be disclosed. He reiterated his earlier submission that the officer concerned, who was issued a passport, cannot be regarded as a third party. He further submitted that in his order dated 21.3.2014, the FAA had stated that a notice was given to the third party, who informed the CPIO that he was not willing to disclose the information. The Appellant stated that even if the officer concerned is treated as a third party, the CPIO could not have taken a decision to deny the information, merely on the basis of his unwillingness to disclose the same, without giving him (the Appellant) an opportunity to contest the third party’s grounds for denial of information. In this connection, he cited the following observations in the Commission’s decision No. CIC/AT/A/2007/00068 dated 25.6.2007:“

The norms of natural justice commend that the objections filed by the third party should be made available to the appellant in order to enable him to contest the third party’s claim and to satisfy the CPIO and the AA, that that claim deserved no consideration. Section 11(1) Where a Central Public Information Officer or a State Public Information Officer, as the case may be, intends to disclose any information or record, or part thereof on a request made under this Act, which 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: enjoins the CPIO to consider the material before him to decide on the admissibility of the third party's claim. The CPIO is not required to mechanically accept the third party's objection to disclosure of an information. It involves application of mind and arriving at a judgement by the CPIO. The applicant has every right to know the objections the third party may have raised to disclosure of a given information and also whether the decision thereof of the CPIO was defensible in law. Such disclosure is congruent not only with the norms of natural justice but also with the requirements of the RTI Act.”

7. In the above context, we note that if, in the interest of natural justice, the Appellant is provided a copy of the response of the third party to contest his submissions, the consideration of natural justice would also demand that the third party be given an opportunity to make his submission on the rejoinder, if any, filed by the Appellant. This may entail a chain of opportunities to the third party and the Appellant to contest the points made by each other. To avoid this situation and to enable the third party to make submissions, if any, before us in the presence of the Appellant, the matter is adjourned to be heard again on 19 th August, 2015 at 3.10 p.m . through videoconferencing. Shri R. A. Swami, Assistant Secretary (Passport) is directed to forward a copy of this order, immediately on its receipt, to the third party, Shri Kanta Rao, by registered post, informing him to be present for the hearing on 19.8.2015 in case he wishes to make any submissions. Shri R. A. Swami is also directed to forward a copy of the objection filed by Shri Kanta Rao to disclosure of information, upon a reference having been made to him by the CPIO under Section 11 of the RTI Act, to the Appellant, with a copy to the Commission, immediately on receipt of this order. The venue of videoconferencing for the Appellant, Respondents and the third party (Shri Kanta Rao) for the hearing on 19.8.2015 will be as follows:

National Informatic Centre, 1st floor, ‘A’ block,

General Pool Office Accommodation Complex

(GPOA) Complex, Ranchi Basti (Near Dairy Farm),

Port Blair, A & N Island – 744103.

Mr. Narasimha Rao, Scientist C

and Contact No. 03192232733

Hearing on 19.8.2015

8. The matter came up again on 19.8.2015. As directed in paragraph 7 of our interim order dated 17.7.2015, the Respondents, vide their letter dated 31.7.2015, had forwarded to the Appellant and the Commission a copy of their letter dated 8.1.2014 seeking the views of Shri Kanta Rao regarding disclosure of the information sought by the Appellant; as well as the reply dated 16.1.2014 of Shri Kanta Rao, expressing his unwillingness to disclose the said information. It is seen that in his reply dated 20.1.2014 to the RTI application, the CPIO had invoked Section 8 (1) (j) of the RTI Act to deny the information. In his order dated 21.3.2014, the FAA stated that a notice was given to the third party, viz. Shri Kanta Rao and he was not willing to disclose the information. With regard to the Appellant’s request to inspect the passport manual 2010, the FAA cited Commission’s order No. CIC/OK/A/2007/01356 dated 24.3.2008. He also stated that the information asked for had no relationship to any public activity or public interest. He endorsed the decision of the CPIO to deny the information.

9. At the outset of the hearing, the Appellant stated that he had submitted during the earlier hearings and the Commission had agreed that Shri Kanta Rao could not be treated as a third party and, therefore, he should not be allowed to make his submissions before the Commission. He also stated that in expressing his unwillingness to disclose the information, Shri Rao had invoked Section 8 (1) (d) of the RTI Act, which was not applicable in this case. The Appellant submitted that disclosure of the information sought by him is a matter of larger public interest. The Appellant was informed that in its interim orders, the Commission had merely noted his submission that Shri Kanta Rao should not be treated as third party. At no stage did the Commission express its agreement with the above position. In this context, we note that the Appellant’s request not to treat Shri Kanta Rao as third party is based on partial reading of Section 2 (n) of the RTI Act. He avers that Shri Rao is a citizen of the country and as per Section 2 (n), third party means a person other than a citizen. The full text of Section 2 (n) is reproduced below:

“third party” means a person other than the citizen making a request for information and includes a public authority.”

It is clear from the above text that Shri Kanta Rao is a person other than the citizen, who has made the request for information in this case. Therefore, he qualifies to be treated as third party. In view of this, the submission made by the Appellant (reference paragraph 6 of the interim order dated 17.7.2015), and for the reasons stated in paragraph 7 above, it was decided to give an opportunity to Shri Kanta Rao to make his submissions, if any, during the hearing on 19.8.2015. Accordingly, Shri Kanta Rao was allowed to make his submissions.

10. Shri Rao objected to disclosure of any information to the Appellant. He stated that the criminal case against him was not the result of action by the government or a government agency. It was based on a complaint made by a third party. The case has been disposed of by a competent court and he has been exonerated.

11. The Respondents submitted that necessary action was taken against Shri Kanta Rao as per the passport manual. They further stated that Shri Kanta Rao has submitted to them a copy of the judgment exonerating him in the case against him.

12. The requests for information, contained in the RTI application dated 23.12.2013, are examined in the light of the above. The Appellant wants to inspect the file in which the matter concerning the passport of Shri Kanta Rao was dealt with. In this context, we note that the issue of disclosure of information concerning passports was examined at length by the High Court of Delhi in its judgment dated 17.9.2013 in Union of India vs. Rajesh Bhatia [W.P.(C)2232/2012] and other cases. In its decisions on W.P.(C) No. 3421/2012, W.P. (C) 8932/2011 and W.P.(C) 2231/2012, the Court held that copies of the application forms submitted by an applicant for issuance of passport and of the documents submitted with the application cannot be disclosed since they would contain personal information of the passport holder. In the same judgment, the High Court further characterised the following information as personal information, covered by Section 8 (1) (j) of the RTI Act:

(a) Marital status and name of spouse of the passport applicant [W.P. (C) No. 2232/2012].

(b) Residential address, details of children and details of case / cases pending / filed against him [W.P. (C) 1263 /2012].

(c) Proof of documents and educational qualifications produced at the time of applying for the old passport and proof of educational qualifications and the supporting documents submitted in getting the status or emigration check not required for the passport [W.P.(C) 1794/2012].

In its judgment dated 19.2.2014 in Union of India vs. R. Jayachandran [W.P.(C) 3406/2012 and CM APPL. 7218/2012], the High Court of Delhi observed that the number of a passport should also not be disclosed to a third party information seeker. However, in the judgment dated 17.9.2013 of the Delhi High Court, referred to above, the Court ruled: “In case the file noting sought by the respondent does not contain any information which can be said to be personal information within the meaning of Section 8 (1) (j) of the Act, there can be no objection to its disclosure.”

13. In view of the foregoing, the Appellant’s request for inspection of the passport file cannot be granted because it would contain personal information of the thirty party, exempted from disclosure under Section 8 (1) (j). However, the CPIO is directed to provide to the Appellant a copy of the file noting regarding processing of the passport request, after severing, under Section10 of the RTI Act, the information which can be said to be personal information within the meaning of Section 8 (1) (j) of the RTI Act.

14. The RTI application dated 23.12.2013 also includes a request for inspection of File No. INDP00018413 in which the case against Shri Kanta Rao under Section 12 (1) (b) of the Passport Act 1967 has been processed and decision taken. Section 12 (1) (b) provides for penalties in a case where an applicant for a passport knowingly furnishes any false information or suppresses any material information with a view to obtaining a passport. As mentioned at paragraph 12 (b) above, the information concerning cases pending against a passport applicant has been characterised as information of a personal nature by the High Court of Delhi. Going by the above decision of the court, the information concerning action against a passport holder under Section 12 (1) (b) would also fall in the same category. Further, in its judgment dated 3.10.2012 in Girish Ramchandra Deshpande vs. Central Information Commissioner & Ors., the Supreme Court held that information concerning action taken against its employee by a public authority falls under the expression “personal information”, the disclosure of which has no relationship to any public activity or public interest and on the other hand, the disclosure of which would cause unwarranted invasion of the privacy of the individual concerned. The Court further ruled that appropriate orders could be passed by the Public Information Officer if he / she is satisfied that the larger public interest justifies the disclosure of such information, but an RTI applicant cannot seek such information as a matter of right. In its judgment dated 6.11.2012 in UPSC vs. R. K. Jain [LPA No. 618/2012], the High Court of Delhi examined a matter in which the RTI applicant had sought the information regarding action taken against an officer by a public authority from the UPSC. The Court ruled: “What is exempt in the hands of the employer would certainly be exempt in the hands of consultant of the employer also. The advice given by the appellant UPSC would necessarily pertain to the disciplinary action against Shri G. S. Narang. Section 8 (1) (j) exempts from disclosure personal information, irrespective of with whom it is possessed and from whom disclosure thereof is sought.” In the light of the foregoing, the information concerning processing of the matter regarding action under Section 12 (1) (b) of the Passport Act 1967 falls squarely within the meaning of personal information, exempted from disclosure under Section 8 (1) (j). Therefore, the Appellant’s request for inspection of the file in this regard cannot be granted.

15. The last request in the RTI application dated 23.12.2013 is regarding inspection of the Passport Manual 2010, “in particular appendix 38 para XV (ii) and others.” This was denied by the Respondents in view of the Commission’s decision No. CIC/OK/A/2007/01356 dated 24.3.2008. Paragraph 7 of the above decision is reproduced below:

“7. As regards, the Passport Manual, the Respondents denied the disclosure taking recourse to Section 8(1)(a) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign State or lead to incitement of an offence; of the RTI Act. During the hearing, the Appellant mentioned that some portions of the Passport Manual were already available to the CAG and hence there they should be available to the public also. He also mentioned that Section 2(f) “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; (4(1)(b)(v)) of the RTI Act mentions ‘Manual’ as covered by ‘information’ and therefore should be made available to the public. In response, the Respondents mentioned that there were portions of the Manuals which could be made public, and they had already done that on their website. However, there were issues like Illegal Immigrants abroad, Asylum seekers abroad, etc., the disclosure of information of which was likely to harm the relationship of the country with other States. The Commission accepted the submission of the Respondents. As for ‘manuals’ being covered in the definition of ‘information’, the Commission accepted the submission of the Respondents that there were manuals and parts of manuals which would attract the provisions of Section 8 of the RTI Act and hence could not be disclosed. Thus, if the Appellant’s arguments were to be stretched, then various Security Manuals would also have to be made public, which by no means could be acceptable.”

From the above, it is clear that the Commission did not accept nondisclosure of the Passport Manual 2010 in its entirety, but only those parts of the manual which would attract the provisions of Section 8 of the RTI Act. In our view, paragraph XV (ii) of appendix 38, mentioned in particular by the Appellant, does not attract the provisions of Section 8. In view of the foregoing, the CPIO is directed to provide to the Appellant a copy of paragraph XV (ii) of appendix 38 of the Passport Manual.

16. Before disposing of this matter, we would like to examine the Appellant’s contention that the information sought by him ought to be revealed in the larger public interest. In this context, we note the following observations made by the Supreme Court in its judgment in Bihar Public Service Commission vs. Saiyed Hussain Abbas Rizwi & Anr. [Civil Appeal No. 9052 of 2012, arising out of SLP (C) No. 20217 of 2011]:CIC/

 “23. The expression ‘public interest’ has to be understood in its true connotation so as to give complete meaning to the relevant provisions of the Act. The expression ‘public interest’ must be viewed in its strict sense with all its exceptions so as to justify denial of a statutory exemption in terms of the Act. In its common parlance, the expression ‘public interest’, like ‘public purpose’, is not capable of any precise definition. It does not have a rigid meaning, is elastic and takes its colour from the statute in which it occurs, the concept varying with time and state of society and its needs. [State of Bihar v. Kameshwar Singh (AIR 1952 SC 252)]. It also means the general welfare of the public that warrants recommendation and protection; something in which the public as a whole has a stake [Black’s Law Dictionary (Eighth Edition)].

24. The satisfaction has to be arrived at by the authorities objectively and the consequences of such disclosure have to be weighed with regard to circumstances of a given case. The decision has to be based on objective satisfaction recorded for ensuring that larger public interest outweighs unwarranted invasion of privacy or other factors stated in the provision. Certain matters, particularly in relation to appointment, are required to be dealt with great confidentiality. The information may come to knowledge of the authority as a result of disclosure by others who give that information in confidence and with complete faith, integrity and fidelity. Secrecy of such information shall be maintained, thus, bringing it within the ambit of fiduciary capacity. Similarly, there may be cases where the disclosure has no relationship to any public activity or interest or it may even cause unwarranted invasion of privacy of the individual. All these protections have to be given their due implementation as they spring from statutory exemptions. It is not a decision simpliciter between private interest and public interest. It is a matter where a constitutional protection is available to a person with regard to the right to privacy. Thus, the public interest has to be construed while keeping in mind the balance factor between right to privacy and right to information with the purpose sought to be achieved and the purpose that would be served in the larger public interest, particularly when both these rights emerge from the constitutional values under the Constitution of India.”

The definition of ‘Public Interest’ mentioned in Stroud’s Judicial Dictionary, volume 4 (IV Edition) is reproduced below:

“a matter of public or general interest does not mean that which is interesting as gratifying curiosity or love of information or amusement but that in which a class of community have a pecuniary interest, or some interest by which their legal rights or liabilities are affected.”

No grounds to establish larger public interest were mentioned in the RTI application dated 23.12.2013. Further, the issue here pertains to suppression of information by an applicant for a passport regarding a criminal case pending against him. It is for the passport authorities to take action in such cases and information concerning action taken is not information “in which a class of community have a pecuniary interest or some interest by which their legal rights or liabilities are affected” or “something in which the public as a whole has a stake.” Therefore, no larger public interest has been established in this case for disclosure to the Appellant of the information, which is exempted from disclosure under the RTI Act.

17. The CPIO should comply with our directives in paragraphs 13 and 15 above within twenty days of the receipt of this order, under intimation to the Commission. The information, directed to be disclosed in the above paragraphs, should be provided free of charge.

18. With the above directions and observations, the appeal is disposed of.

19. Copies of this order be given free of cost to both the parties. The CPIO is directed to forward a copy of this order to the third party, Shri Kanta Rao, immediately on its receipt.

(Sharat Sabharwal)

Information Commissioner

Citation: Shri J.N. Choudhary v, Andaman and Nicobar Administration in File No. CIC/SH/A/2014/001153