Copy of service book of a third party would contain annual confidential reports & other information like details of family & nomination - This information is personal in nature & a Government servant has a right to guard the same - CIC: Denial upheld

Facts

These files contain appeals in respect of nine RTI applications, all dated 29.11.2013, filed by the Appellant, seeking information in regard to the site of an outlet of the Respondents and certain related issues. The information was denied in all the cases by the Respondents under Section 8 (1) (d) of the RTI Act. Not satisfied with their response, the Appellant has approached the CIC in second appeal in all the cases.

2. With regard to the RTI application on File No. 1460, the Appellant stated that the information sought has not been provided. The information sought by him in this case was in the form of certified copies of the applications along with all the annexures, filed by the Respondents to the Commissioner, Bengaluru Development Authority to obtain essential authorizations / permissions to carry on further activities, other than for the purpose of the petrol bunk. On being asked to substantiate the Respondents’ decision to deny the information under Section 8 (1) (d), the representative of the Respondents, instead of doing so, stated that the above information was treated as a matter of commercial confidence when the RTI application was filed. However, now that the operations of the outlet have stabilised, the Respondents are willing to disclose the information sought in this case. The Appellant stated that the outlet has been functioning since 2008 and that the Respondents’ claim that its operations have stabilised only now sounds unreasonable. We note that the Respondents are now willing to provide the information and direct the CPIO to do so.

3. In the RTI application on File No. 1461, the Appellant sought certified copies of the lease and / or rental agreements / documents entered into between the Respondents and the Bengaluru Development Authority in respect of the site of the outlet in question. The Respondents expressed their willingness to provide this information to the Appellant. The CPIO is directed to do so.

4. The RTI application on File No. 1462 sought names of all the officials of the Respondents who communicated with the Commissioner, the Secretary and all other officials of the Bengaluru Development Authority for sanctioning of the Civic Amenity Site in the BDA industrial suburb, Peenya II stage, Bengaluru. The Appellant prayed for provision of this information. The Respondents stated that a number of their officials dealt with the BDA at various levels concerning the above issue and information concerning all the names would be difficult to compile. They further submitted that in response to another RTI application of the Appellant, they have provided him the names of their Senior Regional Managers at Bengaluru. The application, in response to which the above information has been provided, has been dealt with in File No. 1472. Since the information concerning the top officials of the Respondents in Bengaluru has already been provided, we would refrain from directing them to collect and convey to the Appellant the names of all the officials who dealt with the BDA on the above issue from time to time.

5. In the RTI application on File No. 1466, the Appellant sought certified copies of suo moto declaration under Section 4 (1) (a) and 4 (1) (b) of the RTI Act. The Respondents drew his attention to their website on which the above information is available. The Appellant stated that he needs a certified hard copy of all the information in respect of which suo moto disclosure has been made by the Respondents under Section 4 of the RTI Act. He further submitted that the Respondents do not update the information on their website and that he needs a certified hard copy to make out a case for updating of information. Having considered the submissions made by the Appellant, we note that the very purpose of making suo moto disclosures on the websites of public authorities would be defeated if they are required to provide hard copies of the information so disclosed in response to RTI queries and that too in response to an RTI application such as the one in the instant case, where the Appellant wants a hard copy of the entire disclosure made by the public authority. We would be open to providing hard copies of specific pieces of information, contained in the suo moto disclosure on the website of a public authority, to an applicant who may not have access to the internet facility. The Appellant in the instant case does not fall in the above category. Therefore, we see no ground to interfere with the response of the Respondents in this case.

6. In regard to the RTI application on File No. 1468, we note that the Appellant sought a copy of the public notice vide which applications were invited by the Respondents for allotment of the dealership / authorised selling agent for the sanctioning / outsourcing of petrol bunk facility in the Civic Amenity Site in the BDA industrial suburb, Peenya II stage, Bengaluru and the total number of applications received in this regard. The above information was denied by the Respondents under Section 8 (1) (d). However, since the information sought is certified copy of a public notice and the number of the applications received, we see no ground whatsoever for invocation of Section 8 (1) (d). Accordingly, the CPIO is directed to provide to the Appellant the information sought in this case.

7. In the RTI application on File No. 1469, the Appellant sought certified copies of the applications / requests received by the Respondents from the dealer / vendor of the petrol bunk and the authorizations / permissions granted / awarded to the vendor towards the existing “operations of McDonalds, Coffee Day, HDFC ATM and all other entities”, operating from the Civic Amenity Site in the BDA industrial suburb, Peenya II stage, Bengaluru. The information was denied by the Respondents under Section 8 (1) (d) of the RTI Act. The Appellant stated that a complaint was made to the BDA regarding the operations being carried out from the above site, leased by the Respondents, and the BDA asked them to vacate the site. The Respondents have obtained a stay from the High Court against the above order. The Respondents, on the other hand, stated that no vacation notice was given to them by the BDA. A notice was, however, given asking them to explain the operations of the entities mentioned above from the said site and the BDA was informed that the above entities were allowed to operate in keeping with the instructions issued by the Ministry of Petroleum and Natural Gas. A stay has also been obtained from the High Court against any further action in the matter by the BDA and it is pending in the court. The Respondents further submitted that RFPs were issued in respect of the facilities which were offered later on to McDonalds and other entities mentioned above and selection was made on the basis of the same. The details of the arrangements between the Respondents and the said entities are a matter of commercial confidence. Therefore, the information sought in this RTI application is exempted from disclosure under Section 8 (1) (d). We have considered the submissions made by both the parties before us. The information sought in this case is clearly in the nature of commercial confidence for the public authority and its disclosure would harm their competitive position. No larger public interest for its disclosure has been established by the Appellant. The Respondents maintain that the facilities operating from the site in question are all public facilities and lawful. The Appellant, on the other hand, alleges that the operations on the site are not lawful and, therefore, information concerning the same ought to be disclosed. In the above context, we note that the Commission is not competent to sit in judgment over the claims and counter claims of the two parties. In so far as the Appellant’s allegation regarding unlawful operations is concerned, the matter has already been take up with the BDA and is pending in the High Court. No submission was made during the proceedings regarding any court of law having declared the operations to be illegal. In view of the foregoing, we uphold the decision of the Respondents to deny the information under Section 8 (1) (d) in this case.

8. In the RTI application on File No. 1471, the Appellant sought information regarding the procedure followed by the Respondents in obtaining legal clearances etc. from their legal committee (legal opinion towards the ownership of the land leased subsequently by the Respondents for petrol bunk). It was noted during the proceedings that what the Appellant had sought was information concerning the procedure followed by the Respondents to obtain legal clearances etc. and not copies of the legal opinions obtained by them. The Appellant did not contest the above interpretation of his query in the RTI application. Therefore, the CPIO is directed to provide information concerning the procedure followed for obtaining legal clearances etc.

9. With regard to the RTI application on File No. 1472, the Appellant stated that while he has been given names of the Senior Regional Managers / Chief Regional Managers, the period of tenure of each one of them has not been mentioned. The CPIO is directed to provide this additional information to the Appellant.

10. In the RTI application on File No. 1474, the Appellant sought certified copies of extracts of the service register of the present Senior Regional Manager of the Respondents in their Bengaluru office. The Respondents replied that the expression ‘service register’ was not prevalent in their organization. They submitted during the hearing that they maintain no service register or service book in respect of their Senior Regional Manager. The Appellant stated that such records should be available in respect of the employees of the public authority. In the above context, we are of the view that the records concerning the service matters of the Senior Regional Manager must have been maintained by the public authority in one form or the other. If these are not available as a register or book, these should be available on files or in electronic form. However, the matter concerning disclosure of the entire personal / service record of an employee of a public authority was considered by the High Court of Madhya Pradesh in its judgment dated 1.2.2010 in Shrikant Pandya vs. State of M.P. [W.P. No. 13646 of 2009]. The High Court made the following observations in the above judgment:

“16. In the case at hand the certified copy of personal record as well as service book of third party, which was being sought by the Petitioner would contain annual confidential reports and other information like details of family and nomination thereof. These information are personal in nature and a Government servant has a right to guard the same. These information have no relationship to any public activity and if parted with will certainly lead to the unwarranted invasion of the privacy of a Government servant.”

“18. In the present case, the certified copy of service book and personal record has been sought on the allegation that, the third party, namely, M. S. Parihar had taken benefit of two advance increments in lieu of sterilization. The Respondents were, therefore, within the right in declining the right of the Petitioner to have access to certified copy of the service record and personal record of third party, namely, M. S. Parihar.”

The information sought in this case is, therefore, exempted from disclosure under Section 8 (1) (j) of the RTI Act. No larger public interest has been established by the Appellant for its disclosure. He stated during the hearing that he needs the above information because irregularities have been committed by the Bengaluru office of the Respondents in respect of the above mentioned site, taken on lease from the BDA, under his charge. As stated above, no court of law has so far upheld the allegation of the Appellant regarding unlawful activities by the Respondents on the site in question and the matter is now before the High Court. Therefore, his allegation cannot become the ground of larger public interest. In view of the foregoing, we uphold the decision of the Respondents to deny the information in this case.

11. The CPIO should comply with our directives for provision of information, contained in the preceding paragraphs, within twenty days of the receipt of this order, under intimation to the Commission. The information should be provided free of charge.

12. With the above directions and observations, the nine appeals are disposed of.

13. Copies of this order be given free of cost to the parties.

(Sharat Sabharwal)

Information Commissioner

Citation: Shri Mallikarjun v. Hindustan Petroleum Corporation Ltd., in File No. CIC/SH/A/2014/001460 File No. CIC/SH/A/2014/001461 File No. CIC/SH/A/2014/001462

File No. CIC/SH/A/2014/001466 File No. CIC/SH/A/2014/001468 File No. CIC/SH/A/2014/001469

File No. CIC/SH/A/2014/001471 File No. CIC/SH/A/2014/001472 File No. CIC/SH/A/2014/001474