Information related to the biometric attendance of the staff members of Office of Vice Chairman, NITI Aayog during a particular period was denied u/s 8(1)(j) - CIC: In absence of even a remote connection with any larger public interest, denial upheld

O R D E R

The Appellant/ Complainant filed an RTI application dated 03.01.2019 seeking copies of documents/information related to the biometric attendance of all the staff members of Office of Vice Chairman, NITI Aayog during the period from January 1, 2015 to 31 December 2018.

The Dy Director and Nodal Officer, UIDAI vide letter dated 18.01.2019 transferred the RTI application to the Director and Nodal Officer, Niti Aayog. Subsequently, the Section Officer, RTI vide letter dated 06.02.2019 provided a copy of the response of the CPIO, Dy. Secretary vide letter dated 04.02.2019 wherein it was mentioned as under:-

“………. the bio-metric attendance of staff is an arrangement between the employees and the employer which fails under personal information category, the disclosure of which has no relationship to any public activity or public interest and disclosure of which would cause unwarranted invasion of privacy of the individuals. In view of the above, the requested information cannot be supplied to the applicant under Rule 8(1) (j) of the RTI Act, 2005.”

Dissatisfied with the response received from the PIO, the Appellant/ Complainant filed a First Appeal dated 05.03.2019. The Adviser(Admn)/FAA vide order dated 28.06.2019 upheld the reply of the PIO while relying on the decision of the Hon’ble Supreme Court of India in Canara Bank vs C.S Shyam and Anr Civil Appeal No 22 The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. of 2009. Feeling aggrieved and dissatisfied, the Appellant/ Complainant approached the Commission with the instant Second Appeal/Complaint.

Facts emerging in Course of Hearing:

A written submission has been received from the Appellant/ Complainant’s representative (Appeal No CIC/NITIA/A/2018/127581) vide letter dated 24.10.2020 wherein he stated that the information regarding attendance/ biometric attendance of public servants is information u/s 2 (f) of the RTI Act, 2005. He, thereafter, referred to Section 8 (1) (j) of the RTI Act, 2005 and stated that in a number of decisions, the CIC has held that the record of biometric attendance of a public servant cannot be regarded as personal/third party information and that it is the duty of every public servant to attend office on time and remain present during working hours and that the citizens have the right to check/ know the attendance timings of public servants. He, thereafter, referred to the proviso to Section 8 (1) and stated that information regarding the attendance/ biometric attendance cannot be denied to the Parliament or State Legislature and hence cannot be denied to any applicant. He also referred to Section 8 (2) of the Act and argued that the said provision was also ignored in the instant case by the CPIO/ FAA. While referring to the decision of the Hon’ble Supreme Court in the matter of R Rajagopal vs State of Tamil Nadu, 1994 SCC (6) 632, the Appellant/ Complainant’s representative stated that in the said matter, the Hon’ble Supreme Court held that the larger public interest in disclosing the information relating to public servants outweighed the right to privacy. He also cited the decision of the Hon’ble High Court of Bombay at Goa in Kashinath J Shetye vs Dinesh Vaghela, WP 1 / 2009 in support of his contention. The Appellant/ Complainant representative also argued that the decision of the Hon’ble Supreme Court in Girish Ramachandra Deshpande’s matter does not qualify as a binding precedent as the said order merely dismissed the SLP in the preliminary stage which does not constitute a binding precedent. While concluding his submissions, the Appellant/ Complainant representative prayed to direct the CPIO to provide the complete information as sought in the RTI application and impose appropriate penalty on the erring CPIO.

A written submission has been received from Dy Director and Nodal Officer, RTI Cell, UIDAI vide letter dated 23.10.2020 wherein while referring to their reply dated 18.01.2019 it was stated that the information sought is not available with the UIDAI but is available with the Niti Aayog.

A written submission has also been received from CPIO and Dy Secretary, Niti Aayog (Appeal No CIC/NITIA/A/2018/127581) vide letter dated 26.10.2020 wherein it was stated that the instant Second Appeal was filed by the Appellant on 03.06.2019 and the FAA order was issued on 28.06.2019 which renders the grounds of Second Appeal as infructuous at present. Moreover, the Appellant had submitted another Second Appeal on 13.08.2019 in the same matter against the FAA order dated 28.06.2019 which was scheduled for hearing in CIC/NITIA/C/2018/648714 for which they had sent a submission on 23.10.2020. Thus, while stating that the grounds of appeal were infructuous, the Respondent prayed to dismiss the instant Second Appeal.

In order to ensure social distancing and prevent the spread of the pandemic, COVID-19, audio hearings were scheduled after giving prior notice to both the parties. The Appellant/ Complainant’s representative Shri Dinesh Kumar Sharma, Advocate, participated in the hearing on being contacted on his telephone. He referred to the decisions mentioned by him in his aforementioned written submission and stated the biometric attendance records of employees cannot be denied u/s 8 (1) (j) of the RTI Act, 2005. He further referred to the proviso to Section 8 (1) of the RTI Act, 2005 and stated that the information which cannot be denied to the Parliament has to be provided to the citizens. He also averred that as per Section 19 (5), the onus to prove that the denial of information is justified is on the Respondent Public Authority. The Appellant/ Complainant also argued that the decision of the Hon’ble Supreme Court in the matter of Canara Bank vs C.S Shyam and Anr Civil Appeal No 22 The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. of 2009 was not applicable to the instant matter since the facts of both the matters can be distinguished.

The Respondent is represented by Smt Purnima Malik DS and CPIO, Niti Aayog and Shri Rajnish Jha, Dy Director and Nodal CPIO, UIDAI through audio conference. Shri Jha reiterated their written submissions and stated that the instant matter pertained to the Niti Aayog and not UIDAI hence the RTI application was transferred to them. Smt Malik reiterated the reply/ order of the CPIO/ FAA as also her written submission and stated that the information sought pertained to personal information of third parties exempted from disclosure as per Section 8 (1) (j) of the RTI Act, 2005 in the absence of any larger public interest. In support of her contention, she referred to the decision of the Hon’ble Supreme Court in the matter of Canara Bank vs C.S Shyam and Anr Civil Appeal No 22 The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. of 2009.

The Appellant/ Complainant’s representative however stated that due to non-receipt of the written submission from the Respondent, he was unable to contest their arguments. He therefore desired that an opportunity be provided to him to furnish his written rebuttal against the submissions of Respondent. During the hearing, the Commission allowed the Appellant/ Complainant to furnish his written submission latest by 30.10.2020, failing which the Commission would pronounce its final decision in the matter.

Subsequently, the Commission is in receipt of a supplementary written submission from the Appellant/ Complainant’s representative dated 29.10.2020 in CIC/NITIA/A/2018/127581 wherein he inter alia stated that the exemption claimed u/s 8 (1) (j) of the RTI Act, 2005 cannot be allowed on the grounds thereof being raised and it is for the Public Authority to lay foundation of the information falling in one of the exempted categories which the Respondent failed to lay in the present matter. He further argued that the reliance placed by the Respondent on the decision of Canara Bank vs C.S Shyam and Anr Civil Appeal No 22 The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. of 2009 is misplaced as that judgement is distinguishable on facts. While re-iterating his earlier written submission and his prayer therein, the Appellant/ Complainant’s representative also stated that the First Appeal was not decided within the stipulated time period.

The Commission is also in receipt of a supplementary written submission from the Appellant/ Complainant’s representative dated 29.10.2020 in CIC/NITIA/C/2018/127581 wherein he reiterated his earlier written submissions dated 24.10.2020 and prayed for initiation of penal action against the erring officials.

Decision:

Keeping in view the facts of the case and the submissions made by both the parties, the Commission observes that an appropriate response in accordance with the provisions of the Act is provided by the Respondent. In the context of denial of information relating to attendance record as per Section 8 (1)(j) of the RTI Act, 2005, the Commission refers to a recent decision of the Hon’ble High Court of Delhi in R.S. Gupta vs Govt of GNCTD and Ors., LPA 207/2020 dated 31.08.2020, the relevant extract of which is as under:

“10………………. Further, the appellant is seeking attendance record of the other staff members of the Geeta Senior Secondary School No. 2, Sultanpuri, Delhi. Since the information requested relates to attendance record, it would entail revealing medical and personal information of an individual. The attendance record is part of service record which is a matter between the employee and the employer and ordinarily these aspects are governed by the service rules which fall under the expression "personal information".

The disclosure of this information ex-facie has no relationship to any public activity or public interest and pertinently, the appellant is not able to explain or show any nexus between the personal information sought and the public interest involved, for seeking its disclosure. Thus, in our view, in absence of even a remote connection with any larger public interest, disclosure of information would be exempted as the same would cause unwarranted invasion of the privacy of the individual under section 8(1)(j) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information: Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person. of the RTI Act. Petitioner has thus failed to establish that the information sought for is for any public interest, much less 'larger public interest'. Therefore, we are not inclined to entertain this appeal.”

Thus, no further intervention of the Commission is warranted in the instant matter. With the above observation, the instant Second Appeal/ Complaint stands disposed off accordingly.

Y. K. Sinha

Information Commissioner

Citation: Shri Amarendra Chaudhary v. UIDA in Second Appeal No. CIC/NITIA/A/2018/127581, Complaint No. CIC/NITIA/C/2018/648714, Date of Decision: 31.10.2020