Question paper & answer key in relation to B.Tech examination were denied claiming that they were secret - CIC: All examinees have a fundamental right to know of question paper they have answered along with the key by next day of holding of examination

Question paper and answer key in relation to B.Tech examination were denied claiming that they were secret and confidential.

CIC:

1. Regarding the claim that the question paper is intellectual property of the University, the CIC observed that the student respects a part of IPR as he pays sufficient amount as fee for examination. In fact, by the time examination is conducted the University has already exploited economic value of its intellectual property.

2. The authorities of the universities do not bother about exploitation of students by private publishers who publish Guides consisting of guess papers with answers, and coaching material and sell at huge price.

3. After examination is conducted, the question paper and the key for the same is ‘information held’ by the University.

4. There is no public interest in keeping question paper and key as secret and confidential which is neither secret nor confidential

5. All examinees of entrance examination have a fundamental right to know of question paper they have answered along with the key by next day of holding of examination on their official website so that they can verify their answers and assess their merit. Such a disclosure also would help the students seeking to take entrance examination next year to have model and key to guide them. It will reduce the dependence on the private coaching centers which exorbitantly charge the students that result in denial of chances of education on the grounds of economic conditions of students or their parents

Parties Present:

The appellant is not present. The Public Authority is represented by Dr. Vijay Kumar.

Information sought:

1. Appellant through her RTI application had sought for information in relation to B.Tech (CET Code 131) examination as to copy of her question paper set, OMR sheet, University approved answer key sheet and the details of marks obtained by the holders of ranks from

PIO response:

2. PIO stated that question paper and answer key are part of the secrecy CET; The details of the Rank, marks from 16000 were given and for OMR sheet stated that as appellant had already applied under University rules, the same will be provided to him.

Ground for First Appeal:

3. That the PIO be directed to furnish copy of the question paper and university approved answer key.

Ground For Second Appeal :

4. That the PIO be directed to furnish copy of the question paper and university approved answer key.

Proceedings Before the Commission:

5. The appellant is not present. The officer from respondent Public Authority stated that it was the policy of the University not to allow the candidate to leave the examination hall with the question paper, which has to be collected by the invigilator after the examination and account for the same to the University. In this connection, the respondent officer has shown their file in which the following noting was recorded by the incharge (RTI & Legal):

“The issue related to question paper is time and again coming up. So far our stand has been that the question paper is not allowed to be taken by the examinee after the examination and therefore is regarded as confidential even after the conduct of examination. It is also regarded as the outcome of intellectual work of the paper setter who may reasonably expect the University not to freely disseminate to general public and use it exclusively for the purpose of testing the suitability and merit of prospective students for admission to a particular programme. Apart from this, the questions in the question paper may be considered as question bank for any future use, if situation demands, and preserving them confidentially may be necessary.

Even though it is not available in any record that I am aware, that the specific reasons for not disclosing the question paper are as above, it may be presumed, from the consistent practice being followed by the University examination division, with respect to the issue of disclosing question paper, could have been those mentioned above. Nonetheless, I am of the view that this issue of disclosing question papers under the RTI Act, 2005, or in any other appropriate manner requires deliberations and considered view in the light of demands for disclosure for ensuring transparency and fairness.

Hence submitted for your kind consideration please. Sd/I/ C(RTI & Legal) 1592014 Sd/COE 16102014”

6. The Commission was also told that around 200 questions are set by the examiner who charges @ Rs.100/ question and six different sets of question papers are prepared. Thus, the University is paying Rs.100 X 200 X 6 = Rs.1,20,000/ for the questions. It also spends a lot for conducting the examination at different cities in India, where more than one lakh students appear for this entrance examination. Each student pays a fee of Rs.700/. The University has also to spend a lot for hiring the examination centers and for deputing the staff by paying TA/DA, etc.

7. From the file notings of the University it is clear that the University has no policy at all regarding the disclosure of the question papers. The authorities do not know why they should not share the question paper with the examinee from whom they are collecting enough fee to meet the expenditure which include the money to be paid to the professor who would set the questions as part of fee for his intellectual labour besides huge profit margin. The file notings contain only presumptions and apprehensions and it is devoid of any basis or logical reasoning for denying question paper and key to the students who appeared for examination for entrance into the B.Tech course. This examination is just a filtering process to pick up required number of students in a heavy competition. It is within every body’s knowledge that each university makes substantial income from conduct of entrance examination, after meeting all the expenditure from out of the entrance examination fee.

8. Even if we agree that question paper set is intellectual property of the professors who took part in writing questions; the University is purchasing that intellectual property of professors paying remuneration. Using that ‘intellectual property’, the University is also making money. The intellectual property, which is protected from commercial exploitation by unauthorized users, no way bars the disclosure of information to students for the sake of knowing and verification. The University has every authority to prevent commercial use of such question paper by any other unauthorized person. Thus there is no threat to their intellectual property by disclosure to students. The student also respects a part of IPR as he pays sufficient amount as fee for examination. In fact, by the time examination is conducted the University has already exploited economic value of its intellectual property. The authorities of the universities do not bother about exploitation of students by private publishers who publish Guides consisting of guess papers with answers, and coaching material and sell at huge price. The University has a duty to curb this exploitation by taking up necessary measures including placing of question paper along with key immediately after examination in their official website. They also should make available to students all previous question papers along with keys so that they are properly guided and not exploited by commercial and corporate coaching business centers who are indulging in commodification of the education.

9. The University authorities are not in a position to say that they developed a well considered policy to hold question paper as secret. The University nowhere declared the policy or reasons for considering question paper and key of entrance examination as confidential, secret or intellectual property or why it cannot be shared with the students. In fact, when a student answers the question paper, the sheet containing question paper is his property, and he has every right to know the marks obtained by him for his answers and marks of others for such questions because it is a common competitive examination to all students, and the marks or rank decide his right to admission into the course which is crucial factor in building his future. It is highly unreasonable that this university thinks that their question papers are secret and confidential. If they are confidential and secret, why do they distribute to students for answering? Will it be still secret or confidential after distributing it to hundreds of students? The argument of University is ridiculous.

10. After examination is conducted, the question paper and the key for the same is ‘information held’ by the University. No provision of RTI Act exempts it from disclosure. There is no public interest in keeping question paper and key as secret and confidential which is neither secret nor confidential. Even if assumed that it is protected under some provision of Section 8(1), it has to be disclosed under Section 8(2) Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests. Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests. which facilitates disclosure on finding public interest in disclosure compared to absence of public interest in protecting the information. Section 8(2) Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests. Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests. of RTI Act, 2005 says:

Notwithstanding anything in the Official Secrets Act, 1923 nor any of the exemptions permissible in accordance with subsection (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests.

There is public interest in disclosure of question paper which outweighs the so called ‘protected interest’ if any in keeping the question paper secret and confidential. The respondent authority could not show any protected interest in keeping question paper and key secret.

11. The CPIO made a feeble argument that their policy does not allow disclosure of question paper along with key, because the University does not have any policy at all. The CPIO or any other authority does not know or understand or not ready to accept that there is no policy of nondisclosure. The University has a duty to implement student’s right to information to question paper along with the key.

12. The Hon’ble Supreme Court of India made it very clear in its judgment in The Institute of Chartered Accountants of India v Shounak H Satya and Ors, AIR 2011 SC 3336, R V Raveendran and A K Patnaik, JJ, who stated: It is obvious that the appellant examining body is not liable to give to any citizen any information relating to question papers, solutions/model answers and instructions relating to a particular examination before the date of such examination. But the position will be different once the examination is held. Disclosure of the question papers, model answers and instructions in regard to any particular examination would not harm the competitive position of third party once the examination is held. … therefore Section 8(1)(d) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information; does not bar or prohibit the disclosure of question papers, model answers (solution to questions) and instructions if any given to the examiners and moderators after the examination and after the evaluation of answer scripts is completed, as at that stage they will not harm the competitive position of any third party. The Delhi High Court did not agree to apply the above yardstick to the super specialty examination conducted by AIIMS in case of All India Institute of Medical Sciences v Vikrant Bhuria, decided on 28.05.2012 in LPA No. 487/2011, by AK Sikhri (Acting Chief Justice)and Rajiv Sahal Endlaw, JJ. The Delhi High Court found that the examination conducted by AIIMS was materially different from the examination considered by Supreme Court in above case. There are few seats, often limited to one only, in such superspecialty courses and the examinees are highly qualified, post graduates in the field of medicine. In this case information seeker was examinee himself.

13. The examination conducted by respondent university is ordinary, post intermediate examination to decide admissions to a graduation course involving neither specialty nor super specialty. The public authority failed to show any public interest to hold the question paper as secret or confidential. They also failed to show existence any policy as such in the University.

14. Several Universities conducting entrance examination though collect all question papers along with OMR sheets, do place the question paper and key in public domain or sell the previous question papers to the applicants next year. They also should not convert this into a profitable commerce. The Commission disapproves the tendency of Universities including the respondent university to hold the question paper confidential like defense secret of the nation or selling it at exorbitant rate. They cannot collect price more than cost of copying if it is a printed copy. If it is on website, it should be freely accessible. This is the mandate under RTI Act, 2005.

15. Therefore, the Commission holds that all examinees of entrance examination have a fundamental right to know or right to information of question paper they have answered along with the key by next day of holding of examination on their official website so that they can verify their answers and assess their merit. Such a disclosure also would help the students seeking to take entrance examination next year to have model and key to guide them. It will reduce the dependence on the private coaching centers which exorbitantly charge the students that result in denial of chances of education on the grounds of economic conditions of students or their parents. If a student who cannot afford a coaching, but intelligent enough to prepare by himself from previous questions and key, why should he be denied his right to admission or right to education which is part of his right to life? The University being a public institution funded by public money, should not forget its responsibility towards the youth of this country to get them educated. Entrance examination should not become a battle raising levels of frustration leading to heavy pressures, depression and suicides. During these days of open book examinations, where the application levels of students are examined rather than their memory, an intelligent open examination is preferred to outdated methods of secrecy of examination papers.

16. The Commission directs the University to furnish the copy of question paper along with the key to the applicant within one week and place the same in their official website along with this order. The Commission also recommends to consider providing two copies of OMR sheets, of which one can be submitted to University and other retained by the student. To prevent fraud, they can refuse to entertain any claim for more marks based on adding correct answers next day to the copy of OMR sheet retained by them. The authorities should also consider development of online conduct of examination where students can save the question paper and OMR answer sheet after submitting it to the University.

(M.Sridhar Acharyulu)

Information Commissioner

Citation: Ms. Shweta Upadhayay v. Guru Gobind Singh Indraprastha University in Case No. CIC/SA/A/2014/001157