Respondents sought exemption u/s 8 (1) (h) & (g) for the first time - CIC: Since such exemptions were not sought by the PIO / FAA, it cannot be entertained at this stage - CIC: Preliminary Enquiry Report should have been provided to the Appellant

Information sought

The appellant filed an RTI application and sought certified copy of approval of the CMD, NTPC, alongwith supporting documents, for issuing Memorandum dated 06.04.2013 to the applicant and certified copy of the document if the CMD, NTPC had also approved recovery of Rs. 4800/- paid to the applicant, as incentive against Office Order 1485/1998 dated 08.06.1998.

Background of the case:

The appellant through his RTI application dated 16.07.2013 sought the aforementioned specific information which was denied by the CPIO’s reply dated 05.08.2013 stating that information sought was exempt from disclosure under Section 8 (1)(j) of the RTI Act. Aggrieved with the denial of information by the CPIO, the Appellant filed a First Appeal which was disposed of vide FAA’s non speaking order dated 16.10.2013 holding that the CPIO’s reply was in order.

Relevant facts emerging during hearing:

During the hearing both the parties were present and reiterated their contentions. The Appellant has filed a written synopsis of his arguments dated 19.04.2016 wherein he has cited a catena of judgements rebutting the arguments of the Respondent. The Appellant has placed reliance on the Delhi High Court’s decision dated 07.10.2010 in the case of Union of India vs. R S Khan [WP(C) No. 9355/2009] in rebuttal of the plea of the Respondent seeking exemption under Section 8 (1)(j). Relevant extracts of the said decision are as under:

“17. As regards 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. 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. , there is no question that notings made in the files by government servants in discharge of their official functions is definitely a public activity and concerns the larger public interest. In the present case, 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. 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. was wrongly invoked by the CPIO and by the Appellate Authority to deny information to the Respondent.

Furthermore, in the case of UPSC vs G S Sandhu [WP(C) No. 4079/13], the Delhi High Court vide its decision dated 10.10.2013 has clearly held:

“12. Personal Information As regards clause (j), it would be difficult to dispute that the exemption cannot be claimed when the information is sought by none other than the person to whom the personal information relates. It is only when the information is sought by a third party that such an exemption can be claimed by UPSC. If, the notings recorded on the file and/or the correspondence exchanged between UPSC and the concerned department do contain any such information which pertains to a person other than the information seeker and constitutes personal information within the meaning of 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. 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. , the UPSC was certainly be entitled to refuse such information on the ground that it is exempted from disclosure under clause 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. 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 Act.

Reliance has also been placed on the High Court decision dated 09.11.2012 in the case of Union of India vs. Col V K Shad [WP (C) No. 499/2012] to substantiate that denial of access to information in this case is actually a breach of principles of natural justice. Respondents have also submitted their written arguments reiterating their contention. The Respondents in their written submission have for the first time in this case sought exemption under Section 8 (1) (h) and (g) as well. Since such exemptions were not sought by the CPIO or even the FAA, it cannot be entertained in the submissions at this stage. At this point, the Respondent states the documents sought had been provided to the Appellant during enquiry with the approval of the enquiry officer. The Appellant responds that he had been provided only some signatures and there was no content in the document.

Decision:

After hearing parties and perusal of record, the Commission is of the considered opinion that the Preliminary Enquiry Report based on which the charges were framed against the Appellant should have been provided to the Appellant, as a matter of his right which would answer his first query. Whether the same was provided or not is not clear. The Commission finds that in the light of the well established law and specifically the decisions cited by the Appellant, the information as sought by the Appellant including his query about the recovery of the amount from him should be answered. Accordingly, it is directed that the PIO shall furnish the information as has been sought by the Appellant within two weeks of receipt of this order under intimation to the Commission. The appeal is disposed of accordingly.

(Yashovardhan Azad)

Information Commissioner

Citation: Mr. John Philip Korba v. NTPC in F. No.CIC/SS/A/2014/000010