CENTRAL INFORMATION COMMISSION
Appeal No.CIC/WB/A/2007/01675 dated 24.12.2007
Right to Information Act 2005 - Section 19
Appellant : - Ms. Hema D'Souza
Respondent: - Dy. Commissioner of Police (DCP - Vigilance)
Facts:
By an application of 26.10.07 Ms. Hema D/Souza of Dwarka New Delhi applied to the PIO / DCP (Vigilance) seeking the following information: "a. Please provide date on which was ACP Shri Vijay Manchanda, was suspended.
b. Please provide copy of the certified suspension order of ACP Shri Vijay Manchanda.
c. Please provide names and designation of enquiry officers. d. Please provide the date of retirement of ACP Shri Vijay Manchanda.
e. Please provide date of revocation of suspension, if applicable.
f. Please provide a certified copy of the revocation order. g. Please advise the charges against ACP Shri Vijay Manchanda.
h. Please provide a certified copy of the charges against ACP Shri Vijay Manchanda.
i. Please provide probable date of culmination of departmental enquiry, if applicable.
j. Please provide a certified copy of the decision on culmination of the departmental enquiry proceedings. k. If exonerated, reasons u/s 4 (1) (d) RTI Act, attributed by concerned officials.
l. Certified copy of the recommendations/ note sheets, leading to exoneration.
m. Inspection of relevant files and records/ documents. n. Certified copies of documents on inspection of relevant files and records/ documents."
In his response of 7.11.07 DCP (Vigilance) refused the information sought, as follows:
"I am to inform you that the documents/ information asked by you can not be furnished to you as per section 8 (1) (j) & 11 (1) of RTI Act."
Aggrieved Ms. D'Souza moved a first appeal in which, after citing several decisions of this Commission on the application of exemption u/s 8(1) (j), she concluded with the following prayer:
"a. First Appellate Authority may please take note of the appellant's contentions, especially, in terms of the various CIC decisions cited in para 3 (c) of this appeal, before passing an order.
b. Response to queries. Inspection of all relevant enquiry files/ documents and certified copy of documents on inspection."
However, Shri R. K. Upadhyaya in his order of 6.12.07 summarily rejected this appeal stating as follows:
"There is nothing in the present appeal that may warrant interference with the orders of PIO/ Vigilance, which are strictly as per the provisions of the RTI Act, 2005."
This has brought Ms. D'Souza in her second appeal before us with the following prayer:
"a. Response to queries.
b. Inspection of all relevant enquiry files/ documents and certified copy of documents on inspection.
c. Imposition of penalty u/s 20 of the Act."
The appeal was heard on 17.4.2009. The following are present:
Appellant: Mr. M. D'Souza
Respondents: Mr. M. N. Tiwari, DCP (Vigilance)
Shri D'Souza submitted a letter of authority signed by appellant Ms. Hema D'Souza authorizing him to represent her in the hearing. This has been placed on record.
PIO Shri M. N. Tiwari, DCP (V) submitted that he assumed office recently and agreed that at least part of the information sought should have been supplied to appellant and, therefore, sought time to do so.
Shri D'Souza submitted written arguments in support of Ms. Hema D'Souza's appeal concluding with the following: "a. Issue standing orders of the First Appellate Authority to dispose the appeals in accordance with provisions of the RTI Act and the contentions and citations put forth by the appellant, thereby reducing the burden on CIC and forcing the appellant to undergo delay, harassment and the rigmarole of appeals.
b. Direct CPIO and First Appellate Authority to adhere to the principles of natural justice and to pass reasoned speaking order in all cases, and
c. Initiate penalty proceedings u/s 20 (1) and recommended departmental disciplinary action u/s 20 (2), in this case of violation of provisions of RTI Act by the Public Information Officer, and
d. Pass any such order that this Commission may deem fit and proper in the facts and circumstances of the present case."
She has, in this submission, relied on the requirement of the RTI Act u/s 7(8) (1) that in rejecting an application, reasons be provided. She has also taken recourse to the proviso to sec. 8(1)(j) with regard to disclosure of information that cannot be denied to Parliament and to the fact that w.r.t. sec. 11(1) only such information merits such reference that is under consideration for disclosure and has been treated confidential by the third party. She has further argued that the response of both CPIO and appellate authority militate against the principles of transparency and accountability and has cited the decision of the Kerala High Court in Canara Bank vs. C.I.C. - AIR 2007 Ker 225 together with the decisions of this Commission in Shri Dhananjay Tripathi vs. BHU File No. CIC/OK/A/2006/00163, dated 7th July, 2007 in Shri Dharmendra Sharma vs. Shri D. C. Srivastava, DCP, Delhi File No. CIC/AT/A/2006/00535 dated 19th January, 2007 in Shri Janardan Dubey vs. MHA, File No. CIC/AT/A/2007/00086 dated 28th March, 2007 in Shri Surender Kumar vs. CFSL, File No. CIC/WB/A/2007/00064 dated 18th January, 2007, in decision of Shri Mahavir Singhvi vs. MEA, File No. CIC/OK/A/2006/00010, A/2006/00027 & A/2006/00049, dated 7th July, 2006, and Shri Shahzad Ahmed vs. Shri R. P. Upadhyay, DCP Vigilance, File No. CIC/AT/A/2006/00199 dated 20th September, 2006 in
DECISION NOTICE
There is little doubt that the information sought in this request is that concerning a third party namely ACP Shri Vijay Manchanda. Nevertheless, in this case the information sought regarding ACP Shri Vijay Manchanda is with regard to a public activity i.e. an official enquiry against Shri Vijay Manchanda and results arising wherefrom. The judgment of the Delhi High Court in W.P. (C) No.3114/2007 - Shri Bhagat Singh Vs. Chief Information Commissioner & Ors cited by appellant in her written statement is also of relevance, although it deals principally with the application of sec. 8(1) (h) Justice Bhat has also enunciated the principles of application of all exemptions u/s 8(1), which requires that the recourse to exemption of any nature needs to be fully explained:
It is a fact that we do not have a law on the protection of privacy in India. In this Commission, we have been guided by the Data Protection Act of 1998 of U.K. and the USA's Law of Torts on privacy. These lay down as follows: U.K. Data Protection Act 1998,
In the U.K's. Data Protection Act 1998, Sec.2 titled Sensitive Personal Data, defines this as personal data consisting of information as to: a. The racial or ethnic origin of the data subject. b. His political opinions
c. His religious beliefs or other beliefs of a similar nature d. Whether he is a member of a Trade Union. e. His physical or mental health or condition. f. His sexual life.
g. The commission or alleged commission by him of any offence.
h. Any proceedings for any offence committed or alleged to have been committed by him, the disposal of such proceedings or the sentence of any court in such proceedings."
U.S. LAW OF TORTS.
The US Restatement of the Law, Second Torts, 652 defines the Intrusion of Privacy in the following manner:-
"One, who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another of his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person."
However, both these will relate to activity of a private nature undertaken by a private citizen whereas in this case the information sought is that of an activity of an official nature undertaken by an official. For this reason, we can understand the intention of the PIO to disclose the information sought. Hence a reference u/s 11(1). However, if the intention is in any case to seek exemption u/s 8(1) sub sec. (j), as rightly pleaded by appellant Ms. D'Souza, there needed to be no question of referral u/s 11 sub sec. (1).
In this case, therefore, we hold that the information sought merits disclosure. However, following from the fact that the information relates to a third party, who is not party to this case, which the third party may have treated as confidential, such disclosure will only be made after obtaining any objection from the third party Shri Vijay Manchanda within five days of receipt of this Decision Notice us 11 (1) of the Act. Thereafter, CPIO is allowed a further ten days to examine these objections, exercise his judgment and disclose such information, as he then finds merits disclosure, an exercise that may be completed within fifteen working days of the date of receipt of this Decision Notice. The appeal is thus allowed.
On the plea for penalty, however, we find that both the CPIO and Appellate Authority have responded to the RTI application well in time. We have, however, taken note of the plea of Shri M. D'Souza during the appeal that he has been shabbily treated with regard to every application made to the Police Department by his wife Ms. Hema D'Souza and himself. We also find that there is no ground for so summarily rejecting the first appeal, as has been the instance in this case, demonstrating a total lack of application of mind. First Appellate Authority Shri Upadhyaya is cautioned to ensure issue of reasoned orders in disposal of first appeal in all cases brought before him as Appellate Authority under the Right to Information Act, lest he open his Dep't to the liability of paying compensation u/s 19 (8) (b).
Announced in the hearing. Notice of this decision be given free of cost to the parties.
(Wajahat Habibullah)
Chief Information Commissioner
17.4.2009
Authenticated true copy. Additional copies of orders shall be supplied against application and payment of the charges, prescribed under the Act, to the CPIO of this Commission.
(Pankaj Shreyaskar)
Joint Registrar
17.4.2009
Appeal No.CIC/WB/A/2007/01675 dated 24.12.2007
Right to Information Act 2005 - Section 19
Appellant : - Ms. Hema D'Souza
Respondent: - Dy. Commissioner of Police (DCP - Vigilance)
Facts:
By an application of 26.10.07 Ms. Hema D/Souza of Dwarka New Delhi applied to the PIO / DCP (Vigilance) seeking the following information: "a. Please provide date on which was ACP Shri Vijay Manchanda, was suspended.
b. Please provide copy of the certified suspension order of ACP Shri Vijay Manchanda.
c. Please provide names and designation of enquiry officers. d. Please provide the date of retirement of ACP Shri Vijay Manchanda.
e. Please provide date of revocation of suspension, if applicable.
f. Please provide a certified copy of the revocation order. g. Please advise the charges against ACP Shri Vijay Manchanda.
h. Please provide a certified copy of the charges against ACP Shri Vijay Manchanda.
i. Please provide probable date of culmination of departmental enquiry, if applicable.
j. Please provide a certified copy of the decision on culmination of the departmental enquiry proceedings. k. If exonerated, reasons u/s 4 (1) (d) RTI Act, attributed by concerned officials.
l. Certified copy of the recommendations/ note sheets, leading to exoneration.
m. Inspection of relevant files and records/ documents. n. Certified copies of documents on inspection of relevant files and records/ documents."
In his response of 7.11.07 DCP (Vigilance) refused the information sought, as follows:
"I am to inform you that the documents/ information asked by you can not be furnished to you as per section 8 (1) (j) & 11 (1) of RTI Act."
Aggrieved Ms. D'Souza moved a first appeal in which, after citing several decisions of this Commission on the application of exemption u/s 8(1) (j), she concluded with the following prayer:
"a. First Appellate Authority may please take note of the appellant's contentions, especially, in terms of the various CIC decisions cited in para 3 (c) of this appeal, before passing an order.
b. Response to queries. Inspection of all relevant enquiry files/ documents and certified copy of documents on inspection."
However, Shri R. K. Upadhyaya in his order of 6.12.07 summarily rejected this appeal stating as follows:
"There is nothing in the present appeal that may warrant interference with the orders of PIO/ Vigilance, which are strictly as per the provisions of the RTI Act, 2005."
This has brought Ms. D'Souza in her second appeal before us with the following prayer:
"a. Response to queries.
b. Inspection of all relevant enquiry files/ documents and certified copy of documents on inspection.
c. Imposition of penalty u/s 20 of the Act."
The appeal was heard on 17.4.2009. The following are present:
Appellant: Mr. M. D'Souza
Respondents: Mr. M. N. Tiwari, DCP (Vigilance)
Shri D'Souza submitted a letter of authority signed by appellant Ms. Hema D'Souza authorizing him to represent her in the hearing. This has been placed on record.
PIO Shri M. N. Tiwari, DCP (V) submitted that he assumed office recently and agreed that at least part of the information sought should have been supplied to appellant and, therefore, sought time to do so.
Shri D'Souza submitted written arguments in support of Ms. Hema D'Souza's appeal concluding with the following: "a. Issue standing orders of the First Appellate Authority to dispose the appeals in accordance with provisions of the RTI Act and the contentions and citations put forth by the appellant, thereby reducing the burden on CIC and forcing the appellant to undergo delay, harassment and the rigmarole of appeals.
b. Direct CPIO and First Appellate Authority to adhere to the principles of natural justice and to pass reasoned speaking order in all cases, and
c. Initiate penalty proceedings u/s 20 (1) and recommended departmental disciplinary action u/s 20 (2), in this case of violation of provisions of RTI Act by the Public Information Officer, and
d. Pass any such order that this Commission may deem fit and proper in the facts and circumstances of the present case."
She has, in this submission, relied on the requirement of the RTI Act u/s 7(8) (1) that in rejecting an application, reasons be provided. She has also taken recourse to the proviso to sec. 8(1)(j) with regard to disclosure of information that cannot be denied to Parliament and to the fact that w.r.t. sec. 11(1) only such information merits such reference that is under consideration for disclosure and has been treated confidential by the third party. She has further argued that the response of both CPIO and appellate authority militate against the principles of transparency and accountability and has cited the decision of the Kerala High Court in Canara Bank vs. C.I.C. - AIR 2007 Ker 225 together with the decisions of this Commission in Shri Dhananjay Tripathi vs. BHU File No. CIC/OK/A/2006/00163, dated 7th July, 2007 in Shri Dharmendra Sharma vs. Shri D. C. Srivastava, DCP, Delhi File No. CIC/AT/A/2006/00535 dated 19th January, 2007 in Shri Janardan Dubey vs. MHA, File No. CIC/AT/A/2007/00086 dated 28th March, 2007 in Shri Surender Kumar vs. CFSL, File No. CIC/WB/A/2007/00064 dated 18th January, 2007, in decision of Shri Mahavir Singhvi vs. MEA, File No. CIC/OK/A/2006/00010, A/2006/00027 & A/2006/00049, dated 7th July, 2006, and Shri Shahzad Ahmed vs. Shri R. P. Upadhyay, DCP Vigilance, File No. CIC/AT/A/2006/00199 dated 20th September, 2006 in
DECISION NOTICE
There is little doubt that the information sought in this request is that concerning a third party namely ACP Shri Vijay Manchanda. Nevertheless, in this case the information sought regarding ACP Shri Vijay Manchanda is with regard to a public activity i.e. an official enquiry against Shri Vijay Manchanda and results arising wherefrom. The judgment of the Delhi High Court in W.P. (C) No.3114/2007 - Shri Bhagat Singh Vs. Chief Information Commissioner & Ors cited by appellant in her written statement is also of relevance, although it deals principally with the application of sec. 8(1) (h) Justice Bhat has also enunciated the principles of application of all exemptions u/s 8(1), which requires that the recourse to exemption of any nature needs to be fully explained:
It is a fact that we do not have a law on the protection of privacy in India. In this Commission, we have been guided by the Data Protection Act of 1998 of U.K. and the USA's Law of Torts on privacy. These lay down as follows: U.K. Data Protection Act 1998,
In the U.K's. Data Protection Act 1998, Sec.2 titled Sensitive Personal Data, defines this as personal data consisting of information as to: a. The racial or ethnic origin of the data subject. b. His political opinions
c. His religious beliefs or other beliefs of a similar nature d. Whether he is a member of a Trade Union. e. His physical or mental health or condition. f. His sexual life.
g. The commission or alleged commission by him of any offence.
h. Any proceedings for any offence committed or alleged to have been committed by him, the disposal of such proceedings or the sentence of any court in such proceedings."
U.S. LAW OF TORTS.
The US Restatement of the Law, Second Torts, 652 defines the Intrusion of Privacy in the following manner:-
"One, who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another of his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person."
However, both these will relate to activity of a private nature undertaken by a private citizen whereas in this case the information sought is that of an activity of an official nature undertaken by an official. For this reason, we can understand the intention of the PIO to disclose the information sought. Hence a reference u/s 11(1). However, if the intention is in any case to seek exemption u/s 8(1) sub sec. (j), as rightly pleaded by appellant Ms. D'Souza, there needed to be no question of referral u/s 11 sub sec. (1).
In this case, therefore, we hold that the information sought merits disclosure. However, following from the fact that the information relates to a third party, who is not party to this case, which the third party may have treated as confidential, such disclosure will only be made after obtaining any objection from the third party Shri Vijay Manchanda within five days of receipt of this Decision Notice us 11 (1) of the Act. Thereafter, CPIO is allowed a further ten days to examine these objections, exercise his judgment and disclose such information, as he then finds merits disclosure, an exercise that may be completed within fifteen working days of the date of receipt of this Decision Notice. The appeal is thus allowed.
On the plea for penalty, however, we find that both the CPIO and Appellate Authority have responded to the RTI application well in time. We have, however, taken note of the plea of Shri M. D'Souza during the appeal that he has been shabbily treated with regard to every application made to the Police Department by his wife Ms. Hema D'Souza and himself. We also find that there is no ground for so summarily rejecting the first appeal, as has been the instance in this case, demonstrating a total lack of application of mind. First Appellate Authority Shri Upadhyaya is cautioned to ensure issue of reasoned orders in disposal of first appeal in all cases brought before him as Appellate Authority under the Right to Information Act, lest he open his Dep't to the liability of paying compensation u/s 19 (8) (b).
Announced in the hearing. Notice of this decision be given free of cost to the parties.
(Wajahat Habibullah)
Chief Information Commissioner
17.4.2009
Authenticated true copy. Additional copies of orders shall be supplied against application and payment of the charges, prescribed under the Act, to the CPIO of this Commission.
(Pankaj Shreyaskar)
Joint Registrar
17.4.2009
No comments:
Post a Comment