Mr.A.

Venkataratnam vs Central Information Commission on 7 May, 2012

Central Information Commission Central Information Commission Mr.A. Venkataratnam vs Central Information Commission on 7 May, 2012 CENTRAL INFORMATION COMMISSION Club Building (Near Post Office) Old JNU Campus, New Delhi - 110067 Tel: +91-11-26161796 Decision No. CIC/SG/A/2012/000773/18789 Appeal No. CIC/SG/A/2012/000773 Relevant Facts emerging from the Appeal: Appellant : Mr. A. Venkataratnam Shiv Gauri, Plot 12, Green Hill Society, Soccoro, Porvorim (P.O), Goa- 403501 Respondent : Mr. S. Padmanabha, CPIO & Dy. Secretary Central Information Commission 2nd Floor, 'B' Wing, August Kranti Bhawan, Bhikaji Cama Place, New Delhi-110066 RTI application filed on : 15/11/2011 PIO replied : 20/12/2011 First appeal filed on : 06/01/2012 First Appellate Authority order : 08/02/2012 Second Appeal received on : 28/02/2012 Information Sought: 1. How many Chief Information Commissioners and information commissioners have retired from the CIC since the implementation of the RTI Act, 2005. Please specify only the number 2. Of the above, how many have retired and receiving pension either from Central or State governments before they joined the CIC? Please give their names.

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Mr.A. Venkataratnam vs Central Information Commission on 7 May, 2012

3. Of the above, for how many the pension & retirement benefits are fixed under the Supreme Court judges (COS) Act, 1958 under both paragraphs 2(a) & 2(b) of part III to the Schedule of the SC Judges (COS) Act, 1958 as amended from time to time? Please give the Pension Payment orders and the calculation sheets for them. Reply of the Public Information Officer (PIO): 1. The reply of the Deputy Secretary (Admn) is as under"Two Chief Information Commissioners and Three Information Commissioners have retired from the Central Information Commission since the implementation of the Right to Information Act, 2005." 2. The reply of the Deputy Secretary (Admn.) is as under"Four CIC/ICs have retired & receiving pension before they joined the Central Information Commission. The names of the CIC/ICs are given below: a. Shri Wajahat Habibullah, former Chief Information Commissioner. b. Shri A.N Tiwari, former Chief Information Commissioner c. Smt. Padma Balasubrmanian, former Information Commissioner. d. Shr O.P Kejariwal, former Information Commissioner." 3. The reply of the Deputy Secretary (Admn) is under"This is third party information which is personal in nature, hence denied under section 8 (1) (j) of the RTI Act, 2005. Moreover, there is no larger public interest in disclosure." Page 1 of 4 Grounds for the First Appeal: Incomplete and unsatisfactory information provided by the PIO. Order of the First Appellate Authority (FAA): FAA stated that the Commission is not the holder of the information sought, pension order is issued by the Central Pension Accounting Office, Govt. of India and not the office of the Central Information Commission. And the pension order does not contain personal information such as Bank Account, PPO no., address etc., which cannot be disclosed. Thus, it is covered u/s 8(1) (j) of the RTI Act, 2005. And dismissed the appeal. Grounds for the Second Appeal: Incomplete and unsatisfactory information provided by the PIO. Relevant Facts emerging during Hearing: The following were present: Appellant: Mr. A. Venkataratnam on video conference from NIC-Goa Studio; Respondent: Mr. S. Padmanabha, CPIO & Dy. Secretary alongwith deemed PIOs;
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Mr.A. Venkataratnam vs Central Information Commission on 7 May, 2012

The Appellant has been denied information on query-3 claiming exemption under Section 8(1)(j) of the RTI Act. In query-3 the Appellant has sought pension and retirement benefits provided to the Information Commissioners who have retired and also the calculation sheets for them. The Appellant states that the First Appellate Authority (FAA) had stated that "The Commission is not the holder of this information since pension order is issued by Central Pension Accounting Office, Government of India and not the office of Central Information Commission." The Appellant claims that this is incorrect and the FAA has erred in the statement. The PIO did not explain how the information could have been refused if it was not held by the Commission as per the Appellate authority's contention. It was admitted that the Commission would certainly have a copy. The PIO has claimed that certain information on the PPO would give away the PPO number and the Bank account details of the retired commissioners and hence should be considered exempt as per the provisions of Section 8(1)(j) of the RTI Act. The Commission sees some merit in this argument but now examines the information sought by the appellant in query-03 i.e. "For how many the pension & retirement benefits are fixed under the Supreme Court judges (COS) Act, 1958 under both paragraphs 2(a) & 2(b) of part III to the Schedule of the SC Judges (COS) Act, 1958 as amended from time to time? Please give the Pension Payment orders and the calculation sheets for them." Thus it has to be determined whether the query regarding pension and retirement benefits being fixed under Supreme Court Judges (COS) Act, 1958 and calculation sheets for the pensions should be disclosed to the appellant. When a citizen seeks information under the provisions of the RTI Act, it can be denied only if it is exempt as per the provisions of Section 8 (1) or Section 9. The PIO has refused the information claiming that it is third party information and covered by the exemption of Section 8 (1) (j) of the RTI Act. Section 11 of the RTI act, which has been mentioned as one of the basiss on which the information is sought to be denied to the appellant in the present case lays down: '11. (1) Where a Central Public Information Officer or the State Public Information Officer, as the case may be, intends to disclose any information or record, or part thereof on a request made under this Act, which. relates to or has been supplied by a third party and has been treated as confidential by that third party, the Central Public Information Officer or State Public Information Officer, as the case may be, shall, within five days from the receipt of the request, give a written notice to such third party of the request and of the fact that the Central Public Information Officer or State Public Information Officer, as the case may be, intends to disclose the information or record, or part thereof, and invite the third party to make a submission in writing or orally, regarding whether the information should be Page 2 of 4 disclosed, and such submission of the third party shall be kept in view while taking a decision about disclosure of information: Provided that except in the case of trade or commercial secrets protected by law, disclosure may be allowed if the public interest in disclosure out weighs in importance any possible harm or injury to the interests of such third party. (2) Where a notice is served by the Central Public Information Officer or State Public Information Officer, as the case may be, under sub-section (1) to a third party in respect of any information or record or part thereof, the third party shall, within ten days from the date of receipt of such notice, be given the opportunity to make representation against the proposed disclosure. (3) Notwithstanding anything contained in section 7, the Central Public Information Officer or State Public Information Officer, as the case may be, shall, within forty days after receipt of the request under section 6, if the third party has been given an opportunity to make representation under sub-section (2), make a decision as to whether or not to disclose the information or record or part thereof and give in writing the notice of his decision to the third party. (4) A notice given under sub-section (3) shall include a statement that the third party to whom the notice is given is entitled to prefer an appeal under section 19 against the decision.' It is evident that the PIO is expected to follow the procedure of Section 11 when he "intends to disclose any information or record". This means that the PIO has come to the conclusion that the information is not exempt as per the provisions of the
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Mr.A. Venkataratnam vs Central Information Commission on 7 May, 2012

RTI Act. It is clearly stated at Section 11 (1) that 'submission of third party shall be kept in view while taking a decision about disclosure of information. The information 'which. relates to or has been supplied by a third party and has been treated as confidential by that third party'. Thus the procedure of Section 11 comes into effect if the PIO believes that the information exists and is not exempt, and the third party has treated it as confidential. The PIO must send a letter to the third party within 5 days of receipt of the RTI application. It only gives the third party an opportunity to voice its objections to disclosing information. The PIO will keep these in mind and denial of information can only be on the basis of exemption under Section 8 (1) of the RTI act. As per Section 11 (3), the PIO has to determine the whether the information is exempt or not and inform the appellant and the third party of his decision. If the third party wishes to appeal against the decision of the PIO, he can file an appeal under Section 19 of the Act as per the provision of Section 11 (4). Section 11 does not give a third party an unrestrained veto to refuse disclosing information. It clearly anticipates situations where the PIO will not agree with the claim for non-disclosure by a third party and provides for a appeal to be made by the third party against disclosure, which would have been unnecessary, if the third party had been given a veto against disclosure. Thus the PIO is expected to follow the procedure of Section 11, when he intends to disclose the information but has some reason to believe that the third party treats it as confidential. If the third party sends an objection, the PIO has to determine whether the information is exempt under the provisions of the Act. No evidence has been produced even showing that the third party had been asked for objections, or any objections were raised. Thus the refusal to disclose the information under Section 11 is not valid at all. It can be argued that the salary or pension of a person is personal information and disclosure may be considered an invasion on the privacy of an individual, and hence the provision of Section 8 (1) (j) would apply. However, we must also consider the proviso to Section 8 (1) (j) of the RTI Act. It appears Parliament intended that PIOs should use this exemption very rarely. However, it realized that there may be a temptation by PIOs to use it very widely, and hence it added a proviso as a test for PIOs only for Section 8 (1) (j) stating, 'Provided that the information, which cannot be denied to the Parliament or a State Legislature shall not be denied to any person.' Public servants have been used to giving information to Parliament and State Legislatures, and it would be very rarely that there would be reluctance in parting Page 3 of 4 with any information when a Parliamentary question is asked. By this proviso, Parliament recognized the primacy to the individual citizen, who lends it legitimacy. It wanted all PIOs to be aware that Parliament itself derives its legitimacy from the citizen who is therefore entitled to the same information. It is unlikely that the information sought by the appellant would be denied to Parliament. Besides, the Commission notes that the standard of the disclosure has to be different for Public Servants. The Supreme Court in CIVIL APPEAL NO.7178 OF 2001 Union of India Vs Association For Democratic Reforms & Anr (ADR) had clearly enunciated the principle that the citizens had a right to know about those who want to become Public Servants. In the said judgment the court had directed that the Assets and Liabilities of such persons and details of criminal charges against them have to be disclosed by such persons. It stands to reason that if this is a standard of disclosure of those who want to be Public Servants, the standard of disclosure cannot be any lower for those who are Public Servants. Section 4(1)(b)(x) requires the monthly remuneration received by officers and employees, including system of compensation to be displayed suo-moto by a Public Authority. From these it appears reasonable for citizens who ask for information about the pensionary calculations, rules under which pensions are calculated and obtaining information about the retirement benefits of retired public servants. These are all paid from public funds and the citizen's right to know about these cannot be denied. The Commission therefore does not uphold the denial of information under Section 8(1)(j) of the RTI Act as valid. Decision:
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Mr.A. Venkataratnam vs Central Information Commission on 7 May, 2012

The Appeal is allowed. The Commission directs the PIO to provide the relevant rules, under which the pensions and retirement benefits of the retired Information Commissioners are calculated, the calculation sheet by which pensions are calculated and the actual pension and retirement benefits given to the Information Commissioners. The PIO will provide this information to the Appellant before 05 June 2012. This decision is announced in open chamber. Notice of this decision be given free of cost to the parties. Any information in compliance with this Order will be provided free of cost as per Section 7(6) of RTI Act. Shailesh Gandhi Information Commissioner 07 May 2012 (In any correspondence on this decision, mention the complete decision number.) (PG) Page 4 of 4

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