Disclosure of Other Employee's ACR

Disclosure of Other Employee's ACR is permitted under RTI / CIC Decision

It is not confidential.
Citizens/ Employee of an organization can see other officer/employee's ACR (Annual Confidentail Report)
See link : http://rti.india.gov.in/cic_decisions/CIC_SG_A_2011_000464_12432_M_56475.pdf
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Decision No. CIC/SG/A/2011/000464/12432

Appeal No. CIC/SG/A/2011/000464

Relevant Facts emerging from the Appeal:

Appellant : Mr. V. R. Sharma

LW Commissioner (C),

Ordinance Factory Board, 10-a,

SK Bose Road, Kolkata-700001 (W.B.)

Respondent : Mr. Prakash Tamrakar

Under Secretary & CPIO;

Ministry of Labour & Employment,

Govt. of India

Shram Shakti Bhavan, Rafi Marg

New Delhi-1l0001

RTI application filed on : 20/10/2010

PIO replied : 18/11/2010

First appeal filed on : 14/12/2010

First Appellate Authority order : 28/01/2011

Second Appeal received on : 18/02/2011

Information sought by the appellant:

ACR of C.L.S officers contains 8 pages only. Certain officers add a large number of pages in their ACR’s

having details of the work they have done during the year. Such additional pages are part of part II of

the ACR’s. Copies of these additional pages are not required. Kindly supply copies of following

documents/ACR’s for the relevant years based on which these officers got promotion to grade III.

Kindly provide all 5 YEARS-ACR’s of the following officers (except additional pages added by them)

sent/forwarded/submitted by the Ministry of Labour to D.PC. for their promotion to grade III of

C.L.S. Please also indicate when DPC WAS HELD FOR PROMOTING THESE OFFICERS TO

GRADE 111-please give dates.

Name of the officers are as follows-

(1) JAG MORAN SHARMA.

(2) DEVEBRATA SINHA.

(3) PRAKASH BENJAMIN.

(4) G.RAMA RAO.

(5) M.P.S.SHIVKUMARSWAMI.

(6) A.A. GILANI.

(7) LALLAN SINGH.

(8) K.D.SAHA.

(9) P.P.SARKAR.

(10) S.NAGRAJ.

(11) G.GOPAL

(l2) BK.SANWARYA.

(13) G.M.KADWAN.

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(l4) T.K.RAO.

(15) SHRI NARESH CHANDRA.

(16) B.K.BHISE

(17) SMT.MARY. C. JAIKAR.

Cost of photocopy comes to Rs-16/- per ACR (8 Pages per year X 2)X5 years=Rs 80/- per person. Rs 80

X 17 = 1360/- + Rs 10/- RTI fee Total-Rs 1370/-

IPO of value Rs.1370/- enclosed for supply information by registered post at following address-

V.R.SHARMA,LW Commissioner ( c) ,Section A/LW, 4 Floor,R.No-3,Ayudh Bhavan ,ORDNANCE

FACTORY BOARD,10-A; S.K. BOSE Road.KOLKATA-700001(W.B.)

PIO Replied :

i) Annexed

ii) With regard to supply of copies of the ACRs of the 17 Gr. IV CLS officers on the basis of which

they were promoted to Gr. III, it is mentioned that seeking personal information of other officers

which would cause unwarranted invasion of their privacy and has no relationship to public activity

or interest, can not be supplied u/s 8(1)(J) of the RTI Act, 2005.

Grounds of the First Appeal:

Appellant is not satisfied.

Order of the FAA:

“1. The appellant has now submitted an appeal dated 14/12/2010 (received in this Ministry on 20.12.2010)

under Rule 19(1) of RTI Act, 2005 mentioning that he has not been furnished the required information.

2. I have examined the matter and found that the CPIO has rightly denied the information under section

8(1)(j) of the RTI Act, 2005. The appellant is entitled to get the information regarding the grading of his

ACR but not of the other officers.

3. The appeal is thus disposed off. If the appellant is aggrieved by this order, second appeal against the

decision shall lie within ninety days from the date of this Order, with the Central Information Commission

under Section 19(3) of the RTI Act, 2005.”

Ground of the Second Appeal:

The appellant was not satisfied.

Relevant Facts emerging during Hearing:

The following were present:

Appellant : Mr. V. R. Sharma on video conference from NIC-Kolkata Studio;

Respondent : Mr. Prakash Tamrakar, Under Secretary & CPIO;

The appellant has sought the ACRs of 17 Officers and the PIO has refused to give this information

claiming exemption under Section 8(1)(j) of the RTI Act. The FAA has also upheld the decision of the

PIO.

Under Section 8 (1) (j) of the RTI Act, information which has been exempted is defined as:

“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: …”

To qualify for the exemption under Section 8(1)(j) of the RTI Act, the information must satisfy the

following criteria:

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1. It must be personal information: Words in a law should normally be given the meaning given in

common language. In common language, we would ascribe the adjective 'personal' to an attribute

which applies to an individual and not to an institution or a Corporate. Therefore, it flows that

'personal' cannot be related to institutions, organisations or corporates. Hence Section 8(1)(j) of the

RTI Act cannot be applied when the information concerns institutions, organisations or corporates.

2. The phrase 'disclosure of which has no relationship to any public activity or interest' means that

the information must have been given in the course of a public activity. Various public authorities in

performing their functions routinely ask for 'personal' information from citizens, and this is clearly a

public activity. Public activities would typically include situations wherein a person applies for a job,

or gives information about himself to a public authority as an employee, or asks for a permission,

licence or authorisation, or provides information in discharge of a statutory obligation.

3. The disclosure of the information would lead to unwarranted invasion of the privacy of the

individual. The State has no right to invade the privacy of an individual. There are some extraordinary

situations where the State may be allowed to invade the privacy of a citizen. In those circumstances

special provisions of the law apply usually with certain safeguards. Therefore where the State

routinely obtains information from citizens, this information is in relationship to a public activity and

will not be an intrusion on privacy.

Certain human rights such as liberty, freedom of expression or right to life are universal and therefore

would apply uniformly to all human beings worldwide. However, the concept of 'privacy' is a cultural

notion, related to social norms, and different societies would look at these differently. Therefore referring

to the Data Protection Act, 1988 of U. K. or the laws of other countries to define ‘privacy’ cannot be

considered a valid exercise to constrain the citizen’s fundamental right to information in India. Parliament

has not codified the right to privacy so far, hence, in balancing the right to information of citizens and the

individual's right to privacy, the citizen's right to information would be given greater weightage.

In the instant case, there is no doubt that the information sought is “personal” information inasmuch as it

is the Annual Confidential Report of a government officer. The ACR is a report that evaluates the work

and performance of a public servant. The public authority concerned, must necessarily have this

information so to make an assessment of its officers’ performance. The ACR, containing certain

information about the officer is disclosed by the officer to the public authority and such report is prepared

by the public authority. This is necessarily done in the course of a public activity. Disclosure of such

information cannot be construed as unwarranted invasion of privacy of the officer concerned as it

concerns issues raised in the exercise of his public activity as a public servant. Moreover, a public servant

is accountable to the public and therefore, every citizen has the right to obtain information that may assess

his credibility, integrity and performance.

It is pertinent to mention that the Supreme Court of India in Union of India v. ADR in Appeal (Civil) 178

of 2001 and W. P. (Civil) 294 of 2001 decided on 02/05/2002, observed that persons who aspire to be

public servants by getting elected have to declare inter alia their property details, any conviction/ acquittal

of criminal charges, etc. It follows that persons who are already public servants cannot claim exemptions

from disclosure of charges against them or details of their assets. Given our dismal record of

misgovernance and rampant corruption which colludes to deny citizens’ their essential rights and dignity,

it is imperative for achieving the goal of democracy that the citizens’ right to information is given greater

primacy with regard to privacy.

Therefore, disclosure of information such as property details, any conviction/ acquittal of criminal

charges, etc of a public servant, which is routinely collected by the public authority and provided by the

public servants, cannot be construed as an invasion of the privacy of an individual and must be provided

an applicant under the RTI Act. Similarly, citizens have a right to know about the strengths and

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weaknesses as well as performance evaluation of all public servants. The government is elected by the

citizens of India and it is the duty of such government through its officers to protect the rights of the

citizens. The salary of such government officers is also paid from the public exchequer. For these reasons,

every citizen has the right to know and obtain information about the performance of every public servant

or government officer to ascertain whether the duties entrusted to such public servant or government

officer are being carried out.

It would not be out of place to mention that the terminology “Annual Confidential Report” has been used

since the British times when ‘secrecy’ was the guiding notion for the government and consequently, the

work done by the latter was not for the citizens’ perusal and kept confidential. This was evidenced by the

enactment of the Official Secrets Act, 1923. Over the years, this trend has undergone a drastic change

inasmuch as the Indian judiciary recognised the citizen’s right to have access to information under the

control of government entities in order to bring about transparency and accountability in the functioning

of every government department. This was given a statutory ratification by way of the Right to

Information Act, 2005, which recognised the citizen’s fundamental right to information. The RTI Act

endeavours to do away with the notion of ‘secrecy’ which was prevalent in the British era and carried

forwarded thereafter inasmuch as Section 22 of the RTI Act specifically provides that the RTI Act shall

override the Official Secrets Act, 1923 irrespective of any inconsistency contained in the latter.

In view of the foregoing arguments this Commission holds that performance appraisals,- known as annual

confidential reports since the days of British Raj,- are not covered by Section 8(1)(j) of the RTI Act and

disclosure of these cannot be construed as invasion on the privacy of an individual.

Decision:

The Appeal is allowed.

The PIO is directed to provide the information sought by the Appellant to him

before 10 June 2011.

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

18 May 2011

(In any correspondence on this decision, mention the complete decision number.) (MC)

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