Monday, November 7, 2011

Indian Citizen can see any of Government Employee's ACR

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


It is not confidential and right of Citizen's to ask any officer's / Government Servent / Public Employee

Citizens/ Employee of an organization can see other officer/employee's ACR (Annual Confidentail Report)

See Link : http://www.rti.india.gov.in/cic_decisions/CIC_SM_A_2011_000713_SG_14793_M_67163.pdf
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CENTRAL INFORMATION COMMISSION


Club Building (Near Post Office)

Old JNU Campus, New Delhi - 110067

Tel: +91-11-26161796

Decision No. CIC/SM/A/2011/000713/SG/14793

Appeal No. CIC/SM/A/2011/000713/SG

Relevant facts emerging from the Appeal:

Appellant : Mr. Keshav Gupta

25 A Vivek Vihar

New Sangner Road

Jiapur-302019 (Rajasthan)

Respondent : Mr. Ashok Sharma

PIO & Chief Manager

Oriental Bank of Commerce,

1st Floor, 173-174 G-Block

Sri Ganganagar 335001

RTI application filed on : 25/10/2010

PIO replied on : 12/11/2010

First Appeal : 10/12/2010

First Appellate Authority order on : Not Enclosed

Second Appeal received on : 11/02/2011

Information Sought:

1. Sh. Rakesh Gupta, Manager, Oriental Bank Of Commerce, sent evaluation form of 3 years, with

comments of the reporting manager.

2. Letters sent to the head office along with the recommendations and details of the letters for 3 years.

3. In the loan year, how many officers were classified on the following categories in your State:

(a) Good (b) Very Good

(c) Average (d) Above Average

(e) Provide particulars of the above details.

Reply:

Declined to give information by grounds of S 8(1)(j).

Grounds for the First Appeal/ Complaint:

No information provided by the PIO.

Order of the First Appellate Authority (FAA):

Exemption under 8(1) of RTI, 2005.

Ground of the Second Appeal:

Not satisfied with the response of the first authority as information not provided under section 8(1) of

RTI,2005..

Relevant Facts emerging during Hearing:

The following were present:

Appellant: Mr. Keshav Gupta on video conference from NIC-Jaipur Studio;

Respondent: Mr. Ashok Sharma, PIO & Chief Manager on video conference from NIC-Ganganagar;

The respondent states that the information has not been provided by the then PIO in the belief

that the information was exempt however the PIO has realizes his mistake and sent the information to

the Appellant 21/09/2011 by receipt no. Z43724792. The PIO has sent the ACR of the Appellant but

has not sent the ACRs of the other officers which were demanded by him claiming exemption under

Page 1 of 3

Section 8(1)(j) of the RTI Act. This Commission has ruled in its decision

no.CIC/SG/A/2011/000464/12432 of 18 May 2011

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:

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.

Page 2 of 3

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 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 ACRs of all the officers demanded by the

Appellant before 25 October 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

22 September 2011

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

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