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Plea for info on public servants' assets rejected
On June 22, the Central Information Commission (CIC) rejected an appeal from an Right To Information (RTI) activist in Mumbai that sought information on assets and liabilities of certain officers of the Customs and Central Excise departments. Information Commissioner A N Tiwari rejected the appeal on the ground that it would violate the privacy of an individual.
Rajesh Darak of Whistleblowers India had sought information on the assets and liabilities submitted by officers to the Customs department annually. However, it was denied by the Central Public Information officer and the appellate authority at Mumbai. Subsequently, Darak had appealed against the orders in the CIC.
"Without this information, the citizen would never know if assets and liabilities of certain government officers are beyond their known source of income," said Darak. Interestingly, there are conflicting views among the State Information Commissions (SIC) as some of the states allow their citizens to access information related to assets and liabilities of government officers.
RTI Activist Pramod Patil from Mumbai said, "This information is in public interest and hence should be made public. In Maharashtra, the information is available with the Establishment department, although I have not come across any case of citizens either being given information," said Patil.
Vikram Simha, an RTI activist from Bangalore, says that floodgates have opened ever since the SIC allowed disclosure of assets of government servants in 2006 and in a parallel development the SIC also allowed an appeal seeking information on assets of government officers. "We are in the process of inspecting assets files of 6,500 employees of the Commercial Tax department. So far, we have inspected 90 files and come across discrepancies like several of the queries in the forms are unanswered," said Simha.
Lamenting the decision of the CIC, Arvind Kejriwal, an RTI activist from the Delhi, said "I would rate this as a very regressive order. The fact that public servants are indulging in corruption merits public interest. Commissioner Tiwari has rejected the appeal as his own assets and liability would have to be made public."
"The issue here is whether this information could be given to Parliament or the Assembly. If it cannot be denied to Parliament, then it cannot be denied to the citizens," said Bhaskar Prabhu, a Mumbai-based RTI activist.
"As per the RTI Act, the citizen is the king. If information regarding assets are not given, then the citizens would not be empowered," he added.
However, there are those, like noted activist Shailesh Gandhi of Mumbai, who do not believe in this view. "There is a conflict between an individual's privacy and general need. I do think some privacy is required. Whether an individual's private matters should be made public, is a debatable issue," said Gandhi.
Jugal Rathi from Pune said: "Assets and liabilities of an individual is private information and the constitution protects the privacy of the individual. As per the RTI Act, if the public interest exceeds the privacy of individual, exceptions are made and information is provided under Section 8 of the Act. It cannot be a general rule; it has to be decided case to case."
Plea for info on public servants' assets rejected - Yahoo! India News
CIC Defines Privacy u/s 8(j)
In the absenc of a of clear definition of what is meant by â€œinvasion of privacyâ€ in any India Acts & specifically RTI Act,05 the Chief Information Commission Shri Wajahat Habibullah in a recent decision gave new interpretatios to often misused section 8(j).
He has quoted extensively from the UK's Data Protection Act, 1998 and USA's Law of Torts.
Allowing the appeal by Sri Shailendra Verma, whose RTI application was rejected by the CPIO of Nuclear Power Corporation of India Ltd. (NCPI) Mumbai the CIC has ordered the CPIO to supply point wise information to each question sought by appellant.
Here's some extract from CIC's decision.
Having heard the arguments and examined the records, we find that the
information provided remains incomplete. Although the list of select candidates and the marks of interview which would form the basis for their selection have been provided, their educational & technical qualifications & experience certificate has not. There is also no copy of any file noting. CPIO Shri Kakde has indeed in his letter of 11.10.06 offered inspection of records in any â€œparticular caseâ€, giving no reasons why file noting on the selection cannot be shown u/s 8(1)(j). We have no clear definition of what is meant by â€œinvasion of privacyâ€ within the RTI Act.
We have, therefore in a number of decisions been guided in application of sec. 8(1)(j) by the U.K. Data Protection Act, 1998 and the U.S. Law
We have no equivalent of UKâ€™s Data Protection Act, 1998, Sec 2 of
which, titled Sensitive Personal Data, reads as follows:
In this Act â€œsensitive personal dataâ€ means 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.
If we were to construe privacy to mean protection of personal data, this would be a suitable reference point to help define the concept. In this context, as may be seen the questions sought by appellant at are not of private information.
The US Restatement of the Law, Second, Torts, Â§ 652 defines the
Intrusion to Privacy in the following manner:
â€œOne, who intentionally intrudes, physically or otherwise, upon the
solitude or seclusion of another or 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.â€
In the present case information sought is clearly information on a public activity which is selection for the post of HRM on 13th & 14th Sept., 2006.
Recourse, therefore, cannot be taken to sec. 8(1) (j) in providing information. Shri R. R. Kakde, CPIO is, therefore, directed to supply point wise information to each question sought by appellant Shri Shailendra Verma in his application of 18.9.06, conceding that questions 1 & 4 stand answered. If the CPIO is of the view that providing this information would be detrimental to the safety of the preservation of the record in question, he will arrange inspection by appellant Shri Shailendra Verma on a mutually convenient date and time but arrange it by or before 28.2.2008.
The appeal is thus allowed.
Reserved in the hearing the decision is
announced after receipt of supporting documents from CPIO on 30.1.08.
Notice of this decision be given free of cost to the parties.
Chief Information Commissioner
Full Decision is available here.