SIC : 3rd Party Information to be Given

TAMIL NADU INFORMATION COMMISSION
Kamadhenu Co-operative Super Market Building First Floor,
New No.378, Anna Salai, Teynampet, Chennai – 600018.

Case No.27917/Enquiry/2008
Date of Enquiry: 22nd April 2009 at CHENNAI
Present: Thiru S. RAMAKRISHNAN, I.A.S.,(Retd.),
State Chief Information Commissioner

Petitioner: Thiru S. Vaikundarajan, Keeraikkaran Thattu,
Mahadeven Kulam Post, Thisaiyan Vilai,Tirunelveli District – 627 657.

Public Authority: The Public Information Officer, Public (Special-A)
Department, Secretariat, Chennai – 600 009.

The petitioner was represented by Thiru S. Raja, and the public authority was represented by the Public Information Officer, Public (Special A) Department, Chennai.

The petitioner had asked for three items of information regarding conferment of I.A.S. and the list of District Revenue Officers sent from Tamil Nadu to Government of India along with the accompanying report for the years 2005 – 2008. He has also asked about the qualification required for such elevation to the Indian Administrative Service, and copies of the orders relating to those so conferred with the membership of the IAS for these four years. While the information on the second and third queries have been given, the information was refused for the first query citing Section 11 of the Right to Information Act. On that the petitioner made an appeal and the appeal was also rejected citing the judgment of Gujarat High Court in AIR 2007, Gujarat 203. Stating that the information has been asked with the motive of a personal vendetta against one Tmt. B.Jothi Nirmala, I.A.S., against whom the petitioner was alleged to have a grudge for having closed down the sand quarries he was having in the Kanyakumari District. The petitioner came on appeal to the Commission against that stating that the grounds of rejection are incorrect and he has no ulterior motive and he is asking for the public records, and cited the decision of the Madras High Court in W.P. (MD) No.5427 of 2007, dated 25-6-2007, and the earlier judgment of the State Information Commission in Case No.3963/2008, dated 25-6-2008. He has also denied that there is any private grudge for him as the Right to Information Act reply given by the Assistant Director of Geology and Mining, to one Thiru C. Boomi, clearly states that there are no sand quarries opened or closed down in the last five years in Kanyakumari District and hence the issue of any dispute regarding sand quarries being closed in the relevant period is non-existent. He has also cited the earlier State Information Commission’s ruling in Tmt. Sonia Dominica Vs the Headmaster, St. Joseph High School, Ramanathapuram, in Case No.3963/2008, dated 25-6-2008 that information cannot be refused on the ground of previous enmity.

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The public authority who was present for the enquiry stated that the information regarding Tmt. B. Jothi Nirmala does not meet the criterion laid down under Section 8 (1)(j) and Section 11 of the Right to Information Act, and no public purpose over-riding the invasion of privacy is seen.

The Commission went into the case in some detail and has to make the following observation:
The proposal sent by the State Government for elevation of the District Revenue Officers to the Indian Administrative Service has been generated by the State Government, which is the second party, and has absolutely no input from the third party (viz.), the person on whom this elevation is conferred. Looking at the appeal and the judgment of the Madras High Court, which has been cited above, it is clear that where third party has no hand in supplying the information, it cannot claim privilege of the same. The spirit of the Right to Information Act is to ensure that the public records are transparent and any public act is open to scrutiny by citizens of the country. As such any act which has been done by the second party in his public capacity can be withheld, only when it falls under any one of the sub-sections of Sections 8 and 9 of the Right to Information Act. The only remote section under which the type of argument which has been advanced (viz.) that there is a suspected dispute between one of the names in the list with the petitioner, would be under Section 8(1) (g), which is a section not cited by the public authority either at the Public Information Officer level or at the appellate level, and where no evidence has been advanced even at the enquiry to show how any harm would be caused to any person, if the information is revealed. Even presuming that this is so, the provision under Section 10 of the Act would insist that the rest of the information should have been revealed, severing that portion of the information, which would harm the said person. Hence the refusal to supply information does not seem to carry conviction. The claim that Section 8(1)(j) of the Right to Information Act would apply again does not make sense. Elevation to Indian Administrative Service from District Revenue Officer is not a private confidential matter, but is something publicly announced in the public gazette and made widely known for, as Government officers, they are discharging their functions under their public capacity as the Officers of the State Administrative Services. Hence it would also not meet the test prescribed for being treated as private information or something, which would be an unwarranted invasion of the privacy of the private individuals.

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The judgment of the Gujarat High Court cited is a totally different issue, which relates to over-ruling the objections of the third party to giving of information and the opportunity to be given for a personal hearing to the third party before giving the information over-ruling their objection by the Information Commission. If the third party who has a right to object has not been given the right under Section 11 of the Right to Information Act then the protection under Section 18 of the Act should not be vitiated. The issue in this case does not seem to fall under this test as ‘obiter dicta’ applicable to this Commission is that of the High Court of Judicature, Madras, which has given the ratio for determining what would be appropriately regarded as third party information. As stated above, the
present case does not seek to contest the ratio prescribed. Even if it does, all it should have provided for would be to give an opportunity to object. The public authority has taken upon itself to object on behalf of third party, which is an incorrect procedure. Again, if the third party has objected and it has been upheld by the public authority, all that the Gujarat High Court Judgment which has been cited as the basis of the decision states is that an opportunity must be given to the third party by the Information Commission also under Section 19(3) of the Right to Information Act, (i.e.) an opportunity to be heard before their objection is over-ruled by the Commission. This is merely to give an opportunity to the third party to make a submission and safeguard its case following the basic legal dictum of hearing the alternative party. These are not issues under consideration here, as third party has not been given an opportunity to object even at the appellate stage by the public authority. Instead, the public authority has presumed that the third party would have objections because it had reason to believe that the third party, as stated by them, and the first party (viz.) the petitioner are not in good terms. The third party rights will arise only when the Public Information Officer has to disclose the information “relating to, or supplied by third party and has been treated as confidential by the third party” and these criteria are not met with in this case. As such the Commission has to rule that denial of information in this case is not warranted and information must be provided within the time prescribed, lest the penal clauses should be attracted.
Since there is no reason to suspect that it has been a deliberate denial with any motive, the penal clauses are not invoked on that count at present.

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STATE INFORMATION COMMISSION
Orders approved on 4th May 2009
Under orders of the Commission
(S. MOHANA DHAS)
ASSISTANT REGISTRAR

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