The title of this write up – Can a PIO Deny Information under Section 8(1)(j) of RTI Act? – is a straightforward question that needs to be answered by experts on RTI Law or the people well-versed in the law.
Before going further into the piece we need to understand what does exemption of information under Section 8(1) (j) of the RTI Act mean? Under Section 8(1)(j) 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. Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person.
However, the section 8(1)(j) of RTI Act is being used by many PIO’s these days in Jammu and Kashmir to deny information sought under Central RTI Act 2005. The section being misused needs interpretation and understanding and PIOs before using this section must keep following things in mind:
- That Right to information is a law meant to bring accountability and transparency in the government and that is possible only when information is kept available in public domain as per section 4 of RTI act, proactively.
- There should be no hesitation to disclose the information like qualification on the basis of which an appointment was made, appointment order, performance of government servant, leaves sought, pay-scale, service book etc. Because all of the information as per different judgements of CIC’s in different cases is the information related to a government servant and is public in nature, it is normally available on records and hence disseminated to the public.
- Public interest should be sought only when the information sought may harm the person and not when the information available on records related to a public servant is sought. Even if there is no public interest, a notice should be issued to the third party seeking his justification in writing that why the information should not be disclosed and how it harms him/her.
- The information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person.
When coming onto the ground reality, an application was rejected by the Administrative Officer/Public Information officer (PIO) at the office of the J&K Sports Council, citing Section 8 (1)(j) of the central RTI Act 2005. The PIO has misused the section and without going into the type of information being sought, he/she has denied information.
Why to look for public interest in the case of information which is available in government offices and which does not harm the third individual personally? Why deny information related to a government official related to appointment, qualifications needed for appointment, promotions, pay scale and service book copy if it does not contain personal information which may harm the official?
In the above case the applicant should file first appeal and request First Appellate Authority to seek explanation from PIO for denial of information. The FAA must look into the content of the information being sought, check if it would harm the person and not the government official and take strict disciplinary action and record it on the service book of the PIO. There may be chances of corruption also in the information being denied; and if it is not disclosed, it would be against the spirit of RTI Law and may conceal corrupt practises in government.
Any information that is denied by the PIO becomes of public interest in nature itself when it is denied at the first instance. The FAAs must act very seriously on the misuse of Section 8(1)(j) of Central RTI Act 2005. Public Authorities must not forget that in the same Section i.e. Section 8(1)(j), it has been mentioned that “Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person.”
Service book of a government employee which has to be maintained in each and every case is a government property, not a private one. Had it been a private document, it should be in a private individual’s custody. Why are government officials keeping private documents with them? Hence denial of supply of copy of service book to applicant is wrong and attracts penal action as per Section 20 of RTI Act, 2005 against the erring official/PIO. The PIO’s denial of providing his service book is against the spirit of RTI Act.
What Information Commissioners say:
”There is a CIC judgement (by Central information Commissioner Annapurna Dixit) on the issue wherein the same details were sought by an applicant (RTI Activist Chetan Kothari) related to a ticket examiner (TE) in 2013 and the PIO had cited Section 8(1)(j) of the RTI Act and denied information. The third party regarding whom the information was sought had said during the hearing that sharing of his and his service book might endanger his and his family’s safety. But the CIC held that the requested information related to the service of the public servants was expected to be already in public domain under Section 4(1)(b) of the RTI Act. The CIC further held clearly that the service book information related to the service matters like the date of joining, increments, transfers, leaves availed etc. is liable for disclosure.
Another judgement of Central information Commission on 23rd of September 2015 in case of Dr. Vivekanshu Verma V/s Dena Bank also says that information concerning an employee of a public authority cannot be regarded as his or her personal information, attracting the provisions of Section 8(1)(j) and Section 11 of the RTI Act.
PIO can take the shelter of Section 8 (1) (j) for declining information only if it is purely personal information. Mr Shailesh Gandhi (Ex-CIC) in an order said: “To qualify for this exemption the information must satisfy the following criteria: 1. It must be personal information… 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. From this it flows that ‘personal’ cannot be related to institutions, organisations or corporates. Hence Section 8 (1) (j) cannot be applied when the information concerns institutions, organisations or corporates.” When a person applies for a job, or gives information about himself to a public authority as an employee, it is a public activity. Also when a citizen provides information in discharge of a statutory obligation this too is a public activity.
The Supreme Court of India has ruled that citizens have a right to know about charges against candidates for elections as well as details of their assets, since they desire to offer themselves for public service. It is obvious then that those who are public servants cannot claim exemption from disclosure of charges against them or details of their assets. Given our dismal record of mis-governance and rampant corruption which colludes to deny citizens their essential rights and dignity, it is in the fitness of things that the citizen’s right to information is given greater primacy with regard to privacy.
Need to train PIOs/APIOs/FAAs
It is expected of each public authority that it would organise educational programmes to advance the understanding of the public, in particular of disadvantaged communities, as to how to exercise the rights contemplated under the Act; and ensure timely and effective dissemination of accurate information about their activities.
Training of the Public Information Officers and other officers of a public authority is very important for meeting these expectations and effective implementation of the provisions of the Act. The public authorities should, therefore, arrange for training of their officers designated as Public Information Officer/First Appellate Authority and other officers who are directly or indirectly involved in the implementation of the provisions of the Act.
Irfan Banka is an Anthropologist and Founder of J&K RTI Foundation and can be mailed at dr.irfanbanka@gmail.com. Malik Sajid is an Editor of The Kashmir Scenario and Kashmir News Bureau.