Orissa High Court
M/S Orissa Power Generation ... vs Orissa State Information Commission on 13 December, 2023
Author: K.R. Mohapatra
Bench: K.R. Mohapatra
Signature Not Verified
Digitally Signed
Signed by: SASANKA SEKHAR SATAPATHY
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 14-Dec-2023 11:40:44
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No. 2456 of 2011
(An application under Articles 226 and 227 of the
Constitution of India)
*****
M/s Orissa Power Generation Corporation Ltd.,
Bhubaneswar ...... Petitioner
-Versus-
Orissa State Information Commission
and another ....... Opp. Parties
Advocates appeared:
For Petitioner : Mr. Durga Prasad Nanda, Senior Advocate
being assisted by Mr. Bibhu Prasad Panda,
Advocate
For Opp. Parties : Mr. Bijaya Kumar Dash, Advocate
(For Opposite Party No.1)
Mr. Bikash Kumar Jena, Advocate
(For Opposite Party No.2)
CORAM :
MR. JUSTICE K.R. MOHAPATRA
------------------------------------------
Date of Judgment: .12.2023
-----------------------------------------
JUDGMENT
K.R. Mohapatra, J.
1. This matter is taken up through hybrid mode.
2. Order dated 16th September, 2010 (Annexure-7) passed by
Odisha Information Commission, Bhubaneswar (for brevity,
'Information Commission') in Second Appeal No.47 of 2006 is
under challenge in this Writ Petition, whereby setting aside the
order of the First Appellate Authority under the Right to
Information Act, 2005 (for brevity 'the Act') as well as the Public
Signed by: SASANKA SEKHAR SATAPATHY
Location: HIGH COURT OF ORISSA CUTTACK
Date: 14-Dec-2023 11:40:44
Information Officer (PIO), The Information Commission directed to
furnish information to the Opposite Party No.2 as available on
record within two weeks from the date of receipt of the said order
and report compliance through the Registrar of the Information
Commission.
3. Undisputed facts relevant for proper adjudication of this
case are that the Opposite Party No.2 filed an application under
Section 6(1) of the Act seeking for the following information:-
4. Particulars in respect of Employee of this Company from
identity of the applicant which information is sought
5. Particulars of the FACTS SUBMITTED BY OPGC TO
information solicited: ORISSA MINING CORPORATION
REGARDING
A) PERFORMANCE FOR LAST
FIVE YEARS;
B) ANY VIGILANCE CASE
PENDING
C) ANY DEPARTMENTAL
PROCEEDING PENDING
AGAINST SRI B. N. PANDA;
(a) Subject matter of THESE DATA WERE SUBMITTED
information IN RESPONSE TO OMC'S QUERY
REGARDING B.N.PANDA FOR
DECIDING A THREE YEAR
DEPUTATION TO OMC.
(b) The period to which the 2003-04
information relates
(c) Specific details of OPGC wrote to OMC that B. N.
information required Panda's 5 years performance is
satisfactory, there is no vigilance
case against him, no
Departmental proceeding
pending against him.
(d) Whether information is
required by post or in In person
person: (The actual postal
charges shall be included
in providing information)
Signed by: SASANKA SEKHAR SATAPATHY
Location: HIGH COURT OF ORISSA CUTTACK
Date: 14-Dec-2023 11:40:44
The PIO rejected the application vide communication dated 28 th
January, 2006 (Annexure-3) stating as follows: -
"The undersigned regrets to express his inability to
furnish the information asked for vide your
application/communication dated 03.01.2000 on the
following reasons-
The information sought for by you, are purely personal
in nature, the disclosure of which has no relationship to a
public activity or interest.
However, if you feel aggrieved for above said refusal
you may file an appeal before the Appellate Authority
within thirty days of receipt of this letter....."
3.1 The Opposite Party No.2 assailing the letter under Annexure-
3 filed Appeal No.1 of 2006 [under Section 19(1) of the Act]. The 1st
Appellate Authority, vide its order dated 10th March, 2006
(Annexure-5), dismissed the appeal. Amongst other, the 1st Appellate
Authority dismissed the appeal on the ground that information
sought for are personal in nature and has nothing to do with larger
public interest. It is also held that the information sought for being
directly connected to a matter, which is sub judice before this Court,
is not fit to be disclosed to Parliament or State Legislature.
3.2 Being aggrieved, the Opposite Party No.2 preferred Second
Appeal No.47 of 2006 before the Information Commission. The
said Appeal was disposed of vide order dated 24 th May, 2006
(Annexure-6) setting aside the orders passed by both the fora, viz.
the PIO as well as First Appellate Authority, and directing the PIO
to provide information sought for by Opposite Party No.2 positively
by 11.00 AM on 25th May, 2006 failing which action for initiation
of proceeding under the penal provision of the Act was directed to
be taken in accordance with the provisions of the Act.
Signed by: SASANKA SEKHAR SATAPATHY
Location: HIGH COURT OF ORISSA CUTTACK
Date: 14-Dec-2023 11:40:44
3.3 Being aggrieved, the Petitioner preferred W.P.(C) No.7781
of 2006 before this Court. The said Writ Petition was disposed of
on 2nd February, 2010 setting aside the order passed under
Annexure-6 and directing the Information Commission to hear the
Second Appeal afresh.
3.4 Accordingly, the matter was taken up by the Information
Commission afresh and the impugned order under Annexure-7 has
been passed.
4. Mr. Nanda, learned Senior Advocate submitted that on the
date of hearing of the Second Appeal on 16th September, 2010, the
Opposite Party No.2 (Appellant therein) was absent. The impugned
order is an outcome of erroneous appreciation of the issue involved
in the appeal. The Information Commission proceeded on a
misconception that Opposite Party No.2 sought for information
relating to his performance report for last five years. Rather the
information sought for was in respect of a communication between
the Petitioner-Corporation and Odisha Mining Corporation Limited
(OMC). The Information Commission erroneously observed that
when the Supervisory Officer is required to communicate adverse
performance report to the concerned employee as part of the
Performance Management System there was no reason as to why
performance reports of last five years should not be disclosed in the
garb of confidentiality. The Information Commission also referred
to Rule 9 of the All-India Services (Performance Appraisal Report)
Rules, 2007, which clearly provides for disclosure of performance
appraisal reports to the members of the services regularly as a
matter of routine.
Signed by: SASANKA SEKHAR SATAPATHY
Location: HIGH COURT OF ORISSA CUTTACK
Date: 14-Dec-2023 11:40:44
5. The issue required to be answered by the Information
Commission was that 'whether the communication between the
Petitioner-Corporation and OMC is coming under the scope of
Section 8(1)(j) of the Act or not." Such issue was not at all dealt
with or answered by the Information Commission. Had it been a
simple application under Section 6(1) of the Act seeking for
information regarding performance appraisal of the Opposite Party
No.2, there would have been no difficulty in providing the same to
the Opposite Party No.2 by the PIO. But in the instant case, he had
sought for information of the facts submitted by the Petitioner-
Corporation to OMC regarding his (Opposite Party No.2's)
performance for last five years. The said communication was purely
personal between two Government owned Corporations, namely,
Petitioner-Corporation and OMC. Law is well-settled that the
Corporation or Company is a juristic person and thus,
communication between two juristic persons will be treated as 3rd
party information to the Opposite Party No.2, which is exempted
under Section 8 (1) (j) read with Section 11 of the Act. Further, the
communication between two Corporations, as aforesaid does not
involve any public interest in it. It is his submission that distinctive
classifications of the Clauses as provided under Section 8(1) of the
Act has been clarified by Hon'ble Supreme Court of India in
Central Public Information Officer, Supreme Court of India Vs.
Subhash Chandra Agarwal, reported in (2020) 5 SCC 481,
wherein, is held as follows:-
"34. Clauses in sub-section (1) to Section 8 can be divided into
two categories: clauses (a), (b), (c), (f), (g), (h) and (i), and
clauses (d), (e) and (j). The latter clauses state that the
Signed by: SASANKA SEKHAR SATAPATHY
Location: HIGH COURT OF ORISSA CUTTACK
Date: 14-Dec-2023 11:40:44
prohibition specified would not apply or operate when the
competent authority in clauses (d) and (e) and the PIO in clause
(j) is satisfied that larger public interest warrants disclosure of
such information. For the purpose of the present decision, we do
not consider it appropriate to decide who would be the
"competent authority" in the case of other public authorities, if
sub-clauses (i) to (v) to clause (e) of Section 2 are inapplicable.
This "anomaly" or question is not required to be decided in the
present case as the Chief Justice of India is a competent
authority in the case of the Supreme Court of India.] Therefore,
clauses (d), (e) and (j) of Section 8(1) of the RTI Act incorporate
qualified prohibitions and are conditional and not absolute
exemptions. Clauses (a), (b), (c), (f), (g), (h) and (i) do not have
any such stipulation. Prohibitory stipulations in these clauses do
not permit disclosure of information on satisfaction of the larger
public interest rule. These clauses, therefore, incorporate
absolute exclusions."
It is also submitted by learned counsel for the Petitioner that
Opposite Party No.2 failed to establish that the information sought
for by him (Opposite Party No.2) has any relationship to any public
activities or interest. Drawing attention of the Court to the proviso
to Section 8(1)(j) of the Act, which runs thus; "provided that the
information which cannot be denied to the Parliament or a State
Legislature shall not be denied to any person." Mr. Nanda
submitted that it must be read along with aim, object and other
provisions of the Act. The information sought for by Opposite Party
No.2 being purely private communication between two
Corporations, question of such information being called for by the
State Legislature/Parliament, does not arise, as it does not have any
element of public interest in it at large. Thus, the information
sought for by Opposite Party No.2 is coming under the exemption
under Section 8(1) (j) of the Act. The Information Commission did
Signed by: SASANKA SEKHAR SATAPATHY
Location: HIGH COURT OF ORISSA CUTTACK
Date: 14-Dec-2023 11:40:44
not at all apply its mind to the aforesaid legal aspect and passed the
impugned order under Annexure-7, which is not sustainable in the
eye of law. He, therefore, prays for setting aside the impugned order
under Annexure-7 and to confirm the orders of the PIO under
Annexure-3 and First Appellate Authority under Annexure-5.
6. Mr. Dash, learned counsel appearing for the Information
Commission-Opposite Party No.1 defended the impugned order
under Annexure-7 contending that the information sought for by
Opposite Party No.2 regarding his performance appraisal for last
five years does not attract the exemption Clause under Section 8(1)
(j) of the Act. It being a personal information of the Opposite Party
No.2, cannot be treated as 3rd party information under Section 11 of
the Act. He, therefore, submitted that the Information Commission
has not committed any illegality in passing the impugned order
under Annexure-7. It is also submitted that the Petitioner has
desperately tried to make out a case that the information sought for
was a private communication and the Opposite Party No.2 is not
entitled to such information under the provisions of the Act. Fact
remains, the Opposite Party No.2 has essentially sought for his
performance appraisal report for last five years prior to the date of
the application filed in Form- 'A' of the Act. Thus, there was no
reason to deny the same to him. Provision under Section 8(1)(j) of
the Act has no application to the case at hand. Hence, he prays for
dismissal of the Writ Petition.
7. Mr. Jena, learned counsel for Opposite Party No.2
reiterating the aforesaid undisputed fact narrated at paragraph-3
hereinabove submitted that Opposite Party No.2 was an employee
Signed by: SASANKA SEKHAR SATAPATHY
Location: HIGH COURT OF ORISSA CUTTACK
Date: 14-Dec-2023 11:40:44
under the Petitioner-Corporation. He was made to retire
prematurely on the ground of inefficiency vide order dated 15th
April, 2006 (Annexure-1). During pendency of the Appeal against
such premature retirement, the Opposite Party No.2 was allowed to
continue in service, but ultimately such order of retirement was
confirmed vide Office order dated 4th January, 2008 (Annexure-B/1
to the counter affidavit filed by Opposite Party No.2). During
continuance in service, the Opposite Party No.2 had made an
application in Form-A of the Act seeking for the aforesaid
information about the communication made by the Petitioner-
Corporation with the OMC relating to his performance for last five
years for consideration of his case for deputation to OMC. It was
also submitted that the said application was rejected on the ground
that the information sought for was purely personal in nature having
no relation to any public activity or interest. The first appellate
authority confirmed the said order vide Annexure-5 to the writ
petition. However, the Second Appeal was allowed on 24 th May,
2006 (Annexure-6) directing the PIO to provide information sought
for by the Opposite Party No.2 (applicant). The said order was set
aside by this Court in W.P.(C) No.7781 of 2006 and the
Information Commission was directed to adjudicate the Appeal
afresh. Accordingly, the order under Annexure-7 has been passed
providing opportunity of hearing to the Petitioner.
7.1 It is further submitted that the impugned order under
Annexure-7 is challenged on the ground that the Information
Commission failed to appreciate that the information sought for was
not the personal information of Opposite Party No.2 and is
Signed by: SASANKA SEKHAR SATAPATHY
Location: HIGH COURT OF ORISSA CUTTACK
Date: 14-Dec-2023 11:40:44
exempted under Section 8 (1) (j) of the Act. It is also alleged that
there is no element of public interest in the information sought for
by Opposite Party No.2.
7.2 When the Opposite Party No.2 was in employment under
the Petitioner-Corporation, he sought for information regarding his
performance for last five years and other information with regard to
his service, which was communicated by the Petitioner to OMC for
consideration of his deputation. The information sought for being
personal information of the Opposite Party No.2, cannot be held to
be 3rd party information.
7.3 It is also submitted that test of 'public interest' will come
into play only when the information is held to be personal
information of a third party. Confidential information of a 3rd party
having larger public interest would outweigh the privilege attached
to personal information. In the instant case, the information does
not relate to any third party and therefore, there cannot be any
apprehension of invasion of privacy of any party. As such, the test
of 'public interest' has no application to the present case. Had it
been a communication between the Petitioner-Corporation and
OMC relating to their trade and business or any commercial
interest, it would have been personal information concerning both
the Corporations and said information could have been denied
unless large public interest demands its disclosure notwithstanding
the claim of confidentiality of such information. In the instant case,
the Opposite Party No.2 himself is the beneficiary of information
exchanged between the two Corporations relating to his
performance in service.
Signed by: SASANKA SEKHAR SATAPATHY
Location: HIGH COURT OF ORISSA CUTTACK
Date: 14-Dec-2023 11:40:44
7.4 In para-8 of the order dated 11th May, 2010 Annexure-8 to
the rejoinder affidavit dated 9th May, 2022 (to the Counter Affidavit
filed by Opposite Party No.1), the Information Commission
recorded the submission of the PIO as under:-
"8. That the Appellant is absent despite notice. However,
learned counsel on behalf of the PIO-Opposite Party contended
that performance report is undoubtedly personal information
about the employee and the information sought are of no public
importance. In this regard he relied on the decision of the Delhi
High Court."
Thus, it transpires that the Petitioner admits the performance report
sought for by Opposite Party No.2 is personal information of the
said employee. But it failed to notice the distinguishing feature that
there being no public interest involved in the information sought for
could not be disclosed in public or any person other than the
concerned employee (Opposite Party No.2) himself.
7.5 Since the communication between the two Corporations
relates to the service performance of the Opposite Party No.2
himself, such information cannot be termed as personal information
within the meaning of Section 8(1)(j) of the Act and hence, need
not be put to 'public interest test' as its disclosure is not going to
threat privacy of any individual/third party. The Petitioner-
Corporation being a Public Sector Undertaking is expected to
maintain transparency in matter of public employment. Thus, the
performance appraisal report of an employee both adverse and
favourable should be communicated to the employee concerned.
The employee has a right to know the assessment of his
performance by the employer, which is in his special interest.
Signed by: SASANKA SEKHAR SATAPATHY
Location: HIGH COURT OF ORISSA CUTTACK
Date: 14-Dec-2023 11:40:44
7.6 It is also not correct to allege that the information sought for
by the Opposite Party No.2 has no relationship with any public
activity or interest, inasmuch as the manpower assessment by an
organization for efficient management of its resources may be to
some extent personal as well as confidential having no nexus with
any public activity and its disclosure to a third party including an
employee may invite the larger public interest test, but when it
relates to assessment of performance of an employee it loses its
character as personal information and hence such information
cannot be denied to the employee concerned. Matters concerning
public employment having effect of Articles 14, 16 and 21 of the
Constitution of India can never be said to have no nexus with public
activity or interest. Any other interpretation would defeat the object
of the RTI Act itself.
7.7 Interestingly when the Petitioner-Corporation did not
hesitate to share the information about the performance of Opposite
Party No.2 to another Corporation, namely, OMC, denial of such
information to the Opposite Party No.2 himself is not free from
suspicion or malice.
8. Mr. Jena, learned counsel also referred to preamble as well as
different provisions of the Act to strengthen his submission. It is
contended that the definition of 'information' itself in Clause- f to
Section 2 of the Act follows and gets affirmation from the definition
of 'Right to Information', which means the right to information
accessible under the Act 'held by or under the control of any public
authority' and such information must be furnished to the information
seeker under the Act even if there are conditions or prohibitions
Signed by: SASANKA SEKHAR SATAPATHY
Location: HIGH COURT OF ORISSA CUTTACK
Date: 14-Dec-2023 11:40:44
under another statute already in force or under the Official Secrets
Act, 1923 to have access to information by the public. Even such
information, if personal in nature, can be made available subject to
the limitations provided under Section 8 (1) of the Act.
9. Sub-section (1) of Section 8 of the Act begins with a non-
obstante clause giving primacy/overriding legal effect to different
clauses under the Sub-section in case of any conflict with other
provisions of the Act. Sub-section (1) carves out exceptions as to
when access to 'information' may be denied. Right to information
is available subject to the exceptions provided under Section 8(1) of
the Act. While information referred to in Clauses (a), (b), (c), (f),
(g), (h) and (i) to Sub-section (1) are absolute exclusions, Clauses
(d), (e) and (j) incorporate qualified prohibitions and are conditional
and therefore, are not absolute in nature.
9.1 Mr. Jena, learned counsel also relied upon the case of
CPIO, Supreme Court of India (supra), which has elaborately
dealt with 'privacy'. Relevant portion of the aforesaid case law is
reproduced here under: -
"58. Clause (j) to sub-section (1) of Section 8 of the RTI Act
specifically refers to invasion of the right to privacy of an
individual and excludes from disclosure information that would
cause unwarranted invasion of privacy of such individual,
unless the disclosure would satisfy the larger public interest test.
This clause also draws a distinction in its treatment of personal
information, whereby disclosure of such information is
exempted if such information has no relation to public activity
or interest. We would like to, however, clarify that in their
treatment of this exemption, this Court has treated the word
"information" which if disclosed would lead to invasion of
privacy to mean personal information, as distinct from public
information. This aspect has been dealt with in the succeeding
paragraphs.
xxx xxx xxx
Signed by: SASANKA SEKHAR SATAPATHY
Location: HIGH COURT OF ORISSA CUTTACK
Date: 14-Dec-2023 11:40:44
70. Reading of the aforesaid judicial precedents, in our opinion,
would indicate that personal records, including name, address,
physical, mental and psychological status, marks obtained,
grades and answer sheets, are all treated as personal
information. Similarly, professional records, including
qualification, performance, evaluation reports, ACRs,
disciplinary proceedings, etc. are all personal information.
Medical records, treatment, choice of medicine, list of hospitals
and doctors visited, findings recorded, including that of the
family members, information relating to assets, liabilities,
income tax returns, details of investments, lending and
borrowing, etc. are personal information. Such personal
information is entitled to protection from unwarranted invasion
of privacy and conditional access is available when stipulation
of larger public interest is satisfied. This list is indicative and
not exhaustive."
He, therefore, reiterated that the information sought for by Opposite
Party No.2 was relating to his self performance and is personal to
Opposite Party No.2 only, whose privacy needs to be protected from
unwarranted invasion by any third party. Conditional privacy would
be available only when stipulation of public interest is satisfied, but
by no stretch of imagination the information sought for by the
Opposite Party No.2 can be said to be personal to the Petitioner-
Corporation to seek protection under Section 8(1)(j) of the Act.
10. While dealing with public interest, the Hon'ble Supreme
Court in the case of CPIO, Supreme Court of India (supra), has
observed as under :-
"91. Public interest in access to information refers to something
that is in the interest of the public welfare to know. Public
welfare is widely different from what is of interest to the public.
"Something which is of interest to the public" and "something
which is in the public interest" are two separate and different
parameters. For example, the public may be interested in
private matters with which the public may have no concern and
pressing need to know. However, such interest of the public in
private matters would repudiate and directly traverse the
protection of privacy. The object and purpose behind the
Signed by: SASANKA SEKHAR SATAPATHY
Location: HIGH COURT OF ORISSA CUTTACK
Date: 14-Dec-2023 11:40:44
specific exemption vide clause (j) to Section 8(1) is to protect
and shield oneself from unwarranted access to personal
information and to protect facets like reputation, honour, etc.
associated with the right to privacy. Similarly, there is a public
interest in the maintenance of confidentiality in the case of
private individuals and even Government, an aspect we have
already discussed."
In the instant case, the Petitioner-Corporation under a
misconception that the information relating to the Opposite Party
No.2 is the personal information of the Petitioner-Corporation,
denied to disclose the same. By disclosing the information sought
for, Petitioner's privacy is not going to be invaded by Opposite
Party No.2, as it relates to the information about Opposite Party
No.2 only. Opposite party No.2 also refers to para-95 of CPIO,
supreme Court of India (supra), which reads as under :-
"95. The last aspect in the context of public interest test would be
in the form of clarification as to the effect of sub-section (2) to
Section 6 of the RTI Act which does not require the information
seeker to give any reason for making a request for the
information. Clearly, "motive" and "purpose" for making the
request for information is irrelevant, and being extraneous cannot
be a ground for refusing the information. However, this is not to
state that "motive" and "purpose" may not be relevant factor
while applying the public interest test in case of qualified
exemptions governed by the public interest test. It is in this
context that this Court in Aditya Bandopadhyay [CBSE v. Aditya
Bandopadhyay, (2011) 8 SCC 497: 6 SCEC 25] has held that
beneficiary cannot be denied personal information relating to
him. Similarly, in other cases, public interest may weigh in favour
of the disclosure when the information sought may be of special
interest or special significance to the applicant. It could equally
be a negative factor when the "motive" and "purpose" is
vexatious or it is a case of clear abuse of law."
It is submitted that the Constitutional Bench has approved the
decision in the case of Central Board of Secondary Education and
another Vs. Aditya Bandopadhyay, reported in (2011) 8 SCC 497 to
the effect that a beneficiary cannot be denied personal information
Signed by: SASANKA SEKHAR SATAPATHY
Location: HIGH COURT OF ORISSA CUTTACK
Date: 14-Dec-2023 11:40:44
relating to him. In CPIO, Supreme Court of India (supra), Hon'ble
Supreme Court while dealing with the definition of '3rd party' and
'3rd party information', held at para-261 that 'the definition of a "3rd
party" includes a public authority. '3rd party information' is
information which "relates to or has been supplied by any other
person (including a public authority) other than the information
applicant and has been treated as confidential by such 3rd party....."
If the case of Opposite Party No.2 is tested in the above parameter,
then the information sought could not have been denied to him. It is
also held in para-262 of the said judgment as follows:-
"262. Sections 8 and 11 must be read together. Other than in a
case where the information applicant seeks the disclosure of
information which relates to the information applicant herself,
information sought that falls under the category of "personal
information" within the meaning of clause (j) of Section 8(1) is
also "third party information" within the ambit of Section 11.
Therefore, in every case where the information requested is
"personal information" within the operation of clause (j) of sub-
section (1) of Section 8, the procedure of notice and objections
under Section 11 must be complied with. The two provisions
create a substantive system of checks and balances which seek to
balance the right of the information applicant to receive
information with the right of the third party to prevent the
disclosure of personal information by permitting the latter to
contest the proposed disclosure."
11. It is also submitted that the plea of the Petitioner with regard
to confidentiality attached to the information sought for by the
Opposite Party No.2 also merits no consideration, as per the
observation of the Hon'ble Supreme Court in the case of CPIO,
Supreme Court of India (supra), in paras-257 and 312 held as
follows:-
"257. Section 8(1) begins with a non obstante phrase
"Notwithstanding anything contained in this Act". The import of
Signed by: SASANKA SEKHAR SATAPATHY
Location: HIGH COURT OF ORISSA CUTTACK
Date: 14-Dec-2023 11:40:44
this phrase is that sub-section (1) of Section 8 carves out an
exception to the general obligation to disclose under the RTI Act.
Where the conditions set out in any of the sub-clauses to clause
(1) of Section 8 are satisfied, the Information Officer is under no
obligation to provide information to the applicant. By expressly
enumerating the circumstances in which the disclosure of
information may be restricted on the grounds of certain identified
harms, the RTI Act negates the notion that information may be
withheld on the grounds of confidentiality simpliciter. A harm
under clause (1) of Section 8 must be identified and invoked to
justify the non-disclosure of a document requested for under the
RTI Act.
312. Once the information sought has been identified as
"personal information" the Information Officer must identify the
actual rights being claimed in the individual case. In setting out
the substantive content of "public interest" and "privacy"
various facets of these concepts have been set out. In any given
case, the Information Officer must identify the precise interests
weighing in favour of "public interest" disclosure, and those
interests weighing in favour of "privacy" and non-disclosure. The
Information Officer must then examine the justifications for
restricting each right and whether they are countenanced under
the scheme of the RTI Act and in law generally. The ground of
confidentiality simpliciter is not a ground to restrict the right to
information under the RTI Act or Article 19(1)(a) of the
Constitution. Lastly, the Information Officer must employ the
principle of proportionality. As observed by Baroness Hale, both
the right to privacy and the right to information are legitimate
aims. In applying the principle of proportionality, the Information
Officer must ensure that the abridgement of a right is not
disproportionate to the legitimate aim sought to be achieved by
enforcing the countervailing right."
11.1 Argument was advanced by the Petitioner to the effect that
although the Opposite Party No.2 was given liberty to clarify on the
'public interest' issue, but the Opposite Party No.2 remained absent
Signed by: SASANKA SEKHAR SATAPATHY
Location: HIGH COURT OF ORISSA CUTTACK
Date: 14-Dec-2023 11:40:44
on the date of hearing and the Information Commission proceeded
to pass the impugned order ignoring the clarification sought for
from Opposite Party No.2. Such an argument merits no
consideration as the Petitioner-Corporation cannot have any
grievance in that regard and it was only Opposite Party No.2 who
would have been aggrieved. In view of the above, the writ petition
merits no consideration and is liable to be dismissed.
12. Heard learned counsel for the parties. Perused the materials
placed including relevant provisions of the Act, case law cited and
written notes of argument placed. The issue involved in this Writ
Petition is, "whether information sought for by the Opposite Party
No.2 comes in the purview of personal information of the
Petitioner-Corporation to attract the provision under Section
8(1)(j) of the Act?".
Section 2(f) of the Act reads as under:-
"information" means any material in any form, including records,
documents, memos, e-mails, opinions, advices, press releases,
circulars, orders, logbooks, contracts, reports, papers, samples,
models, data material held in any electronic form and information
relating to any private body which can be accessed by a public
authority under any other law for the time being in force;
'Public Authority' is defined under Sectio 2 (h) of the Act, which
runs thus :-
"public authority" means any authority or body or institution of
self-government established or constituted--
(a) by or under the Constitution;
(b) by any other law made by Parliament;
(c) by any other law made by State Legislature;
(d) by notification issued or order made by the appropriate
Government, and includes any--
(i) body owned, controlled or substantially financed;
Signed by: SASANKA SEKHAR SATAPATHY
Location: HIGH COURT OF ORISSA CUTTACK
Date: 14-Dec-2023 11:40:44
(ii) non-Government organisation substantially financed,
directly or indirectly by funds provided by the appropriate
Government;"
Right to information has also been defined under Section 2(j) of the
Act, which reads as under:-
"(j) "right to information" means the right to information
accessible under this Act which is held by or under the control of
any public authority and includes the right to--
(i) inspection of work, documents, records;
(ii) taking notes, extracts or certified copies of documents
or records;
(iii) taking certified samples of material;
(iv) obtaining information in the form of diskettes,
floppies, tapes, video cassettes or in any other electronic
mode or through printouts where such information is
stored in a computer or in any other device;"
13. On a conspectus of the aforesaid definitions, it is clear that the
Petitioner-Corporation is a 'Public Authority' and the material sought
for are 'information' within the definition of Section 2(f) of the Act.
13.1 Section 8(1) of the Act deals with exemption from disclosure of
information. The Petitioner-Corporation claims that the information
sought for is exempted under Section 8(1)(j) of the Act. For better
appreciation of Section 8(1)(j) is reproduced hereunder:-
"8. Exemption from disclosure of information-
(1) Notwithstanding anything contained in this Act, there shall be
no obligation to give any citizen,--
xxxx xxxx xxxx
(j) information which relates to personal information the disclosure
of which has not 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:
Signed by: SASANKA SEKHAR SATAPATHY
Location: HIGH COURT OF ORISSA CUTTACK
Date: 14-Dec-2023 11:40:44
Provided that the information, which cannot be denied to the
Parliament or a State Legislature shall not be denied to any
person."
The Opposite Party No.2, while in employment, sought for the
information in Forum 'A' under Section 6 (1) of the Act. He sought for
the information with regard to the facts submitted by the Petitioner-
Corporation to Odisha Mining Corporation regarding.--
"a) Performance of last five years;
b) Any vigilance case pending;
c) Any Department Proceeding pending against B.N.Panda"
Broadly speaking, the information sought for was in respect of Opposite
Party No.2, with a qualification, i.e., the facts submitted by the
Petitioner- to OMC, which is the bone of consideration. It has to be
decided, whether the information sought for was simple information
relating to Opposite Party No.2 himself or there is any element of
confidentiality involved in it, which would attract the protection under
Section 8(1)(j) of the Act. The case law cited above gives a clear picture
of the information about '3rd party information' and 'personal
information'. Personal information are those, which relate to the person,
who seeks information. There is no difficulty in providing that
information to the said party. It does not involve any public interest in it.
Thus, the test of public interest would not be applied to such cases. The
Information Commission also proceeded to decide the matter
considering the information sought for by Opposite Party No.2 to be his
personal information.
14. As argued by Mr. Jena, learned counsel for Opposite Party
No.2, the Authority/Employer is bound to communicate the performance
report of its employee, be it adverse or not. It is also held by the
Signed by: SASANKA SEKHAR SATAPATHY
Location: HIGH COURT OF ORISSA CUTTACK
Date: 14-Dec-2023 11:40:44
Information Commission that the PIO as well as Appellate Authority had
erroneously held that the information sought for are personal information
of the Petitioner-Corporation, which is a juristic person. We need not
discuss about the Public Interest element in the case, as Mr. Jena, learned
counsel for Opposite Party No.2 himself submitted that there is no
element of Public Interest involved in the information sought for. We
need to discuss only as to whether the information sought for is a
personal information of the Petitioner-Corporation or it is a personal
information relating to the Opposite Party No.2.
15. The Opposite Party No.2 sought for information regarding
communication between the Petitioner-Corporation and OMC regarding
the performance, pendency of vigilance case as well as Departmental
Proceeding in respect of the Opposite Party No.2. Thus, the information
sought for is not simple personal information, as portrayed by Mr. Jena,
learned counsel for Opposite Party No.2. When a qualification of
communication between the two Corporations is added regarding the
personal data/information of Opposite Party No.2, it loses its character of
being personal information of the Opposite Party No.2. It becomes an
information with regard to the communication between two Corporations
may be in respect of Opposite Party No.2. In supplying such
information, the Petitioner-Corporation has to disclose the private
communication between the two Corporations. Such communication
certainly invades the privacy of two juristic persons. Section 8 (1)(j) of
the Act does not provide an absolute exemption as held in CPIO,
Supreme Court of India (supra). It provides a qualified exemption
subject to satisfaction of the conditions stated therein, which includes
personal information, the disclosure of which has no relationship with
Signed by: SASANKA SEKHAR SATAPATHY
Location: HIGH COURT OF ORISSA CUTTACK
Date: 14-Dec-2023 11:40:44
any public activity or interest or which would cause unwarranted
invasion of privacy of an individual, unless the Central Public
Information Officer or the State Public Information Officer or the
Appellate Authority, as the case may be, is satisfied, a larger public
interest justifies disclosure of such information. Admittedly, the
information sought for does not involve any public activity or interest,
but it certainly amounts to unwarranted invasion of privacy of the
Petitioner-Corporation, which is a juristic person. Thus, the
communication between the two Corporations is not simple personal
information, as held by the Information Commission.
16. The duty of PIO is clearly stated in the CPIO, Supreme Court
of India (supra) while dealing with personal information. It is in clear
terms observed that once the information sought has been identified as
"personal information" the Information Officer must identify the actual
rights being claimed in the individual case. In setting out the substantive
content of "public interest" and "privacy" various facets of these
concepts have been set out. In any given case, the Information Officer
must identify the precise interests weighing in favour of "public interest"
disclosure, and those interests weighing in favour of "privacy" and non-
disclosure. The Information Officer must then examine the justifications
for restricting each right and whether they are countenanced under the
scheme of the RTI Act and in law generally. The ground of
confidentiality simpliciter is not a ground to restrict the right to
information under the RTI Act or Article 19(1)(a) of the Constitution.
Lastly, the Information Officer must employ the principle of
proportionality. As observed by Baroness Hale, both the 'right to
privacy' and the 'right to information' are legitimate aims. In applying
Signed by: SASANKA SEKHAR SATAPATHY
Location: HIGH COURT OF ORISSA CUTTACK
Date: 14-Dec-2023 11:40:44
the principle of proportionality, the Information Officer must ensure that
the abridgement of a right is not disproportionate to the legitimate aim
sought to be achieved by enforcing the countervailing right. In the
instant case the information sought for is pure personal information of
the Petitioner-Corporation, as the Opposite Party No.2 seeks information
regarding communication between the Petitioner and OMC. It may be
concerning Opposite Party No.2 to consider his deputation to OMC, but
nevertheless the communication being between two juristic persons is
confidential to them. Disclosure of the same to any party including the
Opposite Party No.2 will amount to invasion into their privacy. Further,
there is no public interest in disclosure of such information. Thus, the
proviso to Section 8(1) (j) is not attracted to this case.
17. There cannot be any doubt in respect of case law relied upon by
either of the parties. The case law interprets the scope, object and
applicability of different provisions of the Act and clarified 'personal
information' vis-à-vis the exemption under Section 8 (1)(j) of the Act.
18. Mr. Jena, learned counsel for Opposite Party No.2 stated that
the contents of para-8 of the order dated 11th May, 2010 (Annexure-8 to
the Rejoinder filed by the Petitioner to the Counter of Opposite Party
No.1) clearly disclosed that the Petitioner admitted that the information
sought for are personal information of the Opposite Party No.2.
Mr. Nanda, learned Senior Advocate, however, refuted the same
submitting that the recording of the Information Commission in the said
paragraph of the order was an outcome of erroneous appreciation of case
of the Petitioner. It is also borne out of the record that the said order has
already been set aside by this Court in W.P.(C) No. 7781 of 2006. Thus,
Signed by: SASANKA SEKHAR SATAPATHY
Location: HIGH COURT OF ORISSA CUTTACK
Date: 14-Dec-2023 11:40:44
the observation of the Information Commission is inconsequential for
consideration.
19. On a cumulative assessment of the fact and circumstances of
the case discussed above, this Court is of the considered opinion that the
information sought for by Opposite Party No.2 are not his personal
information, but a private communication between the Petitioner-
Corporation and the OMC. Disclosure of such information will certainly
amount to invasion in the privacy of the Petitioner-Corporation. This
material aspect has neither been discussed nor taken into consideration
by the Information Commission. Thus, the information sought for is
coming within the exemption as provided under Section 8(1)(j) of the
Act. Hence, the same need not be disclosed to Opposite Party No.2.
20. As such the impugned order under Annexure-7 is not
sustainable and is accordingly set aside.
21 The writ petition is allowed to the aforesaid extent. However, in
the facts and circumstances, there shall be no order as to costs.
Issue urgent certified copy of the judgment on proper
application.
...........................
(K.R. Mohapatra)
Judge
Orissa High Court, Cuttack,
Dated December, 2023/ss
