Is ACB report personal information?

Privacy continues to be the most frequent excuse for stonewalling the information questions. In Maharashtra, the State Information Commissioner (SIC) directed the public authority to give information to an applicant about the ACB report.

While the government approached the High Court to reverse the SIC order, the applicant wanted the High Court through a separate writ petition to fully implement the order. The HC concluded that the SIC order was vitiated because it was contrary to settled law – both statutory and jurisprudential.

The Bombay High Court went into the question whether the petition was bona fide and held that was not. "The logic seems to be this: since Goyal (appellant) is a self-proclaimed activist, the provisions of Section 8 of the RTI Act will not apply to him. That is unacceptable," the court said. A Division Bench of Justices Gautam Patel and Madhav Jamdar in a judgement on March 3 pulled up the SIC for castigating and issuing a show cause notice to the first appellate authority for denying information to the self-proclaimed "social activist."

Rajendra Goel who claimed himself to be social activist, sought information on 18th January 2019, seeking complete disclosure about an open enquiry in 2017. He also sought inspection of the papers relating to one Dilip Ghevare, without any condition. Enquiry report could have been ordinarily shared. But the court felt that report has annexed to it a large amount of personal information pertaining to Ghevare and his family members. The High Court examined the application of Section 8(1)(j) of RTI Act, to this information request, and relied on the judicial interpretation of Sub-clause (j) given in the judgment of the Supreme Court in Girish Ramchandra Deshpande v. Central Information Commissioner and others (2013) 1 SCC 212.

"12. The Petitioner herein sought for copies of all memos, show cause notices and censure/punishment awarded to the third respondent from his employer and also details viz. movable and immovable properties and also the details of his investments, lending and borrowing from Banks and other financial institutions. Further, he has also sought for the details of gifts stated to have accepted by the third respondent, his family members and friends and relatives at the marriage of his son. The information mostly sought for finds a place in the income tax returns of the third respondent. The question that has come up for consideration is whether the above-mentioned information sought for qualifies to be "personal information" as defied in clause (j) of Section 8(1) of the RTI Act". the SC in Girish cash concluded: "The performance of an employee/officer in an organization is primarily a matter between the employee and the employer and normally those aspects are governed by the service rules which all under the expression "personal information", the disclosure of which has no relationship to any public activity or public interest. On the other hand, the disclosure of which would cause unwarranted invasion of privacy of that individual." (Para 13 of Girish case).

The SC did not make any distinction between ordinary private employer and the Government. Whether this observation of SC that 'performance of public servant in a public authority is his private information' reasonable, justified or convincing? Then, Supreme Court mentioned about a situation when such information also could be given: "Of course, in a given case, if the Central Public Information Office or the State Public Information Officer of the Appellate Authority is satisfied that the larger public interest justifies the disclosure of such information, appropriate orders could be passed but the petitioner cannot claim those details as a matter of right."

In paragraph 15, the SC in Girish case stated: "The petitioner in the instant case has not made a bona fide public interest in seeking information, the disclosure of such information would cause unwarranted invasion of privacy of the individual under Section 8(1) (j) of the RTI Act".

This judgment of the SC is not a full-fledged hearing of case on merits but a petition for special leave, which was rejected. Does disposal of SLP amount to a decision on merits and operates as precedent? No. But no court considered this important point, unfortunately, and used it as the precedent. This order of SC, though not a precedent, continues to rock the RTI appeals and used every day to deny the disclosure. The High Court also relied on this order and said: The proposition that emerges is that the application must be bona fide in the public interest without causing an unwarranted invasion of privacy of the individual under Section 8(1)(j). The Petitioner must establish that the information sought for is in the larger public interest".

Girish was quoted and supported by the SC again in K S Puttaswamy case [2017 (10) SCC 1] which is known as privacy case. HC said state cannot violate the right to privacy under Article 21. Goyal's RTI request was rejected by the first appellate authority. After the second appeal, the SIC ordered disclosure. HC says SIC did not consider that some information in that ACB open inquiry report was exempted under Section 8(1)(j). HC held: "There is no manner of doubt that the enquiry report has references to annexures that detail Ghevare and his family's personal assets and personal affairs. Mr Panchpor tells us that this extends even to details of bank accounts, financial holdings, etc."

Then the HC probed the motives and bona fides of the applicant, and reasons for disclosure. HC doubted claim of applicant that he was a social activist and noticed accidental mention that he was a developer. HC says: We understand and appreciate the right to public information and we endorse it. But if the statute has certain qualifications to that right, and these have not been found to be unconstitutional, then what Goyal seeks is express violation of the clear exception in the statute.

At one place, the HC said: "There is no record of any work done by Goyal in "social activism" against corruption. This is not an application by some responsible social action group…" It means, one should have a record of fighting against the corruption to seek ACB inquiry report. This was never the intention of the RTI Act. The HC is right in questioning the show cause notice to first appellate authority, because the RTI Act did not provide for it.

There are several grounds which is not in tune with the letter and spirit of RTI Law: (1) The ACB report on enquiry into corruption could not be totally somebody's personal information; (2) Assuming that inquiry report's annexures contained some personal details of a third party, the RTI Act provided for separating them and denying only such information; (3) The performance of public servant in public authority relating to public affairs cannot be considered as personal information of the public servant. In fact, Section 8(1)(j) of RTI Act says, even if the information sought is personal information of a public servant, if should be disclosed if it relates to public activity. This part is totally ignored; (4) Judgment in Girish is not precedent, because it is only dismissal of SLP, which cannot be considered as decision based on merits in a hearing; (5) RTI Act says even an anonymous applicant is entitled to information if not exempted; (6) Reasons for seeking information should not be asked by anybody as per Act; (7) If the PIO considers information could be denied in larger public interest, it is his burden to prove that there is no public interest in disclosure; (8) Considering the ACB enquiry report as private information of someone and denying it totally is absolutely not what RTI Act wanted; (9) Applicant will not be disqualified, even if he is not social activist, but a developer. (10) The HC should have ordered the PIO to scrutinise the information sought, and separate if any personal information of someone, and give the rest of information.

This judgment works against the basic objectives of the RTI Act, and practically enables the PIOs to reject the RTI applications, to insist proof of social activity, to reject total reports on the pretext that it contains somewhere some personal information, and not to follow the prescribed provision of RTI Act to separate non-disclosable information and provide the other part of requested information. [Based on judgement in Rajendra Goyal alias Raju Goyal vs PIO [2022 LiveLaw (Bom) 78].

(The author is Dean & Professor, School of Law, Mahindra University, Hyderabad, and former Central Information Commissioner) (The opinions expressed in this column are those of the writer. The facts and opinions

expressed here do not reflect the views of The Hans India)