IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI WEDNESDAY, THE 28TH OCTOBER 2009 / 6TH KARTHIKA 1931 WP(C).No. 15743 of 2009(K) --------------------------------------- PETITIONER: ------------------- CENTRE FOR EARTH SCIENCE STUDIES, P.B.NO.7250, THURUVICKAL.P.O., AKKULAM, THIRUVANANTHAPURAM – 695 031, REPRESENTED BY ITS DIRECTOR. BY MR.U.K.RAMAKRISHNAN, SENIOR ADVOCATE, ADVS.SMT.P.VIJAYAMMA, MR.V.KRISHNA MENON, SMT.UMA GOPINATH, MR.DEVIDAS.U.K. RESPONDENTS: ------------------------ 1. DR. (MRS) ANSOM SEBASTIAN, SCIENTIST EI TRAINING & EXTENSION DIVISION, CENTRE FOR EARTH SCIENCE STUDIES, THIRUVICKAL.P.O., AKKULAM, THIRUVANANTHAPURAM – 31. 2. STATE INFORMATION COMMISSION, PUNNEN ROAD, THIRUVANANTHAPURAM – 695 039, REPRESENTED BY ITS SECRETARY. R1 BY ADV. MR.SHAJI P.CHALY, R2 BY MR.M.AJAY, S.C, STATE INFORMATION COMMISSION. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/07/2009, ALONG WITH W.P.(C). NO. 19367 OF 2009 AND CONNECTED CASES, THE COURT ON 28/10/2009 DELIVERED THE FOLLOWING: W.P.(C). NO.15743/2009-K: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE REPORT NO. CESS/ADM/1125 DTD. 25/07/2008. EXT.P.2: COPY OF THE REPORT NO. CESS/ADM/1125 DTD. 13/08/2008. EXT.P.3: COPY OF THE ORDER DTD. 02/05/2009 PASSED BY THE R.2. RESPONDENTS' EXHIBIT: EXT.R1.A: COPY OF THE ORDER DTD. 24/04/09. //TRUE COPY// P.S. TO JUDGE. Prv. V.GIRI, J ....................... W.P.(C)s.15743, 19365, 19367, 19792 & 19806 of 2009 ....................... Dated this the 28th day of October, 2009 JUDGMENT These writ petitions raise a common issue, concerning the correctness of an order passed by the State Information Commission, exercising its powers under the Right to Information Act, 2005, (Central Act 22/2005) (hereinafter referred to as 'the Act'). The parties in these writ petitions are common. Writ petitions have therefore, been heard together and are being disposed of by a common judgment. I will refer to the facts in W.P.(C).15743/2009 in detail. 2. Petitioner is a Research and Development Institution of the Kerala State Council for Science Technology & Environment. 1st respondent is working with the petitioner as Scientist E1 By an application dated 7.1.2007, under the Act, she sought for certified copies of Self Assessment Reports for the period 1980 - 1997 in respect of herself as well as six of her colleagues. By another application filed on 9.1.2007, the 1st respondent requested for certified copies of comments and marks awarded by the Assessment W.P.(C).15743/09 & Connected Cases 2 Committee. By another application dated 7.2.2007, she sought for certified copies of Annual Confidential Reports (ACRs) in respect of herself and six of her colleagues, for the period 1980-1997. 3. The Public Information Officer of the petitioner denied the information sought for on the ground that the same does not come under the Act. 1st respondent preferred an appeal under the Act before the Appellate Authority, who directed the petitioner to furnish information/documents relating to the applicant as also the names of the members of the Assessment Promotion Committee. The Appellate Authority denied information and copies of documents relating to other personnel. 4. 1st respondent then approached the State Information Commission with appeals against the orders of the Appellate Authority. 2nd respondent required the Appellate Authority to submit its reports. Appeals were then heard by the 2nd respondent, the State Information Commission. The stand taken by the petitioner before the State Information W.P.(C).15743/09 & Connected Cases 3 Commission was that the information/documents sought for by the applicant, the 1st respondent, are confidential in nature and relates to other personnel, that the disclosure of the same would adversely affect the inter personnel relationship and the information sought is purely personal which has no relevance to any public interest. That the State Information Commission, the 2nd respondent, passed Ext.P3 order allowing the appeals filed by the 1st respondent and directed the petitioner to furnish the information and copies of the documents sought by the 1st respondent. Ext.P3 has been challenged in this writ petition. 5. A counter affidavit has been filed by the 1st respondent. I heard Mr.U.K.Ramakrishnan, learned senior counsel for the petitioner, Mr.M.Ajay, learned counsel for the State Information Commission and Mr.S.P.Chaly, learned counsel for the 1st respondent. 6. 2nd respondent, the State Information Commission, found that the public authority was reluctant in imparting information sought by the 1st respondent on the confidential W.P.(C).15743/09 & Connected Cases 4 reports of the other employees as also the information on the proceedings of the Assessment Promotion Committee including the marks awarded to others, on the grounds of secrecy and confidentiality and on the premise that request did not have any public interest. The public authority essentially preceded on the premise that disclosure of the information was exempted under Section 8(1)(e) and 8(1)(j) of the Act. 7. The Commission found that the confidential reports of the employees of an Organisation have limited confidentiality, to the extent that it should not fall into the hands of someone not concerned with the establishment. But it cannot remain under wraps forever. It was further found that there was a fiduciary relationship between the employer and the employee of an Organisaion. Commission also found that confidential reports are written by officers and it is the accepted practice that the officers' report should be what has been recorded on his over all performance. Confidential report is an instrument to continuously assess an employee and to remind him as to W.P.(C).15743/09 & Connected Cases 5 how he/she stands in the eye of the Assessing Officer. An employee should be provided access to his/her confidential report essentially when the same are specifically asked for. There is no reason why the process should be kept secret. The Commission found as a fact that the proceedings of the Committee on the confidential report of the officers cannot be kept under the veil of secrecy. Commission therefore, found that the information, in the context, is in public domain and therefore, has to be provided, free of cost within seven days from the date of the appeal. 8. Learned counsel for the petitioner contended that there are certain informations, the disclosure of which is exempted under Section 8 of the Act. What is relevant in the context is Section 8(1)(e) and (j) of the Act which reads as follows. 8(1)(e) – Information available to a person, in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information 8(1)(j) – Information which relates to personal information the disclosure of which has not W.P.(C).15743/09 & Connected Cases 6 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. 9. It is contended that while an employee might be entitled to get copies of all her confidential records, she cannot get the confidential records or the assessment records of other employees. It was contended that insofar as the ACRs of other employees are concerned, 1st respondent herein cannot seek disclosure of the same as a matter of right. But such disclosure would be permissible only when larger public interest so warrants. 10. Learned counsel for the 1st respondent as also the learned counsel for the State Information Commission contended that the information sought for by the applicant cannot be considered as information available with the petitioner, in the course of any fiducial relationship that the petitioner may have with any other person and W.P.(C).15743/09 & Connected Cases 7 consequently, the disclosure of the same would not come under Section 8(1)(e) of the Act. So also it was contended that Section 8(1)(j) exempts only disclosure of personal information, disclosure of which has no relationship to any public activity or interest. Nor can the information cause any unwarranted invasion of the privacy of the individual. Reference is also made to Section 22 of the Act which provides that the provisions of the Act shall have overriding effect over any other law for the time being in force. 11. I am not in a position to find that the information sought for by the 1st respondent in the present case is an information which is possessed by the petitioner in any fiduciary capacity vis-a-vis any other employee of the Organisation. The information sought for only relates to the proceedings of the Assessment Promotion Committee and the confidential reports of other employees, who were considered along with the petitioner. Obviously, this information possessed by the employer cannot be treated as information that is possessed by a person placed in a fiduciary capacity with any of the employees of the W.P.(C).15743/09 & Connected Cases 8 Organisaion. Relationship between the employer and the employee is normally contractual or in certain cases, it could be regulated by statutory rules. Of course, there could be certain information passed by an employee to an employer which may have to be retained by the employer without disclosure. Similarly, there could be certain information about the employer that is in the possession of the employee and retention of such information without disclosure, may also be warranted. This would, in certain given cases, bring into existence a fiducial relationship between the employer and the employee. But that is different from contending that the relationship between an employer and employee in any given case, is fiduciary in character. 12. Obviously, the assessment reports of the employee, who himself was an applicant under the Act cannot be withheld by any employer who is otherwise comprehended under the Act. The disclosure of such information is not exempted and I should say that the learned senior counsel for the petitioner has, fairly, not taken up any such W.P.(C).15743/09 & Connected Cases 9 contention. Further more, order of the Appellate Authority in the present case itself directed the petitioner to disclose the information relating to the 1st respondent, to her on the basis of her application and the said order was not appealed against by the petitioner before the State Information Commission. 13. The dispute is with regard to the confidential records of other employees who were considered by the Assessment Committee along with the petitioner. The proceedings of the Committee have also long since been concluded. May be the 1st respondent feels aggrieved by the proceedings of such Committee. The information sought for by the applicant, insofar as the present case is concerned, is the Annual Confidential Report of herself and her colleagues for the period from 1980 to 1997. Obviously such ACRs would have been considered by the Assessment Promotion Committee and it is therefore, difficult to accept the contention that they still would retain a character of confidentiality within the Organisation. After all, such ACRs of the petitioner and her colleagues have already been W.P.(C).15743/09 & Connected Cases 10 considered by a Committee and the information sought by the applicant obviously cannot be considered as any personal information relatable to the colleagues of the applicant. 14. It might be a different case where the confidential records of the employee of an Organization might still be in the realms of a personal information insofar as that employee is concerned. It is possible that any adverse remarks against any employee in the ACR could later be expunged on representation. There are, of course statutory rules governing such procedure in Government service and certain other public services as well. There would be standing orders or other laid down procedure in other Organisations as well. The disclosure of such information relating to an employee, at the instance of another employee in the same Organization might come within the purview of Section 8(1)(j) of the Act. But the information sought for in the present cases do not come under any such exempted category. W.P.(C).15743/09 & Connected Cases 11 15. I also take note of the fact that there is no contention by the petitioner that the information as such sought for by the applicant, the 1st respondent is not available. For all these reasons, I am of the view that no grounds have been made out for interfering with the impugned orders passed by the 2nd respondent, the State Information Commission. Writ petitions are bereft of merit and hence dismissed. V.GIRI, Judge mrcs