Holding that the notings of the Government Officers (which result into action/policy of the Government on a particular issue) are also various aspects of information covered within the ambit of the Right to Information Act, 2005 and thus available to the applications, the Delhi High Court in a recently reported decision [Union of India v. R.S. Khan 2010 (173) DLT 680] directed the Government to provide copy of the file notings claimed under the Act.
The High Court, declaring the law to this effect, inter alia observed as under;
6. As regards the first point urged, this Court is unable to accept the submission made on behalf of the Union of India that file notings, which are in the form of the views and comments expressed by the various officials dealing with the files, are not included within the definition of 'information' under Section 2(f) of the RTI Act, 2005. Section 2(f) reads as under:
“(f) "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;”
7. It is clear that legislative intent is to give a wide interpretation to the term 'information' under Section 2(f) of the RTI Act, 2005. This is evident from the inclusion of “records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders” within the broad definition of “information”.
8. The submission made by learned counsel for the Petitioner also stands contradicted by an office memorandum dated 28th June 2009 issued by the Department of Personnel & Training ('DoPT') to the following effect:
“OFFICE MEMORANDUM Subject : Disclosure of 'file noting' under the Right to Information Act, 2005.
***The undersigned is directed to say that various Ministries/Departments etc. have been seeking clarification about disclosure of file noting under the Right to Information Act, 2005. It is hereby clarified that file noting can be disclosed except file noting containing information exempt from disclosure under section 8 of the Act.
2. It may be brought to the notice of all concerned.”
9. Unless file notings are specifically excluded from the definition of Section 2(f), there is no warrant for proposition that the word 'information' under Section 2(f) does not include file notings.
10. The next submission to be dealt with is that information contained in the files in the form of file notings made by the different officials dealing with the files during the course of disciplinary proceedings against the Petitioner were available to the Union of India in a 'fiduciary relationship' within the meaning of Section 8(1)(e) of the RTI Act. This Court concurs with the view expressed by the CIC that in the context of a government servant performing official functions and making notes on a file about the performance or conduct of another officer, such noting cannot be said to be given to the government pursuant to a 'fiduciary relationship' with the government within the meaning of Section 8(1)(e) of the RTI Act, 2005. Section 8(1)(e) is, at best, a ground to deny information to a third party on the ground that the information sought concerns a government servant, which information is available with the government pursuant to a fiduciary relationship, that such person, has with the government, as an employee.
11. To illustrate, it will be no ground for the Union of India to deny to an employee, against whom the disciplinary proceedings are held, to withhold the information available in the Government files about such employee on the ground that such information has been given to it by some other government official who made the noting in a fiduciary relationship. This can be a ground only to deny disclosure to a third party who may be seeking information about the Petitioner in relation to the disciplinary proceedings held against her. The Union of India, can possibly argue that in view of the fiduciary relationship between the Petitioner and the Union of India it is not obligatory for the Union of India to disclose the information about her to a third party. This again is not a blanket immunity against disclosure. In terms of Section 8(1)(e) RTI Act, the Union of India will have to demonstrate that there is no larger public interest which warrants disclosure of such information. The need for the official facing disciplinary inquiry to have to be provided with all the material against such official has been explained in the judgment of the Division Bench of this Court in Union of India v. L.K. Puri 151 DLT 2008, as under:
“The principle of law, on the conjoint reading of the two judgments, as aforesaid, would be that in case there is such material, whether in the form of comments/findings/ advise of UPSC/CVC or other material on which the disciplinary authority acts upon, it is necessary to supply the same to the charge sheeted officer before relying thereupon any imposing the punishment, major or minor, in as much as cardinal principle of law is that one cannot cat on material which is neither supplied nor shown to the delinquent official. Otherwise, such advice of UPSC can be furnished to the Government servant along with the copy of the penalty order as well as per Rule 32 of the CCS(CCA) Rules.”
12. In Dev Dutt v. Union of India (2008) 8 SCC 725, the Supreme Court mandated communication of not only all entries in ACR but even whether the entry of a grade in an ACR, in comparison to the previous years' entry resulted in the lowering of the grade. A reference may be made to paras 39 and 45 of the said judgment which read as under:
“39. In the present case, we are developing the principles of natural justice by holding that fairness and transparency in public administration requires that all entries (whether poor, fair, average, good or very good) in the Annual Confidential Report of a public servant, whether in civil, judicial, police or any other State service (except the military), must be communicated to him within a reasonable period so that he can make a representation for its upgradation. This in our opinion is the correct legal position even though there may be no Rule/G.O. requiring communication of the entry, or even if there is a Rule/G.O. prohibiting it, because the principle of non-arbitrariness in State action as envisaged by Article 14 of the Constitution in our opinion requires such communication. Article 14 will override all rules or government orders.” .......
45. In our opinion, non-communication of entries in the Annual Confidential Report of a public servant, whether he is in civil, judicial, police or any other service (other than the military), certainly has civil consequences because it may affect his chances for promotion or get other benefits (as already discussed above). Hence, such non-communication would be arbitrary, and as such violative of Article 14 of the Constitution.”
13. The decision in State of Bihar v. Kripalu Shankar was rendered at a time when no RTI Act existed. The understanding of 'privileged' information in 1987 will have to give way to the legislative intent manifest in the RTI Act, enacted eighteen years later. The decision in Sethi Auto Services was again not in the context of the RTI Act. It concerned the termination of a petrol pump dealership. In Khanapuram Gandaiah, the Petitioner was seeking to know from a Judicial Officer as to why he decided an appeal “dishonestly”. The said decision is plainly distinguishable on facts.
14. In the considered view of this Court, the Union of India cannot rely upon Section 8(1)(e) of the RTI Act, 2005 to deny information to the Petitioner in the present case.
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