Important Decisions of the Supreme Court on RTI Act - Part XII

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Important Decisions of the Supreme Court on RTI Act - Part XII

Therefore, if a relationship of fiduciary and beneficiary is assumed between the examining body and the examinee with reference to the answer book, Section 8(1)(e) would operate as an exemption to  prevent access to any third party and will not operate as a bar for  the very person who wrote the answer book, seeking inspection or  disclosure of it.

In the matter of Union Public Service Commission versus Gourhari Kamila (Civil Appeal Nos. 6363-65 Of 2013) the Supreme Court considered the issue of information received in fiduciary relationship. The applicant sought the following information which was ordered to be provided by the CIC. 

“1. What are the criteria for the short listing of the candidates?

2. How many candidates have been called for the interview?

3. Kindly provide the names of all the short listed candidates called for interview held on 16.3.2010.

4. How many years of experience in the relevant field (Analytical methods and research in the field of Ballistics) mentioned in the advertisement have been considered for the short listing of the candidates for the interview held for the date on 16.3.2010?

5. Kindly provide the certified xerox copies of experience certificates of all the candidates called for the interview on 16.3.2010 who have claimed the experience in the relevant field as per records available in the UPSC and as mentioned by the candidates at Sl.No.10(B) of Part-I of their application who are called for the interview held on 16.3.2010.

6. Kindly provide the certified xerox copies of M.Sc. and B.Sc. degree certificates of all the candidates as per records available in the UPSC who are called for the interview held on 16.3.2010.

7. Kindly provide the certified xerox copies of UGC guidelines and the Govt. of India Gazette notification regarding whether the Degree in M.Sc. Applied Mathematics and the Degree in M.Sc. Mathematics are equivalent or not as per available records in the UPSC.

8. Kindly provide the certified xerox copies of UGC guidelines and the Govt. of India Gazette notification regarding whether the Degree in M.Sc. Applied Physics and the Degree in M.Sc. Physics are equivalent or not as per available records in the UPSC." 

The Deputy Secretary and Central Public Information Officer (CPIO) of the Commission send reply dated 16.4.2010, the relevant portions of which are reproduced below:

“Point 1 to 4: As the case is sub-judice in Central Administrative Tribunal (Principal Bench), Hyderabad, hence the information cannot be provided.

Point 5 & 6: Photocopy of experience certificate and M.Sc. and B.Sc. degree certificates of called candidates cannot be given as the candidates have given their personal details to the Commission is a fiduciary relationship with expectation that this information will not be disclosed to others. Hence, disclosures of personal information of candidates held in a fiduciary capacity is exempted from disclosures under Section 8(l)(e) of the RTI Act, 2005. Further disclosures of these details to another candidate is not likely to serve any public interest of activity and hence is exempted under Section 8(1)(j) of the said Act.

Point 7 & 8: For copy of UGC Guidelines and Gazette notification, you may contact University Grant Commission, directly, as UGC is a distinct public authority." 

After examining the issue with reference to the decision in Aditya Bandopadhyay’s case, the Supreme Court considered the question whether examining bodies, like, CBSE are entitled to seek exemption under Section 8(1)(e) of the Act. After analysing the provisions of the Act, the Court observed:  

"There are also certain relationships where both the parties have to act in a fiduciary capacity treating the other as the beneficiary.  Examples of these are: a partner vis-‘-vis another partner and an employer vis-‘-vis employee. An employee who comes into possession of business or trade secrets or confidential information relating to the employer in the course of his employment, is expected to act as a fiduciary and cannot disclose it to others. Similarly, if on the request of the employer or official superior or the head of a department, an employee furnishes his personal details and information, to be retained in confidence, the employer, the official superior or departmental head is expected to hold such personal information in confidence as a fiduciary, to be made use of or disclosed only if the employee’s conduct or acts are found to be prejudicial to the employer.  

In a philosophical and very wide sense, examining bodies can be said to act in a fiduciary capacity, with reference to the students who participate in an examination, as a Government does while governing its citizens or as the present generation does with reference to the future generation while preserving the environment. But the words  "information available to a person in his fiduciary relationship" are  used in Section 8(1)(e) of the RTI Act in its normal and well recognised  sense, that is, to refer to persons who act in a fiduciary  capacity, with reference to a specific beneficiary or beneficiaries  who are to be expected to be protected or benefited by the actions of  the fiduciary-a trustee with reference to the beneficiary of the  trust, a guardian with reference to a minor/physically infirm/mentally  challenged, a parent with reference to a child, a lawyer or a  chartered accountant with reference to a client, a doctor or nurse  with reference to a patient, an agent with reference to a principal, a  partner with reference to another partner, a Director of a company  with reference to a shareholder, an executor with reference to a  legatee, a Receiver with reference to the parties to a lis, an  employer with reference to the confidential information relating to  the employee, and an employee with reference to business  dealings/transaction of the employer. We do not find that kind of fiduciary relationship between the examining body and the examinee, with reference to the evaluated answer books, that come into the custody of the examining body. 

 

This Court has explained the role of an examining body in regard to  the process of holding examination in the context of examining whether  it amounts to "service" to a consumer, in Bihar School Examination  Board v. Suresh Prasad Sinha (2009) 8 SCC 483 in the following  manner: 

"11. ... The process of holding examinations, evaluating answer scripts, declaring results and issuing certificates are different stages of a single statutory non-commercial function.  It is not possible to divide this function as partly statutory and partly administrative. 

12. When the Examination Board conducts an examination in discharge of its statutory function, it does not offer its’ services to any candidate. Nor does a student who participates in the examination conducted by the Board, hire or avail of any service from the Board for a consideration. On the other hand, a candidate who participates in the examination conducted by the Board, is a person who has undergone a course of study and who requests the Board to test him as to whether he has imbibed sufficient knowledge to be fit to be declared as having successfully completed the said course of education; and if so, determine his position or rank or competence vis-‘-vis other examinees. The process is not, therefore, availment of a service by a student, but participation in a general examination conducted by the Board to ascertain whether he is eligible and fit to be considered as having successfully completed the secondary education course. The examination fee paid by the student is not the consideration for availment of any service, but the charge paid for the privilege of participation in the examination. 

13. ... The fact that in the course of conduct of the  examination, or evaluation of answer scripts, or furnishing of  mark sheets or certificates, there may be some negligence,  omission or deficiency, does not convert the Board into a  service provider for a consideration, nor convert the examinee  into a consumer...."  

It cannot therefore be said that the examining body is in a fiduciary relationship either with reference to the examinee who participates in the examination and whose answer books are evaluated by the examining body.  

We may next consider whether an examining body would be entitled to claim exemption under Section 8(1)(e) of the RTI Act, even assuming  that it is in a fiduciary relationship with the examinee. That section provides that notwithstanding anything contained in the Act, there shall be no obligation to give any citizen information available to a person in his fiduciary relationship. This would only mean that even if the relationship is fiduciary, the exemption would operate in regard to giving access to the information held in fiduciary relationship, to third parties. There is no question of the fiduciary withholding information relating to the beneficiary, from the beneficiary himself.  

One of the duties of the fiduciary is to make thorough disclosure of all the relevant facts of all transactions between them to the beneficiary, in a fiduciary relationship. By that logic, the examining body, if it is in a fiduciary relationship with an examinee, will be liable to make a full disclosure of the evaluated answer books to the examinee and at the same time, owe a duty to the examinee not to disclose the answer books to anyone else. If A entrusts a document or an article to B to be processed, on completion of processing, B is not expected to give the document or article to anyone else but is bound to give the same to A who entrusted the document or article to B for processing. Therefore, if a relationship of fiduciary and beneficiary is assumed between the examining body and the examinee with reference to the answer book, Section 8(1)(e) would operate as an exemption to  prevent access to any third party and will not operate as a bar for  the very person who wrote the answer book, seeking inspection or  disclosure of it."  (emphasis supplied)  

By applying the ratio of the aforesaid judgment, we hold that the CIC committed a serious illegality by directing the Commission to disclose the information sought by the respondent at point Nos. 4 and 5 and the High Court committed an error by approving his order.  

We may add that neither the CIC nor the High Court came to the conclusion that disclosure of the information relating to other candidates was necessary in larger public interest. Therefore, the present case is not covered by the exception carved out in Section 8(1)(e) of the Act.