Appellant sought information as to how his name was put on the agreed list & how it was removed - CIC: the Agreed List is critically confidential information held in its role as a third party; disclosure may be injurious to public interest also
29 Dec, 2014Decision
The appellant/CPIO along with the respondent public authority & RTI applicant are present through Video Conferencing. The applicant in his RTI application sought information regarding procedure followed for putting name of an officer on ‘agreed list’, its follow-up action, details of sensitive postings, circulars/guidelines of Competent Authority on ban on postings of officers, copies/documents related to putting the applicant’s name on the ‘agreed list’, etc. The CPIO in his reply provided part information and denied information on Points 7& 8(part).The FAA in his order directed the CPIO to furnish relevant documents pertaining to the inclusion of the applicant’s name on the agreed list, after duly suppressing the identity of complaint(s)/official(s). The appeal has been filed by the CPIO against the First Appellate Authority’s order.
The appellant stated that the applicant is an aggrieved person on account of inclusion of his name in the Agreed List and has sought information/documents on reasons for inclusion of his name in the List should be provided to him. The appellant stated that an ‘Agreed List’ is prepared in accordance with the guidelines of the Ministry of Home Affairs and that, in consultation with the CBI, an officer’s name is included in the list on the basis of complaint, public perception or suspicion of corruption. The List is reviewed annually and kept highly confidential. On query by the commission, whether the person whose name is put on agreed list has a right to know the same or not, the appellant replied in the negative and stated that it is exclusively between the CVO and CVC. On query whether the person will get a promotion or not, the respondent stated that clearance from vigilance department is mandatory and then it will be seen whether the person concerned is on the agreed list or not and only on clearance by the Vigilance department, the person will be promoted.
On query by the Commission, as to what will the person be told, why hasn’t he been promoted, the appellant/CPIO stated that the person is not informed that his name is on the agreed list to which the respondent stated that usually the department will give some reason to deny promotion. On query by the Commission as to what if the person wants to know the procedure or for what reason he has been denied the promotion or why his name is on the agreed list, the respondent reaffirmed his statement. The applicant stated that no complaints have been filed against him, he has been posted in sensitive places and that the CVO, in another RTI application, has certified his good behaviour. On query by the Commission as to how the applicant came to know that his name is on the agreed list, the applicant stated that he made enquiries as to why he is not getting promoted and that is when he found out that his name was on the agreed list. The applicant himself apprised the Commission that his name is not on the agreed list anymore.
The applicant stated that he wants the information as to how his name was put on the agreed list and how was it removed. The applicant stated that earlier he was not getting promotion but now that his name is not on the list anymore, he will not get a promotion even if he applies for the promotion in future, because his name once appeared on agreed list. The appellant stated that the applicant has not suffered any loss, which the respondent affirmed. After hearing the parties and on perusal of documents, the Commission agrees with the view of the CPIO/appellant. The agreed list is prepared after examination with the Directorate in consultation with the third party involved, i.e. CBI. It is observed that the Agreed Lists are confidential documents and as per Sections 8(1)(h)&(j) of RTI Act, 2005, the said information pertaining to Agreed List cannot be disclosed to public.
The ‘Agreed List’ is prepared in accordance with the guidelines of the Ministry of Home Affairs and that, in consultation with the CBI, an officer’s name is included in the list on the basis of complaint, public perception or suspicion of corruption, so as to keep discrete watch on the activities of the suspect official. This is a part of the process of keeping watch to ascertain their alleged involvement in corrupt practices. The List is reviewed annually and kept highly confidential. Disclosure of information i.e. ‘Agreed List’ would therefore defeat the very purpose of surveillance, which is conducted through the established procedure of preparation of ‘Agreed List’.
The Commission has to afford all protection to public authorities in their action to combat corruption, especially in the choice of personnel for sensitive assignments. In Appeal No.CIC/AT/A/2007/00229 dated 21.09.2007 in Sudesh Kumar Vs. Customs & Central Excise, in the matter of disclosure of “Agreed List” had taken the position that such lists were not disclosable. In Appeal No. CIC/AT/A/2008/01532 dt. 16th March, 2009, the Commission had held
“…10. This decision bears explanation. Section 124 of the Indian Evidence Act states that “no public officer shall be compelled to disclose communication made to him in official confidence when he considers that public interest would suffer by the disclosure.” This Section prohibits disclosure of official papers beyond the circle of authorized public employees who are duty-bound to keep the information confidential ⎯ whether express or implied. 11. Agreed List is a euphemism for a list of officers or employees of the public authority, which is prepared annually through consultation held with other sister-public authorities regarding employees whose appointment to sensitive assignments should be avoided on account of certain negative and adverse perceptions about those employees, especially in terms of personal probity. Such lists are invariably kept confidential and used by the top management to decide their personnel placing policy. Confidentiality is a key-element of preparing and monitoring such lists, first because it is based upon perceptions rather than firm knowledge about the character and the conduct of the officer included in the list and second, its disclosure may draw the management into avoidable legal complications. And yet, such lists are of utmost importance for enabling the management to make key appointment and posting decisions for its employees. …
15. A harmonious reading of Section 124 of the Indian Evidence Act and Section 11(1) Where a Central Public Information Officer or a State Public Information Officer, as the case may be, intends to disclose any information or record, or part thereof on a request made under this Act, which relates to or has been supplied by a third party and has been treated as confidential by that third party, the Central Public Information Officer or State Public Information Officer, as the case may be, shall, within five days from the receipt of the request, give a written notice to such third party of the request and of the fact that the Central Public Information Officer or State Public Information Officer, as the case may be, intends to disclose the information or record, or part thereof, and invite the third party to make a submission in writing or orally, regarding whether the information should be disclosed, and such submission of the third party shall be kept in view while taking a decision about disclosure of information: Where a Central Public Information Officer or a State Public Information Officer, as the case may be, intends to disclose any information or record, or part thereof on a request made under this Act, which relates to or has been supplied by a third party and has been treated as confidential by that third party, the Central Public Information Officer or State Public Information Officer, as the case may be, shall, within five days from the receipt of the request, give a written notice to such third party of the request and of the fact that the Central Public Information Officer or State Public Information Officer, as the case may be, intends to disclose the information or record, or part thereof, and invite the third party to make a submission in writing or orally, regarding whether the information should be disclosed, and such submission of the third party shall be kept in view while taking a decision about disclosure of information: Where a Central Public Information Officer or a State Public Information Officer, as the case may be, intends to disclose any information or record, or part thereof on a request made under this Act, which relates to or has been supplied by a third party and has been treated as confidential by that third party, the Central Public Information Officer or State Public Information Officer, as the case may be, shall, within five days from the receipt of the request, give a written notice to such third party of the request and of the fact that the Central Public Information Officer or State Public Information Officer, as the case may be, intends to disclose the information or record, or part thereof, and invite the third party to make a submission in writing or orally, regarding whether the information should be disclosed, and such submission of the third party shall be kept in view while taking a decision about disclosure of information: of the RTI Act leads to the conclusion that if an information is held to be confidential in public interest under Section 124 of the Indian Evidence Act, that can be urged as a ground for nondisclosure of the information under Section 11(1) Where a Central Public Information Officer or a State Public Information Officer, as the case may be, intends to disclose any information or record, or part thereof on a request made under this Act, which relates to or has been supplied by a third party and has been treated as confidential by that third party, the Central Public Information Officer or State Public Information Officer, as the case may be, shall, within five days from the receipt of the request, give a written notice to such third party of the request and of the fact that the Central Public Information Officer or State Public Information Officer, as the case may be, intends to disclose the information or record, or part thereof, and invite the third party to make a submission in writing or orally, regarding whether the information should be disclosed, and such submission of the third party shall be kept in view while taking a decision about disclosure of information: Where a Central Public Information Officer or a State Public Information Officer, as the case may be, intends to disclose any information or record, or part thereof on a request made under this Act, which relates to or has been supplied by a third party and has been treated as confidential by that third party, the Central Public Information Officer or State Public Information Officer, as the case may be, shall, within five days from the receipt of the request, give a written notice to such third party of the request and of the fact that the Central Public Information Officer or State Public Information Officer, as the case may be, intends to disclose the information or record, or part thereof, and invite the third party to make a submission in writing or orally, regarding whether the information should be disclosed, and such submission of the third party shall be kept in view while taking a decision about disclosure of information: Where a Central Public Information Officer or a State Public Information Officer, as the case may be, intends to disclose any information or record, or part thereof on a request made under this Act, which relates to or has been supplied by a third party and has been treated as confidential by that third party, the Central Public Information Officer or State Public Information Officer, as the case may be, shall, within five days from the receipt of the request, give a written notice to such third party of the request and of the fact that the Central Public Information Officer or State Public Information Officer, as the case may be, intends to disclose the information or record, or part thereof, and invite the third party to make a submission in writing or orally, regarding whether the information should be disclosed, and such submission of the third party shall be kept in view while taking a decision about disclosure of information: of the RTI Act.
16. However, the public authority is also duty-bound that having prepared an Agreed List, it will not, through its actions, create conditions where those figuring in the Agreed List, are given sensitive assignments contrary to the meaning and the purpose of preparing such Lists. In that event, the bar on disclosure of Agreed List-related information shall be liable for questioning.”
In the present case, the Agreed List is admittedly a confidential information ⎯ rather a critically confidential information ⎯ held by the public authority in its role as a third party within the provisions of Section 124 of the Indian Evidence Act. Now it is the case of that public authority that confidentiality of that information should not be allowed to be breached under the RTI Act in view of the fact that that is a valid submission for non-disclosure of information within the meaning of Section 11(1) Where a Central Public Information Officer or a State Public Information Officer, as the case may be, intends to disclose any information or record, or part thereof on a request made under this Act, which relates to or has been supplied by a third party and has been treated as confidential by that third party, the Central Public Information Officer or State Public Information Officer, as the case may be, shall, within five days from the receipt of the request, give a written notice to such third party of the request and of the fact that the Central Public Information Officer or State Public Information Officer, as the case may be, intends to disclose the information or record, or part thereof, and invite the third party to make a submission in writing or orally, regarding whether the information should be disclosed, and such submission of the third party shall be kept in view while taking a decision about disclosure of information: Where a Central Public Information Officer or a State Public Information Officer, as the case may be, intends to disclose any information or record, or part thereof on a request made under this Act, which relates to or has been supplied by a third party and has been treated as confidential by that third party, the Central Public Information Officer or State Public Information Officer, as the case may be, shall, within five days from the receipt of the request, give a written notice to such third party of the request and of the fact that the Central Public Information Officer or State Public Information Officer, as the case may be, intends to disclose the information or record, or part thereof, and invite the third party to make a submission in writing or orally, regarding whether the information should be disclosed, and such submission of the third party shall be kept in view while taking a decision about disclosure of information: Where a Central Public Information Officer or a State Public Information Officer, as the case may be, intends to disclose any information or record, or part thereof on a request made under this Act, which relates to or has been supplied by a third party and has been treated as confidential by that third party, the Central Public Information Officer or State Public Information Officer, as the case may be, shall, within five days from the receipt of the request, give a written notice to such third party of the request and of the fact that the Central Public Information Officer or State Public Information Officer, as the case may be, intends to disclose the information or record, or part thereof, and invite the third party to make a submission in writing or orally, regarding whether the information should be disclosed, and such submission of the third party shall be kept in view while taking a decision about disclosure of information: of the RTI Act. However, the First Appellate Authority has allowed disclosure of documents pertaining to the inclusion of appellant’s name in the Agreed list. The CPIO has urged that the documents/information sought by the appellant does not have any public interest, which can outweigh the interest of the third-party. The case of the CPIO is ⎯ and quite a valid as such ⎯ that confidentiality of the Agreed List is critical for the success of the management decisions about key assignments to its employees, lest for want of reflection on the background, character and conduct of specific officers, management hands over sensitive assignments into undeserving hands whose actions may be injurious both to the public authority as well as to the public interest. In light of the above and holding the view of the CPIO as correct, the order of the FAA dt. 09.01.2013 is hereby, quashed and set aside.
(Yashovardhan Azad)
Information Commissioner
Citation: Shri Satish Kumar v. Mumbai Port Trust in F. No. CIC/SS/A/2013/001040-YA