Thursday, September 17, 2009

Asset disclosure of IAS officers

In February 2009, I had filed an RTI application seeking inspection of assets disclosure statements of the last 5 years of the Chief Secretary of Tamil Nadu and the secretaries of 9 other departments. This was rejected citing 8(1)(j) of the Right to Information act, 2005, which says that

"there shall be no obligation to give any citizen information which relates to personal information the disclosure of which has no 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:"

So I went in for first appeal, where I received the same reply. So I filed a second appeal. As mentioned, in passing, in the post (, the Chief Commissioner is of the opinion that assets statements of IAS and IPS officers need not be disclosed since they come in sealed covers. A hearing for the appeal I filed was scheduled for yeaterday (24th September 2009). It will be a very crucial hearing, since, if successful, this would bring to the open, the assets details of ALL the government servants of Tamil Nadu, right from the Chief Secretary. I will briefly list down the information I had gathered and presented in the case.

1. The Tamil Nadu SIC has already ordered that assets details of Government Servants ought to be made public. This has been seen in the case no. 16294/08 on 9th Feb 2009. I am yet to get hold of a copy of this judgment, but I have seen this order since this was the case of Mr.Retnapandian who is an RTI activist.

This is important since, this establishes that assets details as such have to be public documents. Thus the issue is whether information from sealed covers ought to be disclosed or not.

2. There has been a case where the applicant asked for some Property details of the Managing Director of Karnataka State Coir Development Corporation. Information denied under Sec 8(1)(j). The first appeal was also rejected. But Karnataka SIC allowed disclosure. So the PA filed a writ in the high court. In that case High Court ruled that the order of the SIC is correct. This is not of much consequence now, as the TN SIC has also ruled that assets details have to be public. I tried to find out whether this Managing Director is an IAS officer, but from what I could see on the website of Karnata State Coir Development Corporation, that is not the case. So this might not be of much help in my case.

3. The commissioners agreed that the assets details information was not private, and hence 8(1)(j) is not applicable.

3. There have been a few decisions in the CIC saying that assets of IAS officers need not be disclosed. In one case, it has been especially pointed out that since the assets details come in sealed covers, it cannot be disclosed (The decision can be seen here). This is exactly the stand that the TN Chief Commissioner is also taking. But there is one decision of the Chief Central Information Commissioner, who has ruled that assets details of IAS officers should be disclosed. This decision can be seen here. This is what I will cite in the hearing. I will have to argue that the Chief Information Commissioner, having, been an Ex-IAS officer himself, will definitely have known that assets details are submitted in sealed covers. Thus, the fact that in spite of this knowledge, he has ordered that assets have to be disclosed clearly showed that the information being in held in sealed covers is no reason to exempt it from disclosure.

4. Moreover, any exemption from disclosure, should come under one of the exemptions of section 8 and 9. No such section can be cited here. Exemption of personal information will not hold here, since it has already been held that non IAS Government Servants' assets have to be disclosed. If at all, anything, it should be the 8(1)(e), information held under fiduciary capacity, should be the one cited. But even that argument wont be good since the Delhi High Court, in its recent judgment in the case of Assets disclosure details of the judges of the Supreme Court, has, ruled that the CJI was not holding the assets details of other judges in fiduciary capacity. The judgment can be downloaded from here. Here para numbers 54 to 59 clearly explains this.

5. The PIO's argument is that the information comes in sealed covers and hence cannot be disclosed. The Chief Commissioner too said that breaking the seal open is not possible. The commissioner also argued that, the case was not that of information being being personal information or being exempt under any of the subsections under 8 of the RTI act, but that information was "not available" with the PIO since it is present in sealed covers.

This was an argument I had not anticipated. But my reply to this was as follows. I told them that the purpose of sealing the covers was confidentiality. And before the RTI act came into force, there were many other documents which were held confidential, but the RTI act brings all of them into public domain. Similary the practice of sealing covers is also a means of ensuring confidentiality. Before RTI, if a document has been marked as confidential, it is in effect the same as sealing it, except that sealing is a physical thing, and marking it confidential is not such a physical thing, but both are with the intent of keeping the information confidential. But since RTI throws away the confidentiality of documents that are marked as such, even the sanctity of sealed covers should go. The Commission was not sure, and said that it was reserving its judgment and asked me if I had a written affidavit. I said that I will submit the affidavit in a day or two. Let me see what happens.

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