For a pretty long time I have been planning to write a detailed piece on third party information which is a provision in the Right to Information Act 2005 (RTI). I have observed during the last few years that many PIOs and even the First Appellate Authorities -FAAs designated under RTI Law have been misinterpreting and misusing this legal provision. In the last few years, I have gone through several orders issued by PIOs and FAAs of various public authorities who have invoked section 11 of RTI Act 2005 and denied sharing information citing third party reasons. I am quite sure that if I ask all these PIOs or those who have denied sharing information by invoking 3rd party provision of RTI Act 2005, most of these officers and even their seniors (First Appellate Authorities-FAAs) would be unaware about what the 3rd party information means. I am also pretty sure that they would not even know which section details the 3rd party in RTI Act 2005 and what it is all about.
I have been prompted to write this piece after I went through an order dated December 15th 2023, issued by Zonal Officer Jammu & Kashmir Bank Baramulla who is the designated First Appellate Authority -FAA under RTI Act 2005 for Baramulla zone.
After J&K Bank was designated as a Public Authority by the J&K Government in November 2018, the bank designated different officers as FAAs , PIOs and APIOs under RTI Act 2005. As per the details available on J&K Bank’s website, there are 16 designated First Appellate Authorities -FAA’s and Public Information Officers-PIO’s respectively plus 944 Assistant Public Information Officers-APIOs. After going through some of the orders passed by PIOs and FAAs, I think these designated officers are not trained properly on how to handle RTI applications and appeals.
What is Third party Information?
Section 11 of RTI Act 2005 says that if a Public Information Officer (PIO) intends to disclose an information supplied by a third party which the third party has treated as confidential, the PIO, before taking a decision to disclose the information, shall invite the third party to make submission in the matter.
First of all we need to know who is the first party, second party and third party. RTI applicant is the 1st party , PIO is the 2nd party and 3rd party is the person or organisation who has already given in writing to PIO that if the information related to them is sought by someone they need to be intimated about the same.
The section 11 of the RTI Act 2005 reads:
“Where a Central Public Information Officer-CPIO or a State Public Information Officer-SPIO , 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. Provided that except in the case of trade or commercial secrets protected by law, disclosure may be allowed if the public interest in disclosure outweighs in importance any possible harm or injury to the interests of such third party.”
CICs judgement on 3rd party info
The Central Information Commission (CIC) in its 2006 judgement has said that 3rd parties have no absolute right to refuse information disclosure about it. In the case of K.K. Mahajan v/s Cantonment Executive Office CIC Judgement No: CIC/AT/A/2006/00014, dated 22/5/2006, the appellant in the case who was an employee of a public authority, had applied for some information relating to the prosecution of another employee (third party), because under similar circumstances the appellant was convicted while the other employee was exonerated. The public authority refused to provide him the information he had asked for on the ground that the third party had refused the disclosure of information about it to the applicant. Judgment: The CIC held that the RTI Act 2005 does not give a third party an automatic right to order the public information officer (PIO) of a public authority, not to disclose information pertaining to it.
The CIC further held that the public authority is required to evaluate the third party’s case in terms of the provisions of Section 8(1)(j) and Section 11(1) of the RTI Act, 2005, and find out that the information asked is not barred from disclosure.
“Even if the information is barred from disclosure then the public authority is to examine if it would be in the public interest to disclose the information sought and its disclosure will outweigh harm if any to the individual third party. The public authority has to arrive at the findings by properly assessing the facts and circumstances of the case,” reads the judgement
This makes it clear that 3rd party even if it refuses to divulge the information and tells the same to PIO in writing , the PIO cannot take this as gospel truth and needs to evaluate the case himself and should look into other aspects as well. Ironically, most of the PIOs and even their seniors First Appellate Authorities -FAAs especially in J&K treat most of the RTI cases wherein information sought under RTI law and the same relates to other official / officials, they invoke section 11 of RTI Act 2005 (3rd party information). This is totally wrong as these officials never have said in writing that they should be consulted before information is sought about them. Third party cases are mostly related to trade or commercial secrets and this has nothing to do with information sought about Govt officials like their first appointment orders , academic qualification , TA DA drawn and other things.
Govt of India’s guidelines
The Government of India through the Department of Personnel & Trainings -DoPT in its guidelines issued on the RTI Act 2005, dated: 05/10/2009 has said that information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, is exempt from disclosure. Such information shall not be disclosed unless the competent authority is satisfied that larger public interest warrants the disclosure of such information. The guidelines further say that If an applicant seeks any information which relates to or has been supplied by a third party and that third party has treated that information as confidential, the Public Information Officer shall consider whether the information should be disclosed or not. The guiding principle in such cases is that except in the case of trade or commercial secrets protected by law, disclosure may be allowed if the public interest in disclosure outweighs in importance any possible harm or injury to the interests of such a third party. This guideline also makes it clear that 3rd party information is related to commercial and trade secrets and that too can be disclosed if PIO deems it fit that its disclosure would serve a larger public interest. Now if the PIO invokes 3rd party provision for protecting their colleagues and government officials that is a total misinterpretation of the RTI Act 2005.
FAA J&K misinterpreted 3rd party Info
As mentioned in the beginning, I am writing this piece after going through an official communication of J&K Bank Zone Baramulla dated December 15th 2023. The First Appellate Authority -FAA who is also the Zonal Officer Jammu & Kashmir Bank Baramulla denied sharing information to an RTI applicant namely Manzoor Ahmad Rather, a resident of Ajas Bandipora. When this author went through the six questions written in the RTI application I couldn’t find any of these questions that were exempted under section 11 of the RTI Act 2005 (3rd party information).
The applicant has sought following information:
Certified copies of total number of employees in J&K Bank branch Ajas and their designation along with their initial appointment orders , appointing authority , date of appointment and educational qualification
Loans sanctioned by J&K Bank branch Ajas , and loan approval process , criteria for disbursement of these loans and steps taken by JK Bank branch Ajas to ensure timely repayment of loans
Certified copies of latest audit reports of JK Bank branch Ajas
Certified copies of internal investigations reports conducted by J&K Bank related to Ajas branch in Bandipora
The applicant had filed an RTI application of September 30th 2023 and this was replied after 2 months by the PIO who refused to share this information citing that that information falls under section 11 – (3rd party information). The aggrieved filed 1st appeal before the Zonal Officer J&K Bank branch Baramulla who is also the First Appellate Authority-FAA. The appellant told me that the said officer without even hearing him in presence of the concerned Public Information Officer-PIO or APIO, sent him an official communication Ref No: BR/ZOB/RTI/2023 -1725 Dated: 15.12.2023 . The Zonal Officer / FAA without hearing arguments of both parties disposed of the case and refused to share the information. The official communication of the First Appellate Authority -FAA under RTI Act 2005 and Zonal Officer JK Bank Baramulla reads as :
“Please refer your appeal under RTI Act 2005 dated 21.11.2023 received through Law Department Corporate Headquarters on 29.11.2023 wherein you have sought the following information . In this regard we have already replied to your application dated 30.09.2023 vide Banks letter No: ZOBRA/BS/RTI/2023 -1373 Dated 31.10.2023 . Now you have filed the instant appeal seeking the above desired information once again . In this regard please be informed that since the information pertains to third party information so same cannot be provided as same would constitute infringement of right to privacy “
The officer has not only misinterpreted the third party information but has also committed a blunder by not hearing the arguments of the appellant and the PIO or APIO. Sending a letter to the appellant asking him that he won’t get information without a speaking order is not a violation of RTI Act 2005 , but this goes against the principle of natural justice as well. J&K Bank First Appellate Authority -FAA Mr Imtiyaz Ahmad Bhat (Zonal Officer Baramulla) must know that adjudicating appeals under the RTI Act is a quasi-judicial function. It is, therefore, necessary that the designated officer should see to it that the justice is not only done but it should also appear to have been done. In order to do so, the order passed by the appellate authority should be a speaking order giving justification for the decision arrived at.
CIC’s technical committee report on FAA
In its 7th annual convention (12-13 Oct 2012) , the Central Information Commission CIC held an important technical session chaired Mr Wajahat Habibullah, the then Chairman, National Commission for Minorities -NCM and former Chief Information Commissioner -CIC. This session was attended by Dr O P Kejariwal, Former Information Commissioner, Mr G R Sufi, the then State Chief Information Commissioner J&K , Mr M N Gunavardhan, State Chief Information Commissioner Kerala, Mr D Thangaraj, Information Commissioner Karnataka and Mr Jagadananda, Information Commissioner Odisha.
In its report the aforementioned dignitaries and RTI experts came to the following conclusion:
“The role of the First Appellate Authority in the RTI Act is as important as that of the Information Commission. Large number of appeals/complaints before the Commission, inter alia, would be reflective of the quality of functioning of the First Appellate Authorities of the public authorities. The RTI Act does not prescribe with due clarity either duties and responsibilities nor any deterrent in the event of failure to do so for the First Appellate Authorities. This perhaps appears to be one of the greatest causes for the indifferent attitude of the First Appellate Authorities in the RTI regime.”
This makes it clear that FAAs have a similar role like Information Commissions and they cannot speak the language of PIOs.
Conclusion
The order issued by First Appellate Authority (Zonal Officer JK Bank Baramulla) is not only bad in law but it doesn’t seem to have been issued by a quasi-judicial officer. This is the problem with a majority of FAAs and PIOs across J&K. They are not trained at all in deciding appeals and RTI applications respectively. I would request the J&K Chief Secretary Shri Atal Duloo to make sure all the First Appellate Authorities -FAAs and Public Information Officer -PIOs and Assistant Public Information Officers-APIOs are trained properly so that the Right to Information law is enforced and implemented in its right perspective. I would also request the FAAs and PIOs to have a thorough study of section 11 of RTI Act 2005 wherein 3rd party information is explained in detail. They must also go through various orders and judgements of the Central Information Commission-CIC and State Information Commissions as well.
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