Appeal 133/SIC/2012 on:24/04/2014

GOA STATE INFORMATION COMMISISON

“Shrama Shakti Bhavan”, Ground Floor, Patto Plaza, Panaji – Goa.

CORAM: Smt. Leena Mehendale, State Chief Information Commissioner

Appeal 133/SIC/2012

Decided on:24/04/2014

Mr. Lambert P. A. Godinho,

C/o Our Lady of Grace High School,

Bicholim – Goa.

V/s

1) The Public Information Officer/ Headmaster,

Santa Cruz High School ,

Santa Cruz, Tiswadi – Goa.

2) First Appellate Authority/Director of Education,

Directorate of Education,

Porvorim, Bardez -Goa.

O R D E R (Open Court)

RTI application dated	:	08/02/2012
PIO reply dated	:	09/03/2012
First Appeal dated	:	05/04/2012
FAA Order dated	:	25/04/2012
Second Appeal filed on	:	20/07/2012

(1) “What are the rights of an employee to know about entries in his Annual Confidential Report and what are the limitations?” That is the subject matter of this case.

(2) This Second Appeal is filed on 20/07/2012. It arises from RTI application dated 08/02/2012 filed before the PIO who is Head Master, Santa Cruz High School, Santa Cruz – Goa.

(3) The Appellant had requested to furnish certified photocopies of his own Confidential reports for the academic years 2003-2004 upto 2010-2011. He was informed on 09/03/2012 as below,

“Certified photo copies of your confidential Report for the academic years as requested by you cannot be issued in light of a ruling passed by the Goa State Information Commission in Appeal No. 83/2006/WRD.

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You may however apply for inspection of your confidential Reports.”

Not satisfied the appellant approached the First Appellate Authority who has dismissed the appeal vide his order dated 25/04/2012. Again not satisfied, the Appellant has made his Second Appeal.

(4) The PIO in his reply to second appeal, has relied upon the ruling passed by the Goa State Information Commission in Appeal No. 83/2006/WRD dated 29/03/2007. Hence it is pertinent to note the details of the said case.

The Appellant of that case too had requested “to provide copies of the complete set of ACR from the year 1979-80 onwards in the grade of Asst. Engineer, Executive Engineer or the Superintending Engineer in PWD/Irrigation Department/ Water Resources Department, as the case may be, till date (14/07/2006)”. The Public Information Officer, Respondent No. 2 had informed him that “the Annual Confidential Reports in respect of Superintending Engineer are not in the custody of this Department”. In the first appeal against PIO, the operative portion of the order dated 2/1/2007 of the FAA stated –

“The Dy. Director of Administration (PIO) is also directed to inform the Appellant if there are any adverse remarks during the period as asked by him within 2 weeks from the date of this order as per the provision of Acts and Rules.

This resulted in Second Appeal No. 83/2006/WRD. It is worth quoting a large portion from the order of SCIC dated 29/03/2007 as below –

“However, as we have seen in detail above, while the information asked is about the issuance of copies of the Annual Confidential Reports, hereinafter referred to for short as ACRs, the direction by the first Appellate Authority is to inform the Appellant if there are any adverse remarks during the period as asked by him. We do not see how this can be interpreted as having allowed the request of the Appellant even partly. The reason for not giving entire extract of ACRs as come out in the Appellate order as well as the written statement of the Respondent No.1 is that

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(i) the ACR is a confidential document and only adverse entries as approved by the accepting authority have to be communicated;

(ii) the information about the ACR or furnishing the copies is exempted under Section 8(d) of RTI Act;

(iii) that such information is a personal information and its disclosure has no relation to public activity or interest;

(iv) the disclosure of the ACRs will defeat the very purpose of the confidential report. In his written statement dated 6^th March, 2007, the FAA relied on his speaking order and added no further justification for rejecting the request of the Appellant as far as providing the copies of the ACRs are concerned.”

“We, now, come to the prayer of the Appellant that the documents requested by him should be furnished by the Commission as per para No. 9 of his appeal memo. We would like to make it clear, in the first instance, that the Commission does not keep custody of the ACRs of the Appellant. However, we take his prayer to mean that directions should be given to the Respondent No. 2 (PIO) to furnish the documents. There is no Section 8(d) of the RTI Act as mentioned in the Appellate order. Section 8(1)(d) quoted by the first Appellate Authority deals with the withholding of commercial information or trade secrets or intellectual property. The ACRs maintained by the Government Department of its employees are admittedly regarding performance of its employees and are neither commercial information nor trade secrets nor the intellectual property of the Government nor the employees. We, therefore, reject this argument as irrelevant. We next come to the argument that these documents are personal information and its disclosure is not in public interest. Section 8(1)(j) deals with the disclosure of personal information by a Public Authority. The exemption provided under Section 8(1)(j) deals with the personal information obviously relating to any of the citizens including the employees of a Public Authority. However, what is to be seen is whether ACRs written in a prescribed format has any personal information. A blank copy of proforma of an ACRs is not on record.

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Over the years, the ACR has become not an instrument to assess the capability of an official but an instrument to harass him/her by the supervising officers. We are of the opinion that such an important document which determines the fate of a Government officials in the entire career should be made known to the officials in advance from time to time and their participation in the actual assessment of performance would be essential for good Governance. We have, therefore, no doubt and hesitation in holding that the contents of ACR should be made known to the employees on regular and annual basis. Till such time, the Government works out such a mechanism of ensuring the writing, reviewing and accepting of ACRs of its employees in a participative manner taking into confidence the employee whose performance is reported, we are of the opinion that the ACRs already available with the Department should be made available to the Appellant for his examination and taking of notes.

However, this should be a facility accorded by the Public Authority only in respect of his own ACR. That is to say, all citizens do not have such a right to access the ACRs of particular employees of the Public Authority. This is so because it becomes a third party information and no public interest is served in disclosing the working of a Government official over a period of time. On the other hand, providing access to one’s own ACR for taking notes, including digital photographing, will ensure better objectivity and satisfies the criterion of lifting the veil of confidentiality under Section 8(2) of the RTI Act. However, giving certified copies to the officials even of their own ACRs, will involve handling of the documents by a number of officials which will make it completely open which is also not desirable. A particular employee can ask for inspection and take notes including videography or taking digital photographs of his own ACR’s by making a proper application to the Public Information Officer and pay necessary fees prescribed under the Rules. With these observations, we partly allow the appeal and set aside the Appellate Order of the Respondent No. 1 and the letter of Public Information Officer relating to their orders on ACRs. We direct the Public Information Officer to make available to the Appellant access to his own ACRs and allow him to take photographs, if he so desires. Parties to be informed by post.”

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(5) Coming back to the present case before me, I have gone through the submission of the present Appellant. As regards handling of his ACR as referred in above para, he has orally stated that he does not object to his ACR file being seen by/handled by several people during certification. I also feel that the matter has to be freshly appreciated. Much time has passed between 2007 and the present case. The Supreme Court and Government of India have reformed the ACR rules bringing more transparency. Hence I hold that applicant is entitled to certified copies of his ACR if he gives in writing that he does not object to his ACR file being seen by/handled by several people during certification.

Coming to the reply of PIO, given on 09/03/2012, it is within 30 days. His reason for rejecting Information had the backing of the judgment passed by SCIC in Appeal No. 83/2006/WRD. Hence his action cannot be considered wrong. However, PIO is now directed to supply certified copies of ACR without charge if the appellant approaches him with the written NOC as above.

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Since the matter is old, the PIO can be allowed reasonable time to give information after the appellant has given his NOC. I direct that he may supply the required copies within 20 days. This appeal is partly allowed, as above.

Order declared in open court. Parties shall be informed of this detailed order.

Sd/-

(Leena Mehendale)

Goa State Chief Information Commissioner

Goa State Information Commission

Panaji-Goa