CENTRAL BOARD OF SECONDARY EDUCATION & Anr. v. ADITYA BANDOPADHYAY & Ors.

*Maharashtra State Board of Secondary Education vs. Paritosh B. Sheth 1984 (4) SCC 27; Parmod Kumar Srivastava vs. Chairman, Bihar PAC 2004 (6) SCC 714: 2004 (3 ) Suppl. SCR 372; Board of Secondary Education vs. Pavan Ranjan P 2004 (13) SCC 383; Board of Secondary B Education vs. S 2007 (1) SCC 603; Secretary, West Bengal Council of Higher Secondary Education vs. I Dass 2007 (8) SCC 242: 2007 (10 ) SCR 464 - referred to. C

4.1. Section 8(1) enumerates the categories of information which are exempted from disclosure under the provisions of the RTI Act. This exemption is subject to the condition that if the competent authority (as defined in Section 2(e) of RTI Act) is satisfied that the larger public interest warrants the disclosure of such information, the information will have to be disclosed. [Para 19] [1074-8- D C]

4.2. The term 'fiduciary' and 'fiduciary relationship' refer to different capacities and relationship, involving a common duty or obligation. The term 'fiduciary' refers to E a person having a duty to act for the benefit of another, showing good faith and condour, where such other person reposes trust and special confidence in the person owing or discharging the duty. The term 'fiduciary relationship' is used to describe a situation or transaction where one person (beneficiary) places complete F confidence in another person (fiduciary) in regar~ to his affairs, business or transaction/s. The term also refers to a person who holds a thing in trust for another (beneficiary). The fiduciary is expected to act in confidence and for the benefit and advantage of the G beneficiary, and use good faith and fairness in dealing with the beneficiary or the things belonging to the beneficiary. If the beneficiary has entrusted anything to the fiduciary, to hold the thing in trust or to execute certain acts in regard to or with reference to the entrusted H . thing, the fiduciary has to act in confidence and expected CENTRAL BOARD OF SECONDARY EDUCATION v. 1037 ADITYA BANDOPADHYAY not to disclose the thing or information to any third party. A There are also certain relationships where both the parties have to act in a fiduciary capacity treating the other as the beneficiary. [Paras 20 and 21) [1074-D; 1077- 8-E] Bristol and West Building Society vs. Mothew 1998 Ch. 1; Wolf vs. Superior Court 2003 (107) California Appeals, 4th 25 - referred to. B Black's Law Dictionary 7th Edition, p 640; American Restatements (Trusts and Agency); Corpus Juris Secundum C Vol. 36A 381; Words and Phrases, Permanent Edition Vol. 16A, 41 - referred to. future generation while preserving

4.3. In a philosophical and very wide sense, examining bodies can be said to act in a fiduciary D capacity, with reference to students who participate in an examination, as a government does while governing its citizens or as the present generation does with .reference environment. But the words 'information available to a person in his fiduciary relationship' are used in Section 8(1)(e) of RTI Act in its normal and well recognized 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. That kind of fiduciary relationship is not found between the examining body and the examinee, with reference to the evaluated answer-books, that come into the custody of the examining body. [Para 22) [1077-H; 1078-A-E] E F

4.4. The duty of examining bodies is to subject the candidates who have completed a course of study or a period of training in accordance with its curricula, to a process of verification/examination/testing of their knowledge, ability or skill, or to ascertain whether they H can be said to have successfully completed or passed G 1038 SUPREME COURT REPORTS [2011] 11 S.C.R. A the course of study or training. Other specialized Examining Bodies may simply subject candidates to a process of verification by an examination, to find out whether such person is suitable for a particular post, job or assignment. An examining body, if it is a public s authority entrusted with public functions, is required to act fairly, reasonably, uniformly and consistently for public good and in public interest. It cannot be said that the examining body is in a fiduciary relationship either with reference to the examinee who participates in the c examination and whose answer-books are evaluated by the examining body. [Para 23] [1078-F-H; 1079-A-B; 1080- A-B] Bihar School Examination Board vs. Suresh Prasad Sinha (2009) 8 SCC 483 - referred to. D E

4.5. Section 8 (1)(e) 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 F duties of the fiduciary is to make thorough disclosure of all relevant tacts 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, would 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 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 H access to any third party and would not operate as a bar G CENTRAL BOARD OF SECONDARY EDUCATION v. 1039 ADITYA BANDOPADHYAY for the very person who wrote the answer-book, seeking A inspection or disclosure of it. [Para 24] (1080-B-G]

4.6. An evaluated answer book of an examinee is a combination of two different 'informations'. The first is the answers written by the examinee and second is the 8 marks/assessment by the examiner. When an examinee seeks inspection of his evaluated answer-books or seeks a certified copy of the evaluated answer-book, the information sought by him is not really the answers he has written in the answer-books (which he already C knows), nor the total marks assigned for the answers (which has been declared). What he really seeks is the information relating to the break-up of marks, that is, the specific marks. assigned to each of his answers. When an examinee seeks 'information' by inspection/certified copies of his answer-books, he knows the contents D thereof being the author thereof. When an examinee is permitted to examine an answer-book or obtain a certified copy, the examining body is not really giving him some information which is held by it in trust or confidence, but is only giving him an opportunity to read what he had E written at the time of examination or to have a copy of his answers. Therefore, in furnishing the copy of an answer book, there is no question of breach of confidentiality, privacy, secrecy or trust. The real issue therefore, is not in regard to the answer-book but in regard to the marks F awarded on evaluation of the answer-book. Even here the total marks given to the examinee in regard to his answer book are already declared and known to the examinee. What the exaininee actually wants to know is the break- up of marks given to him, that is how many marks were G given by the examiner to each of his answers so that he can assess how his performance has been evaluated and whether the evaluation is proper as per his hopes and expectations. Therefore, the test for finding out whether the information is exempted or not, is not in regard to the H 1040 SUPREME COURT REPORTS [2011] 11 S.C.R. A answer book but in regard to the evaluation by the examiner. [Para 25] [1080-H; 1081-A-F] 8

4.7. The examining body engages or employs hundreds of examiners to do the evaluation of thousands of answer books. The question is whether the information relating to the 'evaluation' (that is assigning of marks) is held by the examining body in a fiduciary relationship. The submission that even if fiduciary relationship does not exist with reference to the examinee, it exists with reference to the examiner who C evaluates the answer-books, has no merit. The examining body entrusts the answer-books to an examiner for evaluation and pays the examiner for his expert service. The work of evaluation and marking the answer-book is an assignment given by the examining body to the D examiner which he discharges for a consideration. Sometimes, an examiner may assess answer-books, in the course of his employment, as a part of his duties without any specific or special remuneration. In other words the examining body is the 'principal' and the E examiner is the agent entrusted with the work, that is, evaluation of answer-books. Therefore, the examining body is not in the position of a fiduciary with reference to the examiner. On the other hand, when an answer book is entrusted to the examiner for the purpose of F evaluation, for the period the answer-book is in his custody and to the extent of the discharge of his functions relating to evaluation, the examiner is in the position of a fiduciary with reference to the examining body and he is barred from disclosing the contents of the G answer-book or the result of evaluation of the answer book to anyone other than the examining body. Once the examiner has evaluated the answer books, he ceases to have any interest in the evaluation done by him. He does not h.ave any copy-right or proprietary right, or H CENTRAL BOARD OF SECONDARY EDUCATION v.1041 ADITYA BANDOPADHYAY confidentiality right in regard to the evaluation. Therefore, A the examining body does not hold the evaluated answer books in a fiduciary relationship, qua the examiner. Therefore, an examining body does not hold the evaluated answer-books in a fiduciary relationship. Not being information available to an examining body in its B fiduciary relationship, the exemption under Section 8(1 )(e) is ·not available to the examining bodies with reference to evaluated answer-books. As no other exemption under Section 8 is available in respect of evaluated answer books, the examining bodies will have to permit c inspection sought by the examinees. [Para 26) [1081-G- H; 1082-A-F] .

5.1. When an examining body engages the services of an examiner to evaluate the answer-books, the examining body expects the examiner not to disclose the D information regarding evaluation ta anyone other than the examining body. Similarly the examiner also expects that his name and particulars would not be disclosed to the candidates whose answer-books are evaluated by him. In the event of such information being made known, E a disgruntled examinee who is not satisfied with the evaluation of the answer books, may act to the prejudice of the examiner by attempting to endanger his physical safety. Further, any apprehension on the part of the examiner that there may be danger to his physical safety, F if his identity becomes known to the examinees, may come in the way of.effective discharge of his duties. The above applies not only to the examiner, but also to the scrutiniser, co-ordinator, and head-examiner who deal with the answer book. The answer book usually contains G not only the signature and code number of the examiner, but also the signatures and code number of the scrutiniser/co-ordinator/head examiner. The information as to the names or particulars of the examiners/co ordinators/scrutinisers/head examiners are therefore, H exempted from disclosure under Section 8(1 )(g) of RTI 1042 SUPREME COURT REPORTS [2011] 11 S.C.R. A Act, on the ground that if such information is disclosed, it may endanger their physical safety. Therefore, if the examinees are to be given access to evaluated answer books either by permitting inspection or by granting certified copies, such access would have to be given B only to that part of the answer-book which does not contain any information or signature of the examiners/co ordinators/scrutinisers/head examiners, exempted from disclosure under Section 8(1)(g) of RTI Act. Those portions of the answer-books which contain information c regarding the examiners/co-ordinators/scrutinisers/head examiners or which may disclose their identity with reference to signature or initials, shall have to be removed, covered, or otherwise severed from the non exempted part of the answer-books, under Section 10 of D RTI Act. [Para 28) [1083-B-H; 1084-A]

5.2. The right to access information does not extend beyond the period during which the examining body is expected to retain the answer-books. In the case of CBSE, the answer-books are required to be maintained for a E period of three months and thereafter, they are liable to be disposed of/destroyed. Some other examining bodies are required to keep the answer-books for a period of six months. The fact that right to information is available in regard to answer-books does not mean that answer- F books would have to be maintained for any longer period than required under the rules and regulations of the public authority. The obligation under the RTI Act is to make available or give access to existing information or information which is expected to be preserved or G maintained. If the rules and regulations governing the functioning of the respective public authority require preservation of the information for only a limited period, the applicant for information would be entitled to such information only if he seeks the information when it is H available with the public authority. The power of the CENTRAL BOARD OF SECONDARY EDUCATION v. 1043 ADITYA BANDOPADHYAY Information Commission under Section 19(8) of the RTI A Act to require a public authority to take any such steps as may be necessary to secure compliance with the provision of the Act, does not include a power to direct the public authority to preserve the information, for any period larger than what is provided under the rules and B regulations of the public authority. [Para 29] [1084•8-G]

5.4. Section 8(3) nowhere provides that records or information have to be maintained for a period of twenty years. The period for which any particular records or information has to be maintained would depend upon the C relevant statutory rule or regulation of the public authority relating to the preservaUori of records. Section 8(3) proyides that information relating to any occurrence, event or matters which has taken place and occurred or happened twenty years before the date on which any D request is made under Section 6, shall be provided to any person making a request. This means that where any information required to be maintained and preserved for a period beyond twenty years under the rules of the public authority, is exempted from disclosure under any E of the provisions of Section 8(1) of RTI Act, then, notwithstanding such exemption, access to such information shall have to be provided by disclosure thereof, after a period of twenty years except where they relate to information falling under clauses (a), (c) and (i) F of Section 8(1 ). In other words, Section 8(3) provides that any protection against disclosure that may be available, under clauses (b), (d) to (h) and (j) of section 8(1) would cease to be available after twenty years in regard to records which are required to be preserved for more than G twenty years. Where any record or information is required to be destroyed under the rules and regulations of a public authority prior to twenty Y,ears, Section 8(3) would not prevent destruction in accordance with the Rules. H 1044 SUPREME COURT REPORTS (2011] 11 S.C.R. A Section 8(3) of RTI Act is not therefore, a provision requiring all 'information' to be preserved and maintained for twenty years or more, nor does it override any rules or regulations governing the period for which the record, document or information is required to be preserved by B any public authority. [Para 30) [1085-A-G] C

5.5. The Act seeks to bring about a balance between two conflicting interests, as harmony between them is essential for preserving democracy. One is to bring about transparency and accountability by providing access to information under the control of public authorities. The other is to ensure that the revelation of information, in actual practice, does not conflict with other public interests which include efficient operation of the governments, optimum use of limited fiscal resources D and preservation of confidentiality of sensitive information. The preamble to the Act specifically states that the object of the Act is to harmonise these two conflicting interests. While Sections 3 and 4 seek to achieve the first objective, Sections 8, 9, 10 and 11 seek to achieve the second objective. Therefore, when Section 8 exempts certain information from being disclosed, it should not be considered to be a fetter on the right to information, but as an equally important provision protecting other public interests essential for the fulfilment and preservation of democratic ideals. [Para 33) [1089-F-H; 1090-A-C] F E

5.6. When trying to ensure that the right to information does not conflict with several other public interests (which includes efficient operations of the G governments, preservation of confidentiality of sensitive information, optimum use of limited fiscal resources, etc.), it is difficult to visualise and enumerate all types of information which require to be exempted from disclosure in public interest. The legislature has however H made an attempt to do so. The enumeration of CENTRAL BOARD OF SECONDARY EDUCATION v.1045 ADITYA BANDOPADHYAY exemptions is more exhaustive than the enumeration of A exemptions attempted in the earlier Act that is Section 8 of the Freedom to Information Act, 2002. The Courts and Information Commissions enforcing the provisions of RTI Act have to adopt a purposive construction, involving a reasonable and balanced approach which harmonises B the two objects of the Act, while interpreting Section 8 and the other provisions of the Act. [Para 34) [1090-D·F]

5.7. The RTI Act provides access to all information that is available and existing. This is clear from a C combined reading of Section 3 and the definitions of 'information' and 'right to information' under clauses (f) and (j) of Section 2 of the Act. If a public authority has any information in the form of data or analysed data, or abstracts, or statistics, an applicant may access such information, subject to the exemptions in Section 8 of the D Act. But where the information sought is not a part of the record of a public authority, and where such information is not required to be maintained under any law or the rules or regulations of the public authority, the Act does not cast an obligation upon the public authority, to collect E or collate such non-available information and then furnish it to an applicant. A public authority is also not required to furnish information which require drawing of inferences and/or making of assumptions. It is also not required to provide 'advice' or 'opinion' to an applicant, F nor required to obtain and furnish any 'opinion' or 'advice' to an applicant. The reference to 'opinion' or 'advice' in the definition of 'information' in Section 2(f) of the Act, only refers to such material available in the records of the public authority. Many public authorities G have, as a public relation exercise, provide advice, guidance and opinion to the citizens. But that is purely ·voluntary and should not be confused with any obligation under the RTI Act. [Para 35) [1090-G-H; 1091- A-C] H 1046 SU-PREME COURT REPORTS [2011) 11 S.C.R. A

5.8. Section 19(8) of RTI Act has entrusted the Central/State Information Commissions, with the power to require any public authority to take any such steps as may be necessary to secure the compliance with the provisions of the Act. Apart from the generality of the said B power, clause (a) of section 19(8) refers to six specific powers, to implement the provision of the Act. The power under Section 19(8) of the Act however does not extend to requiring a public authority to take any steps which are not required or contemplated to secure compliance with c the provisions of the Act or to issue directions beyond the provisions of the Act. The power under Section 19(8) of the Act is intended to be used by the Commissions to ensure compliance with the Act, in particular ensure that every public authority maintains its records duly catalogued and indexed in the manner and in the form which facilitates the right to information and ensure that the records are computerized, as required under clause (a) of Section 4(1) of the Act; and to ensure that the information enumerated in clauset. (b) and (c} of Sections 4(1) of the Act are published and disseminated, and are E periodically updated as provided in sub-Sections (3) and (4) of Section 4 of the Act. If the 'information' enumerated in clause (b) of Section 4(1) of the Act are effectively disseminated (by publications in print and on websites and other effective means}, apart from providing transparency and accountability, citizens will be able to access relevant information and avoid unnecessary applications for information under the Act. [Para 36] [1091- F-H; 1092-A-F] F 0 G H

5.9. The right to information is a cherished right. Information and right to information are intended to be formidable tools in the hands of responsible citizens to fight corruption and to bring in transparency and accountability. The provisions of RTI Act should be enforced strictly and all efforts should be made to bring to light the necessary information under clause (b) of CENTRAL BOARD OF SECONDARY EDUCATION v. 1047 ADITYA BANDOPADHYAY Section 4(1) which relates to securing transparency and A accountability in the working of public authorities and in discouraging corruption. But in regard to other information,(that is information other than those enumerated in Section 4(1)(b) and (c)), equal importance and emphasis are given to other public interests (like B confidentiality of sensitive information, fidelity and fiduciary relationships, efficient operation of governments, etc.). Indiscriminate and impractical demands or directions under RTI Act for disclosure of all and sundry information (unrelated to transparency and c accountability in the functioning of public authorities and eradication of corruption) would be counter-productive as it would adversely affect the efficiency of the administration and result in the executive getting bogged down with the non-productive work of collecting and D furnishing information. The Act should not be allowed to be misused or abused, to become a tool to obstruct the national development and integration, or to destroy the peace, tranquility and harmony among its citizens. Nor should it be converted into a tool of oppression or intimidation of honest officials striving to do their duty. E The threat of penalties under the RTI Act and the pressure of the authorities under the RTI Act should not lead to employees of a public authorities prioritising 'information furnishing', at the cost of their normal and regular duties. [Para 37) [1092-G-H; 1093-A-F] F