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Right to Information Act, 2005 - s.8(1)(d) - Examination of candidates for enrolment as Chartered Accountants - Examination held by appellant-lnstitute of Chartered Accountants of India (ICAI) - Whether the instructions and solutions to questions (if any) given by ICAI to examiners and moderators, are intellectual property of the ICAI, disclosure of which would harm the competitive position of third parties and therefore exempted under s. 8(1 )(d) of the RTI Act - Held: The question papers, solutions to questions and instructions are the intellectual properties of ICAI - However, what is exempted from disclosure at one point of time may cease to be exempted at a later point of time, depending upon the nature of exemption - The appellant examining body is not liable to give to any citizen any information relating to question papers. solutions/model answers and instructions relating to a particular examination before the date of such examination - But the position will be different once the examination is held - Disclosure of the question papers, model answers and instructions in regard to any particular examination, would not harm the competitive position of any third party once the examination is held - In fact the question papers are disclosed to everyone at the time of examination - The appellant voluntarily publishes the "suggested answers" in regard to the question papers in the form of a book for sale every year, after the examination - Therefore s.8(1)(d) of the RTI Act does not bar or prohibit the disclosure of question papers. model answers (solutions to questions) and A instructions if any given to the examiners and moderators · after the examination and after the evaluation of answer scripts is completed as at that stage they will not harm the competitive position of any third party.Right tb Information Act, 2005 - s.9 - Examination of candidates for enrolment as Chartered Accountants - Examination held by appellant-Institute of Chartered Accountants of India (ICAI) - Whether providing access to the information sought (that is instructions and solutions to questions issued by ICAI to examiners and moderators) would involve an infringement of the copyright and therefore the request for information is liable to be rejected under s.9 of the RT/ Act- Held: The word 'State' used in s.9 of RT/ Act refers -to the Central or State Government, Parliament or Legislature, of a State, or any local or other authorities as described under Article 12 of the Constitution - The reason for using the word 'State' and not 'public authority' in s.9 of RT/ Act is apparently because the definition of 'public authority' in the, Act is wider than the definition of 'State' in Article 12, and includes even non-government organizations financed directly or indirectly by funds provided by the appropriate government - An application for information would be rejected under s. 9 of RTI Act, only if information sought involves an infringement of copyright subsisting in a person other than the .State - ICAI being a statutory body created by the Chartered Accountants Act. 1948 is 'State' - The information sought is a material in which ICAI claims a copyright - It is not the case of ICAI that anyone else has a copyright in such material - In fact it has specifically pleaded that even if the question papers, solutions/model answers, or other instructions are prepared by any third patty for ICAI, the copyright therein is assigned in favour of ICAI - Providing access to information in respect of which ICAI holds a copyright, does not involve infringement of a copyright subsisting in a person other than the State - Therefore ICAI is not entitled to claim protection against disclosure under s. 9 of the RTI Act - There is yet another reason why s. 9 of RTI Act will be inapplicable - The words 'infringement of copyright' have a specific connotation - A combined reading of ss. 51 and 52(1)(a) of Copyright Act shows that furnishing of information by an examining body, in response to a query under the RTI Act may not be termed as an infringement of copyright.Right to Information Act, 2005 - s.8(1)(e) - Examination of candidates for enrolment as Chartered Accountants - Examination held by appellant-Institute of Chartered Accountants of India (ICAI) - Whether the instructions and solutions to questions are information made available to examiners and moderators in their fiduciary capacity and therefore exempted under s. 8(1 )(e) of the RTI Act - Held: The instructions and solutions to questions are given by the ICAI to the examiners and moderators to be held in confidence - The examiners and moderators are in the position of agents and ICAI is in the position of principal in regard to such information which ICAI gives to the examiners and moderators to achieve uniformity, consistency and exactness of evaluation of the answer scripts - When anything is given and taken in trust or in confidence, requiring or expecting secrecy and confidentiality to be maintained in that behalf. it is -held by the recipient in a fiduciary relationship - S. 8(1 )(e) uses the words "information available to a person in his fiduciary relationship - Significantly s. 8(1 )(e) does not use the words "information available to a public authority in its fiduciary relationship .. - The use of the words "person" shows that the holder of the information in a fiduciary relationship need not G only be a 'public authority' as the word 'person' is of much wider import than the word 'public authority' - Therefore the exemption under s.8(1)(e) is available not only in regard to information that is held by a public authority (in this case the examining body) in a fiduciary capacity, but also to any information that is given or made available by a public authority to anyone else for being held in a fiduciary A relationship - Consequently. the instructions and solutions to questions communicated by the examining body to the examiners. head examiners and moderators. are information available to such persons in their fiduciary relationship and therefore exempted from disclosure under s.8(1 )(d) of RTI ActRight to information Act. 2005 - s.4(1)(b) and (c) - Information to which RT/ Act applies - Two categories - A) Information which promotes transparency and accountability in the working of every public authority. disclosure of which helps in containing or discouraging corruption, enumerated in clauses (b) and (c) of s.4(1) of RTI Act; and B) other ·information held by public authorities not falling under s.4(1)(b) and (c) of RTI Act - Held: In regard to information falling under the first category, the public authorities owe a duty to disseminate the information Widely suo moto to the public so as to make it easily accessible to the public - But in regard to the second category, there is a need to proceed with circumspection as it is necessary to find out whether they are exempted from disclosure - In dealing with information not falling under s.4(t)(b) and (c). the competent authorities E under the RT/ Act will not read the exemptions in s. 8 in a restrictive manner but in a practical manner so that the other public interests are preserved and the RT/ Act attains a fine balance between its goal of attaining transparency of information and safeguarding the other public interests.Right to Information Act, 2005 - ss. 3, 4, 8, 9, 10 and 11 - Object of the RTI Act - Held: The object of RTI Act is to harmonize the conflicting public interests, that is, ensuring transparency to bring in accountability and containing corruption on the one hand, and at the same time ensure that the revelation of information. in actual practice, does not harm or adversely affect other public interests which include efficient functioning of the governments, optimum use of limited fiscal resources and. preservation of confidentiality of sensitive information, on the other hand - While ss. 3 and 4 seek to achieve the first objective, ss. 8, 9, 10 and 11 seek to achieve the second objective.Right to Information Act. 2005 - s. 8 - Categories of 8 information which are exempted from disclosure under s.8 - Held. Among the ten categories of information which are exempted from disclosure under s. 8 of RT/ Act, six categories which are described in clauses (a), ·{b), (c), (f), (g) and (h) carry absolute exemption - Information enumerated in clauses (d), (e) and (j) on the other hand get only conditional exemption, C that is the exemption is subject to the overriding power of the competent authority under the RTI Act in larger public interest, to direct disclosure of such information. The information referred to in clause (!) relates to an exemption for a specific period, with an obligation to make the said information public after such period. The information relating to intellectual property and the information available to persons in their fiduciary relationship, referred to in clauses (d) and (e) of s. 8(1) do not enjoy absolute exemption. Though exempted, ·if the competent authority under the Act is satisfied that larger public E interest warrants disclosure of such information, such information will have to be disclosed. The competent authority will have to record reasons for holding that an exempted information should be disclosed in larger public interest. In this case the Chief Information Commissioner rightly held that F the information sought under queries (3) and (5) were exempted under s. 8(1 )(e) and that there was no larger public interest requiring denial of the statutory exemption regarding such information. The High Court fell into an error in holding that the information sought under queries (3) and (5) was not G exemptedRight to Information Act, 2005 - Examination of candidates for enrolment as Chartered Accountants - Examination held by appellant-Institute of Chartered Accountants of India (ICAI) - Query of the first respondent required the appellant to disclose information on: (i) number of times ICAI had revised the marks of any candidate or any class of candidates under Regulation 39(2) of the Chartered Accountants Regulations; (ii) criteria used for exercising 'such discretion for revising the marks; (iii) quantum of such revisions; (iv) authority who decides the exercise of discretion a to make such revision; and (v) number of students (with particulars of quantum of revision) affected by such revision held in the last five examinations at all levels - Whether the High Court was justified in directing the appellant to furnish to the first respondent the five items of information sought (in c the query) - Held: Regulation 39(2) of the Chartered · Accountants Regulations provides for what is known as 'moderation' which is a necessary concomitant of evaluation process of answer scripts where a large number of examiners are engaged to evaluate a large number of answer scripts - Each examining body will have its own standards of 'moderation', drawn up with reference to its own experiences and the nature and scope of the examinations conducted by it - ICAI shall have to disclose the standards of moderation followed by it, if it has drawn up the same, in response to part (ii) of first respondent's query- In its communication, ICAI had informed the first respondent that under Regulation 39(2), its Examining Committee had the authority to revise the mark~ based on the findings of the Head Examiners and any incidental information in its knowledge - This answers part (iv) of query as to the authority which decides the exercise of the F discretion to make the _revision under Regulation 39(2) - As the information sought under parts (i), (iii) and (v) of the query are not maintained and is not available in the form of data with the appellant in its records, ICAI is not bound to furnish the same - Chartered Accountants Regulations, 1988 - Regulation 39(2). Right to Information Act, 2005 - Examination of candidates for enrolment as Chartered Accountants - Examination held by appellant-Institute of Chartered Accountants of India (ICAI) - Held: On facts, it cannot be said that first respondent had indulged in improper use of RTI Act - His application was intended to bring about transparency and accountability in the functioning of ICAI - However, how far he was entitled to the information was a different issue. Right to Information Act, 2005 - New regime of disclosure of maximum information - Duty of competent authorities under the RTI Act to maintain a proper balance - Held: Examining bodies like Institute of Chartered Accountants of C India (ICAI) should change their old mindsets and tune them to the new regime - Accountability and prevention of corruption is possible only through transparency - In its wisdom, the Parliament has chosen to exempt only certain categories of information from disclosure and certain organizations from the applicability of the Act - As the examining bodies have not been exempted, and as the examination processes of examining bodies have not been exempted, the examining bodies will have to gear themselves to comply with the provisions of the RTI Act - Additional workload is not a defence - If there are practical insurmountable difficulties, it is open to the examining bodies to bring them to the notice of the government for consideration so that any changes to the Act can be deliberated upon - However, it is necessary to make a distinction in regard to information intended to bring transparency, to improve accountability and to reduce corruption, falling under s.4(1)(b) and (c) and other information which may not have a bearing on accountability or reducing corruption - The competent authorities under the RTI Act will have to maintain a proper balance so that while achieving transparency, the demand for information does not reach unmanageable proportions affecting other public interests, which include efficient operation of public authorities and government, preservation of confidentiality of sensitive information and optimum use of limited fiscal resources. Words and Phrases - Term 'intellectual property' - A Meaning of. |
