Two recent rulings of the Central Information Commission in denying access to candidates under the Right to Information Act to their own assessed answer sheets have ominous ramifications.

While rejecting the final appeals, one by Treesa Irish, a postwoman in Trivandrum and another by D S Meena on February 6 and 10 respectively, Information Commissioner Padma Balasubramanian applied exclusion provisions of the RTI Act 8(1)(e) and (j) in both cases. Section 8(1)(e) is an exemption on releasing information available to a person in a fiduciary relationship and 8(1)(j) is an exemption on disclosure of personal information "which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual."

The exclusion provisions

RTI Act, Section 8(1)

Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,-

(e) information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information;

(j) 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.

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Treesa Irish is a postwoman in a post office in Ernakulam, Kerala. She appeared for a departmental examination in April 2005 to be considered promotion. Neither she nor others from the Ernakulam Division were successful. She requested for her mark sheet and was denied. D S Meena is a stores superintendent in the North Western Railways. He had applied in October 2005 asking for copies of his answer booklet and those of successful candidates pertaining to a selection examination held in July 2005. Meena had also asked for the answer key.

"It is true that there is no provision in Section 8 of the Act specifically exempting disclosure of information relating to examination papers," said Commissioner Balasubramanian in the rulings, "... when answer papers are evaluated, the authority conducting the examination and the examiners evaluating the answer papers stand in a fiduciary relationship between each other. Such a relationship warrants maintenance of confidentiality by both of the manner and method of evaluation."

The commissioner goes on to argue further: "In addition, when a candidate seeks for a copy of the evaluated answer paper, either of his/her own or others, it is purely a personal information, the disclosure of which has no relation to any public interest or activity ..."

There may be larger and more serious ramifications of the ruling and the arguments of the commissioner.

Can examiners be considered to have a fiduciary relationship with the body conducting the examination at all? This is debatable. It can equally be argued that examining after all is an assignment, and if the examining body, as the public authority, is accountable under the RTI Act, so must be the people who carry out its assignment.

Further, can the information commissioner call the relationship between the government and its officers 'fiduciary' and blackout all queries under the RTI Act? Can access to file noting be denied under the RTI because, after all, the officer has noted his opinion in 'fiduciary relationship' with the government?

Very worrisome is the observation of the commissioner that the assessed answer sheet cannot be handed over to the candidate because "it is purely a personal information, the disclosure of which has no relation to any public interest or activity ..." Examiners undertake the task of evaluating papers and are to scrupulously follow norms laid down by the examining authority. How do candidates protect themselves against whims, fancies, prejudices and eccentricities of examiners, especially if the examining authority is unwilling to release evaluated sheets? How can the examiner then escape the accountability criterion?

Even here, whether internal safeguards to protect candidates against examiner excesses exist or not is immaterial. Answer sheets must be disclosed under the RTI law. Likewise, whether Treesa Irish or any other candidate may have had any ground to suspect wrongdoing is not the issue. The RTI Act explicitly says that no requisitioner can be asked the purpose of seeking the information. Irish demanded to have copy of her own answer sheet and it has to be given.

There's more. The exclusion 8(1)(j) applies to unwarranted invasion of privacy of somebody else. It is true that Meena applied for evaluated answer sheets of other successful candidates, but she also asked for her own. Irish demanded to see her own answer paper, not someone else's. It appears the candidate is invading his/her own privacy! The commission has unilaterally applied the privacy clause on the request for one's own answer sheet and for others' answer sheets, together.

Does this mean that I cannot demand to know from my civic body how the norms for assessing my own property have been applied in levying me the property tax demanded from me? Or, how has the electricity board arrived at the figure of my own power consumption?

There is now reason to worry that public information officers may start taking advantage of this questionable ruling by the commission and start rejecting all queries on personal matters between citizens and public authorities.

Has the information commissioner over-stepped the letter and spirit of the RTI Act perhaps in her enthusiasm to ensure that the "demands of transparency do not compromise on the integrity of examinations"? One does not know. But a news item published by Hindustan Times on February 14, without quoting any source, makes for serious reading.

"The government is considering a proposal to make an exception for examination bodies like the UPSC and the CBSE under the right to information law to the extent that demands of transparency do not compromise on the integrity of examinations," the item tells us. "A decision is yet to be taken but the government is veering round to the view that the demand for a partial exemption might not be out of place. If the proposal gets through, an official said, "It would cover all public examinations including entrance and recruitment examinations."

The HT article then goes on to report the CIC's decision on the Treesa Irish and D S Meena cases. Quote:

    The RTI does not provide a blanket exemption to any organisation, not even security and intelligence organisations. Public examination bodies, however, can expect a more favourable treatment. The Central Information Commission recently rejected a couple of requests for evaluated answer scripts in departmental promotion examinations.

    Till the proposed changes come through, officials suggest that bodies like the CBSE and UPSC were free to reject information requests - to know the names of examiners or those who set question papers — that could impact confidentiality and integrity of the examinations.

    There may be merit in the argument that examination bodies should be more transparent, an official said, but this should not be imposed on them.

    It should come from within and in measured steps," he said. Education boards in several states like Kerala, Karnataka, Andhra Pradesh and Goa already have procedures in place to inspect or take home a copy of their evaluated answer scripts for a price." ( Unquote)

The rulings

The text of the rulings in the Treesa Irish and D S Meena cases are available on website of the Central Information Commission.

 •  Treesa Irish decision
 •  D S Meena decision
Nobody can demand to know who the evaluator was. But should the entire examining process itself be under wraps of secrecy? Public education authorities may take suitable administrative measures to protect the identity of an examiner, but the argument of the central information commission applying the 'fiduciary' and 'privacy' exclusions to requests for copies of evaluated answer papers cannot be the last word on the matter.

Finally, if the government is contemplating to exclude all bodies conducting public examinations from the purview of the RTI Act, it must be noted that an amendment to the Act will have to be piloted in the Parliament. The government cannot include such bodies in the second schedule of the Act by a mere administrative order because that schedule is exclusively for intelligence and security organisations.