Can I have my answer papers, please?
In two recent rulings, the Central Information Commission rejected candidates' requests asking to see their own assessed answer sheets. One of the CIC's arguments was that the examining authority and the evaluator had a fiduciary relationship and thereby qualified for exemption. Prakash Kardaley wonders if the CIC went too far.
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.
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.
Filed under
Cite this article
Prakash Kardaley (2006) ‘Can I have my answer papers, please?’, India Together, 23 February 2006. https://indiatogether.org/answers-rti/
13 reader responses
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sarbajit roy · 3 March 2006
Dear Mr. Kardaley, This refers to your article on exam sheets. I have filed a formal "3rd appeal" to the CIC asking this decision in Treesa Irish to be re-examined as it is patently bad in law / per incuram and non-binding precedent, since the valid exemption under 8(1)(d) was not considered, and that 8(1)(e) and 8(1)(h) are inapplicable. Sarbajit Roy - Delhi
Prakash Kardaley · 4 March 2006
I presume, what you mean by a 'third appeal' with the CIC is actually a protest which many activists have already lodged. You agree with me that the exemptions relating to fiduciary relationship and personal information do not apply in this case, but at the same time you seem to suggest that exemption 8(d) applies: That exemption reads: (d) information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information; Do you think, prima facie, even this applies? I doubt.
Ramkumar S · 11 March 2006
I am not even sure whether the right to information act applies in this particular case of two people. If the candidate feels the examiner may have made mistakes in evaluating her papers resulting in her being unsuccessful in getting the promotion is a accountability issue. The government should sufficiently protect the candidate by ways of allowing it to be re-evaluated by a neutral party and or show her the paper for a certain price. The question of right to information doesn't arise at all here. Typically answer sheets are given when you are in school or colleges etc, only in public examinations the answer sheets are not given, but with the attitude of examiners themselves not to expose a fellow examiner even if they know that the paper was mistakenly evaluated and things like that spoils the future of the candiate and effectively seals justice in this case as well. The fiduciary role of examiner/examinee is rubbish and has no locus standi at all. Examiner and Examinee are all accuntable and responsbile for their work. The government/system to put proper checks and balances in place to avoid any mistakes and in the event of a complaint by the candidate it shoudl show the paper to the candidate for a fee and if the mistake is on the government/system part they should re-imburse the candidate the cost of such request and also the government/system should be assessed an additional punitive damages to be awarded to the candidate.
sarbajit roy · 16 March 2006
Mr.Kardaley, I have filed a formal 3rd Appeal to the CIC. You will appreciate that even decisions of the CIC are appealable, firstly to a larger bench of the CIC, and elsewhere thereafter. I am of the opinion that 8(1)(d) exemption was clearly available to the PIO. It is most distressing that parties were not called for a hearing in this matter and matter was decided 'in absentia'. You may kindly read 8(1)(d) exemption carefully - it is not restricted to commercial matters or trade secrets. This exemption 8(1)(d) is necessary to harmonise the RTI ACT with the Constitution. I may also add here, that I am not an RTI activist. I am concerned that the letter of the RTI ACT is strictly followed - the spirit shall follow later. Warm Regards Sarbajit Roy
Prakash Kardaley · 21 March 2006
Offering a combined response to posts by Ramkumar S and rejoinder by Sarbajit Roy. Ramkumar is not sure if the RTI Act applies to demanding a copy of the answer sheets or not. An examining body is a public authority. An answer sheet is a document in its possession. Any citizen can demand any document with any public authority under the RTI. So one can demand answer sheets under the RTI. Yet, the right to information has a limitation. The information (demanded in the form of a document) should not fall under any exemption listed in the Act. It should be noted that the Central Commission could not say that RTI Act did not apply to answer sheets. It had to awkwardly invent some exclusion that Ramkumar has rightly 'rubbished'. Bureaucrats had said privately that if answer sheets are given under the RTI Act, there would be thousands of requisitions and neither public authorities nor the info commission would be able to cope with that number. So that is the worry. Prima facie, it may be valid. The Hindustan Times articles indicate the mind of the bureaucrats. They are already thinking of amending the Act to somehow exclude examining bodies from the purview of the RTI Act. They will never succeed anyway. But as long as examining bodies are not excluded, the commission cannot be pardoned for citing an exemption without adequate application of mind and making a travesty of the law. Sarbajit Roy insists that exclusion 8 (1) (d) applies to answer sheets: "information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information;" I insist that this exclusion cannot even remotely apply if someone is demanding ones own answer sheet under the RTI Act. By the way, even the central commission did not cite this in rejecting Trishas appeal. As regards the 'third' appeal, there is no provision in the Act. Mr Roy may like to check. Requisitioners have been asking for reviews and the central commission has on a few occasions agreed to have a review. That is in good faith. Anyway, that is besides the main theme of the discussion here.
Sarbajit Roy · 31 March 2006
I am commenting on certain responses of Mr.Kardaley. It is clear that disclosing answer scripts to candidates may affect the ranking order of OTHER candidates in the examination - and hence the competitive positions of those other candidates is likely to be affected. All these other candidates are to be considered as "protected interests" under section 8 of the RTI ACT and every PIO is bound to protect their interests also. Therefore, the PIO concerned while rejecting Ms. Irish's request had (properly) requested Ms. Irish to establish her "public interest" if any. Ms. Irish never did so all the way upto the 2nd Appeal stage, whilst instead mischievously attributing malafides to a rather decent and proactive PIO who wanted to help her. It was only after losing in the 2nd Appeal also that Ms. Irish has belatedly discovered the ingredient of "public interest" for disclosure of information in her case and has hence gone to the authority "competent" to establish her public interest, if any - which BTW the CIC is not. The factum of asking for one's own exam paper is irrelevant to 8(1)(d), although perhaps it is relevant to 8(1)(e) and 8(1)(j). I have already stated that I also feel that these 2 exemptions cited are wrong, though not for the reasons Mr.Kardaley has used in his article. The PIO as well as First Appellate had clearly alluded to 8(1)(d) as the exemption they were relying upon. The CIC was definitely wrong not to give an opportunity to all parties to be heard in person - where this ground would have come out. There is also a very clear provision in the RTI Act for a further appeal of the CIC's order. There is, however, no such explicit provision for a "review" in RTI ACT regardless of what Mr.Kardaley thinks. Sarbajit Roy
Vishal Kudchadkar · 31 March 2006
Dear Roy sir, I am sure the "competiveness" in exclusion 8 (1) (d) that the Act talks about and the PIO is supposed to protect is fair and legal competitiveness. I dont think the competitive edge that others gain as a fallout of an examiners incompetency is meant or should be protected by the PIO. It is unfortunate and disappointing when meanings of words are stretched and twisted to serve a myopic viewpoint.
Sarbajit Roy · 4 April 2006
Dear v_kudz Surely I am not the myopic one twisting and stretching words. I am not the one presuming (without any apparent basis) that the examiners were incompetent in Ms. Irish's case. If it was the intention of the legislature to give the CIC powers to determine public interest for 8(1)(d) exemption they would have done so. Since Parliament has not, well then Ms. Irish is now in the right place under the RTI ACT 2(e)(iii) to do so - viz. the Kerala High Court.
Vishal Kudchadkar · 6 April 2006
Dear Roy sir, Section 8(1)(d) provides for the competent authority to determine and apply public interest. In this case the competent authority did not do so (the public interest is obvious in this case) and the CIC is empowered to ensure that the competent authority follows the Act in letter and spirit. Hence I believe the CIC is also empowered to determine public interest but unfortunately chose not to. Please note that my last statement in my previous post wasn't aimed at you.
sarbajit roy · 11 April 2006
Hi v_kudz, 1) I dont take these things personally. 2) Please see the definition of "competent authority". The poor CIC has no control or power over them. 3) As someone who has filed many PILs before competent authority, I am unable to see any obvious 'public interest' in Ms. Irish's case. 4) CIC is not empowered to determine 'public interest' for 8(1)(d) - only for 8(1)(j)!!! 5) CIC is only empowered for section 27 appeals. There is no similar 2nd appeal procedure for Competent Authority u/s 28. So please read the RTI ACT carefully. I am always open to correction - and I respect your efforts in this. Sarbajit
pranav · 15 May 2006
Sir, Atleast the procedure of selection should be disclosed in UPSC exam.There are n numbers of guesses.Some used to say that scaling method exists in UPSC due to which some subjects are doing well(mainly Pub Ad and other nonscience subjects) while technical sujects have low selection ratio.Being a ICS aspirant I want CIC should help out to provide information about selection procedure so that subjects can be chosen accordingly.
saurabh singh · 27 November 2006
This is the really good question asked,this will verify our right to information act&gives more detailled way to use the RTI ACT.I hope this will be helpful to more & more students in future
Eshita · 9 April 2007
sir, i would like to know whether a third appeal can lie to the cic after the second appeal has been dismissed by the cic, under S.18. There is no provision for a third appeal under rti act but it has not been specifically mentioned in the act either. so what is to be perceived and understood? thanking you.