File notings of confidential files are exempt from disclosure under RTI

[kushal]

In the judgment F.No.CIC/AT/A/2006/00296 Dated, the 20th November, 2006. Shri A.P. Sharma Vs Cdr-At-Arms S.K.Gupta, CPIO (Navy), Integrated Headquarters, Ministry of Defence (N) it was decided that the file notings of the confidential files are exempt under Right to Information Act.

The abstract of the decision is quoted here:

File notings in general and in a confidential file in particular are very different from the other sections / parts of the files. These are a form of dialectics between those writing the notes, the underpinning of which is a certain trust that their contents shall not be ordinarily disclosed. If it were to be known that the file notings would be subject to disclosure, those writing these notes would have chosen to write the notes differently or chosen other means of communicating their views to the next superior or to the authority competent to take decision. Trust and a certain confidence in itsconfidentiality is, thus, the very crux of the architecture of the file noting.

That said, it is also necessary to differentiate between files classified as confidential and those not so classified. Arguably in the case of an unclassified file, those recording the notes are aware that the entire file can one day be called into the public domain, or at-least, that people not otherwise authorized to have access to a file may, under certain circumstances, gain access to its contents. This is what distinguishes a classified file from an unclassified one and, supports a theoretical assumption that in respect of the notings in both these genres of files, the approach of those writing the notes can be significantly different. In case of an unclassified file the employee of a public authority records his notes with full knowledge that these could be accessed at some stage by a larger number of entities, and may even find its way into the public domain under certain given circumstances. It should therefore be assumed that the nature and the character of the fiduciary relationship between the person writing the note and the persons in the chain of command to whom the note is submitted for a decision, is markedly different in case of an unclassified file from a classified one.

On the other hand, in the case of a file classified as confidential / secret or top secret, the fiduciary relationship between officers is underpinned by a certain trust as well as a certain confidence that its contents shall not be accessed by anyone not authorized to access them. Rules even provide punishment for possession of documents of classified files by unauthorized entities. The trust that characterizes file notings in confidential files is thus qualitatively different. The information contained in the notings of such classified files is given by the officer, who is also the third party, in “confidence” as described under Section 11(1) of the RTI Act.

It is, therefore, my considered view that the file-notings in the case of files classified as confidential attract the exemption of Section 8(1)(j); and if in a given case it is decided to disclose notings of a confidential file, it has to be done only in terms of Section 11(1) of the RTI Act.

[brijeshbhatt]

I think social, civil & development Deptt. should not be allowed to take advantage of this Judgement. As far as defence, national securtiy is concerned this judgement is in interst of country.