Right to Information Act, 2005 — Section 8(1)(e) — Examinations

August 2nd, 2013

Right to Information Act, 2005 — Section 8(1)(e) — Examinations — Denial of information on ground of fiduciary relationship with interest of examinee — Examining body is in fiduciary relationship with an examinee in very wide sense but not under Section 8(1)(e) RTI Act not in a fiduciary relationship either with reference to the examinee who participates in the examination and whose answer-books are evaluated by the examining body — Examinee seeks information not with regard to his writings but with regard to marks awarded by examiner to him, hence exemption under section 8(1)(e) is not available to the examining bodies.

HELD: In a philosophical and very wide sense, examining bodies can be said to act in a fiduciary 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 to the future generation while preserving the 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 – a trustee with reference to the beneficiary of the trust, a guardian with reference to a minor/physically/infirm/mentally challenged, a parent with reference to a child, a lawyer or a chartered accountant with reference to a client, a doctor or nurse with reference to a patient, an agent with reference to a principal, a partner with reference to another partner, a director of a company with reference to a share-holder, an executor with reference to a legatee, a receiver with reference to the parties to a lis, an employer with reference to the confidential information relating to the employee, and an employee with reference to business dealings/transaction of the employer. We do not find that kind of fiduciary relationship between the examining body and the examinee, with reference to the evaluated answer-books, that come into the custody of the examining body.

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 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 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 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 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 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 examinee actually wants to know is the break-up of marks given to him, that is how many marks were given by the examiner to each of his answers so that he can assess how is 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 answer book but in regard to the evaluation by the examiner.

Central Board of Secondary Education v. Aditya Bandopadhyay[Bench Strength 2], Civil Appeal No. 6454/2011 (Arising out of SLP (C) No. 7526/2009](09/08/2011), 2011(4) SCV(Civil) 337: 2011(8) SCC 497: 2011(9) JT 212: 2011(8) SCALE 645: 2011(6) SLT 282 [R.V. Raveendran, J.: A.K. Patnaik, J.]

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