RTI Judgement Series
RTI Judgement Series: Information provided by individuals in fulfilment of statutory requirements not exempted under Section 8 (1)(j)

Information provided by an individual in fulfilment of statutory requirements is neither covered by the exemption under Section 8 (1)(j) of the RTI Act nor can it be called an unwarranted invasion of his privacy. This is the 39th in a series of important judgements given by former Central Information Commissioner Shailesh Gandhi that can be used or quoted in an RTI application

The Central Information Commission (CIC), said that given our dismal record of mis-governance and rampant corruption which colludes to deny citizens their essential rights and dignity, it is in the fitness of things that the citizen's right to information is given greater primacy with regard to privacy. Hence, information provided by individuals in fulfilment of statutory requirements will not be covered by the exemption under Section 8 (1)(j). While giving this important judgement, Shailesh Gandhi, former Central Information Commissioner, said even if any of the exemption clauses of Section 8 (1) of the Right to Information (RTI) Act were applicable, it certainly serves a larger public interest, if tax evasion is curbed.

 

Allowing the appeal, the CIC in its order issued on 14 December 2009, said, “The onus to prove that a denial of information was justified is on the Public Information Officer (PIO) as per Section 19(5) of the RTI Act. Though it is not necessary, the appellant has also shown that a larger public interest of increasing public revenue and reducing corruption may be served by disclosure of the information, which would outweigh any harm to any protected interest.”

 

Delhi resident Rakesh Kumar Gupta sought information from the Commissioner of Income Tax about assessment records of Escorts, Rajan Nanda, Escorts Heart Institute & Research Centre, Dr Naresh Trehan, Big Apple Clothing Pvt Ltd and AAA Portfolio Pvt Ltd. Here are the specifics of information sought by him on 14 January 2009 from the PIO...

 

All records available with the Income Tax Department including assessment records of all the levels with regard to:

1.       Escorts Limited (assessment year-AY) (1998-99 to 2005-2006)

2.       Mr Rajan Nanda AY (1998-99 to 2005-2006)

3.       Escorts Heart Institute & Research Centre (EHIRC), Chandigarh (Society) AY (2001-2002)

4.       Escorts Heart Institute & Research Centre, Delhi (Society) AY (1998-99 to 2001-2002)

5.       Dr Naresh Trehan AY (1998-99 to 2005-2006)

6.       Escorts Heart Institute & Research Centre Ltd Chandigarh AY (2000-2001 to 2005-2006)

7.       Big Apple Clothing (P) Ltd AY (1998-99 to 2005-2006)

8.       AAA Portfolio (P) Ltd (1998-99 to 2005-2006)

Required:

1.       Inspection of all records in above respect.

2.       Kindly provide the copies of documents mentioned at the time of inspection.

3.       Kindly provide the officers (from assessing officers to CCIT), who are the officers to take action on “Tax Evasion Petition” given by me from 01/08/2008 till date.

 

The PIO in his reply stated that as the information related to third parties, they were sent notices. “All the third parties, in their reply to the notice objected strongly against the inspection as well as disclosure of information relating to their income tax records. Third parties submitted that the information sought included certain personal documents and details which were part of the Income Tax proceedings and if these details were released, they might have potential to expose the assessee to grave danger from unscrupulous and criminal elements,” he said.

 

According to the PIO, the applicant (Gupta) was not able to substantiate as to what is the overriding public interest in disclosing the information relating to third parties and unless the case of public interest is established, the disclosure would lead to an invasion of privacy of the assessees.

 

With the PIO’s refusal to grant information, Gupta then filed his first appeal. The First Appellate Authority (FAA) while upholding the PIO's reasons for refusal to grant the information rejected the appeal. With regards to supply of copies of tax evasion petition (TEPs), the FAA directed the PIO to supply copies along with the action taken thereon.

 

Gupta said, the information he received from the PIO did not state as to what has been done by the I-T Department on the TEP given by others. He also stated that various TEPs related to Escorts, Rajan Nanda and others were not provided to him. Gupta then approached the CIC with his second appeal.

 

During a hearing on 18 August 2009, the PIO stated that he was not prepared for the hearing. The Commission also felt that since third parties have objected they should be heard. The Commission decided to adjourn the matter and also asked the respondent to serve the notice on all the third parties and give them copies of all the documents. The hearing was then adjourned to 18th September.

 

During the hearing on 18 September 2009, PR Rajhans, representative of Dr Naresh Trehan stated that “Disclosure of information to any third party amounts to invasion of privacy as these are personal information furnished to income tax department in course of assessments”.

 

The PIO stated that “All the assessments were completed on the basis of the information forwarded by the investigation wing and also based on the information claimed to be furnished by the appellant (Gupta) and all these assessments were challenged by the third parties and were pending before different appellate authorities. Logically no investigation could be said to be complete unless it has reached a point where the final decision on the basis of that investigation is taken. In this context the progress of assessments are therefore exempt from disclosure under Section 8(1)(h).”

 

When Mr Gandhi, the CIC asked the PIO to give reasons as to how Section 8(1)(h) applies in this case, the PIO stated that “one assessment in the case of EHIRC, Chandigarh Society for the AY 2001-2002 was restored back to an assessing officer by the I-T Appellate Tribunal (ITAT) Chandigarh. Because it is in the initial stages it would impede the process of investigation”. He did not give any explanation how the investigation would be impeded but further claimed exemption under Section 8(1)(e) and (j) of the RTI Act.

 

Gupta stated that Section 8(1)(j) cannot apply to legal entities and corporates and only applies to individuals. He further stated that Dr Trehan's assessment was revised upwards by Rs14.7 crore at the CIT (Appeal). This was based on information received from an RTI application. The CIT (Appeal) has confirmed the addition of Rs14.7 crore over and above the returned income. But ITAT had restored back the issue to the assessing officer to reassess the income. He also alleged that this addition of Rs14.7 crore was only of book value which only about 20% of the market value.

 

Asking all parties to send submissions by 23rd September, the CIC adjourned the hearing.

 

During the hearing on 14 December 2009, the Commission said it received submissions from all parties involved in the case. After perusing the submissions, the Commission said the I-T department and third parties have claimed exemption under Section 8(1)(b), (d), (e), (h), and (j) of the RTI Act. According to the RTI Act, if the information as defined under Section 2(f) is not exempt from disclosure under Section 8(1) or 9 of the Act, and is held by a public authority as defined under 2 (h), it has to be disclosed, the CIC noted.

 

It said, citizen's right to information can only be restricted, if the disclosure is exempt under Section 8 (1) of RTI Act, 2005.

 

Section 8(1) (b) of the Act provides-

8.       (1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,-

(b) information which has been expressly forbidden to be published by any court of law or tribunal or the disclosure of which may constitute contempt of court;

 

Four third parties relied on an earlier order of the Commission dated 18 September 2007 in Appeal No CIC/AT/A/2006/00586 to claim that information should not be disclosed to the Appellant. In its earlier order the Commission had referred the matter back to the FAA on the ground that a determination had to be made whether the tribunal had expressly forbidden the disclosure of information or not. In the present case the Department and the third parties have not established before the Commission that there exists an order of any Court or tribunal which forbids the disclosure of the information that has been sought by the Appellant, Mr Gandhi, the CIC noted.

 

He said, “Since no evidence has been shown that the disclosure of the exemption has been expressly forbidden by any court of law or tribunal, there appears to be no ground for claiming exemption under Section 8 (1) (b).”

 

Section 8(1) (d) of the Act provides-

8.       (1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,-

(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;

 

The Commission said, the year for which information is sought relates to AY 2005-2006 i.e. financial year ending 2005. “It is extremely unlikely that there would be any information relating to 2005, which if revealed in 2009 could harm the competitive position of any of the third parties. No arguments have been advanced even to justify that the information is one where 'commercial confidence, trade secrets or intellectual property' will get disclosed. In view of this the claim for this exemption has been made without any grounds,” it said.

 

Section 8(1)(e) of the Act provides-

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;

 

The I-T department and all the third parties relied on this ground of exemption. For Section 8(1)(e) of the RTI Act to apply there must be a fiduciary relationship and holder of information must hold the information in his fiduciary capacity.

 

Mr Gandhi noted that an equally important characteristic for the relationship to qualify as a fiduciary relationship is that the provider of information gives the information for using it for the benefit of the giver. All relationships usually have an element of trust, but all of them cannot be classified as fiduciary, he said.

 

“In the present case, the information that the appellant is seeking is information which the Department has received from members of the public as a result of their statutory obligation to file tax returns. In fact, as there is a legal obligation to file these returns, members of the public have no choice with regard to the disclosure of this information to the Department. As the Department cannot be considered to be holding the information in a fiduciary capacity, information sought by the Appellant, therefore, cannot be denied on this ground,” the Commission said.

 

Section 8(1)(h) of the Act provides-

8.       (1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,-

(h) information which would impede the process of investigation or apprehension or prosecution of offenders;

 

Dr Trehan, one of the third parties, and the I-T department relied on this ground of exemption. Both parties stated that as the process of assessment has not been finalized till date and investigation is still underway, exemption under Section 8(1)(h) applies.

 

Mr Gandhi, the CIC, said, the mere fact that an investigation is underway and that assessment has not been finalized is not a sufficient ground for the application of Section 8(1)(h).

 

The Delhi High Court has held in the Bhagat Singh vs CIC and Ors. WP (C) No. 3114/2007 that-

 

          “It is apparent that the mere existence of an investigation process cannot be a ground for refusal of the information; the authority withholding information must show satisfactory reasons as to why the release of such information would hamper the investigation process. Such reasons should be germane, and the opinion of the process being hampered should be reasonable and based on some material. Sans this consideration, Section 8(1)(h) and other such provisions would become the haven for dodging demands for information.”

 

The PIO contended that logically no investigation could be said to be complete unless it has reached a point where the final decision on the basis of that investigation is taken.

 

Mr Gandhi noted that neither party was able to establish before the Commission how the disclosure of information to the Appellant would impede the process of investigation. “Therefore, Section 8(1)(h) cannot be applied in the present case to claim exemption from disclosure of information,” he said.

 

Section 8(1) (j) of the Act provides-

8.       (1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,-

(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:

Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person.

 

The final exemption claimed by the I-T department, Dr Trehan and three other third parties, EHIRC-Chandigarh, EHIRC-Delhi and EHIRC was under the Section 8(1)(j) of the RTI Act.

 

Section 8(1)(j) is with regard to personal information and therefore it can only be claimed by natural persons and not by corporate entities. “Section 8(1)(j) cannot be applied when the information concerns institutions, organisations or corporates. Therefore, the Commission is of the opinion that Section 8(1)(j) cannot be relied on by these three third parties as they are not natural persons,” the CIC said.

 

Rajhans, the representative of Dr Trehan, alleged that the information being sought with ill will and malice, with the motive to harass and blackmail the assessee. “Furthermore, the appellant (Gupta) is likely to misuse the information and could endanger the life and property of the assessee if the information goes in the hands of unsocial elements. There is no larger public interest served in disclosing this information to the appellant,” Rajhans alleged.

 

The CIC considered the submissions made by both, the representative of Dr Trehan and Gupta. It said to quality for the exemption, claimed by Dr Trehan, the information must satisfy following criteria...

 

                1.      It must be personal information.

CIC- There is no doubt that information with regard to Dr Naresh Trehan is personal information.

 

2.      It must not have been disclosed to the public authority as part of a public activity

CIC- Information provided by an assessee to the I-T department for purposes of income tax assessment is information disclosed in relation to a public activity and therefore, this part of Section 8(1)(j) is inapplicable in the present case.

 

3.      The disclosure of the information would lead to unwarranted invasion of the privacy of the individual.

CIC- The concept of ‘privacy’ is a cultural notion, related to social norms, and different societies would look at these differently. Therefore referring to laws of other countries to define ‘privacy’ cannot be considered a valid exercise to constrain the Citizen's fundamental Right to Information in India.

 

“Where the State routinely obtains information from the citizens, this information is in relationship to a public activity and will not be an intrusion on privacy. As this information has been provided by the assessee to meet his legal obligations, there is no unwarranted invasion of his privacy by the state. Therefore, the disclosure of the same information to another person cannot be construed as being an unwarranted invasion of the privacy of the individual,” Mr Gandhi said.

 

The Commission noted that during the hearing and through submissions it had come out that Gupta was the informer of the I-T department. Escorts also raised the matter in its written submissions of 17 September 2009, and asked the Commission to decide “Whether an informer of the I-T department can seek information in respect of the records of a third party for an ulterior motive?”

 

Gupta, then gave a list of additions made by various tax evasion officers relating to the information being sought by him:
 

Escorts Ltd –Page k-5 & k-7

 

A Y 2001-2

 

Amount in Rs crore

Addition Income ( Tax evasions)   by Assessing Officer

106.94

On Hospital theft case only

88.11

On Hospital theft case confirmed by CIT (A)

86.40

ITAT had reduce hospital theft case amount

Zero

 

Rajan Nanda - Page K-12 of Letter dated 22/9/2009

         

 

A Y 2003-4

 

Amount in Rs crore

Addition Income ( Tax evasions)   by Assessing Officer

8.05

Addition Income ( Tax evasions)  confirmed by CIT (A)

8.05

Addition Income ( Tax evasions) confirmed by ITAT

0.35

 

Escorts Heart Institute & Research Centre, Chandigarh Page k -10

Escorts Heart Institute & Research Centre, Chandigarh (Society)- Page K 12

 

 

A Y 2001-2

 

Amount in Rs crore

Addition Income ( Tax evasions)   by Assessing Officer

154.34

Addition Income ( Tax evasions)  confirmed by CIT (A)

149.08

(ITAT had remanded back case to Assessing officer to reassess tax evasion)

 

Escorts Heart Institute & Research Centre Ltd, Chandigarh Page K-11 of Letter dt 22/9/2009

         

 

Amount in Rs crore

         A Y 2003-4

Addition Income ( Tax evasions)  by Assessing Officer

100.68

Addition Income ( Tax evasions)  confirmed by CIT (A)

0.13

(No appeal by assesee and income tax department)

 

 

Escorts Heart Institute & Research Centre, Delhi ( Society)

 

 

A Y 2001-2

 

Amount in Crore

Addition Income ( Tax evasions)   by Assessing Officer

156.44

( Further Proceeding are stayed by Delhi High Court

 

Vide WP ( C ) 11909/2005 on assesee appeal.)

 

 

 

Dr Naresh Trehan Page K-9 of Letter dated 22/9/2009

         

 

A Y 2001-2

 

Amount in Rs crore

Addition Income ( Tax evasions)   by Assessing Officer

10.08

Addition Income ( Tax evasions)  confirmed by CIT (A)

14.7

(ITAT  had remanded back case to Assessing officer to reassess tax evasion)

 

 

Big Apple Clothing (P) Ltd Page K-13  of Letter dated 22/9/2009

 

         

A Y 2001-2

 

Amount in Rs crore

Addition Income ( Tax evasions)   by Assessing Officer

6.44

Addition Income ( Tax evasions)  confirmed by CIT (A)

7.35

( appeal pending with ITAT)

 

AAA Portfolio (P) Ltd Page K-14  of Letter dated 22/9/2009

         

 

       A Y 2001-2

 

Amount in Rs crore

Addition Income ( Tax evasions)   by Assessing Officer

8.5

Addition Income ( Tax evasions)  confirmed by ITAT

6.81

 

Gupta, during the hearing also pointed out that Assessing Officers (AOs) have added hundreds of crores as additional income and CIT (A) has also confirmed some of them. He feared that a lot of alleged tax evasion would go unpunished leading to a loss of revenue and perhaps his reward money.

 

The Commission noted that it has been statutorily provided that informers to the I-T department would be rewarded and hence the State has recognized that the informer, who gives information about tax evasion, is valued and needs to be rewarded to motivate and recognize the contribution of the informer.

 

“....if the appellant is assisting the I-T department by bringing instances of tax evasion to its notice, and if he is using information that he has received through RTI Applications for this purpose, it cannot be considered to be misuse of information in any way, nor can it be considered to be an unwarranted invasion of privacy of the assessee. In that case, even if any of the exemption clauses of Section 8 (1) were applicable, it certainly serves a larger public interest, if tax evasion is curbed,” Mr Gandhi said.

 

He said the arguments raised by Dr Trehan that the RTI application is motivated by ill-will and malice, with the motive to harass and blackmail the assessee are unfounded because a public interest is served if tax evasion is curbed.

 

“...no harm can be caused to the privacy of Dr Trehan in this case because the assessing authority in this case has already confirmed that in some cases tax has been evaded. The contention that the Appellant is likely to misuse the information and could endanger the life and property of the assessee also cannot be accepted,” the Commission said.

 

The Commission concluded that no case has been made showing that any of the exemption clauses apply to the information sought by the appellant. It then directed the PIO to provide the inspection of the records and also the other information sought by the appellant before 15 January 2009 besides sending a copy of the order to the third parties immediately.

 

CENTRAL INFORMATION COMMISSION

 

Decision No. CIC/LS/A/2009/000647/SG/5887

http://www.rti.india.gov.in/cic_decisions/SG-14122009-32.pdf

Appeal No. CIC/LS/A/2009/000647

 

 

Appellant                                            : Rakesh Kumar Gupta,

                                                            Delhi 110088

 

Respondent                                                 : The Public Information Officers

                                                            C/o Commissioner of Income Tax

                                                            CIT (Central)-2, Room No. 341

                                                             E-2, ARA Centre, Jhandewalan Ext.,

                                                             New Delhi-110055

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Italy arrests Finmeccanica CEO for paying bribe for helicopter sale to India

Italian police has arrested Giuseppe Orsi, chief executive of the country’s largest defence and aerospace group. The Finmeccanica CEO is alleged to have paid $670 million in bribes for the sale of 12 helicopters to the Government of India

Giuseppe Orsi, chief executive of Italy’s largest defence and aerospace group has been arrested for allegedly paying $670 million in bribes for selling 12 helicopters to the Indian government.

 

According to media reports, prosecutors in the Busto Arsizio north of Milan ordered a search of Orsi’s home, as well as the headquarters of Finmeccanica’s AgustaWestland helicopter division. The Italian authorities also ordered the house arrest of AgustaWestland CEO Bruno Spagnolini.

 

The Finmeccanica CEO is alleged to have paid $670 million in bribes for the sale of 12 helicopters to the Government of India.

 

In a statement, Finmeccanica said that the company will continue operating as usual and expressed support for the executives. Orsi has repeatedly denied paying any bribes.

 

The company and its executives have been the target of a wide-ranging investigation into alleged corruption in the awarding of international contracts, media reports say.

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Nifty, Sensex undergoing the expected short bounce: Tuesday Market Report

The medium-term trend remains down. A 3-4 day rally may be met with renewed selling
 

The market settled higher despite the dismal macro-economic numbers released today, with the Sensex snapping its eight-day losing streak. However, the medium-term trend remains down. A 3-4 day rally may be met with renewed selling. The National Stock Exchange (NSE) reported a volume of 75.64 crore shares and advance-decline ratio of 573:919.

 

The market opened mixed despite lacklustre global cues. The US markets closed with minor losses on Monday even as Federal Reserve vice-chairperson Jannet Yellen said the central bank’s ongoing easy monetary policy would continue as the labour market is yet to show some progress. The few Asian markets which were open today were trading higher in morning trade.

 

 The Nifty opened down four points to 5894 while the Sensex resumed trade at 19,490, up 29 points over its previous close. The market remained choppy in early trade ahead of the release of the industrial output figures and retail inflation data. PSU, oil & oil, banking stocks were trading higher while IT and power sectors were in the negative.

 

However, the contraction of IIP for December to a three-month low of 0.6% and retail inflation for January rising to 10.79% saw the benchmarks dipping into the red and touching their intraday lows in late morning trade. The Nifty fell to 5,886 and the Sensex went back to 19,439 at their respective lows.

 

Brushing aside the negative indicators, the market soon picked up momentum as buying activity resumed, pushing the indices into the green. Gains in oil & gas, healthcare, PSU and consumer goods sectors kept the benchmarks firm in post-noon trade.

 

Firm trade continued in the late session, as well, on buying in market heavy-weights. The benchmarks hit their intraday highs towards the end of trade with the Nifty rising to 5,928 and the Sensex climbing to 19,584.

 

The market closed in the green as investors ignored weak macro-economic indicators, ending the eight-day losing streak on the Sensex. The Nifty gained 25 points (0.42%) to 5,923 and the Sensex climbed 100 points (0.52%) to settle at 19,561.

 

The broader indices underperformed the Sensex, as the BSE Mid-cap index fell 0.31% and the BSE Small-cap index dropped 0.51%.

 

The top sectoral gainers were BSE Oil & Gas (up 1.52%); BSE Healthcare (up 1.19%); BSE PSU (up 1.15%); BSE Auto (up 0.94%) and BSE Bankex (up 0.63%). The main losers were BSE Realty (down 3.96%); BSE IT (down 0.63%); BSE Metal (down 0.35%); BSE TECk (down 0.33%) and BSE Power (down 0.28%).

 

Seventeen of the 30 stocks on the Sensex closed in the positive. The chief gainers were ONGC (up 3.81%); Sun Pharmaceutical Industries (up 2.84%); Tata Motors (up 2.65%); Coal India (up 1.85%) and Bharti Airtel (up 1.79%). The major losers were Jindal Steel & Power (down 3.35%); Sterlite Industries (down 1.31%); Infosys (down 1.29%); Tata Power (down 0.77%) and Cipla (down 0.48%).

 

The top two A Group gainers on the BSE were—AstraZeneca Pharma India (up 10.06%) and Strides Arcolab (up 7.56%).

The top two A Group losers on the BSE were—Unitech (down 17.86%) and Hindustan Copper (down 4.45%).

 

The top two B Group gainers on the BSE were—Quintegra Solutions (up 20%) and Baba Arts (up 15.47%).

The top two B Group losers on the BSE were—Softech Infinium Solutions (down 19.93%) and Govind Rubber (down 19.78%).

 

Out of the 50 stocks listed on the Nifty, 31 stocks settled in the positive. The major gainers were ONGC (up 3.62%); Sun Pharma (up 3.29%); HCL Technologies (up 3.16%); Tata Motors (up 2.46%) and Coal India (up 1.94%). The key losers were JSPL (down 3.39%); ACC (down 1.52%); IDFC (down 1.49%); Infosys and DLF (down 1.27% each).

 

In Asian trade, Japan’s Nikkei 225 surged 1.94% as reports indicated that the Japanese government would continue with monetary easing to spur growth. The Seoul Composite fell 0.26% on political concerns after North Korea carried out a nuclear test. The Jakarta Composite gained 1% in trade today. Markets in China, Hong Kong, Malaysia and Singapore remain closed for the Lunar New Year holidays.

 

At the time of writing, two of the three the key European indices were in the green. At the same time, the US stock futures were mixed with a positive bias.

 

Back home, foreign institutional investors were net buyers of shares totalling Rs995.83 crore on Monday while domestic institutional investors were net sellers of equities amounting to Rs940.89 crore.

 

IT services exporter Zensar Technologies has signed a five-year pact with Assurant Health, a US-based provider of health insurance products, to provide information technology support. The deal includes development, testing, maintenance, enhancement and IT support for suite of business applications used by Assurant Health for policy administration, underwriting and claims. The stock fell 0.44% to close at Rs239 on the NSE.

 

Infrastructure major Punj Lloyd has reported more than 87% plunge in consolidated net profit at Rs8.77 crore for the quarter ended 31 December 2012, mainly due to muted sales growth and higher interest burden. Net profit for the corresponding previous period was Rs70.35 crore. Net sales rose 3.68% to Rs 2,775.29 crore from Rs2,676.81 crore earlier. The stock tanked 5.47% to close at Rs49.25 on the NSE.

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