The CIC said, information provided in discharge of a statutory requirement could not be considered to have been given in a fiduciary relationship. This is the 141st 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), while allowing an appeal, directed the Public Information Officer (PIO) of Employees Provident Fund Organization (EPFO)'s regional office at Nainital in Uttarakhand to provide complete information available to the appellant. The PIO had denied the information citing exemption under Section 8(1)(e) of the Right to Information (RTI) Act on the premise that the information was held by EPFO in a fiduciary relationship.
While giving this judgement on 16 May 2011, Shailesh Gandhi, the then Central Information Commissioner said, “Information provided in discharge of a statutory requirement, or to obtain a job, or to get a license, cannot be considered to have been given in a fiduciary relationship.”
Haldwani (Nainital, Uttarakhand) resident KK Bora, on 2 March 2009, sought information submitted by the Government Medical College (GMC) at Srinagar in their declaration forms from the PIO of EPFO's regional officer at Nainital. Here is the information he sought under the Right to Information (RTI) Act and the reply provided by the PIO...
1. Dabur India Ltd has submitted the list(annexed) of the labourers employed in Dabur India Ltd. SIDCUL, Pantnagar to the Labour Commissioner, Uttarakhand, Labour Office, Haldwani.
2. (a) Whether the E.P.F of the said labourers is being collected? If yes, provide their E.P.F. account no.s.
2. (b) If their E.P.F. hasn't been collected, till when it's going to be done?
PIO's reply- For 2(a) - The information can't be provided as it pertains to a third party and the same is in fiduciary nature.
For 2(b) - If an establishment fails to comply with the provisions of the E.P.F. and MP Act, legal actions under various sections such as 7A, 14, 14B, 7Q are initiated against the defaulter.
3. If the EPF is not being collected, what action will be taken against the institution and when?
PIO's reply- Same as answer for 2(b).
4. Whether the list given to your office by Dabur India Ltd. SIDCUL, Pantnagar matches the one annexed to this application.
PIO's reply- The information can't be provided as it pertains to a third party.
5. How many labourers' E.P.F. has been collected by the institution and the contractors to get employed in Dabur India Ltd, SIDCUL, Pantnagar.
PIO's reply- -do-
Bora, who was also the state president of All India Central Council of Trade Unions (AICCTU) filed his first appeal citing Information not provided by the PIO within the time mandated in the RTI Act. There was no mention of any order issued by the First Appellate Authority (FAA).
The appellant, citing unsatisfactory response by the PIO despite the order from the FAA, approached the CIC with his second appeal.
During the hearing Mr Gandhi, the then CIC, stated that the PIO had sent a letter requesting the Bench not to consider the second appeal filed by Bora on 7 December 2010 as it was time barred. Bora showed that he had filed his second appeal on 3 July 2009, within the prescribed time limit under the RTI Act. He stated that when he tried to pursue the matter on telephone, he was assured that the matter would be listed for the hearing some time. However, since he saw that no hearing was held and nobody was able to give him a number for his appeal he decided to file another appeal on this matter on 7 December 2010.
Mr Gandhi said the Bench saw the receipt for speed post and accepts the contention of the appellant that the delay in filing the second appeal was because he had filed it second time and his second appeal filed earlier has not been registered by the Commission.
The PIO had refused to give information through his letter of 23 April 2009 claiming that the information regarding query-1 to 4 cannot be provided since it is third party and the same is in fiduciary nature.
Mr Gandhi said the PIO had erred in his denial of information. "Section-11 of the RTI Act is the procedural section which expects the PIO to refer to the third party who may have given the information when 'it has been supplied by the third party and has been treated as confidential by the third party'. Thus it is necessary that the third party should have some choice in supplying the information and should have provided it with the condition of confidentiality," he stated.
The Bench said, "The information sought by the appellant would have been supplied by the third party Dabur India in discharge of a statutory requirement. Hence Dabur India would not have had any choice in the matter and could not have claimed confidentiality over the information supplied."
The PIO also claimed that the information was exempt under Section-8(1)(e) of the RTI Act on the premise that the information was held by EPFO in the fiduciary relationship.
Section 8 (1) (e) of the RTI Act exempts from disclosure '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'.
Mr Gandhi said, "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 one who is providing the information. All relationships usually have an element of trust, but all of them cannot be classified as fiduciary. Information provided in discharge of a statutory requirement, or to obtain a job, or to get a license, cannot be considered to have been given in a fiduciary relationship."
"In the instant case the information would have been provided by Dabur India in fulfilment of statutory requirement to EPFO and this information cannot be claimed to have been provided in a fiduciary relationship," he said.
While allowing the appeal, the Bench directed the PIO to provide the complete information to the appellant as per available records before 10 June 2011.
CENTRAL INFORMATION COMMISSION
Decision No. CIC/SG/A/2010/002600/12400
Appeal No. CIC/SG/A/2010/002600
Appellant : KK Bora,
State President, AICCTU
AICCTU State Office, Jangi
Bhavan, Moti Nagar,
PO Arjunpur, Haldwani (Nainital, Uttarakhand)
Respondent : Public Information Officer,
Employees Provident Fund Organization
Khurana Complex, 2nd floor, Opp. Judges' Court,
Nainital Road, Haldwani,
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