Section 11 does not give a third party an unrestrained veto to refuse disclosing information. It only gives the third party an opportunity to voice its objections to disclosing information. This is the 20th in a series of important judgements given by Shailesh Gandhi, former CIC, that can be used or quoted in an RTI application
While rejecting the Public Information Officer’s (PIO) contention of claiming exemption under Section 11 of the Right to Information (RTI) Act, the Central Information Commission (CIC) ordered a compensation of Rs3,000 and issued a show-cause notice to its own PIO. While giving this important judgement, Shailesh Gandhi, former Central Information Commissioner, said that the appellant has been unnecessary harassed and not provided information sought by him by an arbitrary action of the PIO.
“The Commission in exercise of its power under Section 19(8)(b) of the RTI Act awards a compensation of Rs3,000 to the appellant for the loss and detriment suffered by him in having to pursue the appeals and getting the information late. The Commission recommends that the secretary, CIC may consider recovering this amount from the salary of the persons responsible for this,” the Commission said in its order dated 12 April 2012.
Lucknow-based Chayan Ghosh Chowdhury, on 27 January 2010 sought information from the PIO of the CIC about replies received for some show-cause notices. Here is what he asked for...
1) Please provide certified copies of the explanation submitted by the Public Authority in compliance to the Show-Cause Notice issued by the CIC under Sec 20 of the RTI Act, in the following cases:
a) Appeal No.2888/ICPB/2008 (Dr Avinash Kumar Kaushal v/s Punjab & Sind Bank) dated 07/10/2008.
b) Appeal No.CIC/PB/A/2008/00999-SM & SM/A/2009/000287 (Yatish Kumar v/s Punjab & Sind Bank) dated 06/10/2009
c) Appeal No. CIC/SM/A/2008/000102 (P N Bajpai v/s Punjab & Sind Bank) dated 17/11/2009
d) Appeal No.CIC/SM/A/2009/000197 (Shiv Bahadur Yadav v/s Punjab & - Sind Bank) dated 15/12/2009
e) Appeal No.CIC/SM/A/2009/000200 & 1104 (Bharat Kishore Srivastava v/s Punjab & Sind Bank) dated 17/12/2009
2) Kindly provide the certified copies of the file noting containing final decisions of the Hon'ble Commission in the cases mentioned in pan 1(a) to 1(e).
The PIO in his reply stated that the information asked by Mr Ghosh Chowdhury pertains to third parties and under Section 11 of the RTI Act, he sent letters to obtain their consent before disclosing the information. The PIO stated...
1) The information asked by you in Item No.1 (a) to (e) pertains to third party and as such their consent under Section 11(1) of the RTI Act has to be obtained before its disclosure.
The third parties in respect of Item Nos. 1 (b),(c)&(e) of your letter dated 27.01.2010 have responded to the Commission's order in question and have been requested to give their consent within ten days from the receipt of the notice dated 15.02.2010 given to them. On receipt of their consent or otherwise necessary action in this regard would be taken.
As regards Item Nos. 1 (a) & (d), the response from the concerned CPIOs is still awaited.
2) As regards part 2 of your letter, the cases are yet to be processed. Therefore, providing of certified copies of the file noting containing final decisions of the Commission in these cases does not arise.
Not satisfied with the reply, Mr Ghosh Chowdhury, then filed first appeal with the First Appellate Authority (FAA). The FAA disposed off the appeal warning the CPIO that the he should consider the time lines provided in the RTI Act with regard to Section 11 and dispose of the matter accordingly within 10 working days.
Mr Ghosh Chowdhury, not satisfied with the incomplete and unsatisfactory information provided by both the PIO and the FAA, then filed second appeal before the Commission.
During the hearing, the PIO stated that he refused to give information under Section 11 of the RTI Act. "This refusal was erroneous since Section 11 is only a procedure which requires the PIO to inform the third party of his intention to disclose the information if the information was received in confidence. After receiving any objection from the third party if the information is exempt as per the provisions of Section 8(1) or 9 the information may be denied by the PIO after giving reasons. In the instant case the Respondent states that letters were sent to the third parties seeking their objections," Mr Gandhi noted.
Section 11 of the RTI Act, which is the basis on which the information, is sought to be denied to the appellant in the present case lays down:
'11. (1) Where a Central Public Information Officer or the State Public Information Officer, as the case may be, intends to disclose any information or record, or part thereof on a request made under this Act, which. relates to or has been supplied by a third party and has been treated as confidential by that third party, the Central Public Information Officer or State Public Information Officer, as the case may be, shall, within five days from the receipt of the request, give a written notice to such third party of the request and of the fact that the Central Public Information Officer or State Public Information Officer, as the case may be, intends to disclose the information or record, or part thereof, and invite the third party to make a submission in writing or orally, regarding whether the information should be disclosed, and such submission of the third party shall be kept in view while taking a decision about disclosure of information:
Provided that except in the case of trade or commercial secrets protected by law, disclosure may be allowed if the public interest in disclosure out weighs in importance any possible harm or injury to the interests of such third party.
(2) Where a notice is served by the Central Public Information Officer or State Public Information Officer, as the case may be, under sub-section (1) to a third party in respect of any information or record or part thereof, the third party shall, within ten days from the date of receipt of such notice, be given the opportunity to make representation against the proposed disclosure.
(3) Notwithstanding anything contained in Section 7, the Central Public Information Officer or State Public Information Officer, as the case may be, shall, within forty days after receipt of the request under section 6, if the third party has been given an opportunity to make representation under sub-section (2), make a decision as to whether or not to disclose the information or record or part thereof and give in writing the notice of his decision to the third party.
(4) A notice given under sub-section (3) shall include a statement that the third party to whom the notice is given is entitled to prefer an appeal under section 19 against the decision.'
The Commission noted that in Section 11 (1), it is cleared stated that “'submission of third party shall be kept in view while taking a decision about disclosure of information'. "Section 11 does not give a third party an unrestrained veto to refuse disclosing information. It only gives the third party an opportunity to voice its objections to disclosing information. The PIO will keep these in mind and denial of information can only be on the basis of exemption under Section 8 (1) of the RTI Act. The Respondent states that no reply has been received from the third parties,” Mr Gandhi noted in his order.
He said, harassment of a common man by public authorities is socially abhorring and legally impermissible. An ordinary citizen instead of complaining and fighting succumbs to the pressure of undesirable functioning in offices instead of standing against it. Therefore the award of compensation for harassment by public authorities not only compensates the individual, satisfies him personally but helps in curing social evil. It may result in improving the work culture and help in changing the outlook, Mr Gandhi said.
The Commission, in its order asked the PIO to provide information to the appellant before 10 May 2012 and send a cheque of Rs3,000 as compensation before 1 June 2012.
Mr Gandhi also noted that from the facts before the Commission it appears that the then PIO was guilty of not furnishing complete information within the time specified under sub-section (1) of Section 7 as per the requirement of the RTI Act. "It appears that the PIO's actions attract the penal provisions of Section 20 (1). A show-cause notice is being issued to him, and he is directed give his reasons to the Commission to show cause why penalty should not be levied on him," the Commission said.
CENTRAL INFORMATION COMMISSION
Decision No. CIC/WB/A/2010/000712/SG/18370
Appeal No. CIC/WB/A/2010/000712/SG
Appellant : Chayan Ghosh Chowdhury
Respondent : Vijay Bhalla
PIO & Dy. Registrar
Central Information Commission
2nd Floor, 'B' Wing,
August Kranti Bhawan,
Bhikaji Cama Place, New Delhi
Nifty could be headed towards 6,080. But the market is turning extremely risky
News of the government deferring the implementation of the General Anti Avoidance Rules by two years and December headline inflation falling to a three-year low enabled the market close near the highs of the day. The market is on a short new rally with the Nifty expected to touch 6,080. However, the benchmarks are turning extremely risky. The National Stock Exchange (NSE) witnessed a volume of 66.98 crore shares and advance-decline ratio of 987:688.
The market opened firm on buying in IT and technology stocks continued following the upbeat revenue guidance by Infosys on Friday. Most markets in Asia were trading with gains on speculations that the Chinese government would raise the cap for foreign investors in the country’s financial markets.
The Nifty opened 16 points higher at 5,967 and the Sensex started the day at 19,689, up 25 points over its close on Friday. The opening figure on the Sensex was its intraday low while the Nifty dipped to a low of 5,962 in opening trade.
The market continued its upmove on brisk buying in IT stock continued ahead of the announcement of TCS’ quarterly earnings later in the day. However, the benchmarks pared a small part of its early gains following the release of the retail inflation numbers for December.
Retail inflation breached the double-digit mark at 10.56% cent in December compared to 9.90% in November and 9.75% in October. In urban areas, retail inflation rose to 10.42% in December from 9.69% in the previous month. The CPI (Consumer Price Index) for rural population increased to 10.74% during the month from 9.97% in November.
On the other hand, inflation based on wholesale prices declined marginally to 7.18% in December from 7.24% in November. It was 7.74% in December 2011. The third successive fall in inflation may prompt the Reserve Bank of India to cut interest rates in its policy review on 29th January 29.
The benchmarks, which were trading sideways in subsequent trade, gained fresh momentum in noon trade as finance minister P Chidambaram deferred the implementation of the GAAR (General Anti Avoidance Rules) by two years to 1 April 2016. A firm opening of the key European markets also supported the gains.
The market continued its northward journey and hit its intraday high toward the end of the trading session. At the highs the Nifty touched 6,037 and the Sensex scaled 19,949.
The benchmarks closed near the highs with the Nifty gaining 73 points (1.22%) to settle at 6,024 and the Sensex surging 243 points (1.23%) to 19,906.
Among the broader indices, the BSE Mid-cap index advanced 1.20% and the BSE Small-cap index gained 0.74%.
The top sectoral gainers were BSE Realty (up 5.01%); BSE IT (up 2.57%); BSE TECk (up 2.37%); BSE Consumer Durables (up 1.80%); and BSE Oil & Gas (up 1.58%). BSE Auto (down 0.46%) and BSE Healthcare (down 0.06%) were the only losers.
Twenty of the 30 stocks on the Sensex closed in the positive. The chief gainers were ONGC (up 4.28%); Infosys (up 3.49%); Jindal Steel & Power (up 3.34%); TCS (up 2.14%) and HDFC (up 1.93%). The main lowers were Maruti Suzuki (down 1.72%); Cipla (down 1.23%); Bajaj Auto (down 1.14%); Tata Motors (down 0.65%) and Mahindra & Mahindra (down 0.64%)..
The top two A Group gainers on the BSE were—DLF (up 7.72%) and HDIL (up 5.80%).
The top two A Group losers on the BSE were—Jaiprakash Power Ventures (down 4.72%) and Pidilite Industries (down 2.65%).
The top two B Group gainers on the BSE were—Gujarat Automotive Gears (up 20%) and Nagreeka Exports (up 20%).
The top two B Group losers on the BSE were— Bhanot Construction & Housing (down 18.21%) and Beryl Drugs (down 14.81%).Houh
Out of the 50 stocks listed on the Nifty, 37stocks settled in the positive. The major gainers were DLF (up 7.75%); ONGC (up 4.84%); HCL Technologies (up 4.70%); Jindal Steel & Power (up 3.70%) and Infosys (up 3.61%). The key losers were Lupin (down 1.65%); Bajaj Auto (down 1.41%); Maruti Suzuki (down 1.38%); Cairn India (down 1.20%) and Cipla (down 1.19%).
Markets in Asia, with the exception of the Straits Times, closed in the positive on hopes that the Chinese government would raise the limits on foreign investment in the country’s financial markets. However, volume was lower-than-normal as the Japanese market was closed for a local holiday.
The Shanghai Composite jumped 3.06%; the Hang Seng gained 0.64%; the Jakarta Composite climbed 1.78%; the KLSE Composite rose 0.11%; the Seoul Composite advanced 0.52% and the Taiwan Weighted added 0.06%. Bucking the trend, the Straits Times declined 0.31%.
At the time of writing, the CAC 40 of France was up 0.58%; the DAX of Germany was trading 0.72% higher and UK’s FTSE 100 rose 0.10%. At the same time, the US stock futures were mixed with a positive bias.
Back home, foreign institutional investors were net buyers of equities totalling Rs825.18 crore on Friday while domestic institutional investors were net sellers of shares aggregating Rs516.08 crore.
Electrical equipment maker Crompton Greaves today said it has completed the acquisition of the Compact Fluorescent Lamps (CFL) business of Himachal Pradesh-based Karma Industries for Rs145 million. The acquisition will double the company’s capacity in the fast-growing CFL lighting segment. Crompton Greaves jumped 3.49% to close at Rs120.05 on the NSE.
Foreign institutional investors have pared their stake to a three-year low in UB Group firm United Spirits, which is currently awaiting regulatory nod for sale of a majority stake to global liquor giant Diageo. As per the latest shareholding pattern data of the company, FIIs held 45.81% stake in Vijay Mallya-led UB group firm United Spirits as on 31 December 2012. The stock declined 1.24% to close at Rs1,874 on the NSE.
Bangalore-based Sonata Software has inked a deal with Qatar’s MEEZA to enhance cooperation in the area of Information and Communications Technology service delivery across Middle East North Africa (MENA) region, with immediate focus being Qatar. The partnership will help MEEZA tap into a vast pool of highly experienced and knowledgeable IT professionals across different areas, including Oracle and SAP, MEEZA said in a statement. Sonata gained 0.84% to close at Rs24.10 on the NSE.
While the low interest rates have allowed many financially stressed municipalities to save money for new projects, they have created their own stresses in other ways. Many of them made generous retirement promises to civil servants, but what they never provided for were the actual funds to pay for the plans
In the fall of 2011 banking analyst Meredith Whitney caused quite a stir in the normally placid world of the US municipal bond market. These bonds or Munis as they are known are usually issued by local governments in the US. They can be issued by all sorts of lower political subdivisions including states, counties, and municipalities. They are also used for raising money for other infrastructure projects like sewers and roads. Some states also allow non-profit organizations like universities and hospitals to issue these bonds. The bonds are considered unusually safe. So when Ms Whitney predicted hundreds of billions of dollars of defaults in 2012, $19.1 billion funds flowed out of the $3.7 trillion market.
But then nothing happened. Instead of a massive meltdown, there were only $2.8 billion worth of defaults in 2011 and only another billion of defaults were added in 2012. Presently out of tens of thousands of projects only 204 deals are in default or about 0.55% of the total. So Ms Whitney’s prediction was way, way off. Or was it?
For several years now the Federal Reserve has suppressed interest rates. The result is that investors, especially institutional investors including pension fund managers have been searching the globe for any investment that pays a decent yield. The outflow of funds prompted by Ms Whitney’s prediction reversed with a vengeance. Over $50 billion flowed into mutual funds and ETFs specializing in Munis. The demand for the bonds was so high that yields for 20-year general obligation bonds were forced to a low of 3.29%, a yield not seen since 1967. The riskiest of these bonds were the most favoured. These high-yield bond funds account for only 11% of the funds but attracted 20% of the money.
It may be that Ms Whitney’s prediction may have been exaggerated and a little premature. In December ratings agency Fitch also warned about the safety of these bonds. Fitch expects to downgrade dozens or even hundreds of municipalities in 2013.
What is most interesting about the Muni market is that its problems are very similar to problems of bonds in other countries especially those in emerging markets. They are lightly regulated. They are subject to political influence and they lack transparency.
While most stocks and corporate bonds are subject to stringent listing and reporting requirements from the US investment watchdog, the Securities and Exchange Commission (SEC), the Muni market is exempt. Unlike stocks, Munis are not required to provide audited financial statements. Disclosures like a potential bankruptcy or a criminal investigation are immediately required for other investments, but are often delayed by issuers of Munis. Until recently rating agencies did not consider unfunded pension liabilities. A recent SEC report described the Muni market as illiquid and opaque.
While the low interest rates have allowed many financially stressed municipalities to save money for new projects, they have created their own stresses in other ways. Like their European counterparts, many municipalities made generous retirement promises to civil servants, especially to their politically powerful and connected unions. What they never provided for were the actual funds to pay for the plans.
Two examples stand out. Puerto Rico is part of the US but has a special status as a Commonwealth and has never asked for or received statehood status. It has problems that are similar to Greece—poor tax compliance, a shrinking population, political stalemate and a stagnant economy. Its main pension fund serving about 250,000 past and present government workers is only 6% funded and could run out of money as soon as next year. A fund for 80,000 teachers is only 20% funded. Nevertheless its bonds are widely held. They pay interest that is 2.5% higher than other issuers, because they are rated just one or two levels above junk. According to Standard & Poor’s there was a one in three chance of a downgrade in 2013. A downgrade could provoke widespread selling by institutions required to hold only investment grade bonds.
Puerto Rico’s case may be severe but it is hardly unique. The state of Illinois has an unfunded pension liability of $96 billion with problems that date back as long as 70 years. Rather than raise taxes it was simply easier to not fund the pension liabilities. Other states with similar problems include Connecticut, Hawaii, Illinois, Kentucky, Massachusetts, Mississippi, New Jersey and Rhode Island.
The irony of the pension mess and its effect on Munis is that it has been made worse by the actions of the Federal Reserve. By lowering interest rates it has made it all but impossible for pension fund managers to get decent returns. The Fed has always maintained that a recession would be worse. By manipulating the market they may well cause what they sought to avoid.
To access other articles of William Gamble, click here
(William Gamble is president of Emerging Market Strategies. An international lawyer and economist, he developed his theories beginning with his first hand experience and business dealings in the Russia starting in 1993. Mr Gamble holds two graduate law degrees. He was educated at Institute D'Etudes Politique, Trinity College, University of Miami School of Law, and University of Virginia Darden Graduate School of Business Administration. He was a member of the bar in three states, over four different federal courts and has spoken four languages.)