RTI Judgement Series
RTI Judgement Series: Third party complaint against sharing info rejected

The PIO can furnish information that is not held by him in a fiduciary position but only as a consequence of discharge of legal obligations. This is the 113th 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 rejecting a complaint filed by the general secretary of All India Punjab National Bank Officers’ Association (AIPNBOA) as a third party for restricting the Public Information Officer (PIO) from sharing information, said the PIO did not hold the information in a fiduciary relationship but only as a consequence of discharge of legal obligations.

 

While giving this judgement on 2 June 2011, Shailesh Gandhi, the then Central Information Commissioner, said, “Submission of documents/ records by the Association to the PIO in accordance with the existing laws cannot be considered to have been given in a fiduciary relationship. Therefore, the Commission does not find any merit in the arguments of the complainant that disclosure of the information sought was exempted under Section 8(1)(e) of the RTI Act."

 

New Delhi resident KD Khera, who was also general secretary of All India Punjab National Bank Officers' Association (AIPNBOA), filed a complaint before the Commission on 8 November 2010. In the complaint, Khera raised questions on the disclosure of information related with the Association by the PIO of Labour department at District South West, in Government of National Capital Territory of Delhi (GNCTD) to Sham Sunder.

 

RTI activist Sham Sunder on 31 May 2010 sought information about the Association, which the PIO furnished after seeking objections from the Association, which was a third party.

 

During the hearing on 5 May 2011, Khera stated that the information pertaining to the activity of the Association such as its constitution, amendment of its constitution, annual returns, etc was provided to one Sham Sunder who had sought the same under the RTI Act. He contended that the information sought was supplied by the Association to the PIO- public authority and the latter held the same in a fiduciary capacity. Moreover, there was no public interest in disclosure of the information to Sham Sunder. Khera also referred to certain decisions of the Commission to support his contention and requested the Commission to direct the PIO to not reveal such information.

 

The Commission reserved its order.

 

During the hearing on 2 June 2011, Mr Gandhi, the then CIC noted, after perusal of the papers that the PIO vide letter dated 8 July 2010, had provided copies of the amendments made in the constitution of the Association, notices of meetings, agenda and annual returns to Sham Sunder in response to the latter’s RTI application. “This information furnished to Sham Sunder appears to have been provided by the Association to the PIO in furtherance of certain regulatory compliances,” the CIC noted.

 

Khera, the complainant and general secretary of AIPNBOA, contented that the Association was registered under the Trade Unions Act, 1926, and therefore, the Central Trade Union Regulations, 1938 (the Regulations) framed thereunder were applicable to the Association. “As per Regulation 17(2) of the Regulations, any document in possession of the registrar received from a registered trade union may be inspected by any member of that union on payment of the prescribed fees,” he said.

 

Khera also argued that since Sham Sunder was not a member of the Association, no information about the Association could be provided to him by the PIO. 

 

Section 22 of the RTI Act expressly provides that the provisions of the RTI Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923, and any other law for the time being in force or in any instrument having effect by virtue of any law other than the RTI Act. Section 22 of the RTI Act, in no uncertain terms, lays down that the RTI Act shall override anything inconsistent contained in any other law, Mr Gandhi said.

 

He said, “From a plain reading of Regulation 17(2) of the Regulations, documents/records of a trade union may be inspected by any member of that union; any person who is not a member of the trade union may not access such documents/ records in control of the registrar. In other words, Regulation 17(2) of the Regulations appears to impose a restriction on access to information held by or under the control of a public authority, which is prima facie inconsistent with the RTI Act. Therefore, in accordance with Section 22 of the RTI Act, the provisions of the RTI Act shall override the provisions of the Trade Unions Act, 1926, and the Regulations framed thereunder.”

 

Mr Gandhi then rejected the contention of Khera that information about the Association could not be provided by the PIO to a non-member as per the Regulations.

 

The complainant general secretary of AIPNBOA contented that as per Section 11(1) of the RTI Act, information pertaining to a third party may not be provided, the disclosure of which was in no way related to any public action or interest. Khera, the complainant argued that neither the members of the Association nor the members of the AIPNBOA General Council were ‘public’ and therefore, no public interest was involved in disclosure of the information. Moreover, despite the objections raised by the complainant in accordance with Section 11(1) of the RTI Act, the information was provided to Sham Sunder by the PIO, Khera said.

 

Khera also cited a decision of AN Tiwari, the then Information Commissioner in Ravinder Kumar v/s Delhi Police case (CIC/AT/A/2006/00609 dated 09/02/2007).

 

Section 11(1) of the RTI Act provides as follows:

"11. Third party information.- (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 outweighs in importance any possible harm or injury to the interests of such third party."

 

Mr Gandhi said, as per Section 11 of the RTI Act, where the PIO intends to disclose any information, which relates to or has been supplied by a third party and has been treated as confidential by that third party, the PIO shall invite submissions from the third party whether such information shall be disclosed or not.

 

Information provided to the PIO in compliance with law/ regulatory requirements may not come within the purview of “information, which relates to or has been supplied by a third party and has been treated as confidential by that third party”. On receipt of submissions from the third party, Section 11(1) of the RTI Act requires that the PIO shall keep the submissions in view while taking a decision whether the information sought shall be disclosed or not.

 

Section 11(1) of the RTI Act is triggered once the PIO intends to disclose to the applicant any information/record which relates to or has been supplied by a third party and has been treated as confidential by that third party. Once Section 11(1) of the RTI Act is applicable, the PIO shall follow the procedure of serving a notice to the third party for seeking objections whether such information shall be disclosed or not. On receipt of the submissions of the third party, the PIO shall keep the submissions in view and then decide whether the information sought shall be disclosed or not. If the PIO does not find any merit in the submissions of the third party, he shall disclose the information sought to the applicant, Mr Gandhi said.

 

The CIC said, “However (except in the case of trade or commercial secrets protected by law) even where the PIO is of the view that there is possible harm or injury to the interests of the third party, but public interest in disclosure outweighs in importance any such harm or injury, he may disclose the information. However, Section 11 does not give the third party a right of veto in giving information. In light of the above arguments, this Commission respectfully disagrees with the observations of the then Information Commissioner in the Ravinder Kumar case cited by the complainant."

 

Khera also has cited the decision of the Commission in SK Kaushik v/s Indian Oil Corporation (CIC/MA/A/2007/00055 dated 03/04/2007) wherein it was observed that the applicant therein had sought information for promotion of personal interest rather than public and that such requests should be discouraged.

 

“With due respect to the observations of Professor MM Ansari, the then Information Commissioner, this Commission disagrees with the same. As per Section 6(2) of the RTI Act, an applicant making a request for information under the RTI Act shall not give any reasons for requesting the information. The ruling of the then Information Commissioner in the SK Kaushik case necessarily requires that the purpose/reasons for which an applicant may seek information shall be enquired into, which is clearly contradictory to the statutory mandate of Section 6(2) of the RTI Act. In view of the same, this Commission does not understand the relevance of the SK Kaushik case in the instant matter,” Mr Gandhi said.

 

AIPNBOA also argued that the information supplied by the Association to the PIO is held by the latter in fiduciary capacity and was exempted from disclosure under Section 8(1)(e) of the RTI Act.

 

Mr Gandhi said, the principal character of a fiduciary relationship is the trust placed by the provider of information in the person to whom the information is given and further, the information must be given by the holder of information when there is a choice.

 

In the instant case, the Commission said it was unable to understand how a fiduciary relationship is created between the Association and the PIO. “It does not appear that the PIO holds a position of trust in relation to the Association thereby requiring it to act in the benefit of the latter. The documents/ records are not held by the PIO in a fiduciary capacity but only as a consequence of discharge of the Association's legal obligations. Therefore, the Commission does not find any merit in the arguments of the complainant that disclosure of the information sought was exempted under Section 8(1)(e) of the RTI Act,” Mr Gandhi said.

 

Khera then cited another decision of Prof MM Ansari, the then Information Commissioner in Sadashiv Dattatraya Nikam v/s Chief Commissioner of Income Tax- II, Pune (CIC/MA/A/2006/00098 dated 10/05/2006). Since the relevant document was neither created and prepared by the public authority nor was the outcome of its activities, the PIO had correctly withheld the information on the basis of Sections 8(1)(d) and 8(1)(e) of the RTI Act.

 

Mr Gandhi said, “This Commission respectfully disagrees with the observations of the then Information Commissioner. Section 3 of the RTI Act mandates that all citizens shall have the right to information. Section 2(j) of the RTI Act defines 'right to information' to mean the right to information accessible under the RTI Act which is held by or under the control of any public authority. In view of the same, as long as the information sought is held by or under the control of a public authority, the information sought must be provided (unless it is exempted under Sections 8 and 9 of the RTI Act); it is irrelevant whether such information was created and prepared or is an outcome of the activity of the public authority."

 

The Commission then disposed the complaint filed by Khera, general secretary of the AIPNBOA.

 

CENTRAL INFORMATION COMMISSION

 

Decision No. CIC/SG/C/2010/001353/12671

http://rti.india.gov.in/cic_decisions/CIC_SG_C_2010_001353_12671_M_57570.pdf

Complaint No. CIC/SG/C/2010/001353

 

Complainant                                       : KD Khera,

                                                               General Secretary,

                                                               All India Punjab National Bank Officers' Association,

                                                               New Delhi- 110008

 

Respondent                                        : Public Information Officer &

                                                               Labour Officer,

                                                               Labour Department District South West,

                                                               GNCTD,

                                                              DTC Colony,

                                                              Pratap Nagar, Hari Nagar,

                                                              New Delhi- 110064

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COMMENTS

Dayananda Kamath k

4 years ago

a remarkable judgement in the true spirit of right to information. which has corrected many a wrong judgement's given earlier. this shows why civil society members should be appointed as information commissioners. the purpose of rti is to improve the governance and public accountability. but many a times it is followed in letter than spirit.

WPI-based Inflation eases to 4.7% in May

The fall in WPI inflation has been attributed to declining prices of manufactured items, even as prices of food articles inched up

The wholesale price index (WPI) based inflation fell to 4.7% in May, driven mainly by declining prices of manufactured items, even as prices of food articles inched up. Inflation based on the WPI stood at 4.89% in April. In May, 2012, it was 7.55%.

   

As per official data released on Friday, WPI inflation in the manufactured items category declined to 3.11% in May from 3.41% in April. The non-food articles category, which includes fibre, oil seeds and minerals, saw sharp decline in inflation to 4.88%, from 7.59% in April.

   

However, inflation in food articles category, which has a 14.34% share in the WPI basket, rose to 8.25% in May. Inflation in this category was at 6.08% in April. The rise in food inflation was on account of increase in prices of onions, vegetables, cereals and protein-based items.

    

Inflation in vegetables stood at 4.85% in May, against (-) 9.05% in the previous month. The rate of price rise in onion was high at 97.40% for the month, as against inflation rate of 91.69% in April.

   

Inflation for March was revised downwards to 5.65% from 5.96% as per provisional estimates. The inflation data would be closely watched by the Reserve Bank of India (RBI) while formulating its mid-quarter policy which is scheduled on Monday.

    

There have been demands for a lower interest rate in the backdrop of declining inflation. Finance ministry sources, commenting on inflation numbers, said they would want lower interest rates and monetary policy transmission.

    

While the RBI has lowered interest rates by 1.30% since January 2012, the banks have cut lending rates by only 0.30%.

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Will the real estate regulation really exclude commercial property?

The new Real Estate Regulation bill does not explicitly cover commercial property and instead mentions residential flats in several places. Has it been deliberately left out, or is it covered by implication? Experts have differing views

Does the draft Real Estate (Regulation and Development) Bill cover commercial property? Although most media discussions seem to assume that commercial property is excluded, it may not be so simple.  On 12th June, two of the best-known experts in real estate rules—Parimal Shroff and Pranay Vakil—discussed the issue at the Moneylife Foundation event on the bill and concluded that it may not be easy to claim that commercial property is excluded unless emphatically stated by the act, as and when it is finally cleared by parliament and signed by the president.

 

Pranay Vakil, founder chairman of Praron Consultancy and former chairman of Knight Frank India, said that the draft bill of 2011 does not include commercial development. However, there was a second draft in 2012, which was circulated to industry associations for discussion. This updated draft bill of 2012 was also not in the public domain, although the government claims that the realty regulator is meant to benefit ordinary persons.  Moneylife uploaded the 2012 draft bill for the first time (click here - on 13th June.

 

Parimal Shroff, one of India’s leading experts in realty law said that it is too early to draw any conclusions since the final bill cleared by the Cabinet is not yet released to the public. But he believes that the bill covers every aspect of property transactions including the sale of land. According to him this bill includes immovable property of any kind such as plots, land, premises and residential premises, including ‘colonisers’. “It covers for the first time comprehensively and uniformly anything you do with immovable property—from small projects to townships.”

 

This would seem to be the case based on an interpretation of how a promoter has been defined. The definition of promoter as per Section 2 (zc) says the regulation would include “any development authority or any other public body in respect of allottees and also any other person who acts himself as a builder, coloniser, contractor, developer, estate developer or by any other name or claims to be acting as the holder of a power of attorney from the owner of the land.” There is no explicit mention that development would only mean residential projects. Also, the Bill uses generic terms like builder and coloniser. Clearly, in a building where the ground floor is meant for commercial use and is an integrated part of the building, the ‘promoter’ ought to stand for the entire project including the commercial part. The same applies for a township where there are commercial buildings, apart from residential ones.

 

According to Mr Vakil, several chambers of industry, in their representations, had asked the government why the bill was limiting itself to residential development. The whole issue will get cleared when the bill is publicly put up by the ministry.
 

Read more about the Real Estate Regulation Bill:
 

A bulk allottee or buyer will also be considered as a promoter causing confusion

The humungous job of monitoring 30,000 crore sq ft of construction planned

Registration of brokers: Huge challenges ahead

Moneylife Foundation event on decoding the realty regulator

Here is the Real Estate Bill, kept hidden from public
Centre and states may collude on parallel laws, cost
 

 

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COMMENTS

Jonas Smith

3 years ago

It was such a great opportunity to visit this site,you can gain new interesting topics.I want to stick on this one so that I can update more details about this one.

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