RTI Judgement Series: Burden of establishing applicability of exemption lies on the PIO

Merely stating that the information sought is confidential in nature cannot be a reason and the PIO needs to establish the applicability of the exemption under RTI Act, the CIC ruled. This is the 201st in a series of important RTI judgements given by former Central Information Commissioner Shailesh Gandhi


The Central Information Commission (CIC), while allowing an appeal, directed the Public Information Officer (PIO) of Pondicherry-based Jawaharlal Institute of Post Graduate Medical Education and Research (JIPMER) to provide complete information available on record to the complainant.

 

While giving the judgement on 12 March 2012, under the Right to Information (RTI) Act, Shailesh Gandhi, the then Central Information Commissioner, said, "The respondent (PIO) has not adduced any arguments/ explanations to show how the nature of the information sought falls within the ambit of Section 8(1)(e) of the RTI Act and was held by the PIO-public authority in a fiduciary capacity. In other words, the burden required to be discharged by the respondent under Section 19(5) of the RTI Act has not been done."

 

Pondicherry resident, Dr Prasanna T, on 18 December 2011, sought from the PIO information regarding actions taken on his letters and complaints. Here is the information he sought...

 

1. Actions taken on following letters/ complaints of the Complainant:

a. Letter dt 8 August 2010 regarding disturbing and disappointing acute events in the department of PSM (and strike by faculty) from all residents of PSM

b. Letter dt 09 August 2010 regarding open discrimination by faculty

c. Letter dt 26 August 2010 Discrimination and Victimization by Dr KC Premarajan

d. Letter dt 31 August 2010 reply to Note from director (with complaint against Dean)

e. Letter dt 31 August 2010 Discrimination and Victimization by Dr KC Premarajan, threatening and pressuring to withdraw my complaints

f. Letter dt 05 October 2010 harassment manipulation and instigations of other residents against me by faculty

g. Letter dt 6 October 2010 open discrimination by faculty incidents in May 2010

h. Letter dt 15 October 2010 apprehension about potential misuse of signature

i. Letter dt 22 November 2010 threatening by faculty.

j. Letter dt 05 February 2011 uncertainty in exam

k. Letter dt 21 February 2011 issue of details for exam reminder

l. Letter dt 01 March 2011 issue of details for exam reply to note part 1

m. Letter dt 02 March 2011 issue of details for exam reply to note part 2

n. Curriculum copy of MD Community Medicine circulated on 05 March 2011

o. Letter of protest dt 14 March 2011

 

2. Actions taken till date for the following correspondence from NCSC state Office dt 28 February 2011 (F.No.1/416/2010 rep)

 

3. Copies of all documents (correspondences/letters! memos/file notes/email or electronic media if any) based on which the reply (No.EDN.41 (5)/2010 dt 23 November 2010 from the Director JIPMER) to the Director NCSC State Office Chennai (Ref: F.No.1/416/2010 rep dt 4 October 2010) was given.

 

4. Copies of all documents (correspondences/letters! memos/file notes/email or electronic media if any) related to letter from the Director NCSC State Office Chennai (Ref: F.No.1/416/2010 rep dt 28 February 2011) and action taken till date.

 

5. Who is the deciding authority regarding MD examinations in Autonomous JIPMER?

 

6. What are the duties and responsibilities of Dean in the conduct of MD examinations March 2011?

 

7. Who are the executive authority/ies in the conduct of MD Exams March 2011:

a. In JIPMER into to

b. In Dept of PSM, JIPMER.

 

8. Provide the copies of all documents related to conduct of MD Examination in PSM Dept from Office of Dean, academic section and examination section.

 

9. Letters/other correspondences related to External Examiners asking them to be examiners for MD Community Exam march 2011.

 

10. Provide copies of all complaints received from Dr M Bala Soudarssanane HOD PSM against

a. Dr KS Reddy, Dean

b. Dr Gautam Roy

c. Dr KC Premarajan

d. Dr Sonali Sarkar

e. Dr Ganesh Kumar

 

11. Provide all documents regarding action taken against the five persons mentioned in Question 10.

 

12. Copies of all documents (correspondences/letters! memos!filenotes!email or electronic media if any)based on which Dr KC Premarajan Nas removed as co-guide for Dr Prasanna T’s thesis.

 

13. Provide the list of examiners (external and internal examiners) for MD Community Medicine Exam in the past 5 years.

 

14. Provide the copy(s) of complaint received from Dr M Bala Soudarssanane against Dr Zile Singh regarding promotion of Dr KC Premarajan in 2010.

 

15. Provide the copies of other complaints received from other residents (JR/SR) against the five faculty of PSM in the past one year.

 

16. Copies of circulars/mark sheets for conduct of two model exams for MD candidates in PSM dept. with my signature.

 

17. Provide the details of marks obtained by Dr Prasanna T in each section of MD Exam (for both theory and clinical exam) in March 2011 with copies of documents and assessment made by individual exams for the same.

 

In his reply on 3 August 2011, the PIO stated, "the entire matter is sub-judice vide Writ Petition WP No.9612 of 2011 and before the High Court of Judicature at Madras. It is also stated that the requested information regarding MD Examination is confidential information relating to examinations and is not provided under 8 (1) (e) of the RTI Act, and it also attracts provision under 8 (1) (b) of the RTI Act."

 

In his second reply sent on 8 August 2011, the PIO said, "the entire matter is sub-judice vide Writ Petition WP No, 9612 of 2011, before the High Court of Judicature at Madras, wherein you have impleaded as respondents the director, dean, two professors (internal examiner), two asst. professors (supervisor, department of P&SMI JIPMER), Dr Zile Singh, professor of community medicine (external examiner), Pondicherry Institute of Medical Sciences, Puducherry, professor (examinations) & registrar (academic) seeking a direction from the High Court to set aside the results declared on 26 March 2011 and also seeking a direction to conduct a fresh examinations without involving any of the respondents. Hence, the information you have sought attracts the provisions of 8(1) (b) of the RTI Act, 2005. Further, it is also stated that the requested information regarding MD Examination is confidential in nature relating to examinations and is held in fiduciary relationship. Hence, the information you have sought also attracts the provisions of 8(1)(e) of the RTI Act."

 

The PIO sent another reply on 11 August 2011 in which he stated that the information had been provided in office letter dated 28 April 2011. "The matter is sub-judice and the matter is pending in the court. Information can not be disclosed under section 8 (1) (b) of the RTI act," he said.

 

Dr Prasanna T, the applicant, not satisfied with the replies provided by the PIO, filed a complaint before the CIC.

 

During the hearing, Mr Gandhi the then Central Information Commissioner, asked the PIO to justify denial of information under Section 8(1)(b) of the RTI Act. The PIO could not show any evidence that there was any specific prohibition or ban by any court on disclosure of information.

 

The PIO stated that in this regard he was relying on a decision dated 16 December 2008 of the CIC in appeal No CIC/PB/A/2008/00453/SM dated 22 February 2008. He referred to the following statements in the said order:

 

“This Commission has consistently taken a view that if the information sought relates to a pending proceeding before a competent court/tribunal, then the said information should be obtained only through court/tribunal and not under the provisions of the RTI Act.”

 

The Bench then reserved its order.

 

During the hearing on 13 March 2012, Mr Gandhi said, based on submissions of both the parties, the issue before the Bench was whether the information sought is protected from disclosure under Section 8(1)(b) of the RTI Act.

 

The PIO argued that since the matter in relation to which information has been sought is sub- judice before a Court, the information would be exempt under Section 8(1)(b) of the RTI Act.

 

Section 8(1)(b) of the RTI Act exempts from disclosure “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”.

 

"From a plain reading of Section 8(1)(b) of the RTI Act," Mr Gandhi said, "it is clear that it does not include sub- judice matters; only information which has been expressly forbidden to be published by any court, or disclosure of which may constitute a contempt of court is protected under Section 8(1)(b) of the RTI Act."

 

"In the instant matter, no evidence was adduced by the PIO to show that there was a specific prohibition or ban by any court/ tribunal on disclosure of the information sought. Moreover, the PIO has not advanced any argument to show that disclosure of the information sought would constitute a contempt of court. Hence, disclosing information on matters which are sub-judice cannot constitute contempt of court, unless there is a specific order forbidding its disclosure. The mere claim that a matter is sub-judice cannot be used as a reason for denying information under the RTI Act. Therefore, the contention of the Respondent cannot be accepted by the Bench," he said.

 

During the previous hearing the PIO had placed reliance on the decision of the Commission in Vinay Satishkumar Verma vs. State Bank of India CIC/PB/A/2008/00453/SM dated 22 February 2008, the relevant portion of which has been extracted above. "On perusal of this decision, the Bench noted that it does not deal with Section 8(1)(b) of the RTI Act and therefore, is not relevant in determining whether the information sought is protected under Section 8(1)(b) of the RTI Act," Mr Gandhi said.

 

The Bench also noted that the PIO vide replies dated 3 August 2011 and 8 August 2011 had denied the information on the basis of Section 8(1)(e) of the RTI Act.

 

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”.

 

The PIO also stated that the information regarding MD Examination is confidential in nature relating to examinations and held in fiduciary relationship.

 

Mr Gandhi said, "This Bench, in a number of decisions, has held that the traditional definition of a fiduciary is a person who occupies a position of trust in relation to someone else, therefore requiring him to act for the latter's benefit within the scope of that relationship. 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."

 

"Therefore, the PIO was required to establish the aforementioned criteria in order to seek the protection of Section 8(1)(e) of the RTI Act. As per Section 19(5) of the RTI Act, the burden of establishing the applicability of the exemption lies on the PIO. The PIO had merely stated that the information sought is confidential in nature. It is relevant to mention that in the functioning of the government, there may be various instances where certain documents, records, procedures, etc have been treated as confidential and at times, explicitly so provided. However, with the advent of the RTI Act, such information has to be provided subject only to the exemptions of the RTI Act viz. Sections 8 and 9," the Bench added.

 

While allowing the appeal, Mr Gandhi said the information sought by Dr Prasanna T cannot be exempt from disclosure under Sections 8(1)(b) and (e) of the RTI Act. He then directed the PIO to provide complete information as per record to Dr Prasanna T, the complainant before 10 April 2012.

 

CENTRAL INFORMATION COMMISSION

 

Decision No. CIC/AD/C/2011/901017/SG/17642

http://ciconline.nic.in/cic_decisions/CIC_AD_C_2011_901017_SG_17642_M_77981.pdf

Complaint No. CIC/AD/C/2011/901017/SG

 

 

Complainant :                      Dr Prasanna T,

                                                 24, Citizen Avenue, Mahaveer Nagar Extension,

                                                 Lawspet, Pondicherry 605008

 

Respondent :                        Dr Gautam Roy,

                                                Public Information Officer & Professor (PSM),

                                               Jawaharlal Institute of Post Graduate Medical Education and
                                               Research,

                                               Pondicherry-605006

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    RTI Judgement Series: Provide information on MTM position of banks

    Where MTM losses on currency derivatives are to the extent of more than Rs32,000 crore, it is certainly a matter of national importance and citizens have a right to know about the same, the CIC ruled. This is the 200th in a series of important RTI judgements given by former Central Information Commissioner Shailesh Gandhi

    The Central Information Commission (CIC), while allowing an appeal, directed the Central Public Information Officer (PIO) of Reserve Bank of India (RBI) to provide information relating to mark-to-market (MTM) position of banks obtained by the central bank for discharging the regulatory and supervisory functions.

    While giving the judgement on 7 December 2011, under the Right to Information (RTI) Act, Shailesh Gandhi, the then Central Information Commissioner, said, "While banks may have given information to RBI in confidence or in trust, there does not appear to be any duty cast upon RBI to act in their benefit. RBI being a regulator of the banking sector obtains and maintains such information in regulatory or supervisory capacity. Therefore, there is no element of choice as such available to banks. There does not appear to be a creation of any fiduciary relationship between RBI and the banks."

    Tiruppur, Tamil Nadu resident, Raja M Shanmugam, on 12 October 2010, sought from the PIO information regarding mark to market losses on account of currency derivatives by banks and action taken by the RBI. Here is the information he sought and the reply provided by the PIO...

    1. Before the Orissa High Court, RBI has filed an affidavit stating that the total mark to market losses on account of currency derivatives is to the tune of more than Rs32,000 crores. Please give bank wise breakup of the MTM losses.    
    Reply of the PIO- The information sought is exempted under Sections 8(1)(a) and (e) of  RTI Act.
     
    2. What is the latest figure available with RBI of the amount of losses suffered by Indian business houses? Please furnish the latest figures bank wise and customer wise.
    Reply of the PIO- NIL
        
    3. Please update on action taken against the erring banks who sold the exotic derivative products in contravention to FEMA Act and RBI Guidelines as per the RBI's submissions to the Orissa High Court.
    Reply of the PIO- NIL

    4. Recent press reports suggests RBI has also issued Show Cause Notices to Several banks that have violated RBI guidelines on the sale of exotic derivative products. Give the list of banks to which show-cause notices were issued along with the copy of the notice issued to banks.    
    Reply of the PIO- NIL

    5. Whether any reply received from any of the banks in response to the Show Cause Notice? If so please furnish copies of the same.
    Reply of the PIO- NIL

    6. RBI has listed out several violations of RBI guidelines by banks in the sale of exotic derivative products in its report filed before Orissa High Court. Whether periodical Audit of Sank branches in the years 2007 and 2008 revealed any such violation? If so, please furnish RBI Audit Report indicating the said violation.
    Reply of the PIO- NIL

    7. RBI has issued a circular dated the 29th of October 2008 asking the banks to park the proceeds on account of derivative losses in a separate account. However, few banks, especially State Bank of India is said to have refused to adhere to the said circular despite repeated demands from the exporters. Whether R5 has received any complaint stating that any bank is refusing to adhere to the specific circular cited above? If so furnish as copy of the same.
    Reply of the PIO- NIL

    8. Also if any complaint is received by RBI as stated above, please give the detail of enquiry and action taken by the RBI on the erring banks.
    Reply of the PIO- NIL

    9. Whether the issue of derivative losses to Indian Exporters was discussed in any of the meetings of Governor I Deputy Governor or senior official of the Reserve Bank of India? If so please furnish the minutes of the meeting where the said issue was discussed.    
    Reply of the PIO- The CPIO, Foreign Exchange Department did not have information on this query.

    10. Any other Action Taken Reports by RBI in this regard.    
    Reply of the PIO- The CPIO, Foreign Exchange Department did not have information on this query.

    Citing the information provided by the PIO as incomplete and unsatisfactory, Shanmugam, the appellant filed his first appeal.

    The First Appellate Authority (FAA) noted that queries 1, 2, 9 and 10 were replied to by the CPIO of Foreign Exchange Department (FED) against which first appeal was filed by the appellant. Queries 3 to 8 were replied to by the CPIO of Department of Banking Supervision (DBS).

    In his observations, the FAA noted...

    Query No. 1:
    The appellant has sought for bank wise break up of the MTM losses, CPIO has claimed exemption from disclosure under S. 8(1)(a) & (e) of RTI Act.

    FAA observation: I agree with the CPIO that disclosure of bank wise break up of MTM losses in the derivative transactions would affect the economic interests of the state as such disclosure to the public could be detrimental to the interest of the subject bank and to the banking system in general. Also, information relating to MTM position of banks are obtained by Reserve Bank for discharging the regulatory and supervisory functions and are held by the Reserve Bank in fiduciary capacity; Therefore, I do not find any infirmity in the exemption claimed by the CPIO under S. 8(1)(a) & (e) of the RTI Act. The decision of the Hon'ble Delhi High Court, referred to by the appellant, is not applicable to the facts o this case. The observations of the Full Bench of CIC in the case of Shri Ravin Ranchchodlal Patel & ----. Reserve Bank of India (Decided on December 7, 2006), wherein absolute discretion was granted to the Reserve Bank to assess the desirability of disclosure of Inspection Report in individual cases, are equally relevant to the kind of information sought by the appellant especially when he desires to have bank wise break up. I do not consider that this is a fit case warranting invocation of S. 8(2) of RTI Act by the CPIO and accordingly, no fault can be found on the part of CPIO in not disclosing the information sought by the appellant.

    Query No. 2.
    The appellant desired to know the amount of losses suffered by Indian Business Houses and its latest figures, bank wise and customer wise.

    FAA Observations: CPIO has not given a separate reply to this Query. Instead, he has made a cross reference to his reply to Query No. 1. I direct the CPIO to clarify to the appellant whether the information relating to the losses suffered by Indian Business Houses is available with the Reserve Bank. If available, CP is directed to consider the request of the appellant subject to the exemptions provided under the RTI Act.

    Query Nos. 9&10:
    The appellant wanted to know whether the issue of derivative losses to Indian exporters was discussed in any of the meetings of the Governor/ Deputy Governor or senior official of Reserve Bank and if so, to furnish the minutes of the meeting. In Query No. 10, the appellant sought for Action taken Reports by RBI in the matter. CPIO has replied that no information is available.

    FAA Observations: Whether a particular state of fact exist or not, ideally has to be replied either in the affirmative or in the negative. Replying that no information is available is not appropriate. In my view, based on the records, CPIO should state whether there were any meetings or action taken reports, as sought by the appellant.  Therefore, I direct the CPIO to revisit Query Nos. 9 & 10 and give appropriate replies to the appellant. However, I wish to clarify that disclosure of minutes of meetings or copies of reports, if any, shall be subject to the exemptions provided under the RTI Act."

    Not satisfied with the FAA's order, Shanmugam, then approached the CIC with his second appeal.

    During the hearing on 15 November 2011, the CPIO of RBI neither appeared nor did submit any documents or letter before the Bench. Shanmugam, the appellant, who was present, sought the attention of the Bench to a judgement of Orissa High Court in WP (Crl) No344/2009. Mr Gandhi, the then Central Information Commissioner, then reserved his order.

    During the hearing on 7 December 2011, Mr Gandhi said, he perused the papers including submission of the appellant, who was seeking information on queries 1, 2, 9 and 10.

    The PIO denied the information on the basis of Sections 8(1)(a) and (e) of the RTI Act. The FAA has upheld the PIO's reply in query 1 and cited the CIC's decision in RR Patel vs RBI (CIC/MA/A/2006/00406 and 00150 dated 7 December 2006). As regards query 2, the FAA directed the CPIO to consider the appellant's request subject to the provisions of the RTI Act.

    Relying on the CIC's decision in the RR Patel case, the FAA observed that disclosure of bank-wise break-up of MTM losses in the derivative transactions would affect the economic interests of the State as such disclosure to the public could be detrimental to the interest of the subject bank and the banking system in general.

    Mr Gandhi said, "In RR Patel's Case, the Full Bench was considering the issue of disclosure of RBI's inspection report of a Cooperative Bank. One of the issues before the Bench was whether the inspection report was exempt from disclosure under Section 8(1)(a) of the RTI Act. The Full Bench relied on a decision of the Punjab & Haryana High Court in RBI vs Central Government Industrial Tribunal (dated 07/05/1958) which had observed that 'In an integrated economy like ours, the job of a regulating authority is quite complex and such an authority has to decide as to what would be the best course of action in the economic interest of the State. It is necessary that such an authority is allowed functional autonomy in decision making and as regards the process adopted for the purpose'."

    Based on the above, the Full Bench, in paragraph 16, ruled inter alia that, "In view of this, and in light of the earlier discussion, we have no hesitation in holding that the RBI is entitled to claim exemption from disclosure u/s 8(1)(a) of the Act if it is satisfied that the disclosure of such report would adversely affect the economic interests of the State. The RBI is an expert body appointed to oversee this matter and we may therefore rely on its assessment. The issue is decided accordingly".

    "It appears that the Full Bench was of the view that if RBI concluded that disclosure of inspection reports would adversely affect the economic interests of the State, the said information may be denied under Section 8(1)(a) of the RTI Act. There is no observation that the Full Bench had come to this conclusion by itself. Further, the observations of the Punjab & Haryana High Court in RBI vs Central Government Industrial Tribunal (dated 7 May 1958) relied on by the Full Bench were made much before the advent of the RTI Act and cannot therefore, be a guide for deciding on exemptions under the RTI Act," the Bench noted.

    Furthermore, the RBI in RR Patel's case claimed that if inspection reports of banks were to be disclosed it would affect the economic interests of the state. The Full Bench decision appears to rely on the submissions of the Deputy Governor of RBI provided vide letter dated 21 November 2006 and were as follows:

    "(i) Among the various responsibilities vested with RBI as the country's Central Bank, one of the major responsibilities relate to maintenance of financial stability. While disclosure of information generally would reinforce public trust in institutions, the disclosure of certain information can adversely affect the public interest and compromise financial sector stability.

    (ii) The inspection carried out by RBI often brings out weaknesses in the financial institutions, systems and management of the inspected entities. Therefore, disclosure can erode public confidence not only in the inspected entity but in the banking sector as well. This could trigger a ripple effect on the deposits of not only one bank to which the information pertains but others as well due to contagion effect.

    (iii) While the RBI had been conceding request for information on actions taken by it on complaints made by members of the public against the functioning of the banks and financial institutions and that they do not have any objection in giving information in respect of such action taken or in giving the substantive information pertaining to such complaints provided such information is innocuous in nature and not likely to adversely impact the system.

    (iv)However, disclosure of inspection reports as ordered by the Commission in their decision dated September 6, 2006 would not be in the economic interest of the country and such disclosures would have adverse impact on the financial stability.

    (v) It would not be possible to apply section 10(1) of the Act in respect of the Act in respect of the inspection report as portion of such reports when read out of context result in conveying even more misleading messages."

     
    Mr Gandhi noted that the RBI argued that that it did not wish to share the information sought as some of it could "adversely affect the public interest and compromise financial sector stability". RBI was unwilling to share information, which might bring out the 'weaknesses in the financial institutions, systems and management of the inspected entities'. It was further contended that 'disclosure can erode public confidence not only in the inspected entity but in the banking sector as well. This could trigger a ripple effect on the deposits of not only one bank to which the information pertains but others as well due to contagion effect'.

    He said, "It appears that the RBI argued that citizens were not mature enough to understand the implications of weaknesses, and RBI was the best judge to decide what citizens should know. Citizens must be given selective information about weaknesses exposed in inspection, to ensure that they have faith in the banking sector. They must see the financial and banking sector only to the extent, which RBI wishes. If the RBI made mistakes, or there was corruption, citizens would suffer. This appears to go against the basic tenets of democracy and transparency."

    The CIC cited a clarion call in State of Uttar Pradesh vs Raj Narain (1975) 4 SCC 428, by Justice Mathew that stated...

    "In a government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can be but few secrets. The people of this country have a right to know every public act, everything that is done in a public way by their public functionaries. They are entitled to know the particulars of every public transaction in all its bearing. Their right to know, which is derived from the concept of freedom of speech, though not absolute, is a factor which should make one wary when secrecy is claimed for transactions which can at any rate have no repercussion on public security".

    Mr Gandhi said, "The idea that citizens are not mature enough to understand and will panic is repugnant to democracy. The exemptions under Section 8 and 9 of the RTI Act are the constraints put by Parliament and adjudicating bodies have to carefully consider whether the exemptions apply before denying any information under the RTI framework."

    "It is pertinent to mention that in RR Patel's case, the Full Bench did not come to any specific conclusion that disclosure of inspection reports would prejudicially affect the economic interests of the State. Instead it left it to RBI to determine whether disclosure of the said information would attract Section 8(1)(a) of the RTI Act. This was primarily on the basis that RBI is an expert body and that any decision taken by it should be relied upon by the Commission. No legal reasoning whatsoever was given by the Bench for concluding the above. There is no evidence or indication that the Commission after taking cognizance of RBI's views had come to the same conclusion."

    "If the position of the Full Bench is to be accepted, it would lead to a situation where RBI would have the final say in whether information should be provided to a citizen or not. Extending this logic, all public authorities could be the best judge of what information could be disclosed, since they are likely to be experts in matters connected with their working. In such an event the Information Commission would have no role to play. Parliament evidently expected that the Information Commission would independently decide whether the exemptions are applicable. The Full Bench did not give any independent finding that the disclosure of information would affect the economic interests of the State in its decision. This would completely negate the fundamental right to information guaranteed to the citizens under the RTI Act. In the case being considered by the full bench, it decided to accept the judgment of RBI. It is open to a Commission to defer to a judgment of another body, but this does not establish any principle of law, and would apply only to the specific matter," Mr Gandhi said.

    The Bench said, "It is apparent from the scheme of the RTI Act that the Commission is a quasi- judicial body which is responsible for deciding appeals and complaints arising under the RTI Act. While deciding such cases, the Commission would necessarily have to consider whether there were any cogent reasons for denial of information under Sections 8 and 9 of the RTI Act. Since the Full Bench has not recorded any comment which shows that it consciously agreed that Section 8 (1)(a) of the RTI Act was applicable in such matters, it does not establish any legal principle or interpretation which can be considered as a precedent or ratio. Thus the decision is applicable only to the particular matter before it, and does not become a binding precedent."

    Mr Gandhi said, the powers of the Commission are limited under the RTI Act and certainly do not confer upon it the power of review. "It is clear from the Full Bench ruling in RR Patel's case that it was reviewing the two decisions of Professor MM Ansari, then Information Commissioner on merits. The Full Bench certainly did not have the power to do so, given the provisions of the RTI Act and the law laid down by the Supreme Court in this regard. In fact, the Supreme Court in the Kapra Mazdoor Ekta Union Case clearly considered and clarified the ruling in the Grindlays' Bank Case (relied upon by the Full Bench). It appears that the Full Bench reviewed the issues based on merits in RR Patel's case in ignorance of the law laid down by the Supreme Court in Kapra Mazdoor Ekta Union Case. In other words, the RR Patel Case is per incuriam and is consequently, not binding on this Bench," he added.

    "Having laid down the above," Mr Gandhi said, "this Bench is of opinion that even if the information sought was exempted under Section 8(1)(a) of the RTI Act,-as claimed by the Respondent,- Section 8(2) of the RTI Act would mandate disclosure of the information sought."

    Section 8 (2) of the RTI Act states, "Notwithstanding anything in the Official Secrets Act, 1923 nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interests in disclosure outweighs the harm to the protected interests".

    Mr Gandhi noted that the RBI is a regulatory authority which is responsible for inter alia monitoring banks and financial institutions along with flow of public funds and forex in accordance with applicable law. "In the present matter where MTM losses on currency derivatives are to the extent of more than Rs32,000 crores, it is certainly a matter of national importance. There appears to be a large financial scam affecting the economy as a whole and citizens have a right to know about the same," he added.

    The Bench then considered whether information sought in queries 1 and 2 is exempt from disclosure under Section 8(1)(e) of the RTI Act.

    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, "This Bench, in a number of decisions, has held that the traditional definition of a fiduciary is a person who occupies a position of trust in relation to someone else, therefore requiring him to act for the latter's benefit within the scope of that relationship. 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."

    The PIO has denied information on queries 1 and 2 on the basis of Section 8(1)(e) of the RTI Act. This was upheld by the FAA which further observed that information relating to MTM position of banks are obtained by RBI for discharging the regulatory and supervisory functions and are held by RBI in fiduciary capacity.  

    However, Mr Gandhi said, "Information provided by banks or institutions subordinate to RBI is done in fulfilment of statutory compliance. This would not create any fiduciary relationship as such between RBI and the subordinate banks or institutions. The criteria defining a fiduciary relationship, as described above, must be satisfied which does not appear to have been done in the present matter. Inspections, audits and investigations are done by RBI officers as part of statutory duty and banks have to undergo this in compliance with statutory requirements. Therefore, the denial of information on queries 1 and 2 on the basis of Section 8(1)(e) is rejected".

    While allowing the appeal, the Bench directed the CPIO of FED to provide complete information to Shanmugam on queries 1, 2, 9 and 10 before 5 January 2012.

    CENTRAL INFORMATION COMMISSION

    Decision No. CIC/SG/A/2011/001966/16167
    http://ciconline.nic.in/cic_decisions/CIC_SG_A_2011_001966_16167_M_71930.pdf
    Appeal No. CIC/SG/A/2011/001966

    Appellant                    : Raja M Shanmugam,
                                            President - Forex Derivative Consumer's Forum,
                                           33B, Vaikkal Thottam,
                                           Sherieff Colony,
                                           Tiruppur - 641604
                                                                           
    Respondent              : Central Public Information Officer,
                                          Reserve Bank of India,
                                         Foreign Exchange Department,
                                         Central Office, Central Office Building,
                                         Shahid Bhagat Singh Marg,
                                          PB No. 1055, Mumbai - 400001

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    Ramesh Poapt

    6 years ago

    superb article!!!

    RTI Judgement Series: PIO of urban dept asked to give corrected certificate

    The CIC directed the PIO of urban development dept at GNCTD to corrected certificate about block D and D1 and D1 Extension at Mansa Ram Park. This is the 198th in a series of important RTI judgements given by former Central Information Commissioner Shailesh Gandhi

    The Central Information Commission (CIC), while allowing an appeal, directed the Public Information Officer (PIO) of Department of Urban Development (UD) at Government of National Capital Territory of Delhi (GNCTD) to provide a certificate stating that information provided about block D includes D1 and D1 Extension at Mansa Ram Park.

     

    While giving the judgement on 14 September 2009, under the Right to Information (RTI) Act, Shailesh Gandhi, the then Central Information Commissioner, said, "The PIO will give a certificate to the Appellant before 30 September 2009 certifying that D includes D1 and D1 Extension."

     

    New Delhi resident, Jageram Yadav, on 6 March 2009, sought from the PIO information regarding certificate for regularisation of an unauthorised colony at Mansa Ram Park A, B, C, D, D1 and D1 extension. Here is the information he sought and the reply provided by the PIO...

     

    1. Reason for not amending/issuing new Provision Certificate by HK Bharti, Chief Town Planner and Mr Anil Kumar Singh, Dealing Assistant of UD Department (UC Cell)        

    PIO's Reply- As per application submitted in 2007-08 against Regd. No. 993 and 789, separately there were two layout plans namely i/e/ for Mansa Ram Park, Block - C, D, & D - I and for Mansa Ram Park Block, A & B. In this regard, some representations were received for issue/rectification of Provisional Regularisation Certificates to the Department. Matter was under examination. Scrutiny by the MCD/DDA and Revenue Dept was also being conducted. Provisional Regularisation Certificate will be issued after the verification of the case.

     No Provisional Regularisation Certificate could be issued before examining the truth of the representation. The rectification and issuance of new Provisional Regularisation Certificate was under process for other colonies for which Provisional Regularisation Certificate were not issued.

     

    2. Reason for not taking any action against Anil Kumar Singh, Dealing Assistant for demanding bribe from the Appellant.   

    PIO's Reply- The case was under process for examining the authenticity and truth of representation/case.

      

    3. Following information regarding 1539 unauthorised colonies -

    a) Number of colonies which have submitted its documents and maps and vice-versa.

    b) Number of colonies which have been issued correct/ incorrect acknowledgement slips.

    c) Number of colonies whose documents had been rejected?

    d) Number of colonies to which correct eligibility/incorrect eligibility slips had been issued?

    e) Number of colonies to which correct/incorrect provisional certificate had been issued?

    f) Number of provisional certificates which had been amended/ rectified/ corrected as on date and vice versa.     

    PIO's Reply-

    a) Around 1639 application had been received for regularisation of the Unauthorised Colonies.

    b) to f) No such list had been prepared.

     

    4. Details of action taken against dealing assistant and concerned officials who had issued wrong certificate.     

    PIO's Reply- There were a few cases where such inadvertently Provisional Regularisation Certificate has been issued. After examining the documents the correct Provisional Regularisation Certificate was to be issued case to case.

     

    5. Whether there is any nexus between Mr Anil Kumar Singh, Dealing Asst. and Mr HK Bharti.       

    PIO's Reply- Till then, no such corrected version and/or rectified Provisional Regularisation Certificate had been issued to any Unauthorised Colonies for which the incorrect Provisional Regularisation Certificate was issued.

     

    6. Request to amend the existing provisional certificate of the Appellant or issue a new one.

    PIO's Reply- The observation raised by the Appellant was baseless.

     

    Citing the PIO provided an incomplete and unsatisfactory reply, Yadav filed his first appeal.

     

    The First Appellate Authority (FAA), on several occasions asked the PIO and deputy secretary (UC) to file the counter reply against the appeal, but there was no reply. The FAA then directed the PIO to prepare and provide point-wise clear, complete and relevant information to the appellant within 15 days from the date of its order. The FAA also suggested the PIO to see whether the information is clear, relevant and complete in all respects as intended by the Yadav before sending the information.

     

    Yadav, citing incomplete information received from the PIO even after the order of the FAA then approached the CIC with his second appeal.

     

    During the hearing, Mr Gandhi, the then CIC, observed that the appellant had for a certificate for regularisation of an unauthorised colony at Mansa Ram Park A, B, C, D, D1 and D1 extension, however, the provisional certificate give to him did not mention D1 and D1 extension.

     

    Yadav also alleged in writing that Anil Kumar Singh, dealing assistant, had demanded a bribe from him (for providing the certificate) and since he did not give it, the correction was not done and for the past one year, he had been subjected to harassment for not giving the bribe.

     

    Mr Gandhi noted that the Department has clearly absolved Anil Kumar Singh of having demanded a bribe but so far has not given the corrected certificate to Yadav. The PIO stated that the Department will give a certificate to the appellant before 30 September 2009 certifying that D includes D1 and D1 Extension.

     

    The Bench, while allowing the appeal directed the PIO to give a certificate before 30 September 2009.

     

    CENTRAL INFORMATION COMMISSION

     

    Decision No. CIC/SG/A/2009/001759/4781

    http://ciconline.nic.in/cic_decisions/SG-14092009-07.pdf

    Appeal No. CIC/SG/A/2009/001759

     

    Appellant                                        : Jageram Yadav

                                                                Joint Colony Progressive Society,

                                                                Mansa Ram Park, Shop No. 6, Shanti Mkt.,

                                                                Near Charidiwari, Gulab Bagh,

                                                                Main Najafgadh Road, Uttam Nagar,

                                                                New Delhi - 110059

     

    Respondent 1                                 : Public Information Officer

                                                                Joint Secretary (UD)

                                                                Department of Urban Development

                                                                Govt. of NCT of Delhi

                                                                10th Level 'C' Wing, Delhi Secretariat,

                                                                IP Estate, New Delhi - 110002

     

    Respondent 2                                 : JG Arora

                                                                Dy. Secretary (UC)

                                                                Delhi Secretariat

                                                                New Delhi

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