CIC: FAA has reviewed its own decision which is found to be highly inappropriate; the insurance surveyor is expected to maintain confidence as a ‘fiduciary’ but the insurer does not have to seek the concurrence of agent before disclosure of information
27 Mar, 2014Information relating to the report submitted by a Surveyor based on which the Insurance company has settled the claim of M/s. Supreme Texmart in case of a fire loss - FAA reviewed his earlier order o disclosure and denied the requisite information u/s 8(1)(e) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, 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; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, 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; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, 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; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, 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; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, 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; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, 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; - PIO submitted that the 2nd surveyor’s report cannot be provided to him being 3rd party information as the 2nd surveyor stands in a fiduciary relationship with the public authority - CIC: While the surveyor would be expected to maintain confidence as a ‘fiduciary’ since he was assigned the task of carrying out the survey for a consideration by the insurer, it would not preclude the Principal i.e., the insurer to use such information for any bonafide purpose as otherwise it would mean that any time the insurer furnishes the copy of the report or a portion of it to any other person in bonafide pursuance of its business, it has to seek the concurrence of the agent - CIC: the report of the surveyor should also contain the basis of valuation, the same cannot be treated as third party information except specific documents on which confidentiality may be claimed by the third party viz., the insured i.e. M/s Supreme Texmart, Ludhiana, as such the information should be provided to the appellant
Facts:
1. The appellant Shri Sanjeev Soni has submitted RTI application dated 04 October 2012 before the Central Public Information Officer (CPIO), National Insurance Co. Ltd., Ludhiana; seeking information relating to the report submitted by Mr. Ramanathan, Surveyor, Coimbatore based on which the respondent company has settled the claim of M/s. Supreme Texmart, Ludhiana or the loss dated 30.11.2007.
2. Vide CPIO order dated 05 November 2012, CPIO furnished the information to the appellant. Not satisfied by the CPIO’s reply, the appellant preferred appeal to the First Appellate Authority (FAA) dated 14 November 2012. Vide FAA order dated 11 January 2013, the FAA reviewed his earlier order dated 26 December 2012 and finally denied the requisite information under Section 8(1)(e) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, 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; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, 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; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, 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; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, 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; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, 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; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, 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; of the RTI Act, 2005. 3. Being aggrieved and not satisfied by the above response of the public authority, the appellant preferred second appeal before the Commission.
4. The matter was heard today via videoconferencing. The appellant, Shri Sanjeev Soni, was present at the hearing in person and made his submissions. The respondents, Shri S K Joshan, CPIO and Shri S K Monga, Senior Branch Manager made submissions from Ludhiana. Shri S K Passi, FAA and Shri Bhogal, FAA made submissions from Chandigarh.
5. A perusal of the record of the case shows that the FAA has issued two orders in the matter (as mentioned in para 2 above). The first order dated 26122012 vide which he directed the CPIO to provide information in tune with the request of the appellant was reviewed by the FAA issuing another order on January 11, 2013 vide which h he stated that the second surveyor, Shri P.S. Ramanathan, has strongly objected against the NICL providing the appellant the 77 page calculations being third party information in nature. He also stated that he had reviewed his earlier decision and concluded that the information sought by the appellant is definitely exempted under Sec. 8(1)(e) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, 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; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, 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; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, 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; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, 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; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, 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; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, 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; of the RTI Act, 2005.
6. The appellant Shri Sanjeev Soni submitted that he has sought the copy of calculations made in the final report along with its enclosures (77 pages) as submitted by Shri P.S. Ramanathan, the surveyor for settling the claim of M/s Supreme Texmart, Ludhiana in case of a fire loss dated November 30, 2007. The appellant also submitted that he has learnt that his report assessing the claim of M/s Supreme Texmart, Ludhiana, has been made available to the 2nd surveyor Therefore, he should also be allowed the 2nd surveyor’s report.
7. The CPIO submitted that the 2nd surveyor’s report cannot be provided to him being 3rd party information and also as Shri P.S. Ramanathan, the 2nd surveyor stands in a fiduciary relationship with the public authority and, hence, the disclosure of information attracts Sec. 8(1)(e) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, 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; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, 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; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, 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; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, 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; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, 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; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, 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; of RTI Act, 2005.
8. The issue in this case is whether the exemption from disclosure of information under Sec 8(1) (e) of the RTI Act 2005 is applicable to this case. The provision of Sec 8(1)(e) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, 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; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, 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; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, 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; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, 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; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, 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; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, 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; is quoted below: “8. Exemption from disclosure of information. —(/) 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; . . . .”
9. The respondent CPIO of the public authority has submitted in written statement dated 29012014 that the second Surveyor, P.S. Shri Ramanathan, has stated that he had obtained the documents for and on behalf of the Company during the course of an assignment which contain proprietary and confidential information to the claimant’s business. On the basis of statement of Mr. P.S. Ramanathan, being a ‘Third Party Matter’, it was requested to the appellate authority to review its decision and the appellate authority vide its order dated 11012013 (Annexure V) concluded that the information sought by the applicant, Mr. Sanjeev Soni, is definitely exempted u/s 8(1)(e) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, 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; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, 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; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, 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; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, 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; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, 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; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, 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; of the RTI Act.
10. In this regard, the judgement of Hon’ble Supreme Court in the case of CBSE Vs Aditya Bandopadhyay & Ors decided on 9.8.2011 in Civil Appeal No.6454 of 2011 is relevant. Hon’ble Supreme Court has held that an examining body does not hold the evaluated answer books in a fiduciary relationship qua the examiners. In Para 21 of the judgement, the term ‘fiduciary’ has been examined by the Hon’ble Court which is extracted below: “21. The term 'fiduciary' refers to a person having a duty to act for the benefit of another, showing good faith and candour, where such other person reposes trust and special confidence in the person owing or discharging the duty. The term 'fiduciary relationship' is used to describe a situation or transaction where one person (beneficiary) places complete confidence in another person (fiduciary) in regard to his affairs, business or transaction/s. The term also refers to a person who holds a thing in trust for another (beneficiary). The fiduciary is expected to act in confidence and for the benefit and advantage of the beneficiary, and use good faith and fairness in dealing with the beneficiary or the things belonging to the beneficiary. If the beneficiary has entrusted anything to the fiduciary, to hold the thing in trust or to execute certain acts in regard to or with reference to the entrusted thing, the fiduciary has to act in confidence and is expected not to disclose the thing or information to any third party. There are also certain relationships where both the parties have to act in a fiduciary capacity treating the other as the beneficiary. Examples of these are: a partner visavis another partner and an employer vis-a-vis employee. An employee who comes into possession of business or trade secrets or confidential information relating to the employer in the course of his employment, is expected to act as a fiduciary and cannot disclose it to others. Similarly, if on the request of the employer or official superior or the head of a department, an employee furnishes his personal details and information, to be retained in confidence, the employer, the official superior or departmental head is expected to hold such personal information in confidence as a fiduciary, to be made use of or disclosed only if the employee's conduct or acts are found to be prejudicial to the employer”
11. Similarly in this case the question is whether the insurance company is a ‘fiduciary’ as far as the surveyor is concerned. The surveyor has been assigned the work of carrying out the survey by the insurer for certain consideration and once he furnishes the report, it becomes the property of the insurer who may use such information for settling the claims or as deemed fit. While the surveyor would be expected to maintain confidence as a ‘fiduciary’ since he was assigned the task of carrying out the survey for a consideration by the insurer, it would not preclude the Principal i.e., the insurer to use such information for any bonafide purpose as otherwise it would mean that any time the insurer furnishes the copy of the report or a portion of it to any other person in bonafide pursuance of its business, it has to seek the concurrence of the agent i.e., the surveyor, which is not the case. Therefore, the submission of the respondent CPIO that the Sec 8(1)(e) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, 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; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, 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; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, 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; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, 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; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, 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; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, 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; of the RTI Act is attracted in this case is misconceived.
12. Another issue that has been mentioned in the written statement is that there are certain documents obtained from the insured company in the course of the assignment which contain proprietary and confidential information to the claimant’s business. When the insured has submitted a claim for settlement by the insurer of his claims, it is not known whether such privilege has been claimed or whether such privilege can be claimed.
13. Sec 11(1) Where a Central Public Information Officer or a 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: Where a Central Public Information Officer or a 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: of the RTI Act 2005 is extracted below:
‘11. (1) Where a Central Public Information Officer or a 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.”
14. As per the above section, the CPIO is required to give a written notice to such 3rd party for disclosure of any information which relates to or has been supplied by a 3rd party and has been treated as confidential by the 3rd party. The CPIO has not affirmed himself whether any document has been submitted by the insured claimant which has been treated as confidential by the claimant. It would also appear that a 7 page report of the 2nd surveyor has already been furnished to the appellant by the CPIO. The contention of the appellant is that since the report of Shri P.S. Ramanathan forms the basis of reduction of loss as assessed by the appellant, he has a right to know the calculations/valuation of stocks done by Shri P.S. Ramanathan, the second surveyor. Even if there was such a document or record on which confidentiality has been claimed by the 3rd party, the CPIO could have taken action under Sec 11(1) Where a Central Public Information Officer or a 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: Where a Central Public Information Officer or a 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: to issue notice to the claimant insured regarding disclosure of such document which has been submitted by the claimant seeking confidentiality.
Decision Notice
15. Since the report of the surveyor should also contain the basis of valuation, the same cannot be treated as third party information except specific documents on which confidentiality may be claimed by the third party viz. ,the insured i.e. M/s Supreme Texmart, Ludhiana, as such the information should be provided to the appellant. However, in case any portion of this information has been treated as confidential by the third party, the information not treated as confidential by the third party can be furnished taking recource to Section 11 of the RTI Act, 2005 and applying the severability clause under Sec 10 of RTI Act.
16. In addition to the above, the Commission notes that the First Appellate Authority has reviewed its own decision which is found to be highly inappropriate.
17. Action on the above may be ensured within 21 days of the receipt of the order of the Commission.
(ManjulaPrasher)
Information Commissioner
Citation: Shri Sanjeev Soni v. National Insurance co. Ltd., in Appeal: No. CIC/DS/A/2013/000323/MP, CIC/DS/A/2013/000331/MP