CIC: Respondent to endorse a copy of their written submission sent to the CIC to the Appellant, as well - CIC: All submissions placed before the CIC should invariably be endorsed to the Appellant beforehand unless otherwise notified as “Confidential”
16 Jul, 2019O R D E R
FACTS:
The Appellant vide his RTI application sought information on 15 point regarding documents relating to SEBI giving permission or objecting to NSE’s decision to allow RPL shares to be listed in the forward section of the market for the speculation at the time of listing of the IPO of RPL when the company was years away from commercial production, the sources of funds from which margins were met by the brokers who traded in over 10 Lacs Shares of RPL cumulatively in the cash/ forward section of the market during the period from Sept-Oct, 2007, etc.
The CPIO vide its reply dated 15/09/2017 provided a point wise response to the Appellant. Dissatisfied by the response the Appellant approached the FAA. The FAA vide its order dated 10/11/2017 concurred with the reply of the CPIO.
HEARING:
Facts emerging during the hearing: The following were present:
Appellant: Mr. Arun Kumar Agrawal through VC;
Respondent: Mr. G. P. Garg, Chief General Mgr. & CPIO, Mr. N. U. Raju, AGM, Mr. Amit Pradhan, CGM, Mr. Neeraj Malhotra, Sr. Advocate and Ms. Cassandra Zosangliani, Advocate
The Appellant reiterated the contents of the RTI application and while acknowledging the receipt of reply from the CPIO / FAA, stated that the written submissions sent by the Respondent dated 23.05.2019 were not received by him, till date. Thus while seeking a copy of the written submissions by email, the Appellant prayed to either allow him to file his rejoinder against the same or discard the submissions made by the Respondent. He raised a preliminary objection regarding conflict of interest in the conduct of the FAA since he had adjudicated and passed orders in file no WTM/GM/EFD/18/MAR/2017 which was a subject matter of the RTI application/ First Appeal. While referring to his RTI application, the Appellant submitted that in points no.(i) and (xv) if no information was available, the same should have been stated and that the queries were not roving or in the nature of seeking advice or opinion. With regard to point no (ii), (iii) (ix)-(xiii), it was stated that he had sought information regarding deals of the brokers/ clients and margin money during the period when the price manipulation took place and that if the information was not available with the Investigation Department of SEBI then the same could have been provided after obtaining it from BSE/ NSE/ Brokers/ Depository/ Clearing House under Section 2 (f) of the RTI Act, 2005 since the bodies were regulated and supervised by SEBI. In this context, he referred to the decision of the Apex Court in the matter of Reserve Bank of India & Ors. vs. Jayantilal N. Mistry & Ors., (2016) 3 SCC 525. With regard to points (iv) to (viii) and (xiv) of the RTI application, it was stated that Section 8 (1) (d) and (e) could not be invoked to deny the information and that Section 8 (2) stated that information should be provided if larger public interest outweighs private interest. In its reply, the Respondent’s representative submitted that reliance on Section 8 (2) of the RTI Act, 2005 by the Appellant in his Second Appeal meant that he had already conceded that the information was exempted from disclosure under Section 8 (1) of the RTI Act, 2005. The Respondent’s representative also stated that the plea of the Appellant that there was a conflict of interest in the conduct of the FAA was baseless since the FAA and WTM was not having a personal interest in the matter and the decisions were solely taken in official capacity in accordance with the provisions of the SEBI Act, and the RTI Act, 2005. While providing a point wise response to the queries raised in the RTI application, the Respondent’s representative re-iterated the reply of the CPIO/ FAA and stated that the information on point no. (i) was vague/ roving/ fishing in nature since it was made with a presumption that SEBI permitted speculation. Regarding point no (ii), (iii), (ix) (x) (xi), (xii) and (xiii) it was stated that the information was not maintained in the normal course of regulation of the Securities Market hence was not available with SEBI. In this context a reference was made to the decision of the Apex Court in the matter of CBSE and Anr. Vs. Aditya Bandopadhyay and Ors 2011 (8) SCC 497 relied by the Commission in the matter of CIC/MOHRD/A/2018/138043-BJ+ CIC/MOHRD/A/2018/138042/DHEDU-BJ + CIC/DHEDU/A/2018/138041-BJ CIC/DHEDU/A/2018/138040-BJ+ CIC/DHEDU/A/2018/138039-BJ+ CIC/DHEDU/A/2018/138037-BJ + CIC/MOHRD/A/2018/163416-BJ+ CIC/DHEDU/A/2018/164347-BJ + CIC/MOHRD/A/2018/142914-BJ CIC/MOHRD/A/2018/141416-BJ + CIC/DFERT/A/2018/157872-BJ + CIC/DFERT/A/2018/157865-BJ dated 09.01.2019. With regard to point no. iv, v, vi, vii, viii and xiv, it was stated that the information was held in fiduciary capacity and included commercial confidential information, the disclosure of which could harm the competitive position of the entities, hence the information sought was exempted from disclosure u/s 8 (1) (d) and (e) of the RTI Act, 2005. In support of their contention, the Respondent’s representative relied on para 18 of the decision of the High Court of Allahabad (Lucknow Bench) in Amitabh Thakur vs. Uttar Pradesh State Information Commission and Ors., Misc. Bench No. 19986 of 2017 dated 29.08.2017 wherein a reference was made to the decision of the Commission where it was mentioned that investigation would mean all actions of law enforcement, disciplinary proceedings, enquiries, adjudication and so on. With regard to point no. vii, it was also emphasized by the Respondent’s representative that the order of the WTM was challenged before the SAT wherein the Appellant had also made a request to be impleaded as a party. On being queried by the Commission whether he had made any representation before the CBI/ CVC/ M/o Finance, etc or approached any Court of Law in the matter, the Appellant submitted that he had made representations before the CBI/ CVC and acknowledged that he had also made a representation before the SAT for being impleaded as a party in the appeal proceedings.
The Commission was in receipt of a written submission from the Respondent dated 23.05.2019 wherein while providing a point wise response on the contents of the Second Appeal, it was stated with regard to point no. 01 that SEBI had power of regulatory, supervisory and enforcement which was carried out by various departments of SEBI under the SEBI Act, 1992. As mandated under the RTI Act, 2005 the SEBI had appointed CPIO/ FAA. The final order dated 24.03.2017 in the matter of Reliance Petroleum Ltd., was passed by the WTM (GM) as the quasi judicial member. Further the order passed by the WTM (GM) was a speaking order which covered all the relevant information/ grounds which could be disclosed with respect to the case. The FAA order dated b10.11.2017 was passed by the WTM (GM) as he was the Appellate Authority at the relevant time. The First Appeal was dealt by the FAA on its own merits and a speaking order was passed. It was a mere coincidence that both the orders were passed and that it was a mere coincidence that both the orders were passed by the same WTM. Therefore there was no conflict of interest in the matter. As regards point no. 02, it was stated that queries at (i) and (xv) of the RTI application were roving in nature and in the nature of seeking clarification/ explanation respectively and therefore the same could not be considered as information u/s 2 (f) of the RTI Act, 2005. With regard to point no. 03, it was stated that the queried at (ii), (iii), (ix), (x), (xi) to (xiii) of the RTI application in this regard which stated that “the information sought was not maintained by SEBI in normal course of securities market. Hence the same was not available with SEBI”. As regards point no. 04, it was stated that SEBI stands by its reply to the queries at (iv), (v), (vi), (vii), (viii) and (xiv) of the RTI application and subsequent rationale given at Para ‘C’ above. A copy of the Written Submission had also been sent to the Appellant by registered post at his address mentioned in the RTI application.
Having heard both the parties and on perusal of the RTI application/ First Appeal/ reply of the CPIO/ FAA as also the Second Appeal filed by the Appellant, the Commission referred to the definition of information u/s 2(f) “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; of the RTI Act, 2005 which is reproduced below:
“information” means any material in any form, including records, documents, memos, emails, opinions, advices, press releases, circulars, orders, logbooks, contracts, report, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force.”
Furthermore, a reference can also be made to the relevant extract of Section 2 (j) of the RTI Act, 2005 which reads as under:
“(j) right to information” means the right to information accessible under this Act which is held by or under the control of any public authority and includes ........”
In this context a reference was made to the Hon’ble Supreme Court decision in 2011 (8) SCC 497 (CBSE and Anr. Vs. Aditya Bandopadhyay and Ors), wherein it was held as under:
35..... “It is also not required to provide ‘advice’ or ‘opinion’ to an applicant, nor required to obtain and furnish any ‘opinion’ or ‘advice’ to an applicant. The reference to ‘opinion’ or ‘advice’ in the definition of ‘information’ in section 2(f) “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; of the Act, only refers to such material available in the records of the public authority. Many public authorities have, as a public relation exercise, provide advice, guidance and opinion to the citizens. But that is purely voluntary and should not be confused with any obligation under the RTI Act.”
Furthermore, the Hon’ble Supreme Court of India in Khanapuram Gandaiah Vs. Administrative Officer and Ors. Special Leave Petition (Civil) No.34868 OF 2009 (Decided on January 4, 2010) had held as under:
6. “....Under the RTI Act “information” is defined under Section 2(f) “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; which provides: “information” means any material in any form, including records, documents, memos, emails, opinions, advices, press releases, circulars, orders, logbooks, contracts, report, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force.” This definition shows that an applicant under Section 6 of the RTI Act can get any information which is already in existence and accessible to the public authority under law. Of course, under the RTI Act an applicant is entitled to get copy of the opinions, advices, circulars, orders, etc., but he cannot ask for any information as to why such opinions, advices, circulars, orders, etc. have been passed.”
7. “....the Public Information Officer is not supposed to have any material which is not before him; or any information he could have obtained under law. Under Section 6 of the RTI Act, an applicant is entitled to get only such information which can be accessed by the “public authority” under any other law for the time being in force. The answers sought by the petitioner in the application could not have been with the public authority nor could he have had access to this information and Respondent No. 4 was not obliged to give any reasons as to why he had taken such a decision in the matter which was before him.”
Similarly, the High Court of Bombay in Dr. Celsa Pinto, Ex-Officio Joint Secretary (School Education) vs The Goa State Information Commission on 3 April, 2008 (2008 (110) Bom L R 1238) had held as under:
“Section 2(f) “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; -Information means any material in any form, including records, documents, memos e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; The definition cannot include within its fold answers to the question why which would be the same thing as asking the reason for a justification for a particular thing. The Public Information Authorities cannot expect to communicate to the citizen the reason why a certain thing was done or not done in the sense of a justification because the citizen makes a requisition about information. Justifications are matter within the domain of adjudicating authorities and cannot properly be classified as information.” The definition cannot include within its fold answers to the question why which would be the same thing as asking the reason for a justification for a particular thing. The Public Information Authorities cannot expect to communicate to the citizen the reason why a certain thing was done or not done in the sense of a justification because the citizen makes a requisition about information. Justifications are matter within the domain of adjudicating authorities and cannot properly be classified as information.”
The Commission observed that the Respondent had informed during the hearing that the order of the WTM was challenged before the SAT which was also acknowledged by the Appellant who had made an application for being impleaded as a party in that matter.
In this context, the Commission referred to the decision of the Hon’ble High Court of Delhi in the matter of Union of India vs. Shiv Narain, WP(C) 7204/2016 dated 27.03.2019 held as under:
“2. The respondent herein sought information from the petitioner on the following two issues:-
“1. Whether the report vide letter no. RSVY/CE/CE & PM/55(1) 892 dated 12.02.2013 addressed to Inspector of police, CBI, ACB, Patna by Shri D.S. Kapur CE cum PM RSVY project Zone, CPWD, Patna in connection with the subject referred above was submitted by the CBI before the sanctioning Authority before grant of prosecution sanction.
2. The certified copy of the note sheet of the above mentioned case from the beginning to the issue of prosecution sanction may also be given for which I am ready to pay the requisite fee.”
4. Learned counsel for the respondent has fairly drawn my attention to an order dated February 12, 2019 passed by the Supreme Court in Civil Appeal No. 1632/2019, which is an appeal arising from the orders passed by the Coordinate Bench of this Court in W.P.(C) 2272/2013 dated September 16, 2014 and the Division Bench in LPA 471/2015 dated August 17, 2015, wherein information also includes copy of the note sheet for processing the decision to refer the said case to Anti Corruption Branch of CBI for investigation. In the said case, the said information was denied to the petitioner Ashok Kumar Sharma.
5. The Supreme Court in its order dated February 12, 2019 has held as under:-
4. The dispute remains about document Nos.1, 3 and 4 as they were not supplied considering the provisions of Section 8(i)(h) of the Right to Information Act which prohibits disclosure of information connected with ongoing investigations and prosecutions and it was opined that it was source information that has triggered the anti-corruption proceedings and nothing should be done which affects the proceedings or which compromises the position of the sources of information.
5. In view of the aforesaid reasons employed by the Information Commissioner, we are of the opinion that there was justification in refusing to supply the aforesaid documents. However, as rightly pointed out by learned counsel for the appellant that during the course of trial, if the trial Court feels it appropriate and if a prayer is made, the documents may be called by Court in accordance with law.
6. The learned counsel for the respondent submits that the respondent herein shall have the liberty to seek the document, which he has sought under the RTI Act from the learned Trial Court, in terms of the order of the Supreme Court. Suffice it would be to state that it is for the respondent herein to seek appropriate orders from the learned Trial Court. In view of the order of the Supreme Court, the order of the CIC dated February 29, 2016 is set aside, the writ petition is allowed.”
In the context of non disclosure of information under Section 8(1)(d) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that 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 including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information; of the RTI Act, 2005, the decision in Naresh Trehan vs Rakesh Kumar Gupta (W.P(C) 85/2010) decided on 24.11.2014, was referred to, wherein it was held as under:
14. “....Such information would clearly disclose the pricing policy of the assessee and public disclosure of this information may clearly jeopardise the bargaining power available to the assessee since the data as to costs would be available to all agencies dealing with the assessee. It is, thus, essential that information relating to business affairs, which is considered to be confidential by an assessee must remain so, unless it is necessary in larger public interest to disclose the same. If the nature of information is such that disclosure of which may have the propensity of harming one's competitive interests, it would not be necessary to specifically show as to how disclosure of such information would, in fact, harm the competitive interest of a third party. In order to test the applicability of Section 8(1)(d) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that 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 including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information; of the Act it is necessary to first and foremost determine the nature of information and if the nature of information is confidential information relating to the affairs of a private entity that is not obliged to be placed in public domain, then it is necessary to consider whether its disclosure can possibly have an adverse effect on third parties.”
DECISION:
Keeping in view the facts of the case and the oral submissions made by both the parties during the hearing and in the light of the decisions cited above, no further intervention of the Commission is warranted in the matter. The Respondent was however, advised to endorse a copy of their written submission sent to the Commission to the Appellant, as well. It was further advised that all such submissions placed before the Commission should invariably be endorsed to the Appellant beforehand for his ready reference unless otherwise notified as “Confidential”.
The Appeal stands disposed accordingly.
Bimal Julka
Information Commissioner
Citation: Mr. Arun Kumar Agrawal v. Securities & Exchange Board of India in Second Appeal No.:- CIC/SEBIE/A/2018/102201-BJ, Date of Decision: 31.05.2019