Central Information Commission
Ms. Priyam Mittal vs Reserve Bank Of India on 13 July, 2023
Author: Saroj Punhani
Bench: Saroj Punhani
के ीय सूचना आयोग
Central Information Commission
बाबा गंगनाथ माग , मुिनरका
Baba Gangnath Marg, Munirka
नई द ली, New Delhi - 110067
File No : CIC/RBIND/A/2022/630967
Ms. Priyam Mittal ......अपीलकता /Appellant
VERSUS
बनाम
CPIO .... ितवादीगण /Respondent
Department of Banking Supervision
Reserve Bank of India, World Trade Centre
Cuffe Parade, Colaba, Mumbai-400005
Date of Hearing : 27/06/2023
Date of Decision : 27/06/2023
INFORMATION COMMISSIONER : Saroj Punhani
Relevant facts emerging from appeal:
RTI application filed on : 19/03/2022
CPIO replied on : 18/04/2022
First appeal filed on : 19/04/2022
First Appellate Authority order : Not on Record
Second Appeal dated : 10/06/2022
Information sought:
The Appellant filed an RTI application dated 19.03.2022 seeking the following information:
"Inspection Reports/Risk Assessment Report made by RBI post completing the inspection or any interim report available of following entities for last 3 years available under BR Act or any other applicable Act/Rules etc
(a) IDFC Bank (b) Induslnd Bank 1 Kindly also provide copies of show cause notices issued to any of the above and response of these banks."
The CPIO furnished a reply to the appellant on 18.04.2022 stating as under:
"(a) IDFC First Bank As regards the Inspection Report (IR) and Risk Assessment Report (RAR) with respect to Inspection for Supervisory Evaluation (ISE) 2019 and 2020, we have issued a notice under Section 11(1) of the RTI Act, 2005 to IDFC First Bank (copy attached). On receipt of reply from the company, further communication will be made. As regards the IR and RAR with respect to Inspection for Supervisory Evaluation (ISE) 2021, it is informed that the supervisory process/ action in the matter is not yet complete. Disclosure of such information at this stage is considered premature in terms of Para 77 of the Hon'ble Supreme Court Judgment dated December 16, 2015 in 'Reserve Bank of India vs. Jayantilal Mistry Case' [2016 (3) SCC 525]. Hence the information is exempt from disclosure under Section 8(1)(a) of the RTI Act, 2005. Further, RBI has not issued any Show Cause Notice to IDFC First Bank in last three years. e e (a) Indusind Bank Ltd As regards the Inspection Report (IR) and Risk Assessment Report (RAR) with respect to Inspection for Supervisory Evaluation 2019, we have issued a notice under Section 11(1) of the RTI Act, 2005 to Indusind Bank Ltd (copy attached). On receipt of reply from the company, further communication will be made. As regards the IR and RAR with respect to Inspection for Supervisory Evaluation (ISE) 2020 and 2021, it is informed that the supervisory process/ action in the matter is not yet complete.
Disclosure of such information at this stage is considered premature in terms of Para 77 of the Hon'ble Supreme Court Judgment dated December 16, 2015 in 'Reserve Bank of India vs. Jayantilal Mistry Case' [2016 (3) SCC 525]. Hence the information is exempt from disclosure under Section 8(1)(a) of the RTI Act, 2005. Further, As regards Show Cause Notice issued to Indusind Bank Ltd., the same forms part of your earlier RTI Application dated January 16, 2022 (no. RBIND/R/E/22/00250) seeking same information. The CPIO has already issued a notice under Section 11(3) of RTI Act on March 23, 2022 to the bank. Accordingly, the instant RTI request would be clubbed with your earlier RTI Application dated January 16, 2022 and further correspondence will be made upon receipt of reply from the bank to the Section 11(3) notice issued by the CPIO."
Being dissatisfied, the appellant filed a First Appeal dated 19.04.2022. The FAA order is not available on record.
Feeling aggrieved and dissatisfied, the appellant approached the Commission with the instant Second Appeal.
Relevant Facts emerging during Hearing:
The following were present:-2
Appellant: Shri Girish Mittal representative of the Appellant present through Video-Conference.
Respondent: Ms. Sangeeta Sheoran, Manager and Ms. Honey, Legal Officer present through Video-Conference.
The written submissions of the Appellant and the Respondent are taken on record.
The Representative of the Appellant, during the hearing, reiterated the contents of RTI application and instant appeal and submitted that the Respondent has wrongly not provided information on the RTI application of the Appellant.
The Appellant further reiterated the written submissions, which states as under: "The appellant has filed this second appeal before Hon'ble CIC, alleging that the CPIO and the First Appellate Authority have ganged up against this appellant to deny the information. in the second appeal, the appellant has contended that the information denied is covered in the directions of the SC's judgment in the matter of Jayantilal Mistry's case. The appellant has also cited handful of CIC's decisions and a judgment passed by the Kerala High Court. The appellant has requested CIC to direct the CPIO to provide the information as desired, to initiate penal proceedings against the PIO u/s 20(1) & 20(2) of the RTI Act, 2005 and to pass strictures against the First Appellate authority for not following the RTI Act in letter and spirit. It is submitted that the CPIO had examined the queries raised by the appellant in his RTI applications and had responded to the queries in conformity with the provisions of the RTI Act. The reply was provided by the CPIO well within the stipulated time period. Therefore, the request made by the appellant in the present appeal to initiate penal proceedings against CPIO under sections 20(1) & 20(2) of the RTI Act, is baseless and not tenable. It is also submitted that the specific information sought for by the appellant is spread across various files, and hence, culling out the information and compiling the same in the form sought by the appellant will disproportionately divert the resources of the Reserve Bank in an unreasonable way in terms of Section 7(9) of the RTI Act, 2005. Further, disclosure of certain information in the reports may be subject to exemptions under sections 8 and 9 of the RTI Act. Therefore, FAA has observed that even if the CPIO is to allow the Appellant to inspect the records, the CPIO would be required to peruse all the documents and sever/blackout the exempt information beforehand. At the same time, it is also incumbent upon the CPIO to examine each point in the reports and consider whether the disclosure of information would be premature in terms of para 77 of the Hon'ble Supreme Court judgement in Reserve Bank of India v. Jayantilal Mistry, 2016 (3) SCC 525. This 3 would heavily encumber the resources of the public authority. Therefore, FAA has considered it appropriate not to direct the CPIO to allow inspection of the files. 8. It is submitted that Section 21 of the RTI Act provides protection of action taken in good faith. The CPIO has considered the application of the appellant within the purview of the RTI Act. There is no procedural lacuna or any mala- fide intention on part of the CPIO in replying to the RTI application filed by the appellant and hence, initiation of any penal proceedings against the CPIO is not warranted and justified as sought by the appellant."
The Representative of the Appellant, w.r.t the denial under Section 7(9) of the RTI Act, reiterated the contents of the written submissions, which states as under: "The CIC in its order in Er. Sarbajit Roy v. Delhi Development Corporation elucidated upon the scope of Section 7(9) of the RTI Act. It observed that Section 7(9) of the act does not authorise a public authority to deny information. The CIC in its order in M. Raja Manohar v. Ordinance Factory, Yedumailaram further clarified the scope of powers under Section 7 (9) and held that the provision only allows for the disclosure of the requested information in a form other than the one asked for on account of the reasons given under the said provision. The CIC, through its orders has time and again has reiterated that the denial of information under the RTI Act can happen only under the provisions of Section 8(1) or Section 9 of the Act. The Madras High Court in its judgement in Public Information Officer, Villupuram Dist., Central Co-op. Bank Ltd. and Ors. v. Tamil Nadu Information Commission and Ors[i]. has held that reasons such as shortage of human resources cannot be raised to whittle down the citizen's right to seek information".
The Respondent, during the hearing, reiterated the contents of their written submissions, which states as under:
"The Appellant has preferred this Second Appeal before this Hon'ble CIC wherein she has contended that the CPIO has denied information saying that supervisory action has not been completed and also the learned Appellate Authority has not yet responded to the 1st appeal filed. Further, the appellant relied upon the observation of the Hon'ble Supreme Court in the case of Jayantilal Mistry & Girish Mittal wherein the Court has taken comprehensive view that the information related to inspection reports cannot be denied. The appellant in her second appeal requested to this Hon'ble CIC to direct the CPIO to direct provide information desired and to initiate penal proceedings against the PIO under Section 20(1) & 20(2) of the RTI Act, 2005. 7. It is humbly submitted that the CPIO has duly discharged the mandate imposed under the provisions of the RTI Act. Hence, Appellant's contention that CPIO denied information is incorrect and therefore the present appeal is devoid of merits and is liable to be dismissed. 8. It is submitted that as regard to Appellant's allegation that FAA's order was not provided, the 4 same is specifically denied as incorrect. The FAA has passed a reasoned order dated 08.06.2022 in the first appeal preferred by the Appellant to which the appellant already filed Second Appeal on 05.06.2022. Further, the FAA's order dated 08.06.2022 dismissing the Appellant's first appeal received on 21.04.2022 was forwarded to the appellant vide mail dated 10.06.2022. The said order was also uploaded on the RTI portal on 09.06.2022 9. It is humbly submitted that in the present RTI application filed by the applicant, for disclosure of information, a notice under section 11 (1) of RTI Act was issued to the third party (IDFC Bank). After considering the response of the IDFC Bank, a notice under Section 11(3) of RTI Act was issued to the IDFC bank conveying CPIO's decision to disclose the Inspection Reports and Risk Assessment Report of IDFC Bank for FY 2018-19 and FY 2019-20 to appellant. The IDFC bank had filed first appeal against the CPIO's decision which was dismissed by FAA vide order date 13.07.2022. Similarly, a notice under section 11 (1) of RTI Act was issued to the third party (IndusInd Bank). After considering the response of the IndusInd Bank, a notice under Section 11(3) of RTI Act was issued to the IndusInd Bank conveying CPIO's decision to disclose the Inspection Report and Risk Assessment Report for the year 2018-19 to appellant. The IndusInd Bank had filed first appeal against the CPIO's decision which was dismissed by FAA vide order dated 12.07.2022. It is submitted that IndusInd Bank and IDFC Bank have filed Second Appeal (Diary No. 137320 of 2022 and 652624 of 2022 respectively) against the FAA's ordus upholding the decision of CPIO to disclose the information sought by Ms Priyam Mittal. The aforesaid second appeals are pending before CIC. 10. It is further submitted that Section 21 of the RTI Act provides protection of action taken in good faith. The CPIO has considered the application of the appellant within the purview of the RTI Act. There is no procedural lapses or any malafide intention on the part of the CPIO in replying to the appellant. In view of the above, It can be said that the CPIO has acted reasonably and diligently."
Decision:
In the facts of the instant case, it is pertinent to note that a decision of a coordinate bench of the Commission in the matter of various third-party banks vs. RBI vide File No. CIC/RBIND/A/2021/152460 + Ors. dated 05.05.2022 covers a detailed discussion inter alia on the same nature of information sought for from the RBI and the reliance placed by RBI on the Jayantilal Mistry case. Suffice to say that the issues raised in the instant case are encapsulated in that same discussion of the coordinate bench in the following manner:5
"39. A comprehensive view has to be taken on the objection filed by the institutions. These objectives has to be deliberated and adjudicated in the light of Jayantilal Mistry's case and other judicial pronouncements relevant in such matter, some of which have been referred by the Commission in the above parts as well. The Commission while examining various objections realize that the Writ Petitions filed before the Hon'ble Supreme Court of India is seeking directions of the Supreme Court for non-disclosure of certain aspects of these audit/inspection report and any such guidance in these Writ Petitions will have direct bearing and provide further clarity to the CPIO/FAA in adjudicating various aspects of disclosure/non-disclosure of reports or the information/data which are part of these reports under the provisions of the RTI Act. The Commission takes note that all the cases/second appeals filed herein are based on interpretations of RBI Vs. Jayantilal Mistry case and other relevant judicial pronouncements requesting for full disclosure vis-à-vis with exemptions under Section 8(1) of the RTI Act for non- disclosure of full or parts of these reports.
40. In view of the above observations, the Commission is of the view that the reports generated in the hands of regulatory public authority in discharge of its statutory obligations are information under Section 2 (f) of the RTI Act, as the regulator and the regulated entities are not governed by fiduciary relationship.
The orders of the Commission to their effect has been upheld by the Hon'ble Supreme Court in Jayantilal Mistry's case and the position is unchanged even today. Various objections filed by banks/financial institutions, to be examined, analyzed and adjudicated upon, are related to various data and information submitted to the Reserve Bank of India by these financial institutions explaining their operations, commercial decisions, clients data etc. under statutory obligations can be disclosed as such. There are apparently two set of such information which have been shared by the institutions with the regulator under statutory obligation. First is the information/data of clients relating to their business/commercial operations, financial transactions, business and commercial strategy which is shared by clients with financial institutions in full trust and confidence and is held by them in fiduciary capacity, protected from disclosure under the RTI Act in their hands. Second set is the information relating to business strategy, decisions, transactions, other operational data etc. of financial institutions have been bearing on their competitive position which also enjoys the exemption from disclosure in their hands, if it is a public authority or otherwise, under the RTI Act. Some of such data, on case to case basis be sensitive enough for protection of national interest. The Commission is of the view that the protection of disclosure of information under Section 8(1) of the RTI Act, 2005 in the hands of financial institutions does not evaporate once such data/information is shared, in good faith and trust, with the regulator under statutory obligation. Various observations of Hon'ble Supreme Court in Jayantilal Mistry's case also does not 6 indicate so and decision of the regulator to consider redacting such data/information while disclosing the reports is aligned with this and other judicial pronouncements of Supreme Court and High Courts.
41. The Commission has already outlined the deficiency in the conduct of the CPIO/FAA while hearing such matters and hence is of the opinion that due care has to be taken by according opportunity of personal hearing and making reasoned order with reference to the objections in the hands of the CPIO and later in the hands of FAA, if any appeal is preferred. Hence, the CPIO will be required to adjudicate such RTI applications in the light of the observations of the Commission afresh. The Commission also expects that the CPIO will take view on various objections filed by the Banks and Financial Institutions and submissions made by applicant to reach the decision in favour or against redaction of various parts of the report on case to case basis. He has to factor the observation of Hon'ble Supreme Court in Jayantilal Mistry case and other relevant judgments, some of which have been referred in this order as well. Hence, with these observations the orders passed by the CPIO and FAA in these matters are set aside and the cases are being remanded to the CPIO for adjudication afresh. (Emphasis Supplied)
42. It is amply clear that Writ Petition Nos. 1159/2019 and 768/2021 and others tagged are admitted in Hon'ble Supreme Court wherein guidance and direction has been sought on non-disclosure of certain type of information which are essentially the part of the Annual Inspection Report/RAR, etc. These petitions also seek protection of interim communication between regulator and the regulated entity in the process of finalization of these reports or otherwise. It is obvious that decision in these Writ Petitions will provide clarity and guidance to the Public Authority on redaction/non-disclosure of a set of information inspite of being part of these reports which are open to disclosure. At this stage, any decision by the Public Authority will amount to pre-judging the issues pending admitted Writ Petitions before the Hon'ble Supreme Court. Various banks, financial institutions, respondent public authority and the RTI applicant have already impleaded party and are presenting their arguments before the Apex Court.
43. Hence, any decision of redaction or disclosure of information, without waiting for decision in the Writ Petition Nos. 1159/2019 and 768/2021 and others tagged may cause irrevocable damage against right of privacy and protection of commercial interest. Hence, the respondent public authority if expedient may wait for the outcome in Writ Petition Nos. 1159/2019 and 768/2021 and others tagged or seek clarification from the Hon'ble Court and accordingly decide these RTI applications by following process as enumerated in the earlier paras by the Commission in the interest of principles of natural justice. While disclosing the information they should be cautious in taking a considerate view balancing right 7 to privacy, protection of national and commercial interest on one hand vis-à-vis larger public interest. (Emphasis Supplied)
44. It is further observed that similar view has also been taken by the Division Bench of the Commission in file bearing nos. CIC/VS/A/2013/001488 and CIC/VS/A/2013/001805 dated 11.05.2017 wherein the Commission observed that 'Having considered the submissions of both the parties, the Commission observes that since a similar issue is pending adjudication before the Hon'ble Supreme Court in the matter of Central for Public Interest Litigation Vs. Housing & Urban Development Corporation Ltd. &Ors., it would be judicious to await the final outcome from the Hon'ble Supreme Court. However, on receipt of the final outcome from the Hon'ble Supreme Court in the matter, the appellant shall be at liberty to file second appeal afresh, if he so desires. The instant appeals are disposed of'."
The above decision is therefore applicable to the instant case and no separate line of adjudication is warranted in the matter. The stipulations contained in File No. CIC/RBIND/A/2021/152460 + Ors. dated 05.05.2022 stands endorsed to the Respondent CPIO with emphasis on para 41 & 43 supplied as above .
The appeal is disposed of accordingly.
Saroj Punhani (सरोज पुनहािन) हािन) Information Commissioner (सूचना आयु ) Authenticated true copy (अिभ मािणत स यािपत ित) (C.A. Joseph) Dy. Registrar 011-26179548/ [email protected] सी. ए. जोसेफ, उप-पंजीयक दनांक / 8