Central Information Commission
Mrashish Rana vs Department Of Economic Affairs on 14 June, 2016
Central Information Commission
Room No.307, II Floor, B Wing, August Kranti Bhawan, Bhikaji Cama Place, New Delhi-110066
website-cic.gov.in
Appeal No. CIC/MP/A/2015/002164
Appellant : Shri Ashish Rana, Noida
Public Authority : D/o Economic Affairs (FIU), New Delhi
Date of Hearing : May 10, 2016
Date of Decision : June 14, 2016
Present:
Appellant : Represented by Shri Shikhar, Shri Akshay and Ms
Stephenie - at CIC
Respondent : Shri Ganga Kumar Sinha, US and Shri Ram Hans
Meena, ASO - at CIC
RTI application : 24.3.2015
CPIO's reply : 16.4.2015
First appeal : 20.5.2015
FAA's order : -.6.2015
Information Commissioner: Smt. Manjula Prasher
ORDER
1. Shri Ashish Rana, the appellant, sought information pertaining to the application made by Tata Sons Ltd to the RBI in relation to purchase of shares in Tata Teleservices Ltd (TTSL) owned by NTT DOCOMO, Inc; letter from RBI to Ministry of Finance (MoF) concerning this application and the response from MoF during the period November 10, 2014 and December 14, 2014 respectively along with RBI's letter dated February 22, 2015 in response to Tata's application. Through this RTI application, the appellant sought information on the meetings or conversations held between any representative of the MoF on the one hand and any official or representative of the RBI or any other part of the GoI on the other hand, with copies of all communications, memos, notes, representations and other documents exchanged between MoF and RBI including the Prime Minister's Office and whether the MoF or any ministry/department of GoI objected or supported the position expressed in December 2014 letter from RBI to MoF indicating 1 RBI's inclination to accept the proposal by Tata to purchase NTT DOCOMO's shares along with copies of such documents.
2. The CPIO, "after considering all aspects" denied the information sought u/s 8(1)
(a), (d) and (g) of the RTI Act, 2005 . The FAA upheld the CPIO's decision stating that the disclosure of information would affect the economic interest of the State, relation with foreign state, etc. as well a commercial confidence, harm the competitive position of the third party, etc. and also may create unnecessary impediments u/s 8(1)(g). The appellant, finding the FAA's order as having been passed without any application of mind and unreasoned, came in appeal before the Commission. He stated in his appeal to the Commission that the exemptions claimed u/s 8(1)(a), (d) and (g) are not applicable and neither the CPIO nor the FAA had explained their applicability to the matter and the information sought by him was not exempt under any of the sections of the RTI Act quoted by the CPIO and the FAA. Quoting the Supreme Court judgment in S.P. Gupta vs. President of India & Ors, (DG: AIR) 1982 SC 149, he stated that the respondents have made the secrecy the rule rather than exemption. The order of the FAA was, therefore, contrary to the RTI Act and violative of fundamental right to freedom of speech and expression. As in the other cases, the appellant sought complete information with directions to the CPIO to adhere to the timelines while requesting for penalty on CPIO.
3. The matter was heard by the Commission. The representatives of the appellant reiterated the submissions made in the present appeal and the respondents also maintained their decision that the information sought by the appellant in his instant RTI application could not disclosed as it attracted exemption under section 8(1)(a), 8(1) (d) and 8(1)(g) of the RTI Act. The Commission directed the respondents to file a written submission on the matter providing a detailed justification for withholding the information sought for. The respondents submitted their written submission to the Commission on 16.05.2016 which is common for Appeal No. CIC/MP/A/2015/002164 (present one) and Appeal No. CIC/MP/A/2015/002166, which pertains to another RTI application dated 24.03.2015 of the appellant, seeking similar information on the identical subject matter.
2For the sake of clarity, the respondents' submission, as recorded in Appeal No. 2166, is repeated hereunder.
4. In their written submissions, the respondents, while giving the gist of the issue on which the appellant had sought information, have stated that RBI vide letter dated 22.12.2014 had sought comments of the government on a reference received from Tata Sons for transfer of equity shares of Tata Teleservices Ltd. held by NTT DOCOMO Inc. Japan to TATA sons Ltd. at a price mutually decided by them through the contract. This is essentially transfer of equity from Non-resident to Resident which is covered in terms of RBI's A.P. (DIR Series) Circular No. 4 dated 15.07.2014 and the relevant RBI guidelines are available on the website of RBI. The pricing guidelines under Foreign Exchange Management (Transfer or Issue of Security by a Person Resident Outside India) Regulation, 2000 are issued by RBI and its decision, advising transfer of shares as per FEMA guidelines and not at a pre-determined price, on the above issue is well publicized in various newspapers and is also available with the appellant as accepted by his representatives during the hearing before the Commission.
5. While explaining the nature of the information sought in the instant RTI application, the respondents have averred that the subject matter of the information sought involves "tricky policy issues" which have implication on foreign investment policy, foreign investors' outlook about India, FDI inflows in India, economic state of the Indian companies and relationship with the foreign countries and that the said issue has already invited attention of the Government, that is examining and reviewing it in a holistic and comprehensive manner. The implications of the said issue and possible policy are also being discussed concurrently by the Department of Economic Affairs. Hence, the severance of data/information under section 10(1) of the RTI Act was not possible.
6. With regard to the applicability of the exemption under section 8(1)(a) of the RTI Act to the present information, the respondents have explained that the RBI's proposal involves exit of Non-resident investors from Indian companies as per mutually agreed prices through the written MoU. The extant FEMA regulation (available on the website 3 of RBI), inter alia, states that exit can be at fair value. The guiding principle would be that the non-resident investor is not guaranteed any assured exit price at the time of making such investment/agreement. The policy issue in the present matter is thus how to deal with the above issue (or similar issues) or amend the pricing guidelines or other alternatives which is under examination/consideration and that therefore disclosure of information relating to the same (note/correspondence involving confidential and public sensitive information) at this stage might result in anticipation of such possible/future steps that are not warranted. This may also lead to economic losses/gains to the Indian companies/foreign investors and may also affect the economic position of Indian companies or start taking position with respect to their investment. The relationship with foreign countries may also be affected in case foreign investors suffer loss. This may impair foreign investment flows in Indian economy resulting in fluctuation in stock prices of the companies concerned, besides affecting the market behavior and relationship with foreign countries. Japanese investors and Japan Government economic strategic engagement with the country are long term in nature and growing rapidly. Apart from this, the disclosure of information relating to deliberations on the above matter has very wide ramifications across many Indian companies and /or foreign investors. It is also noteworthy that one party or both the parties may feel aggrieved with the decisions of the Government and that therefore there is considerable belief that they may either themselves or through other agencies, try to influence or make unnecessary queries to the officials concerned for framing the policy as per their convenience. Thus, the information sought squarely falls under the exemption category of section 8(1)(a) of the RTI Act as it's disclosure would prejudicially affect the economic interest of the State and the relation with the foreign State, besides hampering the impartial action of the Government on the matter which is under examination/consideration.
7. The respondents have also claimed exemption under section 8(1)(d) and 8(1)(e) of the RTI Act stating that disclosure of information sought by the appellant would harm the competitive position of third party (either Indian companies or foreign investors or both) for the reasons explained hereinabove and that they have received the information (concerning the subject issue) from third parties in their fiduciary 4 relationship. They have also denied the presence of any 'larger public interest' warranting the disclosure of the information sought by the appellant. The respondents have cited exemption under section 8(1)(g) of the RTI Act from disclosure of the information sought stating that there may be possibility of influencing, harassing, pursuing Government officials on formulation of policy if the note sheet/correspondence, containing the names of the Government officials concerned, are disclosed. This may endanger the life or physical safety of the officials concerned apart from the possibility of influencing them by the outsiders.
8. The Commission observes that the information sought by the appellant in the present RTI application pertains to the same subject matter as has been dealt with by the Commission in Appeal No. CIC/MP/A/2015/002166. The justification given by the respondents for denial of information is also same for both the appeals. The Commission finds merit in the respondents' submission that the information sought by the appellant in his instant RTI application may, if provided, prejudicially affect the economic interest of the State and relations with the foreign State, particularly when the matter involving policy issue is under examination/consideration of the Government and therefore the same cannot be divulged under section 8(1)(a) of the RTI Act. The Commission agrees with the respondents that the disclosure of information sought may harm the competitive position of third parties, including Indian companies, foreign investors etc. The Commission also does not see any public interest in disclosure of the present information which would outweigh the harm to the protected interest. The Commission notes that the appellant in his instant appeal has relied on a series of decisions passed by this Commission, but having regard to the facts and circumstances of the present case, the ratio of said decisions cannot be applied here. In the premises, the present appeal cannot be allowed. The appeal is disposed of.
(Manjula Prasher) Information Commissioner Authenticated true copy:
Deputy Registrar 5 Address of the parties:
Shri Ashish Rana C-41, 2nd Floor, Sector -2 Noida 201 301 The Central Public Information Officer Ministry of Finance Department of Economic Affairs Foreign Investment Unit North Block New Delhi The First Appellate Authority Ministry of Finance Department of Economic Affairs Foreign Investment Unit North Block New Delhi 6