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/2015/002165
Appellant : Shri Ashish Rana, Noida
Public Authority : Department of 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 20, 2015 in response to Tata's application. He sought the details of meetings/conversations between MoF and Tata's representatives or any other department of Government of India, copies of communications, memos, notes, representations, etc. exchanged between these.
2. The CPIO denied information on the grounds of its non-availability quoting para '8' of DoPT's OM No. 1/69/2007-IR dated 27th February, 2008 according to which only that information was required to be supplied which already existed and that the CPIO 1 was not supposed to create information. The first appellate authority (FAA) who had been approached in appeal upheld the CPIO's decision. Dissatisfied, the appellant came in appeal before the Commission, in brief, stating that the FAA's order was arbitrary, merely stating that the information was not available was insufficient to justify non-disclosure and if it was taken to be correct, the CPIO had failed in his duties to maintain record and requested for complete information.
3. The matter was heard by the Commission. The representatives of the appellant reiterated the submissions made in the present appeal. The respondents also maintained that the information sought by the appellant in his instant RTI application was not available in their records. The Commission directed the respondents to file a written submission on the matter providing detailed justification for the decision taken by them in respect of the appellant's RTI application. The respondents submitted their written submission to the Commission on 16.05.2016.
4. In the written submission, 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. They have affirmed their stand that the information sought by the appellant in his instant RTI application does not exist in the records of the public authority since no meeting/correspondence/discussions were held or made with any other ministries/departments/RBI including the representative of TATA Sons on the above 2 issue. They have, however, clarified that the proposal of RBI was examined in the Department of Economic Affairs and that based on the decision taken on the file, they had replied to the RBI.
5. Under section 2(j) of the RTI Act, the right to information means the right to information accessible under this Act which is held by or under the control of public authority. Information which does not form part of records of public authority is not included in the definition of 'right to information' and a public authority cannot be compelled to provide what is not present in its records.
6. While explaining the above position, the Supreme Court in Central Board of Secondary Education & Anr. v. Aditya Bandopadhyay & Ors.; Civil Appeal No.6454 of 2011; date of judgment 09.08.2011 had observed as under:
35. At this juncture, it is necessary to clear some misconceptions about the RTI Act. The RTI Act provides access to all information that is available and existing.
This is clear from a combined reading of section 3 and the definitions of 'information' and 'right to information' under clauses (f) and (j) of section 2 of the Act. If a public authority has any information in the form of data or analysed data, or abstracts, or statistics, an applicant may access such information, subject to the exemptions in section 8 of the Act. But where the information sought is not a part of the record of a public authority, and where such information is not required to be maintained under any law or the rules or regulations of the public authority, the Act does not cast an obligation upon the public authority, to collect or collate such non available information and then furnish it to an applicant....."
7. The division Bench of Delhi High Court in The Registrar Supreme Court of India v. Commodore Lokesh K. Batra & Ors; LPA 24/2015; date of judgment 07.01.2016, while referring to the law laid down by the Supreme Court in CBSE v. Aditya Bandopadhyay & Ors. (supra) had held as under:
13. It is clear from the law laid down in CBSE v. Aditya Bandopadhyay & Ors.
(supra) that an applicant under the Act has access to only such information that is available and existing with the public authority subject to the exemptions in Section 8. Section 19(8)(a) of the Act, no doubt, empowers the CIC or SIC to require the public authority to take any such steps as may be necessary to secure compliance with the provisions of the Act including by providing access to information if so requested in a particular form. However, the word 'form' used in 3 Section 19(8)(a)(i) again refers to the definitions of "information" and "right to information" under Section 2(f) and Section 2(j)(iv) apart from sub-Section (9) of Section 7 which provides that an information shall ordinarily be provided in the form in which it is sought. This aspect has also been considered in CBSE v. Aditya Bandopadhyay & Ors. (supra) and it was made clear in Para 64.1:
"64.1. Sub-clause (i) of Section 19(8)(a) empowers a Commission to require the public authority to provide access to information if so requested in a particular "form" (that is, either as a document, microfilm, compact disc, pen drive, etc.). This is to secure compliance with Section 7(9) of the Act."
14. ...................
15. ................ "right to information" under Section 2(j) means only the right to information which is held by any public authority....."
8. In view of the above rulings, it is clear that under the RTI Act a public authority is required to provide only that information which is available in its records subject to the exemptions in Section 8 (1) of the RTI Act. It cannot be compelled to provide information which is not present in its records. In the present case, the respondents have categorically stated that that the information sought by the appellant in his instant RTI application is not available in their records, therefore the Commission is not in a position to allow the present appeal of the appellant. The appeal is disposed of.
(Manjula Prasher) Information Commissioner Authenticated true copy:
Deputy Registrar 4 Address of 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 5