Central Information Commission
Mr.Shivprakash Makharia vs Idbi Bank on 14 September, 2011
CENTRAL INFORMATION COMMISSION
Club Building (Near Post Office)
Old JNU Campus, New Delhi - 110067
Tel: +91-11-26161796
Decision No. CIC/SM/A/2010/001610/SG/14604
Appeal No. CIC/SM/A/2010/001610/SG
Relevant facts emerging from the Appeal:
Appellant : Mr. Shivprakash Makharia,
413 G, Basant Wadi,
Kalbadevi Road,
Mumbai - 400002
Respondent : Mr. Pawan Aggarwal,
CPIO (Board Department), IDBI Bank Limited, IDBI Tower, WTC Complex, Cuffe Parade, Mumbai - 400005 RTI application filed on : 06/09/2010 PIO replied on : 07/10/2010 First Appeal filed on : 12/10/2010 First Appellate Authority order of : 11/11/2010 Second Appeal received on : 30/03/2011 S.No. Information sought Reply of Public Information Officer (PIO)
1. Copies of correspondence exchanged between Information sought was treated as erstwhile United Western Bank (the "UWB") confidential/secret by UWB. and the Reserve Bank of India (the "RBI") with Correspondence exchanged between regard to the share holding of Mittal Fabrics UWB and RBI was in the nature of Manufacturing Co. Pvt. Ltd. (the "Company"). commercial confidence, held by UWB in a fiduciary capacity and personal
2. Copy of the approval letter of the RBI according information. Information sought was approval to the Company's shareholding. exempt under Sections 8(1)(d), (e) and (j) of the RTI Act.
Grounds for First Appeal:
As per the Appellant, the information sought had been submitted in a court of law in the past and therefore, the information could not be treated as confidential/ secret or exempt under the RTI Act.
Order of the First Appellate Authority (FAA):
The FAA upheld the reply of the PIO. The FAA also noted that the Appellant's submissions were general in nature as he had not mentioned the specific number of litigation or court proceedings in relation to which the information was submitted.
Ground for Second Appeal:
No information was furnished by the PIO. The order of the FAA was dissatisfactory.Page 1 of 5
Relevant Facts emerging during Hearing held September 13, 2011: The following were present:
Appellant: Mr. Shivprakash Makharia via video - conference from NIC Studio - Mumbai; Respondent: Mr. Pawan Aggarwal, CPIO & Company Secretary via video - conference from NIC Studio - Mumbai.
The PIO stated that disclosure of information would reveal the shareholding details of other shareholders in UWB. The PIO contended that as per the provisions of the RBI Act, this information could not be provided. He further claimed that the information sought would reveal personal information relating to the shareholders and was therefore, exempt under Section 8(1)(j) of the RTI Act. The PIO also argued that the information sought was held by RBI in a fiduciary capacity and hence, was exempt under Section 8(1)(e) of the RTI Act.
On the other hand, the Appellant stated that shareholding details were disclosed by RBI in a matter before a court and hence, the information sought was already in public domain. He also argued that since information regarding shareholding pattern of any company can be obtained from the Registrar of Companies (the "RoC"), it must be accepted that such information is held in public domain.
The order was reserved at the hearing held on 13/09/2011.
Decision announced on 14 September 2011:
The PIO had submitted written submissions to the Commission prior to the hearing, which have been perused by this Bench. At the hearing held before the Commission on 13/09/2011, the PIO contended that as per the provisions of the RBI Act, the information sought could not be provided. Section 22 of the RTI Act expressly provides that the provisions of the RTI Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923, and any other law for the time being in force or in any instrument having effect by virtue of any law other than the RTI Act. Section 22 of the RTI Act, in no uncertain terms, lays down that as regards furnishing of information, the RTI Act shall override anything inconsistent contained in any other law. It follows that where the RBI Act imposes restrictions on disclosure of information held by or under the control of a public authority, it is prima facie inconsistent with the RTI Act. Therefore, in accordance with Section 22 of the RTI Act, the provisions of the RTI Act shall override the provisions of the RBI Act to that extent.
Having established the above, the issue which arises for determination is whether the information sought in the present matter was exempted under Sections 8 and 9 of the RTI Act. It is already well- established in law that information sought under the RTI Act can be denied on the basis of Sections 8 and 9 of the RTI Act only. This Bench in Kuldeep Singh Tomer v. PIO, MCD (Central Zone) CIC/SG/A/2010/002273/11349 dated 07/02/2011 has observed that it is well- established that information can be exempted from disclosure in accordance with the specific exemptions contained in Sections 8 and 9 of the RTI Act only and 'confidentiality' is not stipulated as an exemption under the RTI Act. In view of the same, even if the information sought was treated as confidential/secret (as mentioned by the PIO in his reply dated 07/10/2010), the same cannot be a ground for denying information under the RTI Act.
The PIO has contended that the information sought is exempt under Section 8(1)(d) of the RTI Act, which provides as follows:
"8. (1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,--
...
(d) 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;"
Page 2 of 5Section 8(1)(d) of the RTI Act exempts the PIO from furnishing information including commercial confidence, the disclosure of which would harm the competitive position of a third party. The burden of establishing that the information sought was exempted from disclosure under Section 8(1)(d) of the RTI Act shall lie on the PIO, as mandated under Section 19(5) of the RTI Act. To claim this exemption, the PIO must establish that the information sought relates to commercial or trade secrets, intellectual property or similar information. If the information sought satisfies this condition, then the PIO must establish that disclosure of this information would result in harming the competitive position of a third party.
The PIO has argued that the correspondence exchanged between UWB and RBI contains details of the other shareholders of UWB. This information had been marked as confidential and was therefore, considered as that of 'commercial confidence'. This Bench does not agree with the contention of the PIO. Shareholding details of an entity i.e. UWB cannot be considered as 'commercial confidence'. Even if it was to be assumed that such information qualified as 'commercial confidence', disclosure of merely the shareholding pattern cannot, in itself, harm the competitive position of UWB. It is relevant to mention that the PIO has not explained to the Bench how disclosure of the shareholding details would harm the competitive position of UWB and consequently, the burden placed upon him under Section 19(5) of the RTI Act has not been discharged. Therefore, the contention of the PIO that the information sought was exempt under Section 8(1)(d) of the RTI Act is rejected.
The PIO has further argued that the information sought is exempt under Section 8(1)(e) of the RTI Act, which provides as follows:
"8. (1) 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;"
Section 8(1)(e) of the RTI Act exempts from disclosure 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. This Bench, in a number of decisions, has held that the traditional definition of a fiduciary is a person who occupies a position of trust in relation to someone else, therefore requiring him to act for the latter's benefit within the scope of that relationship. In business or law, we generally mean someone who has specific duties, such as those that attend a particular profession or role, e.g. doctor, lawyer, financial analyst or trustee. Another important characteristic of such a relationship is that the information must be given by the holder of information who must have a choice- as when a litigant goes to a particular lawyer, a customer chooses a particular bank, or a patient goes to particular doctor. An equally important characteristic for the relationship to qualify as a fiduciary relationship is that the provider of information gives the information for using it for the benefit of the one who is providing the information. All relationships usually have an element of trust, but all of them cannot be classified as fiduciary. Information provided in discharge of a statutory requirement, or to obtain a job, or to get a license, cannot be considered to have been given in a fiduciary relationship. The PIO has argued that correspondence between UWB and RBI was held by the Respondent- public authority in fiduciary capacity.
In the present matter, since correspondence between UWB and RBI has been given to the Respondent- public authority, there may be some element of trust reposed in the latter. But even then, all relationships which have an element of trust need not necessarily be classified as 'fiduciary'. It does not appear that the correspondence is being held by the Respondent- public authority in a fiduciary capacity. Moreover, it is not clear in whose benefit the Respondent- public authority is required to act for. It is pertinent to mention that in the functioning of the government/government undertakings, there Page 3 of 5 may be various instances where certain documents, records, procedures, etc have been treated as confidential and at times, explicitly so provided. However, with the advent of the RTI Act, such information has to be provided subject only to the exemptions of the RTI Act viz. Sections 8 and 9. The criteria defining a fiduciary relationship, as described above, must be satisfied which does not appear to have been done in the present matter. Therefore, the Respondent's contention that the information sought was exempt under Section 8(1)(e) of the RTI Act is rejected.
The PIO has also contended that the information sought was exempt under Section 8(1)(j) of the RTI Act, which provides as follows:
"information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information: ..."
To qualify for the exemption under Section 8(1)(j) of the RTI Act, the information must satisfy the following criteria:
1. It must be personal information: Words in a law should normally be given the meaning given in common language. In common language, we would ascribe the adjective 'personal' to an attribute which applies to an individual and not to an institution or a Corporate. Therefore, it flows that 'personal' cannot be related to institutions, organisations or corporates. Hence Section 8(1)(j) of the RTI Act cannot be applied when the information concerns institutions, organisations or corporates.
2. The phrase 'disclosure of which has no relationship to any public activity or interest' means that the information must have been given in the course of a public activity. Various public authorities in performing their functions routinely ask for 'personal' information from citizens, and this is clearly a public activity. Public activities would typically include situations wherein a person applies for a job, or gives information about himself to a public authority as an employee, or asks for a permission, licence or authorisation, or provides information in discharge of a statutory obligation.
3. The disclosure of the information would lead to unwarranted invasion of the privacy of the individual. The State has no right to invade the privacy of an individual. There are some extraordinary situations where the State may be allowed to invade the privacy of a citizen. In those circumstances special provisions of the law apply usually with certain safeguards. Therefore where the State routinely obtains information from citizens, this information is in relationship to a public activity and will not be an intrusion on privacy.
Certain human rights such as liberty, freedom of expression or right to life are universal and therefore would apply uniformly to all human beings worldwide. However, the concept of 'privacy' is a cultural notion, related to social norms, and different societies would look at these differently. Therefore referring to the Data Protection Act, 1988 of U. K. or the laws of other countries to define 'privacy' cannot be considered a valid exercise to constrain the citizen's fundamental right to information in India. Parliament has not codified the right to privacy so far, hence, in balancing the right to information of citizens and the individual's right to privacy, the citizen's right to information would be given greater weightage.
In the present matter, detail regarding shareholders of an entity may be 'personal' information to the extent it relates to an individual shareholder only. It is also likely that such information may have been given to the Respondent- public authority during the course of a public activity. However, disclosure of shareholding details of UWB cannot be considered as an unwarranted invasion on the privacy of Page 4 of 5 individual shareholders. This Bench is aware of the fact that shareholding details as well as other information about an entity can be accessed on the RoC website. Given the fact that such information is already in public domain, disclosure of the same by the Respondent- public authority cannot be considered as an unwarranted invasion on the privacy of individual shareholders. Moreover, where the information sought is already available in public domain, this Bench is unable to see the applicability of Sections 8(1)(d) and (e) of the RTI Act as well. In view of the foregoing, the contentions of the PIO that the information sought was exempt from disclosure under Sections 8(1)(d), (e) and (j) of the RTI Act is rejected.
The Appeal is allowed. The PIO is directed to provide the complete information as per records to the Appellant before 10 October 2011.
Notice of this decision be given free of cost to the parties.
Any information in compliance with this Order will be provided free of cost as per Section 7(6) of RTI Act.
Shailesh Gandhi Information Commissioner 14 September 2011 (In any correspondence on this decision, mention the complete decision number.)(DJ) Page 5 of 5