Central Information Commission
Bhagyesh Joshi vs Reserve Bank Of India on 10 October, 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/2022/101377
Bhagyesh Joshi
(HDFC Bank Ltd.) ......अपीलकता /Appellant
VERSUS
बनाम
CPIO,
Reserve Bank of India
Department of Supervision, Centre-1
World Trade Centre, Cuffe Parade
Colaba, Mumbai-400005 .... ितवादीगण /Respondent
Date of Hearing : 04/09/2023
Date of Decision : 03/10/2023
INFORMATION COMMISSIONER : Saroj Punhani
(Note: The Appellant is a third-party Bank and has filed the instant appeal against
the order of disclosure issued by the FAA, RBI)
Relevant facts emerging from appeal:
RTI application filed on : 23/08/2019
CPIO replied on : 23/07/2021
First appeal filed on : 17/09/2021
First Appellate Authority order : 08/10/2021
2nd Appeal/Complaint dated : 11/01/2022
Information sought:
The RTI Applicant, Harjinder Singh filed an RTI application dated 26.04.2019 seeking the following information:-1
1- "दे श के शीष 100 बक िडफा र के नाम, पते, फम, इनके ारा िलये गये कज की मूल रािश + िलये गये कज पर दे य ाज रािश कुल दे य रािश की जानकारी दे ।
2- दे श के ऐसे बक िडफा रो की कुल सं'ा बताये िज(ोने बै को से एक करोड या एक करोड से +ादा का कज ले रखा है ।"
While replying to a notice dated 23.08.2019 of RBI issued under Section 11(1) & (2) of the RTI Act to the Respondent Bank, the following contentions were submitted by the Appellant Bank vide their letter dated 23.10.2019:
"2. At the outset, we submit that the information sought by the RTI Applicant lacks clarity and the said Application is vague, indistinct and ambiguous. It is trite law that any query made under the Act must be clear, cogent and unambiguous. In case of Harjinder Dhingra V. State Bank of India (2013 SCC Online CIC 3144], the Hon'ble Central Information Commission dismissed the appeal of an RTI applicant, as the query posed to the public authority was unclear, vague and ambiguous. Furthermore, it is submitted that a public authority is obligated to only share such information that is available with it/ held by it and is under no obligation to collate or look for information sought by an RTI applicant. In the case of Central Board of Secondary Education V. Aditya Bandhopadhay ((2011) 8 SCC 497). the Hon'ble Supreme Court held that where the information sought in not part of the record of a public authority or where such information is not required to be maintained under any law, rules or regulations of the public authority, the Act does not cast any obligation upon the public authority to collate or collect such non-available information and then furnish to the applicant.
3. In the instant case, the queries made by the Applicant are vague and ambiguous as it neither specifies the time period nor the name of the banks to which it relates. Moreover, the Reserve Bank of India['RBI'] does not maintain a list of all loan defaulters and accordingly, will be required to access data shared by all banks and collate the same to provide information to the Applicant. Therefore, in light of the foregoing, the information sought in the Application ought to be refused at the threshold itself.
4. Notwithstanding the above, we submit that the information sought by the Application is exempt from disclosure under Section 8(1)(d), 8(1)(h) and 8(1X) of the RTI Act and accordingly, no information ought to be shared by you with the Applicant.2
5. It is submitted that a bank is nothing but a repository of data/information of its customers/clients which it gathers/ collates on an ongoing basis. The banking business is largely based on trust and confidence. Thus, disclosure of such personal/ sensitive information, more so without the consent of such customers/ clients, shall result in breach of customer trust in us and consequently shall cause commercial harm to us. Moreover, there is no public interest in disclosure of the Information sought by the RTI Applicant. In fact, Hon'ble Central Information Commission in Amitava Choudhury v. CP10 [2018 SCC OnLine CIC 8099] has held that there is no public interest in disclosure of defaulters' information. Thus, we submit that the information sought in the Application is exempt from disclosure under Section 8(1)(d) of the Act.
6. The information sought by the Applicant is also exempt from disclosure under section 8(1) (1) of the Act since the information sought by the Applicant pertains to the bank's customers' information and has no nexus with the public interest and moreover it can lead to far reaching consequences. The information held by the bank are on strict confidentially basis and in a fiduciary capacity. Pertinently, the information related to loan etc. is an unpublished sensitive information. The disclosure of the information sought by the Applicant would not only breach the privacy of the bank's customers but also lead to consequences, without prejudice to the foregoing, it is further submitted that our customers are per say fourth party vis-à-vis the RBL Whilst the Act contemplates a mechanism for disclosing information in relation to third party, in absence of any mechanism, the information relating to such fourth parties will be disclosed in deprivation of their right to object to such disclosure and hence, such disclosure will not only be an infringement of right to privacy of our customers but will also be in violation of the principles of natural justice. Thus, it is submitted that the information sought is exempt from disclosure under Section 3(1)() of the Act.
7. Beside the above, it appears that the source of the information proposed to be disclosed is obtained from the CRILC Return. As per Section 45E of the RBI Act, and section 28 of the Banking Regulation Act, 1949 sharing of this data outside the banking system is prohibited
8. Further, there is an implied contract between us and our customers and therefore we are under obligation to maintain confidentiality of such information and no such information can be divulged/ disclosed to third parties except under circumstances well defined under the said statutes...."3
Subsequently, the CPIO, RBI vide letter dated 23.07.2021 issued a Notice under Section 11(3) of the RTI Act to the Appellant Bank stating as under:
"Please refer to our letter DBS.CO.RIA.2214/01.12.001/2019-20 (Vol. 9) dated October 09, 2019 wherein we had issued a notice under section 11(1) read with section 11(2) of the Right to lnformation Act, 2005 with respect to captioned RTI request to enable you to make a written submission as to whether the information may be disclosed or not along with reasons for exemption from disclosure under any clause of RTI Act, 2005.
2. After considering your response dated 23.10.2019 to the above notice, we intend to disclose the details of top 100 bank defaulters as on March 31, 2019 to the applicant."
Being dissatisfied, the appellant filed a First Appeal dated 17.09.2021 largely contending on the points raised in their objection letter of 23.10.2019 and emphasizing that- "it has filed a Writ Petition being Writ Petition(C) No. 1159 of 2019 inter alia challenging disclosure of vital information of the Appellant including inspection reports by the RBI under the RTI Act. The said Writ Petition filed by the Bank is pending hearing and final disposal before the Hon'ble Supreme Court of lndia. Thus, the issue of disclosing such vital information of the Appellant is sub judice before the Hon'ble Supreme Court of lndia and therefore information sought by the RTI Applicant ought not to be disclosed, atleast till the decision of the Hon'ble Supreme Court."
The FAA vide order dated 08.10.2021 upheld the reply of the CPIO and stated inter alia as under:
"8. In order to withhold any information sought by applicants under RTI Act, such information should fall within any of the exempted items under Section 8 and 9 of the RTI Act. If any part of requested information qualifies for exemption, CPIO would be free to sever/blackout such part and provide the information. It would not be possible to claim the exemption from disclosure under Section 8(1) (a), (d) and
(e) in view of the judgment of the Supreme Court in Reserve Bank of India & Ors. v.
Jayantilal N. Mistry & Ors., (2016) 3 SCC 525.
9. The exemption under Section 8(1)(j) is available in respect of "personal information" of an individual. The word 'personal information used in section 8(1)) may not cover the information relating to a body corporate. If the information includes details of "individuals", the same may be an exempted information under Section 8(1)) of the RTI Act, 2005.
410. In view of the aforesaid observations, I find no merit in the appeal which is liable to be dismissed as such. Further, the provisions of RTI Act, 2005 do not contemplate a mandatory personal hearing to be given to the appellant by the First Appellate Authority. The contentions/grounds of the appellant contained in this appeal have been taken into consideration, while passing this order. In these circumstances, it is not considered to be necessary to provide a separate personal hearing to the appellant."
Feeling aggrieved and dissatisfied, the appellant approached the Commission with the instant Second Appeal.
Relevant Facts emerging during Hearing:
The following were present: -
Appellant: Advocate Aayesh Gandhi present through video conference. Respondent: Sangeeta Sheoran, Manager & Rep. of CPIO present through video conference.
RTI Applicant: Not present.
The Commission heard the Advocate of the Appellant at length extrapolating on the same lines as that of the contentions contained in the above-mentioned objection letter dated 23.10.2019 as well as their First Appeal.
The Rep. of CPIO reiterated the CPIO's decision to disclose the information and the observations of the FAA.
Decision:
The bench has considered the submissions of both the parties, most of which has been time and again reiterated before this bench in various similar appeals filed by various other Banks, to which the Appellant and the CPIO are rather privy to. As held through various previous orders, the decision of the 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 that covers a detailed discussion inter alia on the reliance placed by RBI on the Jayantilal Mistry case; the pendency of the averred Writ petition before the Apex Court is applicable to the instant case as well. 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 6 Court in Jayantilal Mistry's case also does not 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 to 7 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'."
Having observed as above, the stipulations contained in para 41 & 43 to which emphasis has been supplied as above stands endorsed to the Respondent CPIO in the instant case as well.
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