RTI Judgement Series: Public interest in disclosure outweighs the harm to protect interest
Moneylife Digital Team 21 January 2013

In a rare use of Section 8 (2) of the RTI Act, the CIC ordered disclosure of information as a larger public interest would be served by it. This is the 23rd in a series of important judgements given by Shailesh Gandhi, former CIC, that can be used or quoted in a RTI application

The Central Information Commission (CIC) while agreeing that the information sought was exempt under Section 8 (1)(e) of the Right to Information (RTI) Act ordered disclosure as per Section 8 (2) of the Act since a larger public interest would be served by the disclosure. While giving this important judgement, Shailesh Gandhi, former Central Information Commissioner, invoked Section 8 (2) that is rarely used.

 

“Given the fact that Jiwan Jyoti Co-operative Group Housing Society (Jiwan Jyoti) has defaulted for many years on its loan payment and a large amount of over Rs12 crore is outstanding, it is reasonable to argue that there is a large public interest in knowing the details and nature of such a loan,” the CIC said in its order issued on 10 June 2009.

 

MG Menghaney, a resident of Delhi on 16 January 2009 sought information about non-payment of loan by Jiwan Jyoti from the Delhi Co-operative Housing Finance Corporation (DCHFC). He sought the following information on:

 

1. Total amount taken by the society with amount

2. Total amount paid by the society from Day One till 31.12.2008

3. Copy of the agreement entered with … the society with date registration details

4. The date on which the above name society became defaulter with details

5. List of members who have taken the loan with amount taken which the society has submitted to you in repeat of disbursement of the loan

6. Has the society submitted any form and or request for granting loan by the individual member with enclosures

7. List of members who have directly paid the loan amount in full or part to you for which you have issued the receipts with date and amount receive with name of the members

8. Details members who have not paid in part/or full the 31 Dec 2008 to enable you to asses the  amount yet to recovered vice versa the amount due to you.

9. Do you have any worksheet prepared by you of the total amount due to you and the members with amount due as on 31.12.2008. What is the amount payable by all the defaulting members?

10. Please provide details of recovery of loan amount from the above-named society which have initiated as to the recovery steps taken from the … of default by the society

11. Please confirm that you had sent notices to the individual members of the society who have taken loans and have defaulted in many payments

12. At any stage did you direct the society not to allow sell their flats as they were defaulters of loan amount

13. Copy of one such no dues certificate issued by the society to the members, which has been communicated to you by the by the society, please confirm

14. At any stage you were informed that the promoters the society or managing committee of the society has utilized any amount of loan amounts recovered from the members has been used for any other purpose than repayment to you

15. Please advise any specific reason that your corporation has not been pursuing recovery loan amount from the society

16. Please provide copies of loan confirmation issued by the society to your corporation as every financial year and if you stationary Auditors remark to the extant the loan amount recoverable as otherwise

17. Please provide copies of the Auditors Report in respect the loan of the society

18. Please allow inspection of file and records pertaining to the above-mentioned loan

 

The Public Information Officer (PIO) of the DCHFC denied the information sought under para 1 to 5 and 7,10,16,17 claiming exemption from disclosure under Section 8 (1)(d) and Section 8(1)(e).

 

Section 8(1)(d) says:

"notwithstanding anything contained in this Act, there shall be no obligation to give any citizen the 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 large public interest warrants the disclosure of such information”.

 

Section 8(1)(e) says:

“Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen- information available to a person in his fiduciary relationship, unless the competent authority is satisfied that a large public interest warrants the disclosure of such information" under Right to Information Act, 2005”.

 

The PIO said, “The information sought by the applicant under para 4, 6, 8, 9 and 11 to 15 are not covered under the definition of information as defined in Section 2 (f) of the RTI Act, 2005.”

 

There was no mention of the order or reply by the First Appellate Authority (FAA). Mr Menghaney then filed second appeal before the Commission.

 

During a hearing before the CIC, he said, “...there is a loan outstanding against my flat taken by me from DCHFC, the entire loan amount was Rs1.95 crore, which has amounted to Rs12.54 crore as per the information gathered by me from various sources. The defaulters are merely 25 to 26, therefore it is apparent that there is something wrong in account maintained by the society as well as DCHFC.”

 

“As a citizen I must know the status of my loan account so that the steps are taken to look at the same. As well as there is a dispute between the society and DCHFC as such both are not providing any information. It suits DCHFC as they have been debiting interest and penal interest therefore it does not affect DCHFC directly but it certainly effects the person who had taken loan,” Mr Menghaney told the Commission.

 

The PIO stated that the loan was given to Jiwan Jyoti by DCHFC after executing loan agreement and mortgage deed. “Since the loan was given to the society, DCHFC has been maintaining single loan account in the name of the society. The appellant is claiming to be the member of the said society and we are unable to work out his individual loan liability. However, the appellant may get the same information directly from the management of the said society under provision of Delhi Cooperative Society Act 2003 under Section 139,” he said.

 

“Since the information sought by the appellant pertains to loan transaction the same information is held in its fiduciary relationship, commercial confidence, trade secrets, etc and the same is exempted from the disclosure under Section 8 of the RTI Act,” the PIO claimed.

 

The PIO also admitted that there is a large default in the case. He stated that there is a consistent default for many years and the present outstanding (of Jiwan Jyoti) is over Rs12 crore. The Commission then reserved its order.

 

Mr Gandhi, in an order issued on 10 June 2009, said the Commission considered the PIO’s claim for exemption under Section 8 (1)(d) and was not able to see any justification how its commercial confidence or trade secrets would suffer by disclosing this information.

 

Under Section 8(1)(e), 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. “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 giver. Hence the Commission agrees that the public authority has a fiduciary relationship with the Cooperative Society which has taken a loan from it,” Mr Gandhi noted.

 

He, however, said that given the fact that that the cooperative society has defaulted for many years on its loan payment and a large amount of over Rs12 crore is outstanding, it is reasonable to argue that there is a large public interest in knowing the details and nature of such a loan. “In matters where public financial institution which is a public authority, large and continuous defaults in loans could be the result of corruption or gross mismanagement and citizens have a right to know the details so that this acts as a check on such public authorities,” the Commission said.

 

Mr Gandhi said, “In view of this the Commission feels that as per Section 8 (2) public interest in disclosure outweighs the harm to the protected interest and hence the information must be disclosed.”

 

While allowing the appeal, the CIC asked the PIO to provide information sought by Mr Menghaney before 25 June 2009.

 

 

CENTRAL INFORMATION COMMISSION

 

 

Decision No. CIC/SG/A/2009/000898/3651

https://ciconline.nic.in/cic_decisions/SG-10062009-21.pdf

Appeal No. CIC/SG/A/2009/000898

                                                                  

Appellant                                  : MG Menghaney,

                                                  Delhi-110034

                                                                                                         

Respondent                              : LR Garg, SPIO

                                                  Delhi Co-operative Housing Finance Corporation Ltd,

                                                  3/6 Shri Fort Institutional Area,

                                                  August Kranti Marg, New Delhi-110049

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