Where the information sought is not a part of the record of a public authority, the Act does not cast an obligation upon the public authority to furnish it to an applicant.: Orders of AA under the RTI Act.
The appellate authority under the RTI (Right to Information) Act of the Securities and Exchange Board of India comprising of Mr. Anand Baiwar adjudicated in the matter of K C Aggarwal v CPIO, SEBI, Mumbai (Appeal No. 4300 of 2021 and Appeal No. 4301 of 2021) dealt with an issue in connection with Sections 2 (f) and (j) of the Right to Information Act, 2005. The appellant, Mr K C Aggarwal had filed two applications via RTI MIS Portal on the 2nd of May, 2021, and 26th of May, 2021, under the Right to Information Act, 2005. The respondent responded to the application by two letters on the 25th of May, 2021, and 1st of June, 2021, filed by the appellate. After receiving a letter from the respondent on 25th of May, 2021, and 1st of June, 2021, on his application, the appellate decided to file an appeal on the 9th of May, 2021. In his application on the 2nd of May, 2021, and 26th of May, 2021, the appellate was seeking the following information regarding trades carried out at NSE in futures contracts in IOC: (a) What is the total amount received by the broker from NSE on specific trades mentioned in RTI application and which have been executed for and on behalf of the applicant.  The respondent in response to queries on the 25th of May, 2021, and 1st of June, 2021, and informed that the information sought is not maintained by SEBI in normal course of regulation of securities market. Hence the same is not available with SEBI. In addition to the same, the respondent, in his letter dated May 25, 2021, informed that the appellant may obtain the information from NSE through which the said trades were executed. The appellant filed the appeal on the grounds that he was not satisfied with the response provided by the respondent. The appellant, in his appeals, inter alia, submitted that the information available with NSE is liable to be obtained and provided to the applicant. On consideration, the appellant authority did not find any reason to disbelieve the observation that SEBI is not maintaining the requested information. In this context, for the queries, the appellate authority, Mr Anand Baiwar, made reference to the matter of Hon’ble CIC, in the matter of Central Board of Secondary Education &amp; Anr. vs. Aditya Bandopadhyay &amp; Ors (Judgment dated August 9, 2011) held that “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.” (Emphasis supplied). Further, it was noted that the Hon’ble CIC in the matter of Sh. Pattipati Rama Murthy vs. CPIO, SEBI (Decision dated July 8, 2013), held: “… if it (SEBI) does not have any such information in its possession, the CPIO cannot obviously invent one for the benefit of the Appellant. There is simply no information to be given.” In view of these observations, Mr Baiwar found that the information sought by the appellant was not available with SEBI and therefore, the respondent cannot be obliged to provide such non–available information. Further, the appellant, in his appeals, submitted that the information available with NSE is liable to be obtained and provided to the appellant. The appellate authority Mr Baiwar found that the respondent is only expected to see that the information to be furnished to an applicant is the one which exists with the public authority when it receives an application under the Right to Information Act, 2005. The respondent has categorically stated in its response that the information sought was not available with SEBI. The respondent is not expected to obtain any information from the stock exchanges for the sole purpose of providing the same to an applicant under the RTI Act. Notwithstanding the same, it was noted that the appellant has been advised to obtain the information from NSE through which the said trades were executed.
Appeal No. 4300 and 43021 BEFORE THE APPELLATE AUTHORITY Under the Right to Information Act 2005) SECURITIES AND EXCHANGE BOARD OF INDIA Appeal No. 43021 Appeal No. 43021 K C Aggarwal CPIO SEBI Mumbai The appellant had filed two applications dated May 02 2021 and May 26 2021 under the Right to Information Act 2005 What is the total amount received by the broker from NSE on specific trades mentioned in RTI application and which have been executed for and on behalf of the applicant. b) What is the amount of brokerage that was deducted fromabove. c) What amount of STT was deducted fromabove. d) What amount of other charges deducted fromabove. e) Date particulars of payment to investor of amount remaining fromafter deducting amounts mentioned in(c) andabove. The respondent vide letters dated May 26 2021 and June 01 2021 responded to the query numbers a b c d and e of both the applications and informed that the information sought is not maintained by SEBI in normal course of regulation of securities market. Hence the same is not available with SEBI. In addition to the same the respondent in his letter dated May 25 2021 informed that the appellant may obtain the information from NSE through which the said trades were executed. 4. Ground of appeal On perusal of the appeals it appears that the appellant is not satisfied with the replies provided by the respondent. The appellant in his appeals inter alia submitted that the information available with NSE is liable to be obtained and provided to the applicant. Appeal No. 4300 and 43021 5. On consideration I do not find any reason to disbelieve the observation that SEBI is not maintaining the requested information. In this context I note that the Hon’ble Supreme Court of India in Central Board of Secondary Education & Anr. vs. Aditya Bandopadhyay & Orsheld that “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 clausesandof 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.”held: “… if itdoes not have any such information in its possession the CPIO cannot obviously invent one for the benefit of the Appellant. There is simply no information to be given.” In view of these observations I find that the information sought by the appellant was not available with SEBI and therefore the respondent cannot be obliged to provide such nonavailable information. Further the appellant in his appeals submitted that the information available with NSE is liable to be obtained and provided to the appellant. I find that the respondent is only expected to see that the information to be furnished to an applicant is the one which exists with the public authority when it receives an application under the RTI Act. The respondent has categorically stated in its response that the information sought was not available with SEBI. The respondent is not expected to obtain any information from the stock exchanges for the sole purpose of providing the same to an applicant under the RTI Act. Notwithstanding the same I note that the appellant has been advised to obtain the information from NSE through which the said trades were executed. In view of the above observations I find that there is no need to interfere with the decision of the respondent. The Appeals are accordingly dismissed. Place: Mumbai Date: July 08 2021 ANAND BAIWAR APPELLATE AUTHORITY UNDER THE RTI ACT SECURITIES AND EXCHANGE BOARD OF INDIA 