RTI Act overrides statutory confidentiality in bank inspection reports; matter stayed pending Supreme Court clarification on public interest vs privacy.

ORDER

1. The RTI Applicant, Brajesh Kumar filed an RTI application dated 29.07.2021 seeking information as under:

(i) “Request for annual inspection report of

IL & FS for FY

2015-16

2016-17

2017-18

2018-19

(ii) IndiaBulls Housing Finance for FY

2015-16

2016-17

2017-18

2018-19 

(iii) HDFC Limited for FY

2015-16

2016-17

2017-18

2018-19”

2. The CPIO replied vide letter dated 16.09.2021 and the same is reproduced as under:-

i. “Housing Development Finance Corporation Limited (HDFC) in response to National Housing Bank's Third-Party Notice No. NHB (ND)/RTI 0125/TPN/ OUT004718/2021 dated August 27, 2021 issued under Section 11(1) of the RTI Act, submitted its responses vide letters dated September 03, 2021 and September 10, 2021 and made personal hearing on September 09, 2021 in respect of RTI application filed by Shri Brijesh Kumar dated July 29, 2021, requesting annual inspection report of HDFC Ltd. for the Financial Years 2015- 16, 2016-17, 2017-18 and 2018-19.

ii. After examining the submissions made by HDFC, it has been decided to disclose the major observations of the inspections undertaken for the Financial Years ended on 31.03.2016, 31.03.2017, 31.03.2018 and 31.03.2019, after masking/redacting the HDFC’s Borrower’s/Depositor’s personal information, to protect the privacy of such individuals.

iii. This notice of the decision taken under section 11(3) is being issued to the third party. As per section 11(4) of the RTI Act, HDFC is entitled to prefer an appeal under Section 19 (1) against the above decision. In the absence of first appeal filed within prescribed period of thirty days, the information as mentioned in para 2 above will be disclosed.”

3. Dissatisfied with the response received from the CPIO, the Appellant filed a First Appeal dated 13.10.2021. The FAA vide order dated 09.11.2021 observed that the CPIO has not passed a speaking order and directed the CPIO to pass a reasoned order and convey its decision within 15 days from the date of the order of FAA to the Appellant.

In compliance with the FAA’s order, the CPIO provided a reply to the RTI Applicant on 23.11.2021 stating as under:

“(i) On the issue of Statutory Confidentiality under Section 35A of the National Housing Bank Act, 1987; reliance has been placed on the Hon'ble Supreme Court's judgement in Reserve Bank of India Vs Jayantilal Mistry [Transferred Case (Civil) No.91 of 2015) dated 16-12-2015 ("Jayantilal Case"), wherein the Hon'ble Supreme Court while dealing with similar provision in Reserve Bank of India Act, 1934 has held that RTI Act, 2005 contains a clear provision (Section 22) by virtue of which it overrides all other Acts including Official Secrets Act. The Hon'ble Court observed that RTI Act 2005, being a later law, specifically brought into usher transparency and to transform the way official business is conducted, would have to override all earlier practices and laws in order to achieve its objective. And the only exceptions to access to information are contained in RTI Act itself in Section 8. In view of the above, the contention of the Third Party is not tenable.

On the issue that Confidential Information pertaining to Borrowers/Depositors Cannot be Divulged In absence of Notice to Such Borrowers/ Depositors, reliance has been placed on the observation of the Hon'ble Supreme Court in Jayantilal Case that public interest has always been considered to be above the private interest. Interest of an individual may, to some extent, be affected but it not have the potential of taking over the public interest having an impact in be socio-economic drive of the country. Therefore, in the public interest, the formation relating to the borrowers/depositors