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BEFORE THE APPELLATE AUTHORITY (Under the Right to Information Act, 2005) SECURITIES AND EXCHANGE BOARD OF INDIA

Appeal No. 1513 of 2012 Atul K. Gupta Vs. CPIO, SEBI, Mumbai : ORDER 1. The appellant had filed an application dated June 17, 2012 under the Right to Information Act, 2005 (RTI Act). The respondent vide letter dated July 6, 2012, responded to the appellant. The appellant has filed this appeal dated August 2, 2012 (received at SEBI on August 8, 2012) against the said response. I have carefully considered the application, the response and the appeal and find that the matter can be decided based on the material available on record. In his application, the appellant while making a reference to the Dave Committee, had sought information through the following queries, viz. i. When (date) was Dave committee formed to advice SEBI on matters related to CIS? ii. When did they submit their report to SEBI? Please provide a copy of the report? iii. Did they suggest any definition of a Collective Investment scheme in their report? If yes, please provide a copy of the definition as suggested by the Dave Committee. iv. Was this the final definition for incorporation in the SEBI Act or just a draft of a definition for further fine tuning after taking feedback from other interested parties like SEBI, Investors and scheme/entity operator, etc.? v. Did any definition exist in the SEBI Act before the recommendation of Dave Committee? If yes, please provide a copy of the same." 3. From the appeal, I note that the appellant is aggrieved by the respondent's response to the queries at point (i) - (ii) and point (iv) - (v) of his application. Point (i) of the application - I note that while the respondent in his response, had stated that the required information was not available with the concerned department of SEBI, he had, however, informed the appellant that as per the report submitted by the Dave Committee itself, the committee held its first meeting on January 28, 1998. The appellant has contended that since the Dave Committee was formed at the initiative of SEBI, it is impossible that SEBI does not have the information regarding when the Committee was Respondent : Appellant

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formed. The appellant has requested for the information to be provided alongwith a copy of the order giving effect of formation of the Committee. 5. I note that the appellant was clearly informed by the respondent that the information was not available with SEBI. I do not find any reason to disbelieve the respondent. I note that the Honble Supreme Court of India in the matter of Central Board of Secondary Education & Anr. vs. Aditya Bandopadhyay & Ors. (Judgment dated August 9, 2011), inter alia, held that the RTI Act provides access to all information that is available and existing. In view of these observations, I find that the obligation of the respondent under the RTI Act is to provide information identifiable and available in the records of SEBI. In this case, I find that the information sought by the appellant regarding the date when the Dave Committee was formed, was not available with SEBI and therefore, the respondent cannot be obliged to provide such information. Without prejudice to the foregoing, I note that the appellant had not sought a copy of the order giving effect of formation of the Committee, in his original application. I find that such request has been made for the first time at this appeal stage. A request at first appeal, different from what the appellant raised with the respondent is impermissible, as held by the Honble CIC in the matter of Anil K. Sahore vs. CPIO, Coast Guard Headquarters (Order dated July 13, 2006). If the appellant wants any new information, he is free to approach the respondent with application fees and additional fees for cost of information, as envisaged under the RTI Act and Rules. Point (ii) of the application - I note that in his application, the appellant has sought information regarding the date when the Dave Committee submitted its report to SEBI. I find that in his response, the respondent had informed the appellant that the Dave Committee submitted the draft regulations to SEBI on December 31, 1998 and had advised the appellant of the link on the SEBI website i.e. www.sebi.gov.in where the Dave Committee report is available. I note that in this appeal, the appellant has contended that the respondent has provided an evasive reply and has sought a certified copy of the report. In this regard, I find that the respondent's response does not meet the information requirement of the appellant since the appellant has specifically sought information regarding the date when the Dave Committee submitted its report to SEBI. As regards the request for a certified copy of the report, I find that the appellant had made such request for the first time at this appeal stage, which is impermissible, as discussed at para 6 supra. Without prejudice to the foregoing, I note that the information sought by the appellant i.e. copy of the Dave Committee Report, is available in the public domain. In this regard, the Honble CIC in the matter of Shri K. Lall vs. Shri M. K. Bagri (Order dated April 12, 2007), held that once information is placed on a website or in the public domain accessible to the citizens, that information cannot be said to be held or under the control of

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the public authority and thus ceases to be an information accessible under the RTI Act. I, therefore, find that the respondent is not expected to give information (including certified copy of such information) under the RTI Act, where the same is already available in the public domain. 9. Point (iv) of the application - I note that the respondent had informed the appellant that the complete interim report of the Dave Committee and the draft regulations submitted by such Committee to SEBI were made public so as to solicit comments/suggestions from investors/entities engaged in operating Collective Investment Schemes and industry associations. The appellant has submitted that a clear response was required as to whether the definition was final or not or for soliciting comments/suggestions only. In his application, I note that the appellant had sought information through a query stating: "Was this the final definition for incorporation in the SEBI Act or just a draft of a definition for further fine tuning after taking feedback from other interested parties like SEBI, Investors and scheme/entity operator, etc.?". I find that such query is an inquisition inviting and soliciting response from the respondent in the nature of clarification, opinion, etc. In this context, I note that Honble Supreme Court of India in its judgment dated August 9, 2011, in the matter of Central Board of Secondary Education & Anr. vs. Aditya Bandopadhyay & Ors., had held that: ..A public authority is "...not required to provide advice or opinion to an applicant, nor required to obtain and furnish any opinion or advice to an applicant. The reference to opinion or advice in the definition of information in section 2(f) of the Act, only refers to such material available in the records of the public authority. Many public authorities have, as a public relation exercise, provide advice, guidance and opinion to the citizens. But that is purely voluntary and should not be confused with any obligation under the RTI Act." I, therefore, find that this request of the appellant as made in his application, is beyond the scope of information' under section 2(f) and the right to information' under section 2(j) of the RTI Act and cannot be entertained. Without prejudice to the foregoing, I note that laws in the form of SEBI Act, Regulations, etc. are available on the SEBI website i.e. www.sebi.gov.in. In this regard and as discussed at para 8 supra, I find that the respondent is not expected to give such information where the same is stated to be available in the public domain. Point (v) of the application - I note that the respondent had informed the appellant that the queries raised by him were in the nature of seeking professional advice, opinion, explanation from SEBI and hence do not qualify as information as defined under Section 2(f) of the RTI Act, 2005. The respondent had also advised the appellant to refer to the SEBI website under the head Legal Framework for SEBI Acts, Rules, Regulations and Circulars. In this appeal, the appellant has submitted that the respondent has to provide a

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specific answer as to whether or not any definition of Collective Investment Scheme existed before the Dave Committee recommendation (or draft regulations). 13. I note that the appellant had raised a query stating: "Did any definition exist in the SEBI Act before the recommendation of Dave Committee?". In this regard and as discussed at para 10 supra, I find that such request of the appellant is an inquisition inviting and soliciting response in the nature of explanation, clarification, etc. and is beyond the scope of information' under section 2(f) and the right to information' under section 2(j) of the RTI Act. Without prejudice to the foregoing, I note that laws in the form of SEBI Act, etc. are available on the SEBI website i.e. www.sebi.gov.in. In this regard and as discussed at para 8 supra, I find that the respondent is not expected to give such information where the same is stated to be available in the public domain. In this appeal, I note that the appellant has alleged that "certain officials in SEBI have complete disregard of the provisions of RTI Act and have been shielding and hiding information. All this is resulting in the sufferings of the innocents while certain section of people with frivolous attitude are enjoying the fruits of life at the cost of taxpayers' money". This allegation is uncalled for. An appeal containing such intemperate language and unsubstantiated allegation needs to be discouraged in accordance with the observations of the Honble CIC in the matter of Shri D.N. Parmar Vs. Shri S.C. Jana (Order dated October 24, 2007). The appellant should, in future, avoid such intemperate language and unsubstantiated allegations in his application(s)/appeal(s) under the RTI Act. In view of the above, I remit the matter to the respondent for de-novo consideration of point (ii) of the appellant's application i.e. date when the Dave Committee submitted its report to SEBI, and to send an appropriate response to the appellant in terms of the RTI Act, within 15 working days from the date of receipt of this order. The appeal is accordingly disposed of.

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Place: Mumbai Date: August 28, 2012

PRASHANT SARAN APPELLATE AUTHORITY SECURITIES AND EXCHANGE BOARD OF INDIA

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