News
CA: Details on EPF’s ‘market transactions’ confidential commercial information Under RTI Act
View(s):- Appeal Court decides the ‘harm’ that may result from release of ‘transaction level’ information during 2015-2017 outweighs ‘public interest’
- Holds that existing disclosure requirements of investments together with scrutiny of EPF by Parliament/Auditor General sufficient to ensure ‘transparency’ of EPF by Parliament/Auditor General sufficient to ensure ‘transparency’
By Ranjith Padmasiri
Setting aside a 2018 decision of the Right to Information Commission (2018) ordering the Central Bank of Sri Lanka (CBSL) to disclose information regarding market transactions of the Employees Provident Fund (EPF) during January 2015-April 2017, the Court of Appeal ruled this Thursday (March 26th, 2026) that information on ‘the EPF’s past bid rates, spreads, and allocation of funds for various International Securities Identification Numbers (ISINs) at primary auctions,’ is exempt from disclosure as ‘confidential commercial information’ under Section 5 (1)(d) of the Right to Information (RTI) Act.
The appeal arose in the context of Verite Research (Pvt) Ltd filing an information request to the CBSL on 15.05.2017, requesting detailed information regarding the CBSL’s decision-making process on investment of EPF funds. Relevant guidelines, names and designations of members of EPF investment committees as well as details of secondary and primary market transactions were asked for.
While releasing information on the relevant procedures/details of committees, etc., the CBSL declined to release transaction-level details, stating that these were price/market-sensitive information. Verite Research then appealed to the RTI Commission, arguing that public transparency was required in regard to the CBSL’s administration of the EPF, constituting the ‘largest single fund in Sri Lanka with LKR 2 trillion worth of retirement funds and 17.3 million total member accounts’ comprising savings of those members.
The information request had been filed in the context of an investigation of secondary market transactions on government securities of EPF by a Presidential Commission of Inquiry to investigate and report on the issuance of Treasury Bonds (Bond Commission) during 1st January 2016-31st March 2016. Hearing the appeal on several dates, the RTI Commission directed the CBSL to respond to several questions to clarify the ‘market sensitive’ nature of the information asked for. That included the criteria/guidelines used by the Monetary Board to balance non-disclosure of particular information as ‘market sensitive’ with transparency requirements associated with public debt (through the issuance of Treasury Bonds).
Assessing the responses, the RTI Commission took the view that the Public Authority (CBSL) had failed to establish how disclosure of past transactions (two years ago) would be prejudicial to the interests of a third party, i.e., the EPF, taking into account the contention of the information requestor that since the establishment of the Bloomberg platform, participants have access to data of past transactions, including much of the information asked for, except details of counterparties.
It was pointed out that ‘disclosure would seem to lead to better investments and, equally importantly, prevent disadvantageous transactions… it would appear to hold the PA more accountable to the EPF members in the public interest,’ the Commission (comprising then-Chair and Commissioners retired public servant Mahinda Gammampila, attorney-at-law Kishali Pinto-Jayawardena, SG Punchihewa and social activist Dr Selvy Thiruchandran) said.
Setting aside the Commission order, however, the Court held that disclosing details of each and every individual EPF transactions could provide crucial information that could be used by traders to speculate on the EPF’s bidding strategy including preferred tenors among issuances, fund allocation, ISINs, bid rates compared to prevailing market rates, and to outbid the EPF at future primary auctions.’ (per R. Gurusinghe J with M.C.B.S. Morais J agreeing).
The Court referred to Section 5 (1)(h) and (i) of the EPF Act, which obliges the Monetary Board to release disclosure of ‘investment’ details, along with scrutiny of the EPF by the Auditor General and Parliament, opining that this was sufficient for requirements of transparency.
‘It must be noted that each investment may comprise several transactions…there is no obligation to disclose details of each individual transaction,’ Gurusinghe J added, dismissing Verite’s argument that disclosing the total aggregate value of the investment would be ‘of limited use in assessing the suitability of the investment decision’ in issue.
Dr Kanag-Iswaran PC with Shivan Kanag-Iswaran appeared for the CBSL (substituted Public Authority Petitioner) instructed by Sudath Perera Associates
Dr G Gunatilleke with Oshan Fernando and Avishka Jayaweera appeared for Verite Research (Appellant Respondent).
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