1. Article 124 of the Constitution, which relates to the
establishment and constitution of the Supreme Court of India,
states that there shall be a Supreme Court of India consisting of a Chief Justice and other judges. It is undebatable that the
Supreme Court of India is a ‘public authority’, as defined vide
clause (h) to Section 2 of the Right to Information Act, 2005 as
it has been established and constituted by or under the
Constitution of India. The Chief Justice of India as per subclause (ii) in clause (e) to Section 2 is the competent authority
in the case of the Supreme Court. Consequently, in terms of
Section 28 of the RTI Act, the Chief Justice of India is
empowered to frame rules, which have to be notified in the
Official Gazette, to carry out the provisions of the RTI Act. [Para
13] [479-F-H]

2. The Supreme Court of India, which is a ‘public
authority’, would necessarily include the office of the Chief
Justice of India and the judges in view of Article 124 of the
Constitution. The office of the Chief Justice or for that matter
the judges is not separate from the Supreme Court, and is part
and parcel of the Supreme Court as a body, authority and
institution. The Chief Justice and the Supreme Court are not
two distinct and separate ‘public authorities’, albeit the latter is
a ‘public authority’ and the Chief Justice and the judges together
form and constitute the ‘public authority’, that is, the Supreme
Court of India. The interpretation to Section 2(h) cannot be made
in derogation of the Constitution. To hold to the contrary would
imply that the Chief Justice of India and the Supreme Court of
India are two distinct and separate public authorities, and each
would have their CPIOs and in terms of sub-section (3) to
Section 6 of the RTI Act an application made to the CPIO of the
Supreme Court or the Chief Justice would have to be
transferred to the other when ‘information’ is held or the subject
matter is more closely connected with the ‘functions’ of the
other. This would lead to anomalies and difficulties as the
institution, authority or body is one. The Chief Justice of India
is the head of the institution and neither he nor his office is a
separate public authority. [Para 14] [480-A-D]
3. This is equally true and would apply to the High Courts
in the country as Article 214 states that there shall be a High
Court for each State and Article 216 states that every High Court
shall consist of a Chief Justice and such other judges as the President of India may from time to time deem it appropriate to
appoint. [Para 15] [480-E]


4. ‘Information’ as per the definition clause is broad and
wide, as it is defined to mean “material in any form” with
amplifying words including records (a term again defined in
widest terms vide clause (i) to Section 2 of the RTI Act),
documents, emails, memos, advices, logbooks, contracts,
reports, papers, samples, models, data material held in
electronic form, etc. The last portion of the definition clause
which states that the term ‘information’ would include
‘information relating to any private body which can be accessed
by a public authority under any other law for the time being in
force’ has to be read as reference to ‘information’ not presently
available or held by the public authority but which can be
accessed by the public authority from a private body under any
other law for the time being in force. The term – ‘private body’
in the clause has been used to distinguish and is in
contradistinction to the term – ‘public authority’ as defined in
Section 2(h) of the RTI Act. It follows that any requirement in
the nature of precondition and restrictions prescribed by any
other law would continue to apply and are to be satisfied before
information can be accessed and asked to be furnished by a
private body. [Para 17] [481-F-H; 482-A]

5. What is explicit as well as implicit from the definition
of ‘information’ in clause (f) to Section 2 follows and gets
affirmation from the definition of ‘right to information’ that the
information should be accessible by the public authority and ‘held
by or under the control of any public authority’. The word ‘hold’
as defined in Wharton’s Law Lexicon, 15th Edition, means to
have the ownership or use of; keep as one’s own, but in the
context of the present legislation, we would prefer to adopt a
broader definition of the word ‘hold’ in Black’s Law Dictionary,
6th Edition, as meaning; to keep, to retain, to maintain possession
of or authority over. The words ‘under the control of any public
authority’ as per their natural meaning would mean the right and
power of the public authority to get access to the information. It refers to dominion over the information or the right to any
material, document etc. The words ‘under the control of any
public authority’ would include within their ambit and scope
information relating to a private body which can be accessed by
a public authority under any other law for the time being in force
subject to the pre-imposed conditions and restrictions as
applicable to access the information. [Para 18] [482-B-D]

6. When information is accessible by a public authority, that
is, held or under its control, then the information must be
furnished to the information seeker under the RTI Act even if
there are conditions or prohibitions under another statute
already in force or under the Official Secrets Act, 1923, that
restricts or prohibits access to information by the public. In view
of the non-obstante clause in Section 22 of the RTI Act, any
prohibition or condition which prevents a citizen from having
access to information would not apply. Restriction on the right
of citizens is erased. However, when access to information by a
public authority itself is prohibited or is accessible subject to
conditions, then the prohibition is not obliterated and the preconditions are not erased. Section 2(f) read with Section 22 of
the RTI Act does not bring any modification or amendment in
any other enactment, which bars or prohibits or imposes precondition for accessing information of the private bodies. Rather,
clause (f) to Section 2 upholds and accepts the said position when
it uses the expression – “which can be accessed”, that is the
public authority should be in a position and be entitled to ask
for the said information. Section 22 of the RTI Act, an overriding
provision, does not militate against the interpretation as there
is no contradiction or conflict between the provisions of Section
2(f) of the RTI Act and other statutory enactments/law. Section
22 of the RTI Act is a key that unlocks prohibitions/limitations
in any prior enactment on the right of a citizen to access
information which is accessible by a public authority. It is not a
key with the public authority that can be used to undo and erase
prohibitions/limitations on the right of the public authority to
access information. In other words, a private body will be
entitled to the same protection as is available to them under the
laws of this country. [Para 19] [482-E-G; 483-A-C]


7. Sub-section (1) of Section 8 begins with a non-obstante
clause giving primacy and overriding legal effect to different
clauses under the sub-section in case of any conflict with other
provisions of the RTI Act. Section 8(1) without modifying or
amending the term ‘information’, carves out exceptions when
access to ‘information’, as defined in Section 2(f) of the RTI Act
would be denied. Consequently, the right to information is
available when information is accessible under the RTI Act, that
is, when the exceptions listed in Section 8(1) of the RTI Act are
not attracted. In terms of Section 3 of the RTI Act, all citizens
have right to information, subject to the provisions of the RTI
Act, that is, information ‘held by or under the control of any
public authority’, except when such information is exempt or
excluded. [Para 25] [491-C-E]

8. Clauses in sub-section (1) to Section 8 can be divided
into two categories: clauses (a), (b), (c), (f), (g), (h) and (i), and
clauses (d), (e) and (j). The latter clauses state that the prohibition
specified would not apply or operate when the competent
authority in clauses (d) and (e) and the PIO in clause (j) is
satisfied that larger public interest warrants disclosure of such
information. Therefore, clauses (d), (e) and (j) of Section 8(1) of
the RTI Act incorporate qualified prohibitions and are conditional
and not absolute exemptions. Clauses (a), (b), (c), (f), (g), (h) and
(i) do not have any such stipulation. Prohibitory stipulations in
these clauses do not permit disclosure of information on
satisfaction of the larger public interest rule. These clauses,
therefore, incorporate absolute exclusions. [Para 26] [401-E-G]

9. Sub-section (2) to Section 8 states that notwithstanding
anything contained in the Official Secrets Act, 1923 or any of the
exemptions permissible in accordance with sub-section (1), a
public authority may allow access to information if the public
interest in disclosure outweighs the harm to the protected
interests. The disclosure under Section 8(2) by the public
authority is not a mandate or compulsion but is in the form of
discretionary disclosure. Section 8(2) acknowledges and
empowers the public authority to lawfully disclose information
held by them despite the exemptions under sub-section (1) to Section 8 if the public authority is of the opinion that the larger
public interest warrants disclosure. Such disclosure can be made
notwithstanding the provisions of the Official Secrets Act.
Section 8(2) does not create a vested or justiciable right that the
citizens can enforce by an application before the PIO seeking
information under the RTI Act. PIO is under no duty to disclose
information covered by exemptions under Section 8(1) of the RTI
Act. Once the PIO comes to the conclusion that any of the
exemption clauses is applicable, the PIO cannot pass an order
directing disclosure under Section 8(2) of the RTI Act as this
discretionary power is exclusively vested with the public
authority. [Para 27] [492-A-D]

10. Section 9 provides that without prejudice to the
provisions of Section 8, a request for information may be rejected
if such a request for providing access would involve an
infringement of copyright subsisting in a person other than the
State. [Para 28] [492-E]
10.1 Section 10 deals with severability of exempted
information and section 11 deals with third party information and
incoporates conditional exclusion based on breach of
confidentiality. [Paras 29 and 30] [492-E-F; G]
10.2 In Aditya Bandopadhyay, wherein this Court, on the
aspect of general principles of interpretation while deciding the
conflict between the right to information and exclusions under
section 8 to 11 of the RTI Act had made some observations in
paragraphs 61, 62 and 63. This Court respectfully concurs with
the paragraph 63 of the Judgment and the same has to be read
with the observations made on last portion of clause (f) to section
2 defining the word ‘information’. [Para 31] [494-A-B; 495-G]


11. Fiduciary relationships, regardless of whether they are
formal, informal, voluntary or involuntary, must satisfy the four
conditions for a relationship to classify as a fiduciary relationship.
In each of the four principles, the emphasis is on trust, reliance,
the fiduciary’s superior power or dominant position and
corresponding dependence of the beneficiary on the fiduciary
which imposes responsibility on the fiduciary to act in good faith and for the benefit of and to protect the beneficiary and not
oneself. Section 8(1)(e) is a legal acceptance that there are
ethical or moral relationships or duties in relationships that
create rights and obligations, beyond contractual, routine or even
special relationships with standard and typical rights and
obligations. Contractual or non-fiduciary relationships could
require that the party should protect and promote the interest
of the other and not cause harm or damage, but the fiduciary
relationship casts a positive obligation and demands that the
fiduciary should protect the beneficiary and not promote personal
self-interest. A fiduciary’s loyalty, duties and obligations are
stricter than the morals of the market place and it is not honesty
alone, but the punctilio of an honour which is the most sensitive
standard of behaviour which is applied {Opinion of Cardozo, J.
in Meinhard v. Salmon}. Thus, the level of judicial scrutiny in
cases of fiduciary relationship is intense as the level of
commitment and loyalty expected is higher than non-fiduciary
relationships. Fiduciary relationship may arise because of the
statute which requires a fiduciary to act selflessly with integrity
and fidelity and the other party, that is the beneficiary, depends
upon the wisdom and confidence reposed in the fiduciary. A
contractual, statutory and possibly all relationships cover a broad
field, but a fiduciary relationship could exist, confined to a limited
area or an act, as relationships can have several facets. Thus,
relationships can be partly fiduciary and partly non- fiduciary with
the former being confined to a particular act or action which need
not manifest itself in entirety in the interaction and relationship
between two parties. What would distinguish non-fiduciary
relationship from fiduciary relationship or an act is the
requirement of trust reposed, higher standard of good faith and
honesty required on the part of the fiduciary with reference to a
particular transaction(s) due to moral, personal or statutory
responsibility of the fiduciary as compared to the beneficiary,
resulting in dependence of the beneficiary. This may arise due
to superior knowledge and training of the fiduciary or the
position he occupies. [Para 34] [499-A-H; 500-A-B]

12. Ordinarily the relationship between the Chief Justice
and judges would not be that of a fiduciary and a beneficiary.
However, it is not an absolute rule/code for in certain situations and acts, fiduciary relationship may arise. Whether or not such
a relationship arises in a particular situation would have to be
dealt with on the tests and parameters enunciated above. [Para
35] [500-C]


13. If one’s right to know is absolute, then the same may
invade another’s right to privacy and breach confidentiality, and,
therefore, the former right has to be harmonised with the need
for personal privacy, confidentiality of information and effective
governance. The RTI Act captures this interplay of the
competing rights under clause (j) to Section 8(1) and Section 11.
While clause (j) to Section 8(1) refers to personal information
as distinct from information relating to public activity or interest
and seeks to exempt disclosure of such information, as well as
such information which, if disclosed, would cause unwarranted
invasion of privacy of an individual, unless public interest
warrants its disclosure, Section 11 exempts the disclosure of
‘information or record…which relates to or has been supplied
by a third party and has been treated as confidential by that third
party’. By differently wording and inditing the challenge that
privacy and confidentiality throw to information rights, the RTI
Act also recognises the interconnectedness, yet distinctiveness
between the breach of confidentiality and invasion of privacy, as
the former is broader than the latter. [Para 36] [500-D-G]

14. While clause (j) exempts disclosure of two kinds of
information, as noted in paragraph 47 above, that is “personal
information” with no relation to public activity or interest and
“information” that is exempt from disclosure to prevent
unwarranted invasion of privacy, this Court has not underscored,
as will be seen below, such distinctiveness and treated personal
information to be exempt from disclosure if such disclosure
invades on balance the privacy rights, thereby linking the former
kind of information with the latter kind. This means that
information, which if disclosed could lead to an unwarranted
invasion of privacy rights, would mean personal information, that
is, which is not having co-relation with public information. [Para
53] [510-F-G]

15. Reading of the aforesaid judicial precedents, in our
opinion, would indicate that personal records, including name,
address, physical, mental and psychological status, marks
obtained, grades and answer sheets, are all treated as personal
information. Similarly, professional records, including
qualification, performance, evaluation reports, ACRs, disciplinary
proceedings, etc. are all personal information. Medical records,
treatment, choice of medicine, list of hospitals and doctors
visited, findings recorded, including that of the family members,
information relating to assets, liabilities, income tax returns,
details of investments, lending and borrowing, etc. are personal
information. Such personal information is entitled to protection
from unwarranted invasion of privacy and conditional access is
available when stipulation of larger public interest is satisfied.
This list is indicative and not exhaustive. [Para 59] [512-G; 513-

16. This Court clarifies that Section 11 is not merely
procedural but also a substantive provision which applies when
the PIO intends to disclose information that relates to or has
been supplied by a third party and has been treated as
confidential by that third party. It requires the PIO to issue
notice to the third party who may make submission in writing
or orally, which submission has to be kept in view while taking
a decision. Proviso to Section 11(1) applies in all cases except
trade or commercial secrets protected by law. Pertinently,
information including trade secrets, intellectual property rights,
etc. are governed by clause (d) to sub- section (1) of Section 8
and Section 9 of the RTI Act. In all other cases where the
information relates to or has been supplied by the third party and
treated as confidential by that third party, disclosure in terms of
the proviso may be allowed where the public interest in
disclosure outweighs in importance any possible harm or injury
to the interest of the third party. Confidentiality is protected and
preserved in law because the public interest requires such
protection. It helps and promotes free communication without
fear of retaliation. However, public interest in protecting
confidentiality is subject to three well-known exceptions. The
first exception being a public interest in the disclosure of iniquity
for there cannot be any loss of confidentiality involving a wrongdoing. Secondly, there cannot be any public interest when
the public has been misled. Thirdly, the principle of confidentiality
does not apply when the disclosure relates to matters of public
concern, which expression is vastly different from news value
or news to satiate public curiosity. Public concern relates to
matters which are an integral part of free speech and expression
and entitlement of everyone to truth and fair comment about it.
There are certain circumstances where the public interest in
maintaining confidentiality may be outweighed by the public
interest in disclosure and, thus, in common law, it may not be
treated by the courts as confidential information. These aspects
would be relevant under the proviso to Section 11(1) of the RTI
Act. [Para 61] [515-C-H]

17. Proviso to Section 11(1) of the RTI Act is a statutory
recognition of three exceptions and more when it incorporates
public interest test. It states that information, otherwise treated
confidential, can be disclosed if the public interest in disclosure
outweighs the possible harm and injury to the interest of such a
third party. The expression ‘third party’ has been defined in
clause (n) to Section 2 to mean a person other than the citizen
making a request for information and includes a public authority.
Thus, the scope of ‘information’ under Section 11 is much
broader than that of clause (j) to Section 8 (1), as it could include
information that is personal as well as information that concerns
the government and its working, among others, which relates
to or is supplied by a third party and treated as confidential.
Third-party could include any individual, natural or juristic entity
including the public authority. [Para 62] [516-A-C]

18. Most jurists would accept that absolute transparency
in all facets of government is neither feasible nor desirable, for
there are several limitations on complete disclosure of
governmental information, especially in matters relating to
national security, diplomatic relations, internal security or
sensitive diplomatic correspondence. There is also a need to
accept and trust the government’s decision- makers, which they
have to also earn, when they plead that confidentiality in their
meetings and exchange of views is needed to have a free flow
of views on sensitive, vexatious and pestilent issues in which there can be divergent views. This is, however, not to state that
there are no dangers in maintaining secrecy even on aspects that
relate to national security, diplomatic relations, internal security
or sensitive diplomatic correspondence. Confidentiality may
have some bearing and importance in ensuring honest and fair
appraisals, though it could work the other way around also and,
therefore, what should be disclosed would depend on authentic
enquiry relating to the public interest, that is, whether the right
to access and the right to know outweighs the possible public
interest in protecting privacy or outweighs the harm and injury
to third parties when the information relates to such third parties
or the information is confidential in nature. [Para 70] [524-A-D]


Public interest in access to information refers to something
that is in the interest of the public welfare to know. Public welfare
is widely different from what is of interest to the public.
“Something which is of interest to the public” and “something
which is in the public interest” are two separate and different
parameters. For example, the public may be interested in private
matters with which the public may have no concern and pressing
need to know. However, such interest of the public in private
matters would repudiate and directly traverse the protection of
privacy. The object and purpose behind the specific exemption
vide clause (j) to Section 8(1) is to protect and shield oneself
from unwarranted access to personal information and to protect
facets like reputation, honour, etc. associated with the right to
privacy. Similarly, there is a public interest in the maintenance
of confidentiality in the case of private individuals and even
government. [Para 75] [527-E-H]

20.The public interest test in the context of the RTI Act
would mean reflecting upon the object and purpose behind the
right to information, the right to privacy and consequences of
invasion, and breach of confidentiality and possible harm and
injury that would be caused to the third party, with reference to
a particular information and the person. [Para 76] [528-A-B]

21.Public interest has no relationship and is not connected
with the number of individuals adversely affected by the
disclosure which may be small and insignificant in comparison to the substantial number of individuals wanting disclosure. It
will vary according to the information sought and all
circumstances of the case that bear upon the public interest in
maintaining the exemptions and those in disclosing the
information must be accounted for to judge the right balance.
Public interest is not immutable and even time-gap may make a
significant difference. The type and likelihood of harm to the
public interest behind the exemption and public interest in
disclosure would matter. The delicate balance requires
identification of public interest behind each exemption and then
cumulatively weighing the public interest in accepting or
maintaining the exemption(s) to deny information in a particular
case against the public interest in disclosure in that particular
case. Further, under Section 11(1), reference is made to the
‘possible’ harm and injury to the third party which will also have
to be factored in when determining disclosure of confidential
information relating to the third parties. [Para 78] [529-D-F]

22. The last aspect in the context of public interest test
would be in the form of clarification as to the effect of sub-section
(2) to Section 6 of the RTI Act which does not require the
information seeker to give any reason for making a request for
the information. Clearly, ‘motive’ and ‘purpose’ for making the
request for information is irrelevant, and being extraneous
cannot be a ground for refusing the information. However, this
is not to state that ‘motive’ and ‘purpose’ may not be relevant
factor while applying the public interest test in case of qualified
exemptions governed by the public interest test. It is in this
context that this Court in Aditya Bandopadhyay has held that
beneficiary cannot be denied personal information relating to him.
Similarly, in other cases, public interest may weigh in favour of
the disclosure when the information sought may be of special
interest or special significance to the applicant. It could equally
be a negative factor when the ‘motive’ and ‘purpose’ is vexatious
or it is a case of clear abuse of law. [Para 79] [529-G-H; 530-AB]

23. In the RTI Act, in the absence of any positive indication
as to the considerations which the PIO has to bear in mind while
making a decision, the legislature had intended to vest a general
discretion in the PIO to weigh the competing interests, which is to be limited only by the object, scope and purpose of the
protection and the right to access information and in Section
11(1), the ‘possible’ harm and injury to the third party. It imports
a discretionary value judgment on the part of the PIO and the
appellate forums as it mandates that any conclusion arrived at
must be fair and just by protecting each right which is required
to be upheld in public interest. There is no requirement to take
a fortiori view that one trumps the other. [Para 80] [530-C-D]


24. This Court has referred to the decisions and viewpoints
to highlight the contentious nature of the issue of transparency,
accountability and judicial independence with various arguments
and counter-arguments on both sides, each of which commands
merit and cannot be ignored. Therefore, it is necessary that the
question of judicial independence is accounted for in the
balancing exercise. It cannot be doubted and debated that the
independence of the judiciary is a matter of ennobled public
concern and directly relates to public welfare and would be one
of the factors to be taken into account in weighing and applying
the public interest test. Thus, when the public interest demands
the disclosure of information, judicial independence has to be
kept in mind while deciding the question of exercise of
discretion. However, we should not be understood to mean that
the independence of the judiciary can be achieved only by denial
of access to information. Independence in a given case may well
demand openness and transparency by furnishing the
information. Reference to the principle of judicial independence
is not to undermine and avoid accountability which is an aspect
we perceive and believe has to be taken into account while
examining the public interest in favour of disclosure of
information. Judicial independence and accountability go hand
in hand as accountability ensures, and is a facet of judicial
independence. Further, while applying the proportionality test,
the type and nature of the information is a relevant factor.
Distinction must be drawn between the final opinion or
resolutions passed by the collegium with regard to appointment/
elevation and transfer of judges with observations and indicative
reasons and the inputs/data or details which the collegium had
examined. The rigour of public interest in divulging the input
details, data and particulars of the candidate would be different from that of divulging and furnishing details of the output, that
is the decision. In the former, public interest test would have to
be applied keeping in mind the fiduciary relationship (if it arises),
and also the invasion of the right to privacy and breach of the
duty of confidentiality owed to the candidate or the information
provider, resulting from the furnishing of such details and
particulars. The position represents a principled conflict between
various factors in favour of disclosure and those in favour of
withholding of information. Transparency and openness in judicial
appointments juxtaposed with confidentiality of deliberations
remain one of the most delicate and complex areas. Clearly, the
position is progressive as well as evolving as steps have been
taken to make the selection and appointment process more
transparent and open. Notably, there has been a change after
concerns were expressed on disclosure of the names and the
reasons for those who had not been approved. The position will
keep forging new paths by taking into consideration the
experiences of the past and the aspirations of the future. [Para
88] [539-A-H; 540-A]


25. In view of the aforesaid discussion, this Court dismisses
Civil Appeal No.2683 of 2010 and uphold the judgment dated
12th January, 2010 of the Delhi High Court in LPA No. 501 of
2009 which had upheld the order passed by the CIC directing
the CPIO, Supreme Court of India to furnish information on the
judges of the Supreme Court who had declared their assets. Such
disclosure would not, in any way, impinge upon the personal
information and right to privacy of the judges. The fiduciary
relationship rule in terms of clause (e) to Section 8(1) of the RTI
Act is inapplicable. It would not affect the right to confidentiality
of the judges and their right to protect personal information and
privacy, which would be the case where details and contents of
personal assets in the declaration are called for and sought, in
which event the public interest test as applicable vide Section
8(1)(j) and proviso to Section 11 (1) of the RTI Act would come
into operation. [Para 89] [540-D-P]
26. As far as Civil Appeal Nos. 10045 of 2010 and 10044
of 2010 are concerned, they are to be partly allowed with an order
of remit to the CPIO, Supreme Court of India to re-examine the matter after following the procedure under Section 11(1) of the
RTI Act as the information relates to third parties. [Para 90]

Case Law Reference

[1980] SCR 365 referred to Para 3
[1970] 2 SCR 10 referred to Para 9
[1973] 3 SCR 411 referred to Para 9
[1975] 3 SCR 333 referred to Para 9
[2011] 11 SCR 1028 relied on Para 9
[2015] 14 SCR 505 referred to Para 9
[2013] 14 SCR 475 relied on Para 12
[2010] 1 SCR 1 relied on Para 21
[2004] 5 Suppl. SCR 833 referred to Para 39
[2017] 10 SCR 569 relied on Para 40
[2014] 2 SCR 212 referred to Para 43
[2012] 8 SCR 1097 relied on Para 54
[2017] 7 SCR 741 referred to Para 55
(2018) 11 SCC 634 referred to Para 56
[2013] 5 SCR 411 referred to Para 57
AIR 2012 Delhi 29 relied on Para 60
[1993] 3 SCR 802 relied on Para 64
[2002] 3 SCR 696 relied on Para 71
[2012] 11 SCR 1032 relied on Para 74
[2015] 13 SCR 1 relied on Para 84
[1993] 2 Suppl. SCR 659 relied on Para 85
[1995] 3 Suppl. SCR 319 referred to Para 86
[1997] 3 SCR 1131 referred to Para 86
[2006] 7 Suppl. SCR 174 referred to Para 86

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