Central Information Commission
Dattaprasad Krishna Mhatre vs Ministry Of Railways on 8 September, 2017
क यसूचनाआयोग
CENTRAL INFORMATION COMMISSION
लब बि डंग (पो टऑ फसकेपास)
Club Building (Near Post Office)
ओ डजेनयूकपस, नई!द ल -110067
Old JNU Campus, New Delhi-110067
Tel: +91-11-26182593/26182594
Email: [email protected]
File No.: CIC/VS/A/2015/003032-AB
CIC/VS/A/2015/003033-AB
In the matter of:
Dattaprasad Krishna Mahatre ...Appellant
VS
PIO,
M/o Railways
Chief General Manager,
Container Corporation of India, 5th Floor,
New Administrative Building, Central Railway,
D N Road Fort Mumbai-400001 ...Respondent
Dates
RTI application : 21.07.2015
CPIO reply : 13.08.2015
First Appeal : 24.08.2015
FAA Order : 15.092015
Second Appeal : 15.10.2015
Date of hearing : 15.03.2017,28.08.2017
Facts:
The appellant had sought information regarding the Tender no. CON/WR/ZONAL. Electrical maintenance/ 014/15. Dtd.16.04.2015, Technical papers of L1,L2, with CONCOR office noting and scrutiny report papers. Grounds for Second Appeal The desired information had not been provided.
1
Interim Order
Appellant : Absent
Respondent : Rep. of PIO, Shri Nishith Kumar
The appellant was not present.
On perusal of the case record, it was seen that RTI application is in Marathi. The case is adjourned with the direction to the appellant/respondent that they should file a translated version either in Hindi/English of the RTI application. The registry is directed to send a copy of this order to the appellant and the respondent CPIO and after the receipt of the translated version of the said RTI application in Hindi/English from either of the two above stated authorities, another date of hearing is to be fixed by the registry. With the above direction, the case is adjourned.
Final Order 28.08.2017 Appellant : Absent Respondent : Representative of PIO, Shri Nishith Kumar
During the hearing the representative of the PIO submitted that they had provided the first reply vide their letter dated 13.08.2015. The First Appellate Authority (FAA) disposed of the first appeal on 15.09.2015 which is just and proper and the case should be dismissed.
The appellant was not present to plead his case.
2On perusal of the case record, it was seen that the first reply provided isnot only contradictory, it was interim and highly defective. The order of the First Appellate Authority (FAA) is also defective.
It was also noticed that translation of the RTI application is highly erroneous and it should be rejected.
The respondent PIO further submitted that the work Order was finalised on 14.07.2015. It was also seen that on 28.04.16 a final work order was provided in regard to some other RTI application. Although it was given in time, the Commission also noted that the RTI application dated 21.07.15 was received in the office of the CPIO when the work order was also issued. On being asked as to why the final work order which was provided in connection with some other RTI application was not provided in connection with the present RTI application, he submitted that in the RTI application dated 21.07.2015 the information asked for was as reproduced below:-
"all office notings and papers pertaining to L1 and L2 bidders of the above tender including the scrutiny report in this RTI application and no mention was made about the successful bidder that is the reason in the reply the copy of the work order along with necessary annexures were not provided to the appellant".
3
On perusal of the case record, it was seen that argument of the PIO is proper, the appellant did not ask for final order of the successful bidder and the documents as sought for were correctly considered as exempted u/s 8(1)(d)of the RTI Act. However, the claim of the public authority to deny the information under section 8(1)(e)was not proper.
The said documents which were asked for by the appellant were not the documents covered under fiduciary relationships, it was a simple commercial contract but the fact still remains that the documents submitted by the Ll and L2 bidders while contesting for the contract in regard to whom the said information was sought, contain information of commercial confidence, the disclosure of which could have harm the competitive position of the third parties i.e. Ll and L2 bidders.
The Commission finds it relevant to rely on Paras 11 and 13 of the decision of the Hon'ble Delhi High Court in the case of Bharat Sanchar Nigam Ltd. v. Chander Sekhar in L.P.A No. 900 of 2010 which reads as follows:
"11. Over the years the secret bids are not confined to the price only, which may cease to be of any value or lose confidentiality once the bids are opened. The bids/tenders today require the bidders to submit in the bids a host of information which may help and be required by the tender calling institution to evaluate the suitability and reliability of the contracting party. The bidders are often required to, in their bids 4 disclose information about themselves, their processes, turnover and other factors which may help the tender calling institution to evaluate the capability of the bidder to perform the contracted work. The secret bids/tenders are often divided into technical and financial parts. The bidders in the technical part may reveal to the tender calling institution their technology and processes evolved and developed by them and which technology and processes may not otherwise be in public domain and which the bidder may not want revealed to the competitors and which technology/processes the bidder may be using works for the other clients also and which technology/processes if revealed to the competitors may lead to the bidder losing the competitive edge in subsequent awards of contracts. If it were to be held that a bidder by virtue of participating in the tender becomes entitled to all particulars in the bids of all the bidders, the possibility of unscrupulous businessmen participating in the tender merely for acquiring such information, cannot be ruled out. Such disclosure may lead to the competitors undercutting in future bids. We may at this stage notice that the Freedom of Information Act prevalent in United States of America as well as the Freedom of Information Act, 2000 in force in United Kingdom, both carve out an exception qua trade secrets and commercial or financial information obtained from a person and which is privileged or confidential. The tests laid down in those jurisdictions also, is of „if disclosure of information is likely to impair government's 5 ability to obtain necessary information in future or to cause substantial harm to competitive position of person from whom information is obtained‟. It has been held that unless persons having necessary information are assured that it will remain confidential, they may decline to cooperate with officials and the ability of government to make intelligent well-informed decisions will be impaired. Yet another test of whether the information submitted with the bids is confidential or not is of „whether such information is generally available for public perusal‟ and of whether such information „is customarily made available to the public by the business submitter‟. If it is not so customarily made available, it is treated as confidential.
13. What thus emerges is that a balance has to be struck between the principle of promoting honest and open government by ensuring public access to information created by the government on the one hand and the principle of confidentiality breach whereof is likely to cause substantial harm to competitive position of the person from whom information is obtained and the disclosure impairing the government's ability to obtain necessary information in future on the other hand. Also, what has been discussed above may not apply in a proceeding challenge wherein is to the evaluation process. It will then be up to the Court before which such challenge is made, to decide as to what part of the evaluation process is to be disclosed to the challengers." 6
In the light of the above decision, the Commission finds that the information sought by the appellant is exempted u/s 8(1)(d) of the RTI Act and the appellant was also not present to demonstrate the involvement of larger public interest angle in the sought for disclosure. The onus was on the appellant to prove that larger public interest angle outweighs the plea for confidentiality involved in this case.
The Hon'ble Delhi High Court in the case of CPIO cum Assistant Commissioner of Income Tax v. Rakesh Kumar Gupta in W.P. (C) 214/2010 and CM No. 445/ 2010held as under:
"23. The satisfaction has to be arrived at by the authorities objectively and the consequences of such disclosure have to be weighed with regard to the circumstances of a given case. The decision has to be based on objective satisfaction recorded for ensuring that larger public interest outweighs unwarranted invasion of privacy or other factors stated in the provision."
In view of the above, the exemption claimed u/s 8(1)(d) of the RTI Act is just and proper.
With the above observation, the appeals are disposed of. Copies of the order be sent to both the parties free of cost.
[Amitava Bhattacharyya] Information Commissioner Authenticated true copy (A.K. Talapatra) Deputy Registrar 7