Central Information Commission
Ms. Divya Raghunandan vs Dep'T. Of Biotechnology on 26 June, 2009
CENTRAL INFORMATION COMMISSION
Adjunct to Appeal No.CIC/WB/A/2006/00548 dated 7.5.2007
Appeal No. CIC/WB/A/2009/000668 dated 16.6.2009
Right to Information Act 2005 - Section 18
Appellant- Ms. Divya Raghunandan
Respondent - Dep't. of Biotechnology
FACTS:
In our decision on 1st Adjunct to Appeal No.CIC/WB/A/2006/00548 of 22.11.2007, we had held as follows:
"We find, however, that the compliance report of 26.4.07 carries no information on any of the products other than Bt Brinjal. No reason has been given here for not adhering to our clear direction that CPIO, Dep't. of Biotechnology "who has been directed to provide the existing data with regard to the other agricultural products will, therefore, also obtain this data to be provided to the appellant."1 This is, therefore, a clear case of non-compliance. In their written argument appellants have pleaded for "an approximate time frame for the reception of the data by CPIO of DoBT." We, therefore, direct CPIO, Dep't. of Biotechnology to comply with our directions cited above, within ten working days of the date of issue of this Decision Notice, or in the alternative, and within that time, provide to complainant Ms Raghunandan the time frame demanded. If the information is already part of the documentation directed to be supplied after download above, however that will have served the purpose In this case although the failure to provide the information will not qualify for penalty u/s 20(1), which prescribes penalty specifically for violation of Sec 7(1), there is a case for compensation u/s 19(8)
(b) which has been demanded by appellant Ms. Divya Raghunandan in her rejoinder to the letter of 18.6.'07 from CPIO Dep't. of Biotechnology. However, the details of the loss or other detriment suffered have not been supplied, and appellant Ms. Divya Raghunandan is directed to submit to us the details of such loss or other detriment suffered, also within ten working days of the date of issue of this Decision Notice, to enable us to take a decision on any compensation that will become payable.
The remaining question is that of third party. This issue has already been discussed in the original decision with regard to RCGM wherein it has been decided that only such information be disclosed which is not exempt u/s 8, while allowing for the fact that the information thereafter will be slim. We cannot, therefore, agree with 1 the plea of MAHYCO, even if so ardently put by young Shri rd Deshpande before us, to impede MAHYCO as 3 party at this stage"
Subsequently the High Court of Delhi in disposing of WP (C) No. 9077/2007 in its order of 10.2.09 directed as follows:
"The petitioner is aggrieved by the two orders passed under the Right to Information Act, 2005. The first is dated 18.5.2006 and the second is dated 22.11.2007. It is contended that the authorities could not have issued the orders without issuing notice to the petitioner, who was the primary possessor of the information and entitled to object to its disclosure".
"During the course of hearing, counsel for the parties submitted that the Writ Petition could be disposed of by directing the authorities concerned to decide the appeal, in accordance with law after granting due hearing and opportunity. Learned counsel for the petitioner further submitted that leave to appeal against the order of the appellate authority dated 18.5.2006 may also be reserved and the CIC in such an event should consider its appeals unhindered on the issue of limitation".
"In view of the statements made, CIC is hereby directed to consider the appeal of the respondent No.4 Ms Divya Raghunandan in Complaint No. CIC/WB/A/2006/00548 on its merits after issuing notice to the petitioner. It is also open to the petitioner to file an appeal against the order of the appellate authority dated 18.5.2006 within four weeks. Both the appeals shall be heard together by the CIC which shall grant sufficient advance notice in that regard. All rights and contentions of the parties with regard to the merits of the case are hereby reserved.
Writ Petition is allowed in the above terms. Order dasti."
The case was heard on 20.04.2009 by the Full Bench of CIC consisting of Chief Information Commissioner Habibullah, Information Commissioner Gandhi & Information Commissioner Dixit to decide the issue of non-compliance of the order of CIC dated 22.11.2007 by the CPIO, Dep't. of Biotechnology and compensation to be given to the appellant for her loss in presence of representatives of respondent and the advocate of the third party 'MAHYCO' involved in the matter. The hearing of this case was adjourned to 25.06.2009 at 11:00 A.M. for the following reasons:-
21. Statement of loss suffered by the appellant Ms. Raghunandan was not received by the respondent (representatives of Dep't. of Biotechnology) which they had requested to enable them to respond.
2. The representative of third party 'MAHYCO' informed the Commission that by order of Hon'ble High Court of Delhi they had filed a 2nd appeal with the Commission to decide the issue on merit and requested to hear both the cases together.
The second case Appeal No.- CIC/WB/A/2009/000668, clubbed with the above case, has been filed by Shri Sanjay Deshpande the representative of Maharashtra Hybrid Seeds Company Limited (MAHYCO) against the order dated 18.5.2006 passed by the First Appellate Authority Dr. S. Natesh, Scientist 'H', Ministry of Science & Technology, Dep't. of Biotechnology, New Delhi for providing further information submitted by 'MAHYCO' in respect of the notice issued to them by the CPIO in pursuance of the obligation under Section 11 of RTI Act, 2005.. The relevant documents enclosed with this appeal petition are as follows:-
1. Order of Hon'ble High Court of Delhi against the writ filed by MAHYCO
2. Reply from MAHYCO in respect of Notice issued under Section 11 of RTI Act.
3. Notice issued to the MAHYCO
4. Copy of writ.
5. Copy of the Decision Notice dated 22.11.2007 of CIC
6. Order of the First Appellate Authority of Dep't. of Biotechnology, against which this appeal has been filed.
Now the issues to be decided by the Full Bench of CIC are:-
Issue No.1 Non-compliance of the order of CIC dated 12.11.2007 by the CPIO, Dep't. of Biotechnology in case No. - CIC/WB/A/2006/00548. Issue No 2 Whether the compensation claimed by the appellant Ms. Raghunandan is applicant and at what extant in case No. - CIC/WB/A/2006/00548.3
Issue No 3 Whether seeking protection from disclosure u/s 8(1) (d) by MAHYCO in their case No. - CIC/WB/A/2009/000668 may be justified or not.
Both the appeals were heard on 25.6.2009. The following are present:
Appellant Shri Sanjay Deshpande Appeal No. CIC/WB/A/2009/000668 Respondents Sh S. K. Dubey, Advocate for DOBT Shri Prashant Pakhiddey, Advocate for MAHYCO Sh. Koshy John , Advocate for MAHYCO Ms. Nishi Gugnani, MAHYCO Ms. Rajalakshmi M V Ramdharan, Scientist DOBT Dr. S. Natesh, Senior Advisor, DOBT Ms. Divya Raghunandan appellant in Appeal no CIC/WB/A/2006/00548 had been informed by Notice dated 28.5.09 regarding the hearing but she has opted not to be present.
Shri Sanjay Deshpande in referring to the impugned order of Appellate Authority Dr. S. Natesh, Scientist H of 18.5.06 divided this Decision into three parts - (1) the portion dealing with Brinjal (2) The portion dealing with rice, Pokra and Mustard and (3) the issue regarding RCGM minutes. He submitted that his plea is with regard to only to the first two parts. In this regard he submitted written arguments on behalf of Maharashtra Hybrid Seeds Co. Ltd. on the appeal filed by Ms. Divya Raghunandan. A copy was also provided to Shri S. K. Dubey, Learned Counsel for the respondent public authority, DOBT. He especially invited our attention to para 12 of this submission which reads as follows:
"12. That the information submitted by the Answering Respondent with the Department of Biotechnology is extremely confidential and proprietary. The following are a few amongst the various reasons why the same should be protected and not allowed to be disclosed:
(a) Information supplied in documents to the Department of Biotechnology (DBT) or other regulatory bodies contain undisclosed information (trade secrets) like protocols, confidential standard operating procedures, parental line information, event ID information, data generated from biosafety studies, methods, testing locations, etc, all of which may either be sensitive 4 business information of the company, the unrestricted publication of which may adversely affect its business.
The same is protected from disclosure by virtue of section 8(1)(d) of the Act.
(b) Information supplied in regulatory documents to the Department of Biotechnology contains information or data that could be converted to an application for intellectual property rights. In the event that such information is made public prior to the filing of an application for such intellectual property rights, the information then would become part of the public domain and prevent the same from being the subject of any application for intellectual property rights filed subsequent to such publication. For instance, in the event the company intends to file for a patent application in relation to processes, methods or data supplied in regulatory documents, if this information is made public, say pursuant to an RTI application, the company will be unable to file for patent protection in respect of such information, either in India or in any other country in the world because the information would have become prior art and novelty for the patent would be lost. It is imperative that a patent application be filed prior to publication of information which is the subject of the application. Even though patent applications are eventually published, they are only published 18 months after filling of the patent application and not before. Patent specification information is only available publicly after publication of the specification and not before. Before this, only bibliography would be available, at best, and sometimes, not even this c. Information supplied in regulatory documents to the Department of Biotechnology contains trade secrets. Trade secrets can be kept secret indefinitely, as long as the information is not made public. Examples of these ins data submitted to RCGM or GEAC could be plant transformation methods and protein estimation methods. A company's entire business can depend on a single trade secret, as is in the case of proprietary formulations in the pharmaceutical, food and beverage industries. In the case of seed companies, combinations of parental lines are generally kept a trade secret. Protocols for testing, methods of selection, etc, are information that may be contained in regulatory documents, and would be trade secrets, guarded by contracts. The same is also provided protection by virtue of the various domestic laws enacted under the obligations of the country 5 under the TRIPS Agreement and such other International Treaties to which India is a party.
(d) Information supplied in regulatory documents to the Department of Biotechnology contains sensitive information such as location of testing locations which are protected by virtue of Sec. 8(1) (g) of the Right to Information Act, 2005. It has been the bitter experience that regulatory authority-approved testing locations have been the venue of illegal trespassing, demonstrations and riotous activity by mobs, which have included threat to life and actual damage to property. This information should be kept confidential as it could endanger the life or physical safety of a person, besides causing harm to business.
(e) India is a signatory to both the Paris Convention and TRIPs. Both require that Member countries provide protection to undisclosed information submitted to the Government or Governmental agencies in pursuance of obtaining approvals, from unfair commercial use as the data has been generated after incurring and investing a lot of time and expense. Data thus generated would be useful to any other seed industry company seeking approvals for their transgenic products, and would unfairly aid their business interests, giving them an unfair advantage. Ultimately this would affect competitiveness of the industry as a whole.
f) The answering Respondent has always treated the said data as extremely confidential and has taken steps to ensure that such data is kept secret and secure at its end, by contracts and methods such as employee confidentiality/non-disclosure contracts, strict production / grower contracts with restrictions on use and prohibition of transfer, access-restricted seed storage units, access-restricted greenhouses and testing locations, information supplied on need-to- know basis only, company coding techniques for parental line designations, etc. Information is supplied to the regulatory authorities on the understanding that this is on need-to-know basis only and for the eyes of the RCGM or GEAC only.
Shri Deshpande specifically argued that MAHYCO is third party in the present case, which had submitted its proposal in confidence to the Department and if the Department had the intention to disclose the information, it was incumbent upon them under sub sec. (1) of Sec. 11 to take the agreement of 6 MAHYCO, which was not done by Dr. Natesh in ordering disclosure in his order of 18.5.06.
Learned Counsel for respondents Shri Dubey, however, invited our attention to the proviso to sec. 11(1) which reads as follows:
Proviso to Sec. 11(1) "Provided that except in the case of trade or commercial secrets protected by law, disclosure may be allowed if the public interest in disclosure outweighs in importance any possible harm or injury to the interests of such third party."
Shri Dubey therefore, submitted that the order of Appellate Authority, if not overtly but by implication, in ordering disclosure after the GAEC meeting, clearly recommending Brinjal for large scale field trial, had already placed the product in the public domain. He specifically discussed the application of this proviso both to the substance and to the procedure and while agreeing that third party representing MAHYCO with information intended for disclosure should be referred to third party, which in any case is directed by the Appellate Authority in his order of 18.5.06, the substance of this information becomes disclosable if it is determined that it is in the public interest, which also has been decided to be so by the Appellate Authority in directing that this be done after the GEAC meeting.
On the issue of compensation, Learned Counsel for the DOBT submitted that he had indeed received the claim of 3.12.07 submitted by appellant Ms. Divya Raghunandan detailing the compensation claimed. In this context, he invited our attention to our decision of 22.11.07 quoted above in which we have discussed the question of compensation under sec. 19(8)(b). He submitted that this was only a reference to a possibility of a case being made for compensation and, therefore, sought details from appellant Ms. Raghunandan. Ms. Raghunandan on the other hand has simply submitted a statement of compensation demanded without any plea or justification either on grounds of loss or detriment suffered as a result of the processing of her RTI application. She seems, therefore, to have arrived at the firm conclusion that compensation is 7 her right. Moreover from a copy of an RTI application dated 1.3.'06 addressed by Ms. Raghunandan to Scientist 'F' placed on record in the hearing by learned counsel it is established that Ms. Raghunandan is working for a multination organisation Greenpeace and therefore unlikely to have suffered any personal loss or detriment. Nor has appellant cared to attend or send a representative to hearings in this matter, although informed suitably.
DECISION NOTICE FILE NO. CIC/WB/A/2006/00548 On Issue No. 1, which is the non compliance of Decision, we have received the following O.M. from DOBT dated 6.12.2007:
"Shri Sanjeev Kr. Dubey, Senior Counsel/Government Counsel has informed the Department vide his letter dated 06.12.2007 that the third party i.e. M/s. Maharashtra Hybrid Seeds Co. Ltd. (MAHYCO), Mumbai has approached the Hon'ble High Court of Delhi against the above Decision notice of CIC vide writ Petition No. (C) 9077/2007 and the case came for hearing on 05.12.2007 and after hearing the Counsels, the Hon'ble High Court has stayed the operation of the Decision notice of CIC till the next date of hearing i.e. on 23.04.2008 (copy enclosed)."
This now hinges on the decision to be taken with regard to issue No. 3. In this case Ms. Divya Raghunandan has submitted the following claim for compensation :
S.No Details Expenditure
1. Total man days involved in the effort of correspondence and drafting appeals and in consultation of experts.
For my self: 5 days Equivalent to Rs.4543/-
For Mr. Jai Krishna: 18 days Equivalent to Rs.7645/-
2. Total travel expenditure for air travel from Bangalore to New Delhi and back.
(@) 7500/- per person for onward and return) On the hearing at the CIC (13th April Rs. 15,000/- 2007) for myself and Mr. Jai Krishna.
On the non-compliance hearing on Rs. 7500/-
12th November 2007, for Mr. Jai Krishna 8
3. Consultation fees for Mr. Shekhar Rs. 10000/-
Singh:
There is no ground given against any of the headings as to why such expenses were forced on her as a result of the delay in processing of the RTI application. The expenses submitted would be the normal expenses required to be incurred in pursuance of an RTI application for which economies can certainly be considered but cannot be construed as suffering detriment or loss. In this context, we may refer once more to our decision of 22.11.07 in which we have decided as follows:
"In our Decision Notice of 13.4.07 we have directed that the CPIO Dep't. of Biotechnology "provide the information held or controlled by him" and in that context also directed that the information available with the GEAC be provided. The form in which this is to be provided has not been determined in our Decision Notice. We find from the response of the Dep't. of Biotechnology that they have not sought to deny access to the information now stated not to have been provided, but only that the data running into thousands of pages be inspected in MoEF in the present of a GEAC representative. What is now under dispute is, therefore, the form in which the information directed to be provided is to be provided. While the Public Authority has suggested that this may be inspected, the appellant desires that this be provided on a CD ROM as per the RTI fee rules at Rs.50/- per CD.
In this regard we have also perused the "Rules for the Manufacture, Use, Import, Export and Storage of Hazardous Micro Organisms Genetically Engineered Organisms or Cells" notified in New Delhi th on 5 Dec., 1989 and submitted to us by Dr KK Tripathi in the hearing. These rules have been made in connection with the application of gene technology and microorganisms, on which the Central Government has made rules on "Genetically Engineered Organisms or Cells"
Rule 7 of these Rules states as follows:
Rule 7:
1. No person shall import, export, transport, manufacture, process, use or sell any hazardous microorganisms of genetically engineered organism/substances or cells except with the approval of the Genetic Engineering Approval Committee.
2. Use of pathogenic microorganisms or any genetically engineered organisms or cells for the purpose of research shall only be allowed in laboratories or inside laboratory area notified by the Ministry of 9 Environment and Forests for this purpose under the Environment (Protection) Act, 1986.
3. The Genetic Engineering Approval Committee shall give directions to the occupier to determine or take measures concerning the discharge of micro organism / genetically engineered organisms or cells mentioned in the Schedule from the laboratories, hospitals and other areas including prohibition of such discharges and laying down measures to be taken to prevent such discharges.
4. Any person operating or using genetically engineered organisms / microorganisms mentioned in the schedule for scale up or pilot operations shall have to obtain licence issued by the Genetic Engineering Approval Committee for any such activity. The possessor shall have to apply for licence in prescribed proforma.
5. Certain experiments for the purpose of education within the field of gene technology or micro organism may be carried out outside the laboratories and laboratory areas mentioned in sub rule (2) and will be looked after by the Institutional Biosafety Committee./"
This is further developed by Rules 13 and 14 as follows:
Rule 13:
1. In connection with the granting of approval under rules 8 to 11 above, terms and conditions shall be stipulated, including terms and conditions as to the control to be exercised by the applicant, supervision, restriction on use, the layout of the enterprise and as to the submission of information to the State Biotechnology Coordination Committee or to the District Level Committee.
2. All approvals of the Genetic Engineering Approval Committee shall be for a specific period not exceeding four year at the first instance renewable for 2 years at a time. The Genetic Engineering Approval Committee shall have powers to revoke such approval in the following situations"
Rule 14
1. The Genetic Engineering Approval Committee may supervise the implementation of the terms and conditions laid down in connection with the approvals accorded by it.
2. The Genetic Engineering Approval Committee may carry out this supervision through the State Biotechnology Coordination Committee or the State Pollution Control Boards/District Level Committee or through any person authorized in this behalf."
From a perusal of these rules it is quite clear that genetically engineered organism or cells are recognized by government as an item potentially hazardous to public health. It automatically follows that full compliance with these rules is a matter of public interest. In 10 light of this we cannot agree that inspection of this information can be provided only in a restricted environment to members representing Civil Society. Because this position had not been clarified in the original decision as explained above, the Dep't. of Biotechnology cannot be held in violation of our Decision Notice. However, the information sought is best down loaded from the computer on which it is stored onto a CD by the Dep't. of Biotechnology and supplied to appellant on payment of the usual fee. The supply of this CD will not qualify for exemption from fee u/s 7(6) because as mentioned earlier the form in which the information was to be supplied was not a subject addressed in the earlier application or determined in the appeal. This exercise will be completed within twenty working days of this Decision Notice. Following from this we see no reason to impose a penalty u/s 20 or for granting costs to appellant, on this account."
To the extent that this had not been complied with till the case was heard on 20.11.07, Ms. Divya Raghunandan would qualify for compensation. Ms. Divya Raghunandan has demanded the total amount which is involved in the effort. This, however, is clearly the total cost involved in processing of this appeal which, as held above cannot qualify in its entirety for compensation. However, a certain portion of this which should be the increased expenses incurred as a result of delay in compliance could be considered. Since this has not been separately defined in Ms. Raghunandan's representation or submission, we hereby direct the DOBT to pay an adhoc compensation of Rs. 6000/- (Rupees six thousand only) to be paid to Ms. Divya Raghunandan within ten working days of the date of receipt of this Decision by the DOBT. This disposes of Issue No. 2 FILE NO. CIC/WB/A/2009/000668 At the heart of the representation of Shri Deshpande of MAHYCO is the plea for exemption from disclosure u/s 8(1)(d) on the ground that "Information supplied in documents to the Department of Biotechnology (DBT) or other regulatory bodies contain undisclosed information (trade secrets) like protocols, confidential standard operating procedures, parental line information, event ID information, data generated from biosafety studies, methods, testing locations, etc, all of which may either be sensitive business information of the company, the 11 unrestricted publication of which1 may adversely affect its business". Sec. 8(1)(d) reads as follows:
Sec. 8(1)
(d) information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information2;
As has been quoted above, Shri Deshpande has dealt both on trade secrets and intellectual property being disclosed, thus harming their competitive position. However, both in this sub clause of Sec. 8(1) and in sub clause (2) of Sec. 8, access may be allowed to information "if public interest in disclosure outweighs the harm to the protected interests.". The question here as per the orders of Dr. S. Natesh, a matter of recommending for large scale field trial the products adjudicated upon by GEAC. In this case it is only toxicity and allergenicity data that Dr. Nitish has directed should be disclosed and that too after examination by GEAC There is therefore no question of "unrestricted publication", as emphasized by us in the plea of appellant Shri Deshpande It goes without saying that toxicity and allergenicity of any product to be put on large scale field trial is a matter of overriding public interest. The order of 18.5.06 of Dr. S. Natesh, Sicientist H can indeed be faulted for not having clearly enunciated the requirement of public interest for disclosure. However, we would agree with learned Counsel for respondents Dr. Dubey that the exercise of processing by the GEAC is indeed an exercise in assessing public interest. The decision of Dr. S. Natesh is, therefore, upheld to this extent in the context of appeal CIC/WB/A/2009/000668. Issue No 3 is decided accordingly .
In light of our decision in File No. CIC/WB/A/2009/00668 upholding the orders of the Dep't. of 16.5.06, Public Information Officer Ms. Rajalaxmi M.V. Ramdharan Scientist D will now proceed to comply with out decision of 22.11.07 with regard to providing the existing data with regard to other 1 Emphasised by us for ease of reference 2 Emphasis added 12 agricultural products and obtain this data to be provided to the appellant, within ten working days of the receipt of this decision notice. However, this is with reference to "the existing data with regard to the other agricultural products"
whether or not referred to GEAC. The disclosure in this case will therefore adhere to exemption from disclosures provided u/s 8(1) (d), but keeping in mind our ruling above on disclosure before any massive farm trial. This disposes of Issue No 1.
Reserved in the hearing, this Decision in both cades is announced in open chamber this twenty-sixth day of June 2009. Notice of this decision be given free of cost to the parties.
(Wajahat Habibullah) (Shailesh Gandhi)
Chief Information Commissioner Information Commissioner
(Annapoorna Dixit)
Information Commissioner
26.6.2009
Authenticated true copy. Additional copies of orders shall be supplied against application and payment of the charges, prescribed under the Act, to the CPIO of this Commission.
(Pankaj K.P. Shreyaskar) Joint Registrar 26.6.2009 13