Central Information Commission
Manoranjan Mohanty vs Dredging Corporation Of India Limited, ... on 26 July, 2022
Author: Saroj Punhani
Bench: Saroj Punhani
के ीय सूचना आयोग
Central Information Commission
बाबागंगनाथमाग , मुिनरका
Baba Gangnath Marg, Munirka
नई द ली, New Delhi - 110067
File No : CIC/DCOIL/A/2021/645307
Manoranjan Mohanty ......अपीलकता /Appellant
VERSUS
बनाम
CPIO,
Dredging Corporation of India,
RTI Cell, Dredge House, Port Area,
Visakhapatnam - 530001, Andhra Pradesh. .... ितवादीगण /Respondent
Date of Hearing : 18/07/2022
Date of Decision : 26/07/2022
INFORMATION COMMISSIONER : Saroj Punhani
Relevant facts emerging from appeal:
RTI application filed on : 28/12/2020
CPIO replied on : 28/01/2021
First appeal filed on : 23/03/2021
First Appellate Authority order : 02/08/2021
2nd Appeal/Complaint dated : 25/09/2021
Information sought:
The Appellant filed an RTI application dated 28.12.2020 seeking the following information:
"A) Kindly intimate names and addresses of the parties who had been selected and Empaneled as Business Associate against EOI document no.
DCFMKTG/BA-ID/718/2018 dated 10.08.2018.
1B) Kindly intimate whether any work order has been placed on any of the Empaneled Business Associate for carrying out the work of dredging in India and Bangladesh.
C) If yes, then kindly intimate the names and addresses of such Business Associate.
D) Kindly provide copies of work orders placed on such Business Associate for carrying out the work of dredging.
E) Kindly intimate details of work carried out i.e. value, quantity and payment released to them month wise.
F) Kindly provide copy of the file alongwith all correspondence, notings, approvals etc. regarding placement and execution of work orders for dredging on respective Empaneled Business Associate. G). Kindly provide copy of the file, regarding Dredging work in Muriganga in P.S. Kakdwip & Sagar, Dist. South-24 Parganas in West Bengal executed by Empaneled Business Associate(s), containing, all correspondences/ notings, order placed, details of work carried out i.e. value, quantity and payment released to them month wise."
The CPIO furnished a detailed reply to the appellant on 28.01.2021 stating as follows:-
"The information sought by you vide your application dated 28.12.2020 under Right to Information Act 2005 does not come within the purview of Right to Information Act. As per section 8 (1)(d) of Right to Information Act 2005:-
"Notwithstanding anything contained in this act, there shall be no obligation to give any citizen 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 information";
it is also provided under section 8 (1)(j) of Right to Information Act 2005 that :- "Notwithstanding anything contained in this act, there shall be no obligation to give any citizen information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that larger public interest justifies the disclosure of such information":2
In the light of aforesaid provisions of Right to Information Act 2005, your queries nos. A to C and E relate to information the disclosure of which would harm the competitive position of the third party and as such the same are hereby rejected. Consequently, copies of the work orders, copy of the file along with all correspondence, notings, approvals etc. and copy of the file regarding dredging work as sought in queries nos. D, F and G are also rejected."
Being dissatisfied, the appellant filed a First Appeal dated 23.03.2021. FAA's order dated 02.08.2021 upheld the reply of CPIO.
Feeling aggrieved and dissatisfied, the appellant approached the Commission with the instant Second Appeal on the ground of denial of information by the CPIO under the garb of Section 8(1)(d) and Section 8(1)(j) of RTI Act.
Relevant Facts emerging during Hearing:
The following were present:-
Appellant: Represented by Advocate Siddarth Singh present through intra-video conference.
Respondent: S. V. Katpale, Dy. General Manager & CPIO present through video- conference.
The Advocate of the Appellant raised the following arguments in the instant Appeal -
"....Because the restriction of the proviso to Section 8(1)(j) only by the First Appellate Authority in Para 3 of the order dated 02.08.2021 is absolutely misplaced and in the teeth of Section 8(1). The proviso is an exception to Section 8(1) (a) to (j) and not merely to sub-clause (j).
16. Because in any event, as per the proviso to Section 8(1) of the RTI Act, information that cannot be denied to the Parliament or State Legislature shall not be denied to any individual under the provisions of the RTI Act. The information sought by the Appellant herein can always be sought by the Parliament and could not have been denied to the Parliament if such information was required therein.
Further, the DCI being a Public Sector Undertaking, can always be audited by the Comptroller and Auditor General (CAG) and information regarding the Empanelled Business Associates, the work allocated to them, and the work executed by them, 3 would be available to the office of the CAG. The audit reports of the CAG are also available in the public domain and as such the information sought by the Appellant does not fall within the exemption under Section 8(1)(d) of the RTI Act as alleged in the Reply dated 28.01.2021.
17. Because it is submitted that the work carried out by the DCI is essentially in the nature of public activities. The names and addresses of the empanelled business associates of DCI, the work orders placed on such associates and work executed under such orders are not an unwarranted invasion of privacy of such associates. On the contrary, this is information regarding important public activities that are carried out under the aegis of a public sector enterprise such as the DCI. As such, information regarding such activities and persons empanelled to execute them cannot be exempted from disclosure under Section 8(1)(j) of the RTI Act. In this regard, reliance may be placed upon the decision in Shri J.C. Kohli v. Central Public Information Officer, Hindustan Petroleum Corporation Limited, 2016 SCC OnLine CIC 2404 wherein the Central Information Commission held that copies of orders placed after finalisation of the tender process are not confidential information exempted from disclosure under Section 8(1)(j) of the RTI Act. Copy of the order of the Central Public Information Officer in 2016 SCC OnLine CIC 2404 is annexed herewith as ANNEXURE A-5.
18.Because a perusal of Clause 14 of the Moll clearly shows that only personal information of either of the party which but for the business transactions would not be available to the other is to be kept confidential. In the present case, the Appellant has merely sought the names of the Empanelled parties, the work allocated to them, as well as the work completed. The work being done is being undertaken based on public expense and as such the information sought is not covered under Section 8(1)(d) as the Appellant has neither sought details of the tech being used to carry out the work nor any trade secrets that may be necessary for dredging nor any information pertaining to commercial confidence or intellectual property.
19.Because the reliance placed on Samir Sardana v. CPIO reported in 2020 SCC OnLine CIC 753 is entirely misplaced as the information sought in that case pertained to the details of tariff codes of the material, spare item, goods and services exported by each unit of Kandla Special Economic Zone. Further, in that case, the applicant had made lengthy submissions with detailed points of information which required the CPIO to transfer the application to different public authorities in order to process the RTI request of the applicant. In the instant case, 4 the information sought is brief, concise and solely pertains to the activities of the Dredging Corporation of 8 India and specifically, activities conducted by the Empanelled Business Associates under the ECM document dated 10.08.2018. Moreover, in Samir Sardana v. CPIO 2020 SCC OnLine 753, in the judgment, specifically at Para 40, the CIC has observed:
"Further, revealing the technical detailed information of each unit would harm their competitive position, hence they were rejected under Section 8(1)(d) of RTI Act, 2005 for being commercial confidence, trade secrets or intellectual property. For example there are many pharmaceutical units under KASEZ who are manufacturing medicines and doing some research work on medicine including present pandemic Covid-19."
It is submitted that detailed reasons had been provided to the applicant in the aforesaid case as to why the information sought by him fell under the exemption of Section 8(1)(d) of the RTI Act. Moreover, the information sought therein pertained to disclosure of trade secrets and commercial confidence. It is respectfully submitted that the information sought by the Appellant in the instant case cannot be classified as trade secrets and/or commercial confidence and therefore cannot even be covered by the confidentiality clause under any MoU as the Authority sought to allege in their letter dated 02.08.2021. Thus, the reliance placed by the First Appellate Authority on 2020 SCC OnLine CIC 753 to dismiss the first appeal preferred by the Appellant herein is erroneous as the facts of the case are distinguishable and the reasoning provided therein cannot be applied in the instant case.
20. Because the First Appellate Authority has provided no reasons as to how the information sought by the Appellant herein will be protected by the Confidentiality clause as set out in the letter dated 02.08.2021. There was no explanation as to what type of information would be protected by the said confidentiality clause and even so, how the information sought by the Appellant in the instant case, such as disclosing the work executed by them and details of payments made thereof, would harm the competitive position of the parties in any manner whatsoever..."
The CPIO substantiated the denial of information at great length. To a query from the Commission, the CPIO initially submitted that the Appellant was one of the bidders in the EOI document no. DCFMKTG/BA-ID/718/2018 dated 10.08.2018. However, he later denied having made such submissions before the bench.
5Decision:
The Commission upon a perusal of records and after hearing submissions of both the parties arrives at a conclusion that complete denial of information by the CPIO by quoting Section 8 (1)(d) and Section 8 (1)(j) of RTI Act (except for paras F & G of RTI Application) was not appropriate and also not in consonance with the provisions of RTI Act.
This is corroborated from a close scrutiny of nature of information sought for at para A, D & E of RTI Application which entails names of the business associates and details of work carried out along with copies of work orders. Since such information is of generic in nature and is also uploaded by the Public authorities on their website under Suo moto disclosure in order to maintain probity and transparency therefore, denial of such information on the plea that it may harm the competitive position of third parties does not hold good in the spirit of RTI Act.
In view of the above, the CPIO is directed to revisit the content of paras A,D & E of RTI Application and provide point wise reply along with relevant information including the names of business associates without disclosing their entire personal details along with a details of work carried out and copy of work orders in response to said points.
The above said reply and information should be provided by the CPIO free of cost to the Appellant within 15 days from the date of receipt of this order under due intimation to the Commission.
However, no relief is ordered with respect to paras B & C of the RTI Application as the information sought for therein does not strictly conform to Section 2(f) of RTI Act as the Appellant has sought for clarification/explanation from the CPIO based on interrogatories. In this regard, the Appellant shall note that outstretching the interpretation of Section 2(f) of the RTI Act to include deductions and inferences to be drawn by the CPIO is unwarranted as it casts immense pressure on the CPIOs to ensure that they provide the correct deduction/inference to avoid being subject to penal provisions under the RTI Act.
His attention is also drawn towards a judgment of the Hon'ble Supreme Court on the scope and ambit of Section 2(f) of RTI Act in the matter of CBSE vs. Aditya Bandopadhyay & Ors. [CIVIL APPEAL NO.6454 of 2011] wherein it was held as under:6
"35. At this juncture, it is necessary to clear some misconceptions about the RTI Act. The RTI Act provides access to all information that is available and existing.........A public authority is also not required to furnish information which require drawing of inferences and/or making of assumptions. It is also 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." (Emphasis Supplied) Notwithstanding the aforesaid, the Commission upholds the reply of the CPIO against paras F & G of RTI Application as disclosure of such information including the complete file notings/correspondences on the work orders and details of works done apparently contains the elements of personal information of third party i.e. business associates as also information of commercial confidence; therefore, it cannot be divulged in view of Section 8(1)(d) and Section 8 (1)(j) of RTI Act.
The appeal is disposed of accordingly.
Saroj Punhani (सरोजपुनहािन) हािन) Information Commissioner (सूचनाआयु ) Authenticated true copy (अिभ मािणत स#यािपत ित) (C.A. Joseph) Dy. Registrar 011-26179548/ [email protected] सी. ए. जोसेफ, उप-पंजीयक दनांक / 7