Central Information Commission
Mr.Prem Chand Goel vs Mcd, Gnct Delhi on 3 September, 2010
CENTRAL INFORMATION COMMISSION
Club Building (Near Post Office)
Old JNU Campus, New Delhi - 110067
Tel: +91-11-26161796
Decision No. CIC/SG/A/2010/002005/9219
Appeal No. CIC/SG/A/2010/002005
Relevant Facts emerging from the Appeal:
Appellant : Mr. Prem Chand Goel
S/o Late Mr. Ganga Shai Ji Goel,
G-19, Aggarwal Plaza, LSC,
CU- Block, Pitam Pura, Delhi - 88.
Respondent : Mr. Devender Singh
Public Information Officer & Chief Engineer (DEMS) Municipal Corporation of Delhi (DEMS) Office of Assistant Commissioner Gandhi Mela Ground, Town Hall, Delhi 110006.
RTI application filed on : 22/06/2009 PIO replied : 06/08/2009 First appeal filed on : 10/11/2009 First Appellate Authority order : 24/05/2010 Second Appeal received on : 15/07/2010 Information Sought: The Appellant sought information regarding -
• Information sought: Photocopies OF PURCHASE ORDERS & WORK ORDERS may be provided for all the ITEMS SUPPLIED/ Work COMPLETED by M/s SHAKTI SALES CORPORATION ("Shakti Sales") i.e. all Steel Items, Safety Items, Non Safety Items, Store Items, General Items, Building Material, Horticulture Items, DAY to DAY items / works etc being used/ done in the Stores Depot and Different Divisions for their day to day repair work and other works.
• Which tenders were accepted during the period from January'2000 to till Date for the above items and all other items or any items in favour of Shakti Sales and the following details may be furnished.
• Purchase Order No. & Date • Order Description with Specification • Order Quantity, Ordered Rate & Sales Tax • Place of Delivery of Material with complete Address • Engineer In Charge Name of JE and A.E. • Inspecting agency, where, how and who had verified, passed and tested the material as per Purchase Order Specification and Standards before & after receipt of the material, at the time of inspection , date of inspection carried out, quantity passed after carrying out testing of the required material offered. (Photocopies of Test Reports and Results). • TESTING OF MATERIAL MADE AT DESTINATION OR NOT. If the material Tested in the C.P.W.D. LAB or any other LAB after receipt of material at destination. ( Photocopies of Test Reports and Results).
• DISPATCH DETAILS By Road, Name of Transport & quantities Loaded in Truck Nos. & quantities Unloaded at Destination i.e. Truck Loaded From TO _______________ WHO has Verified Quantity at the time of unloading.
• PAYMENT RELEASED TO THE FIRM: Details of payment released whether 90% / 95% / 98% and thereafter 10% /5% /2% or any other mode of payment utilized and payment of material X Quantity +ST/CST + Fright charges or any other charges if any or any other payment released. If full payment released according to the firm's bill or any deduction/recovery made. • Amount of T.D.S. deducted from the bills of Shakti Sales and T.D.S. Certificates issued to the Firm. ( Photocopies of TDS Certificates ) By letter dated 24/07/2009, the PIO served a notice upon Shakti Sales under Section 11 of the RTI Act asking whether information sought by the Appellant should be furnished by the PIO. In case no objection was received within 7 days, then it shall be presumed that Shakti Sales had no objections in supplying the information to the Appellant.
Reply of the Public Information Officer (PIO):
The PIO stated that Shakti Sales vide letter dated 29/07/2009 raised an objection in providing the information to the Appellant. Under Sections 8(1)(d) and 11 of the RTI Act, information shall not be provided to the Appellant.
The PIO once again furnished the same reply to the Appellant by letter dated 24/10/2009 in response to the Appellant's reminder dated 10/10/2009.
Grounds for the First Appeal:
Non- supply of information by the PIO.
Order of the First Appellate Authority (FAA):
The FAA observed that Shakti Sales raised objections on 17/07/2009, 23/07/2009 and 29/07/2009. On examination of the same, the PIO vide letter dated 06/08/2009 decided that information shall not be provided to the Appellant by virtue of Sections 8(1)(d) and 11 of the RTI Act. The decision of the PIO was upheld by the FAA and the First Appeal was dismissed.
Grounds for the Second Appeal:
Non-supply of information by the PIO and Dismissal of Appeal by the FAA.
Relevant Facts emerging during Hearing:
The following were present:
Appellant: Mr. Sanjay Bansal representing Mr. Prem Chand Goel;
Respondent: Mr. T. P. Sharma, AC on behalf of Mr. Devender Singh PIO & Chief Engineer;
On perusal of the papers, the Commission noted that the information sought by the Appellant pertained to purchase orders/ work orders of Shakti Sales issued by MCD, details of tenders accepted in relation to the said orders and dispatch details of materials supplied and names of officers responsible for verifying quantities of materials on unloading. The Appellant also sought information regarding the officers responsible for inspecting and testing the material supplied as per the purchase order, date of inspection, photocopies of test reports and results, and details of payments along with TDS released to Shakti Sales by MCD. The PIO has claimed that disclosure of such information is exempted under Section 8(1)(d) of the RTI Act. Moreover, objections were received from Shakti Sales under Section 11 of the RTI Act and consequently, information could not be disclosed.
Section 8(1)(d) of the RTI Act provides as follows:
"8. Exemption from disclosure of information.- (1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,-
...
(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 information;"
From a plain reading of Section 8(1)(d) of the RTI Act it follows that the PIO is exempted from furnishing information, the disclosure of which would harm the competitive position of a third party. Therefore, in order to come within the exemption under Section 8(1)(d) of the RTI Act, the critical test to be applied is whether the disclosure of the information sought would harm the competitive position of a third party.
Further, Section 11 of the RTI Act stipulates as follows:
"11. Third party information.- (1) Where a Central Public Information Officer or the State Public Information Officer, as the case may be, intends to disclose any information or record, or part thereof on a request made under this Act, which relates to or has been supplied by a third party and has been treated as confidential by that third party, the Central Public Information Officer or State Public Information Officer, as the case may be, shall, within five days from the receipt of the request, give a written notice to such third party of the request and of the fact that the Central Public Information Officer or State Public Information Officer, as the case may be, intends to disclose the information or record, or part thereof, and invite the third party to make a submission in writing or orally, regarding whether the information should be disclosed, and such submission of the third party shall be kept in view while taking a decision about disclosure of information:..."
Section 11 of the RTI Act provides that where the PIO intends to disclose any information or record, which relates to or has been supplied by a third party and has been treated as confidential by that third party, the PIO shall invite submissions from the third party whether such information shall be disclosed or not. The PIO shall keep the submissions in view while taking a decision whether the information sought shall be disclosed or not. It follows that the information or record sought must be either supplied by the third party or must relate to the third party and in both cases, must be treated as confidential by the third party.
The information sought by the Appellant pertains inter alia to purchase orders/ work orders, tenders accepted, payments made, etc of one of the contractors/ suppliers of MCD namely Shakti Sales. The MCD has similar contractual arrangements with several entities. Any documentation pertaining to such commercial arrangements such as purchase orders, tenders, test reports of materials supplied, copies of bills and TDS certificates issued, in the Commission's view, are records of the public authority and must be supplied by the latter when requested for. In fact Section 4(1)(b) of the RTI Act envisages that such information should be declared suo moto by the public authority.
In the instant case, the nature of the information sought does not relate to commercial or trade secrets, intellectual property or similar information, the disclosure of which would be disadvantageous to the competitive position of Shakti Sales. In other words, the disclosure of the information sought would not harm the competitive position of Shakti Sales and therefore, the PIO cannot claim the exemption under Section 8(1)(d) of the RTI Act. Further, the information sought consists of records of the MCD and are not being supplied by the third party. Therefore, the provisions of Section 11 of the RTI Act are not applicable. Moreover, the Commission has also observed that some of the information sought by the Appellant pertains to names of officials responsible for inspecting and verifying the materials supplied or unloaded. This is not 'third party' information and consequently, does not come within the purview of Sections 8(1)(d) and 11 of the RTI Act and must be disclosed.
The purpose of the RTI Act is to ensure maximum transparency and accountability to the public. If the view of the PIO is to be accepted, then any and every contractual arrangement entered into by a governmental agency for commercial purposes would be covered under Sections 8(1)(d) and 11 of the RTI Act, which defies the purpose of the RTI Act. Therefore, the information sought by the Appellant does not come within the ambit of Sections 8(1)(d) and 11 of the RTI Act and the PIO is bound to disclose the same.
Decision:
The Appeal is allowed.
Mr. Devender Singh, PIO is directed to provide the complete information to the appellant before 25 September 2010.
From the facts before the Commission it is apparent that Mr. Devender Singh, PIO is guilty of not furnishing information within the time specified under Section 7(1) by not replying within 30 days as per the requirement of the RTI Act. It appears that the actions of the PIO attract the penal provisions of Section 20(1) of the RTI Act. A show cause notice is being issued to him and he is directed to give his reasons to the Commission to show cause why penalty should not be levied on him.
He will present himself before the Commission at the above address on October 20, 2010 at 11:00 am along with his written submissions showing cause why penalty should not be imposed on him as mandated under Section 20(1) of the RTI Act. He will also submit proof of having given the information to the Appellant.
If there are other persons responsible for the delay in providing the information to the Appellant, the PIO is directed to inform such persons of the show cause hearing and direct them to appear before the Commission with him.
This decision is announced in open chamber.
Notice of this decision be given free of cost to the parties. Any information in compliance with this Order will be provided free of cost as per Section 7(6) of RTI Act.
Shailesh Gandhi Information Commissioner 03 September 2010 (In any correspondence on this decision, mention the complete decision number.)(YM)