Central Information Commission
Himanshu Pathak vs Ministry Of Railways on 15 September, 2017
क ीय सूचना आयोग
CENTRAL INFORMATION COMMISSION
ब िब ं ग (पो ऑिफस केपास)
Club Building (Near Post Office)
ओ जे नयू कपस ,नई िद ी -110067
Old JNU Campus, New Delhi-110067
Tel: +91-11-26182593/26182594
Email: [email protected]
File No.: CIC/VS/A/2015/000661
In the matter of:
Himanshu Pathak
C-1/122, First Floor, Lajpat Nagar-I,
New Delhi-110024
...Appellant
Vs.
Central Public Information Officer
PIO/Wagon Directorate Research Designs
and Standards Organisation, Alambagh, Lucknow,
U.P- 226011
&
Central Public Information Officer
DPG and CPIO, RTI Cell, Room No- 507, 5th
Floor, Railway Board, New Delhi- 01
&
M/s Escorts Ltd., Administrative Office,
18/4, Mathura Road, Faridabad- 121007
1
&
M/s Escorts Ltd., Escorts Railway Products,
Plot No- 115, Sector- 24, Faridabad- 121007
...Respondents
Dates
RTI application : 28.07.2014
CPIO reply : 19.08.2014, 20.10.2014
First Appeal : 21.11.2014
FAA Order : 11.12.2014
Second Appeal : 04.03.2015
Date of hearing : 02.12.2016, 03.01.2017, 26.07.2017
Facts:
1. The appellant filed RTI application dated 28.7.2014 seeking information on 13 points relating to Tender No. 2004/DEV/CELL/IGRI/6 opened on 28.06.2005 and awarded in 2006 for design, development and supply of bogie mounted brake system with respect to M/s Escorts Ltd. including copy of technical bid and commercial bid submitted by M/s Escorts Ltd, copy of Tender Committee recommendation and acceptance by the competent authority, copy of contract with Escorts Ltd etc.
2. The CPIO responded on 19.08.2014 and 20.10.2014. The appellant filed first appeal on 21.11.2014 with the First Appellate Authority (FAA). The FAA disposed of the first appeal on 11.12.2014. The appellant filed second appeal on 2 04.03.2015 before the Commission with the plea that the sought for information has not been provided to him.
Hearing: 02.12.2016
3. The appellant participated in the hearing personally. The respondent was heard through audio.
4. The appellant stated that he had filed his RTI application dated 28.7.2014 with the Railway Board and sought certain information.
5. The appellant further stated that the PIO/Wagon Directorate, RDSO Lucknow vide letter dated 19.8.2014 had demanded Rs. 10,858/- for copying fee which he deposited on 3.9.2014 with the PIO, RDSO, Lucknow. The appellant stated that that the PIO, RDSO, Lucknow vide letter dated 20.10.2014 had denied substantial information u/s 8 (1) (d) and also stated that the information is not available in the said office and should be obtained from the Railway Board. The appellant stated that the CPIO, RDSO, Lucknow, vide letter dated 1.12.2014 had transferred RTI application to the CPIO Railway Board after 4 months.
6. The appellant stated that the respondent has transferred following points to the Railway Board:-
1. Copy of technical and commercial bid submitted by M/s Escorts Ltd. 3
2. Copy of Tender Committee recommendations and acceptance by the competent authority.
9. Whether the contracts were executed within the specified time?
10. If not, how many extensions were given to the contractors? Copy of extension letters be provided.
11. Whether any liquidated damages were levied and recovered.
7. The appellant stated that he has not received any response from the CPIO Railway Board. The appellant stated that the Railway Board and the RDSO is the same public authority and providing information is intra departmental matter. The appellant stated that the respondent has not taken plea that the Railway Board is a different public authority. The appellant stated that the respondent has failed to provide the information within time prescribed under the Act. The appellant stated that PIO, RDSO, Lucknow should refund his deposited amount of Rs. 10,858/- and information should be provided to him, free of cost. The appellant stated that the respondent had denied the information stating that its release would give information on trade secret. The appellant stated that after the tender was approved, then it becomes the public document.
8. The respondent stated that vide letter 20.10.2014 they have informed the appellant that they are returning an amount of Rs. 10,858/-.
9. The appellant stated that he has not received any letter regarding refund of fee. 4
10. The respondent stated that Railway Board deals with the tender process and they are concerned only with the designing work. The respondent stated that all tender related information is available with the Railway Board. The respondent stated that the information with regard to designing is intellectual property of third party and cannot be provided in terms of section 8(1)(d) of the RTI Act.
11. The appellant stated that the disclosure of Technical Bid, in no manner, harms the competitive position. It only establishes that the successful bidder meets the technical specifications as provided in the tender documents.
12. The appellant stated that the copies of approval of changes of designs or its intimation to the contractor, in no manner, can be said to be trade secret or intellectual property or breach of commercial confidence.
13. The appellant stated that information relating to brake cylinder used in modified design (of which full trials are underway) is neither a trade secret nor breaches the commercial confidence or intellectual property.
14. The appellant stated that acceptance of tender and award of contract involves financial repercussions and may lead to loss to the exchequer. For any award of the contract, the Public Authority has to ensure that the bids submitted are strictly in accordance with and fully comply with the terms and conditions of the tender. The technical requirement with regard to the product for which tender is floated is 5 contained in the tender document and is within the public domain. The Technical Bid furnished by tenderers participating in the tender cannot be denied after finalization of the tenders/award of contracts nor can it be said the same is prohibited under section 8(1)(d) of the RTI Act. The appellant stated that it is admitted that the said tender has been finalized. The appellant stated that the disclosure of sought for information is in public interest.
15. The appellant stated that sought for information is not related to 'why and what' and hence the DoPT's Memorandum No. 01/07/2009-IR dated 01.06.2009 and CIC/AT/A/2006/00045 dated 21/04/2006 is not applicable in his case. Discussion/ observation:
16. The sought for information is related to the respondent RDSO, Railway Board and Third party Company. It would not be appropriate to decide the matter without hearing all the concerned parties.
17. As the amount deposited by the appellant is yet to be refunded, the respondent may return the amount within 15 days of this order.
Decision:
6
18. The matter is adjourned and matter may be listed after 30 days of this order. The Dy. Registrar is directed to issue notice of hearing to respondent RDSO, Railway Board and M/s Escorts Ltd.
19. The respondent is directed to serve a copy of hearing notice upon the M/s Escorts Ltd. within 7 days of receipt of this order.
ADJUNCT ORDER : Dated 03.01.2017
1. The appellant and Counsel on behalf of M/s Escorts Ltd. (Third Party) were present personally. The respondent was heard telephonically.
2. The Counsel of M/s Escorts Ltd. Stated that he has no copy of second appeal and therefore unable to comment in the matter. He wants adjournment in the matter as he has to submit his written submission.
Discussion/ Observation:
3. The third party shall serve an advance copy of their written submission to the respondent as well as the appellant by 18.01.2017 to enable them to submit their response by 03.02.2017, all under intimation to the Commission. Order:
4. The matter is adjourned in view of the above.
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5. The Dy. Registrar is directed to issue notice of hearing to respondent RDSO, Lucknow, Railway Board and M/s Escorts Ltd. After 30 days.
Final Order : 26.07.2017
Appellant : Present
Respondent : Present
1. M. Siddique RDSO
2. Shri B.K Jha, Director ME/Dev Railway Board
Third Party : Advocate Mandi Arora (Representing M/S Escorts Ltd)
1. At the outset, the counsel for the third party (M/S Escorts Ltd) raised preliminary objection and submitted that the appeal deserved to be dismissed as it was motivated appeal and was part of an ongoing corporate rivalry between two companies working in the field of design of similar products, i.e. M/S Escorts Ltd. and M/s Knorr Bemse. He further submitted that the appellant had not mentioned in his appeal and in the entire proceedings that he had been acting as the lawyer for the company M/S Knorr which is a known business rival of the third party company M/S Escorts Ltd. in regard to which details had been sought in the said RTI application. He also submitted that in the present RTI case also the appellant for M/S Knorr was acting as a proxy . The proof of this allegation is the fact that 8 the appellant was appearing in the Competition Appellate Tribunal in the case no. RTPE No. 12/2006. He enclosed a copy of the causelist dated 16.01.2014 of the Competition Appellate Tribunal and a copy of order of the Competition Appellate Commission dated 16.01.2014 in support of his charge. It was also mentioned that the appellant is an associate of Advocate NareshThanai who appeared for M/s Knorr Bemse India Pvt Ltd. The third party Advocate emphasized on the point that in the present RTI application, the appellant mentioned the address and personal e-mail ID of Advocate Naresh Thanai which proved the point made by the third party's advocate even more clearly. He summed up his submission by stating that as the appellant and Advocate NareshThanai had a common office and both having appeared for M/S Knorr in the above stated case in the Competition Appellate Commission, it is obvious that they were acting as a front for M/S Knorr to get valuable commercial information regarding the third party i.e M/S Escorts Ltd who is a acknowledged competitor not only in the present case but in the other cases also. He stated that there had been strongly contested disputes between M/S Escorts and M/S Knorr in several legal and quasi legal fora and at the time of this submission also there was a pending arbitration appeal under Sec 34 of the Arbitration and Conciliation Act 1996 filed by M/S Knorr before the Hon'ble Delhi High Court bearing OMP No. 831/13 titled as Knorr Bremse Ag Vs Escorts Ltd. challenging the majority award dated 19.04.2013. The third party's counsel 9 also submitted that the RTI Act has been enacted for the public good and the appellant was seeking to use this on behalf of his client without disclosing that he was acting in a fiduciary position on behalf of the rival CO,M/S Knorr. Before approaching this Hon'ble Commission, the appellant ought to have come with clean hands by declaiming that the present application was being filed on behalf of his client M/S Knorr. However this important information was suppressed and on this ground alone, the appeal filed by the appellant u/s 19 of the RTI Act deserved to be dismissed.
2. During the hearing, copy of the rejoinder of appellant dated 04.03.2017 against the preliminary objection of the third party dated 31.01.2017 was handed over to the third party by the appellant. In his rejoinder the appellant submitted that the third party M/s Escorts Ltd without any cause, in order to prejudice the mind of the Hon'ble Commission was raising frivolous objections/issues and/or putting words in the mouth of the appellant which deserved no consideration. He vehemently denied the contention of the third party that the appeal was motivated and was a part of the ongoing corporate litigation as alleged. He also submitted that there was no occasion for him to disclose that he had been acting as the lawyer for the company M/S Knorr Bremse as the appeal had not been filed at the instance of M/S Knorr Bremse. He further submitted that he had been associated with senior advocate Shri NareshThanai and at times appeared as an associate advocate for 10 him. However the same cannot be construed in the way , the learned advocate for the company M/S Escorts ltd wanted to convey to the CIC. He stated that he is an advocate by profession and as an aware citizen is interested in social issues. He always tries to raise social causes which come within the scope of his regular work. He, as a practising advocate had dealt with several railway contracts, tenders etc in the past and had been also appearing for several railway Caterering organizations against the railways while dealing with railway tenders and contracts. The appellant has reason to believe that instances of large scale corruption and favouritisms which were shown while finalizing awarding of various contracts needed strong legal counter measures. Further he submitted that as per Sec 6(2) of the RTI Act, an applicant making request for information shall not be required to divulge any reason for requesting the sought for information in any record to be submitted before either the CPIO or even afterwards.
3. On hearing both the parties, the Commission outrightly rejected the third party's preliminary objection raised regarding the bonafideness of the appellant as u/s 6(2) of the RTI Act the reason for asking for any information under the RTI Act is not to be divulged. Moreover, the appellant 's activities as a professional advocate in other courts/quasi judicial authorities is of no consequences in the present case pending before the CIC .
11
4. During the hearing, the CPIO, Railway Board submitted that they had provided the requisite information vide their letter dated 20.07.2017 on paras 1,2,9,10 and 11 of the said RTI application. The appellant also acknowledged receipt of reply dated 20.07.2017 of the Railway Board and expressed his satisfaction. He pressed for information on paras 4,5,6,7,8,12 and 13 of the above stated RTI application.
5. The issue to be decided now by the Commission is disclosability or otherwise of paras 4,5,6,7,8,12 and 13 of the said RTI application.
6. The respondent PIO reiterated that information sought under paras 7 and 12 of the abovementioned RTI application is not an information as defined u/s 2(f) of the RTI Act.
7. The Commission finds it appropriate to analyse the information sought in terms of Sec 2(f) of the RTI Act in the two above stated paras of the RTI application under consideration in the present case. The information sought in the para 7 of the RTI application is : " whether the cost implications due to the design changes were carried out for the modification of designs post tender and were approved by the competent tender approving authority." The para 12 of the said RTI application is: "whether this modified design of which the trials are under way interchangeable 12 with the existing approved and adopted designs of BMBS. If not, details of the differences be provided."
8. The Commission finds that the sought for information in regard to the paras 7 and 12 are queries in nature and are not evidently covered within the meaning and definition as stipulated u/s 2(f) of the RTI Act. Hence, the CPIO's plea in respect of the same is just and proper.
9. During the hearing the PIO, Railway Board and the PIO, RDSO submitted that paras 4,5,6,8 and 13 of the RTI Act were denied u/s 8(1)(d) of the RTI Act. They further submitted that the sought for information is related to the third party i.e. M/S Escorts Ltd.
10. The third party counsel submitted that a competitor is asking for the said information which as submitted earlier by them while arguing the case is clearly calculated to improve their competitive position in the business sphere vis-a vis the third party company i.e. M/S Escorts ltd. Moreover, the appellant had not come with clean hands. In his counter reply the appellant clearly admitted that he was the present lawyer for M/S Knorr in a corporate litigation case. The advocate for the third party submitted that the Central Information Commission is not a forum and the RTI Act is not the legislation to obtain inside information involving corporate secrets and stated that the appellant, in the garb of a common RTI applicant, 13 wanted to get valuable commercial information which will be to the detriment of the company whose business/design information was asked for.
11. The PIO Railway Board submitted that some tenders are simple. e.g catering contracts where no inherent technical knowledge is involved. However the nature of the present contract is technical and its divulgence under the provision of the RTI Act would definitely harm the competitive business position/prospect of the company whose information is decided to be thrown open to the public under the RTI Act. RDSO is a vital organ of the railways and he submitted that the Sec 8(1)(d) of the RTI Act contains four vital components and presence of even any one of the elements in the information sought should attract the provision for exemption under Sec 8(1)(d) of the RTI Act. He submitted that these four vital components are-: commercial confidence, trade secret, intellectual property and competitive position of the third party. He also stressed on the fact that third party invests huge financial resources, manpower, time etc before some technical design is prepared and they were apprehensive that in case this sensitive information is divulged, in future they might not have proper quotations filed in reply to their tender offers, after these are floated as the fear in the minds of companies and Firms would be to protect their competitive position in the market first before appearing in tender offers floated by the railways. He also submitted that the present case is related to wagon brake designing which is quite sophisticated in 14 nature. The agency which has developed such sophisticated designs will obviously treat the same as a trade secret and will be against any disclosure of the same.
12. The appellant contested the above argument put forward by the PIOs, railways and RDSO on the ground of public interest and stated that the essence of any contract is that it should be completed within the stipulated time period which was not done in the present case. Due to time lag, changes of design took place at the developmental stage itself. According to information available with the appellant, the same design has since been modified and he wanted to know the basis on which the designs were modified subsequently, whether there was any such clause incorporated in the contract or whether the changes were made as per the terms of the contract. He also submitted that as there were subsequent changes in the designs, he as a citizen of the country, has a right to know the details of such changes involving financial consideration adversely affecting the public exchequer. He alleged that the terms of the tenders were changed according to the whims and fancies of the concerned railway officers. He submitted that there is no trade secret involved as such in the contract as the same had already been executed. He relied on the decision of the Jharkhand High Court in the case of State of Jharkhand & Anr v. Navin Kumar Sinha &Anr in L.P.A No. 205 of 2007. The operative part of the decision reads as follows:
15
"26. Sec 8(1)(d) is relevant so far instant case is concerned which inter alia, provides that the authority may refuse to give information relating to commercial confidence, trade secret or intellectual property, 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. The question, therefore, that falls for consideration is as to whether disclosure of various documents submitted by the bidders is a trade secret or commercial confidence or intellectual property. Prima facie, we are of the view that once a decision is taken in the matter of grant of tender, there is no justification to keep it secret. People have a right to know the basis on which the decision has been taken. If tenders are invited by the public authority and on the basis of tender documents, the eligibility of a tender or a bidder is decided, then those tender documents cannot be kept secret, that too, after the tender is decided and work order is issued on the ground that it will amount to disclosure of trade secret or commercial confidence. If the authorities of Govt. refuse to disclose the document, the very purpose of the Act will be frustrated. Moreover, disclosure of information, sought for by the petitioner, cannot and shall not be a trade secret or commercial confidence; rather disclosure of such information shall be in public interest, in as much as it will show the transparency in the activities of the Government. "
13. The third party's counsel contended that the information sought for involves design of bogie mounted brake system which is developed by M/S Escorts Ltd and which is the intellectual property of M/S Escorts Ltd. Accordingly, disclosure of 16 this information to a nominee of the competitor company would cause severe harm to the competitive position of the third party. It was stated that the technical capability of the concerned product of the third party had been built up after intensive research and development work and any sharing of this information would mean that a competitor can get these details without any research and development work merely by seeking such information under the provisions of the RTI Act. He submitted that the designs involved not only funds but lot of intellectual inputs, and the same information should not be provided to any information seeker more so when he is representing any competitor's organization. This disclosure will be against the spirit of the RTI Act.
14. The counsel of the third party relied on paras 10,11 and 13 of the decision of Delhi High Court in the case of Bharat Sanchar Nigam Ltd. v. Chandersekhar in L.P.A No. 900 of 2010 which reads as follows:
"10. We, at the outset, deem it appropriate to discuss the issue generally as the same is likely to arise repeatedly. Confidentiality or secrecy is the essence of sealed bids. The same helps the contract awarding party to have the most competitive and best rates / offer. The essential purpose of sealed bidding is that the bids are secret bids that are intended by the vendor and expected by bidders to be kept confidential as between rival bidders until such time as it is too late for a bidder to alter his bid. Sealed bidding means and must be understood by all those taking part in it to mean that each bidder must bid without actually knowing 17 what any rival has bid. The reason for this, as every bidder must appreciate, is that the vendor wants to avoid the bidders bidding (as they would do in open bidding such as at an auction) by reference to other bids received and seeking merely to top those bids by the smallest increment possible. The vendor's object is to get the bidders to bid "blind" in the hope that then they will bid more than they would if they knew how far other bidders had gone. Additionally, from each bidder's point of view his own bid is confidential and not to be disclosed to any other bidder, and he makes his bid in the expectation, encouraged by the invitation to submit a sealed bid, that his bid will not be disclosed to a rival. If, therefore, a rival has disclosed to him by the vendor the amount of another's bid and uses that confidential information to pitch his own bid enough to outbid the other, this is totally inconsistent with the basis on which each bidder has been invited to bid, and the rival's bid is not a good bid; likewise if the rival adopts a formula that necessarily means that he is making use of what should be confidential information (viz. the bid of another) in composing his own bid. In such a case, the amount of the other's bid is being constructively divulged to him. The process of inviting tenders has an element of secrecy − since nobody knows what would be the bid of the competitor, everyone will try to show preparedness for the best of the terms which will be acceptable to the institution calling the tenders. This requires ensuring that the tenders are not tampered with, the offers are not leaked to another bidder or even to the officers of the institution for which the tenders are called. Secret bids thus promote competition, guard against 18 favouritism, improvidence, extravagance, fraud and corruption and lead to award of contract, to secure the best work at the lowest price practicable.
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 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 19 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 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 ensuringpublic 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 20 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."
15. The counsel of the third party also relied on para 58 of this Commission's decision in the case of Kuljeet Singh & Saurabh Jain v. Power Finance Corporation Ltd in case no. CIC/AD/A/2012/000570, CIC/LS/A/2011/003966, CIC/LS/A/2012/001314, CIC/LS/A/2012/001120 which reads as follows:
58. Now we come to the question of applicability of clause (d) in these matters. All the queries raised by the appellant relates to the impugned tender process and issues arising therefrom. It needs to be recalled that tender was initially awarded to M/s.Globel eq Singapore Consortium. On detection of irregularities in the award of contract, the competent authority reversed its decision and awarded the contract to Reliance Power Limit ed. The appellant is not a bidder. He has sought information on 74 paras with wh ich he has no concern. Obviously, he is seeking third party information in most of the paras but not all. Besides, the information sought by him on most of the paras is of commercial confidence. It is important to bear in mind that SUMPP is a hug e project with investment of about 20,000 crores of rupees. Various bidders subm itted their bids in this connection. The bids were analysed at various levels. When the competent authority came to know of irregularity in the initial award of contr act to M/s.Globeleq Singapore Consortium, an enquiry was instituted and based o n inquiry report, contract awarded to M/s.Globeleq was cancelled and was award 21 ed to Reliance Power Limited. The competent authority in its wisdom also blacklisted M/s.Ernst and Young for three years for its acts of omission and commission. We need not go into the merits of the matter. The fact , however, remains that most of the information sought by the appellant is of comm ercial confidence. It is also third party information. It is important to mention that such information can only be disclosed in larger public interest. The appellant's counsel has pleaded larger p ublic interest in the name of transparency in public life. We are not impressed by this argument. He is seeking confidential information of third party involvin g commercial confidence for reasons best known to him. Ironically, the appella nt is seeking all this information on behalf of M/s.Ernst & Young. On a careful perusal of the RTI applications, we find that he has sought information on only one or two paras about the blacklisting of M/s.Ernst & Young. Rest of the info rmation sought by him is about the processing of the tenders and other allied m atters. Therefore, plea of public interest ex facie is illfounded. Hence, on a thou ghtful consideration of the matter, we are of the opinion that information on most of the paras is barred from disclosure under clause (d) of the section 8(1) of the Act.
16. The counsel of the third party further relied on a decision of this Commission in the case of Ajay Chadha v. Dr. R.S. Agarwal in the case no. CIC/DS/A/2013/001664 +1684. The operative part of the order reads as follows: 22
"In the instant case, information sought by the appellant relates to financial/technical bids of a third party, which have been treated as confidential by the Respondent Authority and the third party itself. The sum-total of respondents' arguments is that appellant has tried to project his personal interest as public interest in order to force the third party to share with him all the confidential information to defend its position in the law suit by the appellant. Having considered aforementioned submissions of the PIO, the Commission is of the view that the information as sought for by the appellant relates to commercial confidence, trade secrets of a third party, the disclosure of which would harm the competitive position of the third party and disclosure of which is exempted under the provisions of Section 8(1) (d) of the RTI Act. Section 8(1)(d) of the RTI Act exempts from disclosure- "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 including commercial confidence, trade secrets, intellectual property, 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. In the instant case, it is evident that the Third Party to whom the information relates, have objected to the disclosure of the information in toto. The protection 23 afforded by virtue of the exemption from disclosure enacted under Section 8(1)
(d) of the RTI Act cannot be lifted or disturbed unless the appellant is able to justify how such disclosure would be in 'larger public interest'. The burden of establishing that the information sought was exempted from disclosure under Section 8(1)(d) of the RTI Act, however, shall lie on the PIO. In the instant case, the PIO has not replied invoking the appropriate exemption clause u/s 8(1)(d).
The PIO in response to both the RTI applications has merely stated that the information, as denied by the third party, cannot be provided to the appellant. The PIO's replies dt. 19.08.2013 & 18.06.2013 were, in effect, an order u/s 11(3) of the RTI Act. The FAA, too, has not disposed of the appeals when it should have passed a speaking order to determine whether information on financial/ technical bids should not be disclosed u/s 8(1)(d) as the information relates to commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, disclosure of which has no relationship to any public activity or interest or which would cause unwarranted invasion of the privacy of the individual he was satisfied that the larger public interest justifies the disclosure of such information; or whether CPIO intended to disclose the information relating to third party. Commissioner, NDMC is requested to take notice of the fact that the FAA has not disposed of the first appeals in the above cases, for suitable action. Keeping in view the information sought, i.e., copies of financial and technical bids of a third party, the Commission would like to draw the attention of both parties to the Black's Law Dictionary, 4th Rev. Edn., definition for the terms 'bid' and 'technical' as:- 24
"BID. An offer to perform a contract for work and labor or supplying materials at a specified price." "TECHNICAL. Belonging or peculiar to an art or profession. Technical terms are frequently called in the books "words of art."
In the instant case, the appellant has not succeeded in establishing that the information sought regarding the technical bid of the tender is in larger public interest. It being so, the information is exempted from disclosure under Sections 8(1)(d) of the RTI Act. However, limited financial information as to the financial quotation/price quoted by the third party in the said tender be provided to the appellant, as the disclosure of the same, at this belated stage is not going to cause any harm to any of the parties. The Commission u/s 19(8)(a)(v) directs the respondent authority to take steps to provide adequate training to CPIOs & FAAs so that they can discharge their duties with greater responsibility and do not commit errors that can change the course of private litigation in favour of a particular party.
17. The respondent CPIO, Railway Board submitted that the Bogie Mountain Brake system was just evolving when the tender was floated by the railways. The RDSO examined the design and on the basis of circulation of the concerned file, orders for design of two rakes were awarded to M/S Escorts Ltd, 2 rakes to M/S Febbley and 2 rakes to M/S Stone India Ltd. He also submitted that approx 6 to 7 firms participated in the tender process and 4 firms were awarded the work after full evaluation of the submitted tenders by the RDSO. He submitted further that the existing contract was a technology development contract and they were not in a 25 position to provide definitive design submitted by the third parties post finalization of this tender also. The PIO, RDSO submitted that some change(s) of design including change of technical parameters were involved as the subject was new and the knowledge available with the public authority was limited. However there was no price implication in the change of design as it was a fixed value contract. Hence, no record was available regarding cost implication as no cost escalation was involved because of design change.
18. The Commission observed that the cost implication on the change(s) of design is not an information involving intellectual property of the third party concerned . Moreover, copy of the approval of the design by the RDSO on the final product closen i.e the administrative letter conveying the final approval of the competent authority to the party concerned should not normally contain technical features to such an extent that it would amount to violation of the four touchstones as mentioned in the Sec 8(1)(d) of the RTI Act. It is also evident that the information sought in regard to paras 4 to 8 of the said RTI application is related to the administrative process followed in the public authority concerned. The PIO, railways submitted that they had no objection to the provisioning of the administrative information involved in the process and as available on record. However the information sought in the para (13) of the said RTI application is related to technical design and the same is not disclosable in view of the Delhi 26 High Court's order as discussed above. Having mentioned that it is evident that it would not be appropriate in the fitness of things to put everything under the over arching blanket of exemption contained in Sec 8(1)(d) of the RTI Act.
19. The Commission after giving thoughtful consideration to the plea taken up by the third party which was refuted by the appellant who submitted that complete information should be disclosed especially as the tender was already executed, came to the conclusion that it is necessary to look into the facts of the case threadbare before deciding on whether the exemption available under Sec 8(1)(d) of the RTI Act is applicable to the entire information sought in the said RTI application or not. The appellant had not placed on record any documentary evidence to prove even a hint of corruption in regard to the awarding of the said contract by the competent authority in the railways. However, the fact remains that it is the nature of the work which determines to some extent whether the sought for information is exempted under the provision of the Sec 8(1)(d) of the RTI Act or not.
20. The Commission finds it appropriate to examine the information sought in paras 4,5,6,8 and 13 of the RTI application. The information sought reads as follows:
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"4. Whether any changes were allowed in the design after the contract? In case changes were allowed then how many times and what changes were approved by tender approving authority.
5. Copy of approval of such changes in design.
6. Copies of intimation of changes in design from time to time to contractor.
8. Copies of the cost implications may please be provided for the post tender design modifications.
13. Kindly confirm the following w.r.t. the brake cylinder used in modified design of Escorts Ltd. Of which field trials are underway.
i. Whether the brake cylinder is single acting or double acting? ii. If the brake cylinder is double acting with inbuilt slack adjuster then is it partial double acting or fully double acting?
iii. If double acting then why the brake cylinder undergoing field trials needs the manual intervention of rotating the tube in anticlockwise direction for changing a brake block?
iv. Is this practice of changing the brake block in line with the current maintenance practices of changing the brake block for current approved and adopted design by BMBS."28
21. After considering the submission of both the parties and on perusal of the RTI application, the Commission is of the opinion that in respect of the para 4 of the said RTI application, the information in regard to the number of times changes were approved by tender approving authority is disclosable as it would not admittedly divulge any technical details in regard to the design thereby compromising the competitive position of the third party involved, i.e M/S Escorts Ltd. In regard to "what changes were approved by the tender approving authority" from perusal of the records involved the same information does not appear to involve technical details/specifications. The changes were approved in an administrative manner in an official notesheet, and there is no contravention of the four cardinal principles as enshrined in the provision of the Sec 8(1)(d) of the RTI Act, if the same is disclosed. Hence the same can be disclosed.
22. In para 5 of the said RTI application, also, the appellant had not sought copy of the design but only copy of the approval of such change(s) in 29 design. The Railways had approved such changes, hence copy of such approval which is basically administrative in nature can be provided without contravening the provision of the Sec 8(1)(d) of the RTI Act.
23. In respect of para 6, the information sought is regarding copies of intimation of changes in design furnished to the contractor from time to time. The copies of intimation of changes would involve some discussion on technical specification itself, hence the same is exempted u/s 8(1)(d) of the RTI Act.
24. In respect of para 8 of the said RTI application, the cost implications for the post tender design modifications is also not the intellectual property of the third party, hence it is incumbent upon the Railway Board to provide the details about the cost implications, if any, as available on record, to the appellant.
25. In respect of Para 13, the Commission is of the opinion that the information sought is in the nature of queries. Moreover, the information if disclosed, would disclose the technical specifications of the brake cylinder used in the modified design of the third party i.e. M/S Escorts Ltd. Hence, in view of the objection raised by the third party involved, the discussion on the provision of the Sec 8(1)(d) of the RTI Act as above and finally on the basis of the court cases decided 30 on the same subject, the information sought in the para 13 of the RTI application is not proper to be disclosed as the same is exempted u/s 8(1)(d) of the RTI Act.
26. Summing up, the argument relating to commercial confidence and intellectual property of the third party is clearly applicable in respect of paras 6 and 13 of the said RTI application thereby making the information sought for in the said paras non disclosable whereas the same relating to the paras 4,5 and 8 of the above stated RTI application are disclosable under the provision of the RTI Act as discussed above.
27. The CPIO shall comply with the direction as discussed above, within 30 days from the receipt of this order.
With the above direction, the appeal is 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 31