Central Information Commission
Asif Khan vs Agricultural And Processed Food ... on 19 October, 2023
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/APPEA/A/2023/137748 +
CIC/APPEA/A/2023/113006
ASIF KHAN ......अपीलकता /Appellant
VERSUS
बनाम
CPIO,
Agricultural and Processed Food
Products Export Development Authority,
3rd Floor, NCUI Building, 3, Siri
Institutional Area, August Kranti
Marg, New Delhi-110016 ..... ितवादीगण /Respondent
Date of Hearing : 13/10/2023
Date of Decision : 13/10/2023
INFORMATION COMMISSIONER : Saroj Punhani
Note - The above-mentioned Appeals have been clubbed together for decision
as these are based on similar RTI Applications.
Relevant facts emerging from appeal (s):
RTI application filed on : 25/05/2023, 08/12/2022
CPIO replied on : 26/06/2023, 13/01/2023
First appeal filed on : 14/07/2023, 24/01/2023
First Appellate Authority order : 11/08/2023, 16/02/2023
2nd Appeal/Complaint dated : 04/09/2023, 03/03/2023
1
Information sought:
CIC/APPEA/A/2023/137748 The Appellant filed an RTI application dated 25.05.2023 seeking the following information:
"APEDA ended the certification of Faircert Service Pvt. Ltd. on 22.07.2022. In the period of 01.04.2021 to 30 June 2022 there are many TC were issued by FairCert. Please provide the documents submitted in APEDA related to TC."
The CPIO furnished a reply to the appellant on 26.06.2023 stating as under:
"The details sought for documents related to Transaction Certificate (TC) pertains to third party, which is exempted from disclosure under section 8(1)(d) of the RTI Act, 2005."
Being dissatisfied, the appellant filed a First Appeal dated 14.07.2023. FAA's order, dated 11.08.2023, upheld the reply of the CPIO, held as under:
"APEDA is the secretariat for implementation of the National Programme for Organic Production under which accreditation is granted to the certification bodies for certification of their operators. The transaction certificates are issued by the certification bodies to their certified operators and not by APEDA.
The information sought with respective to Faircert and their certified operators pertains to third party, commercial confidentiality, and fiduciary in nature under section 8 (1) (D) & (E) of the RTI act 2005."
CIC/APPEA/A/2023/113006 The Appellant filed an RTI application dated 08.12.2022 seeking the following information:
"1. Faircert Certification Service Pvt. Ltd., Ahmadabad has been suspended by APEDA. Provide true attested photocopy of the suspend order.2
2. Provide a true attested photocopy of the investigation report of the investigation done before suspension of Faircert Certification Service Pvt. Ltd., Ahmadabad by APEDA.
3. Provide true attested photocopies of the same documents which were submitted by Faircert Certification Service Pvt. Ltd., Ahmadabad to APEDA for accreditation under NPOP."
The CPIO furnished a reply to the appellant on 13.01.2023 stating as under:
"Faircert Certification Services Pvt. Ltd. has been suspended as per NPOP procedures and accreditation status of Faircert is made available in the list of Certification Bodies Funder NPOP icon on APEDA website.
The information of accreditation, investigation for irregularities and suspension of Certification Body under NPOP pertains to third party, which is exempted from disclosure under section 8 (1) (d) of RTI Act, 2005."
Being dissatisfied, the appellant filed a First Appeal dated 24.01.2023. FAA's order, dated 16.03.2023, held as under:
"The appeal on this RTI has been received at APEDA on 30th January 2023. On examining the appeal, it is observed that the information about suspension of Certification Body by National Accreditation Body (NAB) is restricted under section 8 (1) (d) of RTI Act, 2005 to the third party.
The information which can be provided is listed on the website and copy is attached."
Feeling aggrieved and dissatisfied, the appellant approached the Commission with the instant Second Appeal.
Relevant Facts emerging during Hearing:
The following were present:-
Appellant: Present through Video-Conference.
Respondent: Prashant Waghmare, AGM and Shashwati, FAA present in person.
The written submissions of the Respondent are taken on record.3
The Appellant, during the hearing, reiterated the contents of his above mentioned RTI applications and submitted that till date no information was provided to him by the Respondent.
The Respondent submitted that they have categorically informed the Appellant that the information sought by the Appellant is exempted from disclosure under Section 8(1)(d) & (e) of the RTI Act.
The Respondent further apprised the Commission that similar matter of the Appellant has already been adjudicated by the Commission in file no. CIC/APPEA/A/2021/137736 dated 25.07.2022.
Decision:
The Commission, after hearing the submissions of both the parties and after perusal of records, observes that the Appellant is aggrieved that the Respondent has wrongly denied the information on his above mentioned RTI applications. On the other hand, the Respondent contended that the information sought by him is exempted from disclosure under Section 8(1)(d) and (e) of the RTI Act. Further, the CPIO also offered a detailed explanation by giving reasons for denial of information under Section 8(1)(d), (e) of the RTI Act.
The Commission agrees with the stand taken by the Respondent that the information sought by the Appellant involves the information of commercial confidence and the same cannot be disclosed under the RTI Act under Section 8(1)(d) of the RTI Act. Further, the information sought by the Appellant relates to the personal information of third party, which is exempted from disclosure under Section 8(1)(j) of the RTI Act and also held by the Respondent Public Authority in fiduciary capacity and is exempted from disclosure under Section 8(1)(e) of the RTI Act .
The same can be garnered from a bare perusal of the text of Section 8(1)(j) of the RTI Act as under:
"8. Exemption from disclosure of information.--
(1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, xxxx 4
(j) 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 the larger public interest justifies the disclosure of such information;.."
In this context, the Commission relied on the decision of the Hon'ble Supreme Court of India in Bihar Public Service Commission vs. Saiyed. Hussain Abbas Rizwi: (2012) 13 SCC 61 wherein in the context of exemption under section 8 (1)
(j) of the RTI Act, 2005, the Court had held that exemption provided under section 8 of the Act is the rule and only in exceptional circumstances of larger public interest the information would be disclosed. The relevant observations are mentioned as under:
22......"Another very significant provision of the Act is 8(1)(j). In terms of this provision, 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 would fall within the exempted category, unless the authority concerned is satisfied that larger public interest justifies the disclosure of such information. It is, therefore, to be understood clearly that it is a statutory exemption which must operate as a rule and only in exceptional cases would disclosure be permitted, that too, for reasons to be recorded demonstrating satisfaction to the test of larger public interest. It will not be in consonance with the spirit of these provisions, if in a mechanical manner, directions are passed by the appropriate authority to disclose information which may be protected in terms of the above provisions. All information which has come to the notice of or on record of a person holding fiduciary relationship with another and but for such capacity, such information would not have been provided to that authority, would normally need to be protected and would not be open to disclosure keeping the higher standards of integrity and confidentiality of such relationship. Such exemption would be available to such authority or department."
23. "The expression 'public interest' has to be understood in its true connotation so as to give complete meaning to the relevant provisions of the Act. The expression 'public interest' must be viewed in its strict sense with all its exceptions so as to justify denial of a statutory exemption in terms of the Act. In its common parlance, the expression 'public interest', like 'public purpose', is not capable of any precise definition. It does not have a rigid meaning, is elastic and takes its color from the statute in which it occurs, the concept varying with time and state 5 of society and its needs. [State of Bihar v. Kameshwar Singh (AIR 1952 SC 252)]. It also means the general welfare of the public that warrants recommendation and protection; something in which the public as a whole has a stake [Black's Law Dictionary (Eighth Edition)]."
24."The satisfaction has to be arrived at by the authorities objectively and the consequences of such disclosure have to be weighed with regard to circumstances of a given case. The decision has to be based on objective satisfaction recorded for ensuring that larger public interest outweighs unwarranted invasion of privacy or other factors stated in the provision."
Further, in Central Board Of Sec. Education & Anr. vs Aditya Bandopadhyay & Ors [2011 (8) SCC 497] vide order dated 09.08.2011 examined and explained the expression 'fiduciary relationship', and have illustrated a few relationships where parties were involved in an act of fiduciary capacity including 'customers' in the following words:
"20. The term `fiduciary' and `fiduciary relationship' refer to different capacities and relationship, involving a common duty or obligation. 20.1) Black's Law Dictionary (7th Edition, Page 640) defines `fiduciary relationship' thus:
A relationship in which one person is under a duty to act for the benefit of the other on matters within the scope of the relationship. Fiduciary relationships - such as trustee-beneficiary, guardian-ward, agent-principal, and attorney-client - require the highest duty of care. Fiduciary relationships usually arise in one of four situations : (1) when one person places trust in the faithful integrity of another, who as a result gains superiority or influence over the first, (2) when one person assumes control and responsibility over another, (3) when one person has a duty to act for or give advice to another on matters falling within the scope of the relationship, or (4) when there is a specific relationship that has traditionally been recognized as involving fiduciary duties, as with a lawyer and a client or a stockbroker and a customer."
"39. The term "fiduciary" refers to a person having a duty to act for the benefit of another, showing good faith and candour, where such other person reposes trust and special confidence in the person owing or discharging the duty. The term "fiduciary relationship" is used to describe a situation or transaction where one person (beneficiary) places complete confidence in another person (fiduciary) in regard to his affairs, business or transaction(s). The term also refers to a person who holds a thing in trust for another (beneficiary). The fiduciary is expected to act in confidence and for the benefit and advantage of the beneficiary, and use good faith and fairness in dealing with the beneficiary or the things belonging to the beneficiary. If the beneficiary has entrusted anything to the fiduciary, to hold the 6 thing in trust or to execute certain acts in regard to or with reference to the entrusted thing, the fiduciary has to act in confidence and is expected not to disclose the thing or information to any third party."
Further, the information sought is of commercially sensitive information. In the context of non disclosure of information under Section 8(1)(d) of the RTI Act, 2005, the decision in Naresh Trehan vs Rakesh Kumar Gupta (W.P(C) 85/2010) decided on 24.11.2014, was referred to, wherein it was held as under:
14. "....Such information would clearly disclose the pricing policy of the assessee and public disclosure of this information may clearly jeopardise the bargaining power available to the assessee since the data as to costs would be available to all agencies dealing with the assessee. It is, thus, essential that information relating to business affairs, which is considered to be confidential by an assessee must remain so, unless it is necessary in larger public interest to disclose the same. If the nature of information is such that disclosure of which may have the propensity of harming one's competitive interests, it would not be necessary to specifically show as to how disclosure of such information would, in fact, harm the competitive interest of a third party. In order to test the applicability of Section 8(1)(d) of the Act it is necessary to first and foremost determine the nature of information and if the nature of information is confidential information relating to the affairs of a private entity that is not obliged to be placed in public domain, then it is necessary to consider whether its disclosure can possibly have an adverse effect on third parties."
In view of the above ratio, the Commission is of the opinion that the reply provided by the respondent is in agreement and the same is upheld by the Commission.
No further intervention of the Commission is required in the matter.
The appeal (s) are disposed of accordingly.
Saroj Punhani (सरोज पुनहािन) हािन) Information Commissioner (सूचना आयु ) 7 Authenticated true copy (अिभ मािणत स%यािपत ित) (C.A. Joseph) Dy. Registrar 011-26179548/ [email protected] सी. ए. जोसेफ, उप-पंजीयक दनांक / 8