Central Information Commission
Shri K.G. Shankar vs Indian Rare Earths Ltd., Dep’T Of Atomic ... on 7 August, 2008
CENTRAL INFORMATION COMMISSION
Appeal No. CIC/WB/A/2007/00678 dated 5-5-2007
Right to Information Act 2005 - Section 19
Appellant: Shri K.G. Shankar
Respondent: Indian Rare Earths Ltd., Dep't of Atomic Energy
FACTS
By an application of 26-12-06 Shri K.G. Shankar, Managing Director, Fluorides & Chemicals applied to Shri Prasantha Kumar CPIO, Indian Rare Earth Ltd. seeking the following information:
"We request you to kindly send us the Stores Purchase Committee Recommendation report as per RTI Act (Right to Information Act).
To this he received a response from APIO Shri K. Suresh, Sr. Manager (Legal) on 12-2-2007, who had received the application on 4-1-07 as follows:
"Your request 1: Request for Purchase committee Recommendation with regard to Tender No. IRE/RED/PT/IV dated 16.12.2006 for supply of Oxalic Acid.
Your request 2: Request for Purchase Committee Recommendation with regard to Tender No. IRE/RED/PT/VIII dated 8.3.2004 for supply of Oxalic Acid. Our reply: It is stated that the Public Authority has already under Section -4 (VIII) of the Right to Information Act 2005 published a statement which inter alia lays down that the minutes of meeting of the Stores Purchase Committee of the Head Office and the Units are not open to the public."
Aggrieved by this response Shri Shankar moved his first appeal before Shri S. Sivasubramanian, CMD, pleading that there was no provision in section 8, RTI 2005 to reject his request. However, 1st appellate authority Shri Sivasubramanian, in his order of 9-3-07 found as follows:
"I have gone through the records of the case and I must state that the Public Authority has already taken a decision that certain information s hall not be open to the public and a statement to this effect has already been published as contemplated under section 4 (viii) of the Right to Information Act, 2005. The Minutes of the Stores Purchase Committee is one of the documents listed in the said statement. I am, therefore, of the view that the CPIO was right in not allowing you information with respect to the same. Moreover on examination 1 of section 8 of the said Act, I find that any information with respect to commercial confidence, the disclosure of which would harm the competitive position of a third party also cannot be given. The documents requested for by you fall within the said exemption."
Aggrieved by this decision Shri Shankar moved his second appeal before us with the following prayer:
"It is prayed before the Hon'ble Commission to instruct the CPIO to provide the requisitioned information at the earliest."
The appeal was heard through video-conference on 7-8-08. The following are present:
Appellant at NIC Studio, Puducherry.
Shri K. G. Shankar.
Respondents at NIC Studio, Mumbai Shri K. Suresh, Asstt. PIO.
Shri G. S. Ramakrishnan, Company Secy, representing CMD Shri K. Suresh, APIO submitted that since Shri K. G. Shankar was not a bidder in the bid of 8.3.2004 of which purchase committee recommendations has been sought, it was considered that disclosure of such information to him will, in fact, affect other competitors in future bids. Similarly, although, Shri Shankar was a bidder in the 16.2.2006 bid and the public authority was willing to provide him the copy of the award of Contract they considered the Purchase Committee Recommendation to be an internal matter not to be shared with the public. Hence a decision to seek exemption from disclosure u/s 8 "on grounds of the information sought being with respect to commercial confidence, the disclosure of which would harm the competitive position of 3rd party".
Appellant Shri Shankar submitted that in fact in the bid of 2006 his was the lowest tender, but he was after some initial negotiations denied the contract which is why he was seeking the information.
DECISION NOTICE Under section 6 (2) it is not for the public authority to ask for the reasons for information being sought by any citizen of India. Shri Shankar 2 then, was within his rights to seek information. Moreover, respondents cannot plead exemption u/s 8 (1) (d) when there is, in fact, no ongoing competition and, therefore, no threat to the competitive position of a third party. Such are fit cases for public disclosure u/s 4 (1) (b) (xiii) and not a ground for refusing this disclosure u/s 4 (1) (b) (viii). The latter clause, in fact, demands "a statement of meetings of boards, councils, committees and other bodies"
open to the public and whether minutes of their meetings are accessible as such. It does not give a public authority the right to exempt information from disclosure which is possible only under section 8 (1) and section 9. In this case although plea of 3rd party has been taken, but this is only in view of competitive nature, not information held in confidence, which, at any rate would still warrant disclosure after recourse to Sec 11 (1). Under the circumstances the decision of Shri Siva Subramanian is set aside. The information sought by appellant Shri Shankar will be provided to him free of cost under section 7 (6), within fifteen working days of the date of this decision notice.
We notice that there has been a delay of eight days in responding to the initial application of appellant Shri Shankar. However, APIO has explained that, in fact the then CPIO Shri Prasantha Kumar had taken ill and was under bye-pass surgery. We consider this a reasonable cause for the marginal delay in response. Appellant Shri Shankar has also not pressed for penalty. Therefore, no penalty will lie in the present case.
The appeal is allowed. Announced in the hearing. Notice of this decision be given free of cost to the parties.
(Wajahat Habibullah) Chief Information Commissioner 7-8-2008 3 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 7-8-2008 4