Central Information Commission
Deepak Bharatsingh Dixit vs Western Coalfileds Limited on 18 June, 2021
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/WCLTD/A/2019/143024
Deepak Bharatsingh Dixit ....अपीलकता /Appellant
VERSUS
बनाम
CPIO,
Western Coalfields Limited,
RTI Cell, Coal Estate, Civil Lines,
Nagpur - 440001. .... ितवादीगण /Respondent
Date of Hearing : 04/06/2021
Date of Decision : 17/06/2021
INFORMATION COMMISSIONER : Saroj Punhani
Relevant facts emerging from appeal:
RTI application filed on : 15/06/2019
CPIO replied on : 29/06/2019
First appeal filed on : 08/07/2019
First Appellate Authority's order : Not on record
2nd Appeal/Complaint dated : 28/08/2019
1
Information sought:
The Appellant filed an RTI application dated 15.06.2019 seeking information as follows;
The CPIO replied to the appellant on 29.06.2019 stating as follows:-
".........Shri Dixit has sought information pertaining to M/s. Mangalam Cement Ltd, Kota, Rajasthan under RTI Act, 2005. The information sought by RTI applicant is relating to third party information and cannot be given without consent of Third Party. A letter is sent to M/s. Mangalam Cement Ltd for getting their No Objection for sharing the desired information. The information will be shared with RTI applicant, only after receipt of NOC from Third party."
Being dissatisfied, the appellant filed a First Appeal dated 08.07.2019. FAA's order, if any, is not available on record.
Feeling aggrieved and dissatisfied with the non- receipt of desired information, appellant approached the Commission with the instant Second Appeal.
Relevant Facts emerging during Hearing:
The following were present:-
Appellant: Present through audio-conference.
Respondent: A.K. Sinha, Chief Manager (Personnel) & CPIO present through audio-conference.
The Appellant stated that he is aggrieved that despite the fact that the information sought for by him is a public document and does not involve any individual's privacy, it has been denied to him by the CPIO as being third party information.2
The CPIO submitted that since the information pertained to a third party viz. M/s. Mangalam Cement Ltd., hence a letter was sent to them to seek their comments with regard to the disclosure of the information and intimation of the same was provided to the Appellant in response to the RTI Application. He further submitted that subsequently, on 31.10.2019, the said firm conveyed their dissent for the disclosure of the information and therefore the same was not provided to the Appellant.
Upon a query from the Commission, the CPIO explained that the information sought for concerns a commercial contract entered into by the third party with WCL.
Decision:
The Commission observes from a close scrutiny of the facts on record that the CPIO has grossly erred in not invoking any exemption clause of the RTI Act while denying the information to the Appellant. The mere claim of the CPIO that the information sought for cannot be provided because the third party has not consented to the disclosure is a rather deficient reply as it was incumbent upon the CPIO to have invoked at least one or more of the exemption clauses of Section 8 and/or 9 of the RTI Act for denying the information under RTI Act.
Now, the CPIO has neither claimed any of the exemption clauses of the RTI Act in the reply to the RTI Application nor did he invoke one during the hearing or justified the denial of information in a manner which may have corresponded to one of the exemption clauses of the RTI Act.
Moreover, it is pertinent to note that the averred firm in their response dated 31.10.2019 to the consent notice of the Respondent office has merely stated that
- "all requirement of FSA is being complied with your satisfaction and therefore it is requested you to please do not share any data which is related to us with any of the third party."
In other words, neither the Respondent office nor the concerned third-party firm has put forth any consideration on record for determining the applicability of the exemption clauses of the RTI Act for justifying the denial of the information.
3The other aspect of the instant case is the nature of the information that is being sought for, primarily at point no.1 of the RTI Application, i.e the Fuel Supply Agreement (FSA) which may be seen as an ancillary to a Power Purchase Agreement or vice versa, agreements of such nature are based on the Public Private Partnership (PPP) model followed by the Government and is a simpliciter contract agreement. A contract agreement entered into by a public authority at the expense of the public exchequer should ordinarily be available in the public domain.
In this regard, attention of the parties is drawn towards a full bench decision of the Commission in File No. CIC/AT/A/2009/000964 dated 03.09.2009 on the imperativeness of transparency in similar forms of contractual agreements; the operative portion of the averred decision is reproduced hereunder:
"17. The position taken by the respondents that the confidentiality arrangement they had entered into with the private entity as part of the PPP Agreement must be respected, the RTI Act notwithstanding, is entirely untenable. Any public document must stand the scrutiny of the RTI Act for a plea of confidentiality to be sustained.....
18. Planning Commission ⎯ which has a separate Department / Section dedicated to Public Private Partnerships and is known to have prepared the Model PPP Agreements for the Government ⎯ has categorically stated that any plea of confidentiality of those documents (PPP Agreements) was insubstantial and deserved to be rejected. Comptroller & Auditor General of India also advised the Commission that there was no room for confidentiality in matters such as PPP Agreements.
XXX
20....Such private parties frequently win the right to participate in the PPP Agreement in open competition, or are selected for their exclusive and extra-ordinary competence in specified areas of activity. In either case, it is necessary that there is complete transparency about whether the selection of the Private Partner by the Government was made correctly and carefully and, that all aspects of the issue ⎯ environmental, social and human included ⎯ were seriously considered by the Government in making the choice. A matter of such critical importance to the country cannot be negotiated and settled behind the back of its people. The third-party cannot 4 take recourse to the argument of its vital commercial and technical details being disclosed to its rivals for the simple reason that it is the consideration of these very details that won him the competitive bidding in the first place. It is important and crucial that the choice of the Private Partner by the Government is not cloaked in undue secrecy.
25....These Agreements would involve commitment of the Government's financial and physical resources. If PPPs were not the mode of project execution, the entire operation would then be conducted by the Government and would have been subject to the provisions of the RTI Act, and all information thereof would be disclosable. It would be vain to argue that functions which were earlier transparent when performed by Government exclusively, should become opaque now that these are to be performed through PPP. This will amount to reversal of transparency and would be antithetical to public interest.
26. It is, therefore, imperative that the PPP Agreements are made to embrace transparency rather than be kept cloaked in secrecy."
Now, adverting to the aforesaid ratio, even if 'confidentiality' is considered as the sole premise of the denial of the information in the instant case, fact remains that in a contractual agreement entered into by the Government, there is little room for advocating opacity vis-à-vis the provisions of the RTI Act.
Nonetheless, having due regard to the objection of the third-party firm, the Commission is constrained to ascribe a liberal interpretation to the contentions of the CPIO, and in doing so, Section 8(1)(d) of the RTI Act appears to be the only relevant exemption clause applicable in the facts of the instant case.
Yet, the said exemption clause does not have a square applicability when it concerns the disclosure of the contract agreement unless it contains such information disclosure of which may harm the competitive position of the third party.
As regards point no. 2 & 3 of the RTI Application, it is pertinent to note that the above extracted reply of the third-party firm to the consent notice of the CPIO only refers to the FSA (point no.1 of the RTI Application) but no mention 5 whatsoever has been made with respect to the information sought for in the remaining two points.
And, it will also not be out of place to emphasize here that the FAA in his order dated 18.11.2019 after having observed that the reply to the consent notice issued to the third-party firm has not been received goes on to direct the CPIO to provide the information sought for by the Appellant, which further raises a reasonable doubt that the summary denial of the information was perhaps not warranted.
Having considered the totality of circumstances and question of law in the preceding paras, the Commission directs the CPIO to provide a copy of the FSA as sought for at point no.1 of the RTI Application to the Appellant after redacting such information disclosure of which may harm the competitive position of the third party as per Section 8(1)(d) of the RTI Act such as inter alia any details of the financial infrastructure of the third-party firm and/or the technical specifications adopted by the said firm in the execution of the fuel supply agreement. The severance of the contents of the FSA, wherever required, will be carried out by the CPIO in consonance with the provision of Section 10 of the RTI Act.
Similarly, the CPIO is directed to provide the available and relevant information for points no.2 & 3 of the RTI Application after redacting such portions disclosure of which may harm the competitive position of the third party firm.
The information as directed above shall be provided to the Appellant free of cost (through a revised point-wise specific reply to the RTI Application) by the CPIO within 15 days from the date of receipt of this order under due intimation to the Commission.
The appeal is disposed of accordingly.
Saroj Punhani (सरोज पुनहािन) हािन) Information Commissioner (सूचना आयु ) 6 Authenticated true copy (अिभ मािणत स"यािपत ित) (C.A. Joseph) Dy. Registrar 011-26179548/ [email protected] सी. ए. जोसेफ, उप-पंजीयक दनांक / 7