Central Information Commission
Aasif Khan vs Agricultural And Processed Food ... on 27 July, 2022
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
Files No. : CIC/APPEA/A/2021/137736 +
CIC/APPEA/A/2021/141548 +
CIC/APPEA/A/2021/141550 +
CIC/APPEA/A/2021/141551 +
CIC/APPEA/A/2021/152771 +
CIC/APPEA/A/2021/152772
Asif Khan ......अपीलकता /Appellant
VERSUS
बनाम
CPIO,
Agricultural and Processes,
Food Products Export Development
Authority, RTI CELL, NCUI Building 3,
Siri Institutional Area, August Kranti
Marg, New Delhi - 110016. .... ितवादीगण /Respondent
Date of Hearing : 25/07/2022
Date of Decision : 25/07/2022
INFORMATION COMMISSIONER : Saroj Punhani
Note- The above mentioned Appeal(s) have been clubbed together for the sake
of brevity and decision as these as based on identical queries raised in RTI
Application(s).
Relevant facts emerging from appeals:
S.No File No. RTI CPIO First Appeal FAA Order Second
Applications replied on filed on dated Appeal filed
filed on on
1. 137736 06.03.2021 12.04.2021 24.04.2021 Not on 26.08.2021
1
record
2. 141548 16.01.2021 18.02.2021 05.03.2021 12.04.2021 27.09.2021
3. 141549 16.01.2021 18.02.2021 05.03.2021 12.04.2021 27.09.2021
4. 141551 16.01.2021 18.02.2021 05.03.2021 12.04.2021 27.09.2021
5. 141550 16.01.2021 18.02.2021 05.03.2021 12.04.2021 27.09.2021
6. 152771 04.08.2021 07.09.2021 13.09.2021 10.11.2021 01.12.2021
7. 152772 18.03.2021 22.04.2021 11.10.2021 12.11.2021 01.12.2021
CIC/APPEA/A/2021/137736
Information sought:
The Appellant filed an RTI application dated 06.03.2021 seeking the following information:
The CPIO replied to the appellant on 12.04.2021 which is as under:-
"Response 1. The procedures/farmers of organic cotton are certified by the Certification Bodies accredited under National Programme for Organic Production (NPOP). Organic farmers are facilitated by mandators who can be an exporter. Therefore, the information on the producer/farmer sought has the potential to affect the commercial interest and competitive position. Further, certification of any organic farmer/operator is given by an accredited Certification Body (CB) under NPOP and this information in the domain of the Certification Bodies.
Response 2. The Certification is granted by Certification Bodies accredited under NPOP. The list of accredited Certification Bodies along with their contact details and accreditation details are available on APEDA website, www.apeda gov.in under icon NPOP/ Accredited insection & Certification agencies."
Being dissatisfied, the appellant filed a First Appeal dated 24.04.2021. FAA's order, if any, is not available on record.2
CIC/APPEA/A/2021/141548 Information sought:
The Appellant filed an RTI application dated 16.01.2021 seeking the following information:
The CPIO replied to the appellant on 18.02.2021 which is as under:-
"Points no. 1 & 2 :- As the matter pertains to the information related to different Certification Bodies accredited under NPOP which is a third party information, the details cannot be provided under Section 8 (1) (d) of the RT I Act, 2005. There is no export of organic cotton during 2016-20 under NPOP. However, during 2015-16, 96 MT of organic cotton was exported under NPOP."
Being dissatisfied, the appellant filed a First Appeal dated 05.03.2021. FAA's order dated 12.04.2021 held as under :
"Section 8 (1) (d) of the RTI Act 2005 states that "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 nut larger public interest warrants the disclosure of such information Under section 11 of the Act, the cplo/plo may invite the third party to make 3 submission in writing or orally, regarding whether the information should be disclosed, and suth submission of the third party shall be kept in view while taking a decision about disclosure of information' It is observed that the PLO has invited for comments of the third party to be considered in the light of provisions of the RTI Act in the matter before providing any information sought by you' Therefore, I have directed the PLO to examine and take a decision in the matter and communicate the same to you. directed the CPIO to examine and take a 3 decision in the matter by taking consent of the third parties under Section 11 of the RTI Act and communicate the same to the Appellant."
CIC/APPEA/A/2021/141549 Information sought:
The Appellant filed an RTI application dated 16.01.2021 seeking the following information:
The CPIO replied to the appellant on 18.02.2021 as under:-
"Point no. 1 - The processing of organic cotton has not been covered under NPOP till March 2020.
Point no. 2 - As per NPOP, APEDA does not issue certificate or Transaction Certificate to any companies. The certificates are issued by accredited Certification Bodies.
As the matter pertains to the information related to different Certification Bodies accredited under NPOP which is a third party information, the details cannot be provided under Section 8 (1) (d) of the RTI Act, 2005."
Being dissatisfied, the appellant filed a First Appeal dated 05.03.2021. FAA's order dated 12.04.2021 directed the CPIO to examine and take a decision in the matter by taking consent of the third parties under Section 11 of the RTI Act and communicate the same to the Appellant.
CIC/APPEA/A/2021/141550 Information sought:
The Appellant filed an RTI application dated 16.01.2021 seeking the following information:4
The CPIO replied on 18.02.2021 stating as under -
"As the matter pertains to the information related to different Certification Bodies accredited under NPOP which is a third party information, the details cannot be provided under Section 8(1)(d) of the RTI Act, 2005."
CIC/APPEA/A/2021/141551 Information sought:
The Appellant filed an RTI application dated 16.01.2021 seeking the following information:
The CPIO replied on 18.2.2021 stating as under -
"As the matter pertains to the information related to different Certification Bodies accredited under NPOP which is a third party information, the details cannot be provided under Section 8(1)(d) of the RTI Act, 2005."
In case no. CIC/APPEA/A/2021/141550 + CIC/APPEA/A/2021/141551 -
Being dissatisfied, the appellant filed a First Appeal(s) dated 05.03.2021. FAA's order dated 12.04.2021 directed the CPIO to examine and take a decision in the matter by taking consent of the third parties under Section 11 of RTI Act and communicate the same to the Appellant.5
CIC/APPEA/A/2021/152771 Information sought:
The Appellant filed an RTI application dated 04.08.2021 seeking the following information:
The CPIO replied to the appellant on 07/09/2021 stating as follows -
"...The scope of National Programme for Organic Production (NPOP) covers certification of raw cotton which is an agricultural product. The export of processed organic cotton is not under the mandate of NPOP. The processed form of organic cotton is exported under private certification."
Being dissatisfied, the appellant filed a First Appeal dated 13.09.2021. FAA's order dated 10.11.2021, upheld the reply of CPIO and further held as under -
"..As informed by the PlO, the National Programme for organic Production (NPoP) covers only raw cotton produced at farm level which is an agricultural produce and raw cotton is not exported. The export of processed cotton such as yarn, fabric, etc. is under private certification like Global organic Textile Standards (GOTS). Therefore, the information sought is not available with NPOP/APEDA."
CIC/APPEA/A/2021/152772 Information sought:
The Appellant filed an RTI application dated 18.03.2021 seeking the following information:6
The CPIO replied to the appellant on 22.04.2021 stating as under "The information sought pertains to particular operato2 Which is a third party"
Being dissatisfied, the appellant filed a First Appeal dated 11.10.2021. FAA's order dated 12.11.2021, upheld the reply of CPIO and also invited attention of the Appellant towards the specific hyperlink where from the details of operators certified by each certification bodies can be accessed.
Feeling aggrieved and dissatisfied, the appellant approached the Commission with the instant set of Second Appeal (s) on the ground of non-receipt of complete desired information.
Relevant Facts emerging during Hearing:
The following were present:-
Appellant: Present through video-conference.
Respondent: Reeba Abraham, AGM & CPIO along with Advocate K. K. Pandya, Representative of FairCert Certification Services Private Limited & Others (Third Party) present through intra-video conference.
The Appellant while narrating the factual background expressed his grievance regarding issuance of alleged bogus certificates to 15 companies by the Respondent organization for production and export of organic cotton yarn and related products. He further harped on the fact that upon inspection of the farmer's production site he came to know that such companies are not engaged in the production of organic cotton and also being a press reporter; it had come to his notice that countries like Bangladesh had lodged a complaint regarding the quality of such exports. He further stated that as an informed citizen; he has sought for lists and other related details of such companies and producers engaged in such activity, however he is aggrieved by the fact that in response to 7 each of his RTI Application , the CPIO has denied the information under the garb of Section 8 (1)(d) of RTI Act. He further added that once the documents are submitted by the third party farmers/firms/companies for such certification with APPEDA then the veil of Section 8 (1)(d) is not at all applicable and such records should be made public by the Respondent organization in order to probe transparency in the system. Lastly, the Appellant prayed the Commission to direct the CPIO to provide the desired information.
The CPIO submitted that the RTI Applicant sought the name of traders/companies/organizations who are involved in export of organic cotton in the form of yarn, bales, and textile. The export of organic products such as yarn, bales, and textile are not through NPOP certification. Such products are exported under private certification which is not monitored by APEDA or Ministry of Commerce. The RTI application was received as hard copy at APEDA on 10.08.2021 and response was sent on 07.09.2021.
At the Commission's instance, the CPIO explained in great detail the process of certification of such companies through a three tier system wherein multiple private certification firms play a vital role. She also emphasized upon the role and functioning of APEDA as a controlling authority which conducts inspection through surprise checks at the production sites of certified companies/farmers, carry out audit and based on the findings , show cause proceedings against the defaulting parties are processed which breach the extant norms.
The CPIO furthermore explained each case in detail by inviting attention of the bench towards their latest written submission, relevant portion of which is summarized below :
In case no. CIC/APPEA/A/2021/141548:
As regards the information about the 15 companies is concerned, the position is - "1. GOTS has intimated APEDA about the certificates issued by various certification Bodies. The matter was examined by APEDA and clarification was sought from the respective Certification Bodies. The certification bodies responded that the certificates were not issued by them.
2. Organic cotton is not exported from India under NPOP since 2016 till date"
In case no. CIC/APPEA/A/2021/141549:
8" 1. The accreditation under National Programme for Organic Production (NPOP) is granted to Certification Bodies for certification of operators including producers. The Certification Bodies register the operators, conduct inspection and issue certificate to the operators. The Certification Bodies follow 3rd party certification
2. The Transaction Certificates are issued by the Certification Bodies and not by APEDA
3. In line with the global requirements and also based on the recognition agreements signed with India by the importing countries such as European Union and Switzerland, APEDA as Secretariat of NPOP and follows ISO 17011. As per ISO, the documents pertaining to the accreditation granted to a Certification Body is confidential. As per ISO 8.1.1, all the information obtained during accreditation process is considered as proprietary information and regarded as confidential.
4. For issuance of scope certificate, the documents are submitted by the operator to the Certification Body. The operator files are maintained by the Certification Bodies, However, as part of surveillance mechanism, the documents are randomly verified by APEDA/Evaluation Committee and if non compliances are identified, disciplinary measures are taken against the Certification Bodies by the National Accreditation Body (NAB).
5. The Certification Body to whom the RTI application was forwarded has refused on the grounds of commercial confidentiality and breach of certification contract signed with the operators."
In cases no. CIC/APPEA/A/2021/141550 and CIC/APPEA/A/2021/141551 -
" As regards to the information about the 15 companies,
1. GOTS has intimated APEDA about the certificates issued by various Certification Bodies.
The matter was examined by APEDA and clarification was sought from the respective Certification Bodies. The certification bodies responded that the certificates were not issued by them."
In case no. CIC/APPEA/A/2021/152772 :
"The RTI Applicant sought the name of traders/companies/organizations who are involved in export of organic cotton in the form of yarn, bales, and textile. The export of organic products such as yarn, bales, and textile is not through NPOP certification. Such products are exported under private certification which is not monitored by APEDA or Ministry of Commerce".9
The RTI application was received as hard copy at APEDA on 10.08.2021 and response was sent on 07.09.2021."
The CPIO added that the information sought for related to the registered operators/traders/of cotton and suppliers are available with respective Certification Bodies. The information sought by the RTI applicant was already available on APEDA website for which the website details were provided to the applicant. However, as the applicant has sought hard copy of the list in the second appeal, the same will be produced.
The Commission remarked that the representative of FairCert Certification Services Private Limited & Others (Third Party) has submitted a written submission and his Advocate invited attention of the bench towards their written submission dated 24.07.2022, relevant portion of which is reproduced below in verbatim -
" ...Being a Third party we are strongly objecting to the disclosure of the information to the appellant.
2. I reiterated that, we have not received any papers / complaint ( Appeal ) copy of the aforesaid complaint. It is further submitted that as per section 11 of the RTI Act, 2015 which provides that section 11
11. Third party information.
xxxxx.
As per aforesaid section , it is mandatory for the RTI authority to give written notice within 5 days from the receipt of the request to third party and invite third party to make a submission in writing or orally regarding whether the information should be disclosed . It is further clarified in the said sub - section 2 that 10 days time period is required to be given to from the date of receipt of such notice , to make representation against the proposed disclosure .
In the instant case FairCert Certification Services Private Limited- third party herein has not received any statutory notice from the authorized officer under RTI Act. It is further clarify that to the utter shock and surprise , I have received only an E - mail sent by Opponent No.1 wherein only 3 days' time given to prepare our defence and represent the caservice before this Hon'ble commission and that too without providing copy of appeal and annexures annexed thereto principles of natural justice .
10General Grounds of Reply / Objections :
3. At the outset I deny and dispute all the averments and allegations made against the opponent in the memo of complaint / Appeal and do not admit any of the contentions unless specifically admitted herein.
4. I state that the present Appeal is based on conjecture and surmises and therefore the complaint is required to be dismissed in toto.
5. In case of Reliance Industries Limited Vs. Gujarat State Information Commission Air 2007 Guj 203 held that Information relating to third party cannot be furnished.
6. That the Complainant has not come with clean hand before this Hon'ble Commission and has suppressed the material facts from this Hon'ble Commission. I further say that documents sought by the complainant / Appellant from Third party, basing its premise on false and concocted facts with a mala fide intent to extract unlawful gains.
7. It is pertinent to note here that since the Right to information Act is constituted to empower the citizens, promote transparency and accountability in the working of the Public authorities. In the present matter, the complainant has misused the aforesaid social legislation knowing the fact that he has no case at all. In Canara Bank Vs. The central Information Commission AIR 2007 Ker 225 it was held that the information mentioned in section 8 (1) (j) is personal information which are so intimately private in nature that the disclosure of the same would not benefit any other person , but would result in the invasion of the privacy of that person . I say that information sought under present appeal is private in nature which is only for harassing the third party without having no public interest. It is the settled position of law that without showing strictest proof, exempted information should not be given
9. I further say that a person who does not come to the court / forum / commission with clean hands is not entitled to be heard on the merits of his grievance. In the instance case present complainant has filed present appeal with malice intention. In fact present complainant is charged under section 147, 294,353,506 and section 3 (2) (v) of Schedule Tribes (prevention of Atrocities) Act, 1989. I further clarify that present complainant i.e. Asif khan is accused under FIR no. 0679 of 2021, filed in Khargaon Thana. Thus , only on this ground such person is not entitled to any relief .
As per Hon'ble supreme court's decision it was held that RTI being used for Criminal Intimidation ' and there should be some filters . Person who are in no way connected to an issue File RTI pleas , sometimes it amounts to criminal intimidation which is a nice word of blackmail . Copy of the FIR No. 0679 of 2021 , is annexed hereto and marked as ANNEXURE - R - 2 11
10. I state that in the instant appeal, information are sought by complainant is "
Third party " personal details and there is no larger public interest involve. Thus, being a personal information section 8 (1) (j) of RTI Act , 2005 would attract . Bare provision of section 8 (1) (j) are as follow:
xxxx Examination of section 8 (1) (j) shows that it consists of three parts. First two parts stipulates that personal information which has no relationship with any public activity or interest need not be disclosed. The second part states that any information which should cause unwarranted invasion of a privacy of an individual should not be disclosed unless third part is satisfied.
The third part stipulates that information which causes unwarranted invasion of privacy of an individual will not be disclosed unless public information officer or the appellate authority is satisfied that larger public interest justifies disclosure of such information.
As observed by Justice S. Ravindra Bhat in CPIO , Supreme Court of India , New Delhi v Subhash Chandra Agarwal that the third part of section 8 (1) (j) reconciles two legal interests protected by law i.e. right to access information in possession of the public authorities and the right to privacy . Both rights are not absolute or complete. In case of a clash, larger public interest is the determinative test. Public interest element sweeps through section 8 (1) (j) . Unwarranted invasion of privacy of any individual is protected in public interest , but gives way when larger public interest warrants disclosure . This necessarily has to be done on case to case basis taking into consideration many factors having regard to the circumstances of each case .
11. That in the instant case , appellant did not show before lower authority as to how he is affected in the matter or what is the larger public interest in disclosure of information relating company's agreement , license and etc. I further say that reading of the various judgments of the commission and the courts elucidate that the clause (j) of sub - section (1) of section 8 the onus to convince the officer that there is greater public interest involved lies on the appellant and he cannot claim it as matter of right . Since the information's sought are not related to public or national interest and is more closely related to personal interest of the RTI applicant . I further say that may be sharing of the requested information will affect the commercial confidentiality of the FairCert and breach certification contract signed with operators. Copy of the Sample agreements signed by FairCert Certification Services Private Limited , is annexed hereto and marked as ANNEXURE - R - 3 . It is further submitted being a private company , we have signed privacy clause with operators / customers and as per the said clause of agreement we are not low to 12 disclose any business or personal related information to any person . In case information is disclosed , it will be amount to breach of confidential clause of agreement.
12. The information of the appellant comes within commercial confidence and trade secret and cannot be directed to be disclosed . In Rajender K. Ramchandani Vs. Bsnl Kalyan CIC/ AD /A/ 5 / 61 it was held that if the disclosure would harm the competitive position of the company and there is no compelling public interest in requesting for such information , the denial of information is proper . In another case of Rajender Singh Bhati Vs. Indian oil Corporation Ltd. CIC/ MA / A / 2007 / 909 it decided that denial of such information is justified, which will affect competitiveness in conduct of business.
13. ... I further clarify that every information of trade or commercial activities of third party available with a public authority is ' third party ' information. While dealing with such kind of application trade and commercial secrets protected by law, protection of the violation of privacy of individuals and public interest outweighing the harm to the interests of the third party. 14. With regards to the facts and circumstances stated hereinabove the opponent - Third Party submits that there is no merit in the Appeal and the complainant / Appellant is not entitled to get any of the reliefs ( documents ) prayed in the complaint / Application . The opponent Third party states and submits that the Appeal may, therefore , kindly be dismissed in limine with costs...."
Decision:
The Commission upon a perusal of records and after hearing submissions of all the parties at length is of the considered view that the replies of the CPIO supplemented with further clarifications tendered by her through recent written submissions as also during the hearing ; are in consonance with the provisions of RTI Act.
In view of the above, no further intervention is warranted in the matters and submissions of CPIO are upheld.
However, in the interest of justice, the CPIO is directed to share a copy of their written submissions, free of cost with the Appellant within 2 days from the date of receipt of this order under due intimation to the Commission.13
Further, the Commission empathizes with the concerns of the Appellant and advises him to pursue his grievance regarding the alleged bogus certification of 15 companies through appropriate administrative mechanism.
The appeal(s) are disposed of accordingly.
Saroj Punhani (सरोजपुनहािन) हािन) Information Commissioner (सूचनाआयु ) Authenticated true copy (अिभ मािणत स#यािपत ित) (C.A. Joseph) Dy. Registrar 011-26179548/ [email protected] सी. ए. जोसेफ, उप-पंजीयक दनांक / 14