Central Information Commission
Dr.Jyotsna Kapadia vs Ministry Of Health And Family Welfare on 3 August, 2010
Central Information Commission
CIC/AD/A/2010/000266
Dated August 3rd 2010
Name of the Applicant : Ms. Jyotsna Kapadia
Name of the Public Authority : National Institute of Occupational Health [NIOH]
Background
1. The Applicant filed an RTI application on 14.08.2009 with the CPIO, National Institute of Occupational Health (NIOH) seeking inspection of selected pages from laboratory notebook/logbook/file in respect of data reported in the "Final report of the investigation of unusual illnesses allegedly produced by Endosulfan exposure in Padre village of Kasargod district (N. Kerala)". The data sought by the Applicant included i) linearlity and range i.e. calibration curve, ii) recovery, iii) replicate sample determinations and precision, iv) limit of quantification and details of determination thereof, including replicate readings etc.
2. The PIO replied by the letter dated 18.09.2009, declining the RTI request on the ground that the information sought being Institute's intellectual property could not be supplied being exempt under Section 8 (1) (d) of the RTI Act 2005. The Respondent also placed reliance on CIC decision being CIC/AT/A/2008/00533 dated 22.10.2008. Being aggrieved by such outright denial of information, a First Appeal was filed by the Appellant on 07.10.2009. While reiterating the sequence of events leading to the Appeal, the Appellant contended that the report prepared after analysis of environmental and biological samples by NIOH scientists in order to determine levels of an insecticide Endosulfan, was erroneous. It was further alleged by the Appellant that the said report was lacking certain important parameters required to evaluate accuracy of the results. The Appellant has contended that the information could not have been denied as "intellectual property" since the information sought does not fall under any of the categories of Intellectual Property viz. Trademark, Patent, Industrial Design, Copyright or Geographical Indications. It was also argued that the information already existed in the public domain and therefore disclosing the same could not be a problem. The Appellant distinguished the case cited by the Respondent stating that the same did not apply to the instant case because the decision passed by the CIC in the Case No. CIC/AT/A/2008/00533 related to a Research Scheme whereas the instant case dealt with analysis carried out employing standard methods, final result whereof was already in the public domain.
3. The Appellate Authority while summarily rejecting the First Appeal and upholding the decision of the CPIO by its order dated 09.11.2009, held that the information as sought by the Appellant was exempt under Section 8 (1) (d), 8 (1) (e) and 8 (1) (j) of the RTI Act 2005. Being thus denied information repeatedly, the Appellant filed the instant Second Appeal before the Central Information Commission on 22.12.2009 reiterating the contents of his RTI application, First Appeal as well the denial/s by the Public Authority. The Appellant further placed reliance on some of the decisions of the CIC as passed in case no. CIC/MA/A/2006/00793 from which it has been deduced by the Appellant that a Government body, like the NIOH in this case is not involved in commercial trade activities and likewise the Section 8 (1)(d) of the RTI Act 2005 is not applicable in such cases. Furthermore, while citing the decision in the case of CIC/WB/A/2007/01675, it has been contended by the Appellant that all exemptions sought under Section 8 (1) need to be fully explained. Last but not the least the Appellant referred to the celebrated judgment of the Hon'ble High Court of Delhi in the case of Bhagat Singh versus CIC & Ors. while stating that even if it is assumed that a particular information falls within the meaning and ambit of Section 8 (1) (d) of the RTI Act 2005, public interest in disclosure of such information and promotion of fairness and transparency in the working of a Public Authority outweighed any personal interest. The hearing in this case was fixed for 05.05.2010 and the Commission issued notice dated 16.04.2010 to all the relevant parties.
4. The Bench of Mrs. Annapurna Dixit, Information Commissioner, heard the matter through video conferencing for 05 May, 2010.
5. Dr. P K Nag, Appellate Authority represented the Public Authority.
6. The Appellant was presented in person during the hearing.
Hearing
7. Both the parties submitted their oral contentions during the hearing reiterating their documentary submissions so far. In so far as treating the information as intellectual property is concerned, it can either be classified as Patent or Copyright to fall within the ambit of Section 9 of the RTI Act 2005. The nature of the information in the form of the Report however makes it amply evident that it can neither be treated as Patent nor Copyright. It was pointed out by the Appellant that a version of the said report had already been uploaded on the WHO website and therefore the report already existed in public domain. The Respondent submitted that another version of the report existed on a Stockholm website also, however contents of both the WHO and the Stockholm versions differed from the original version of the report, which had been submitted to the NHRC. The Respondent contended that the original version being prepared for NHRC has since been submitted on 24th July 2002 before the NHRC, in confidence. Accordingly, it was the considered opinion of the Commission that the feedback of the NHRC needs to be heard on the confidentiality aspect. The Commission therefore postponed the decision on the issue and fixed a hearing on 28.06.2010, summoning NHRC to make their submissions in writing by way of notice dated 20.05.2010.
8. The Bench of Mrs. Annapurna Dixit, Information Commissioner, heard the matter on 28 June, 2010.
9. Mr. Pramod Kumar Chotalal Yadav, CPIO & Scientist and Dr. P K Nag, Appellate Authority represented the Public Authority viz. NIOH.
10. The Appellant was presented in person during the hearing.
DECISION
11. Despite the notice dated 20.05.2010, the NHRC chose not to appear during the hearing. A written communication dated 10.06.2010 was received from the PIO, NHRC communicating that presence of NHRC representative on the date of hearing did not seem reasonable, cogent and convincing to them. Furthermore, the letter dated 10.06.2010 received from the office of the PIO, NHRC stated that in view of the fact that the instant case is similar to that of Sh. B Mallesham, which is sub judice before the High Court of Kerala it has been closed by the NHRC on 20.04.2005 and the case file weeded out. Thus the NHRC chose not to comment anymore in this case pointing out that there being no reference to NHRC's RTI unit in the appeal of Dr. Jyotsna Kapadia nor any record being available with the NHRC, they were unable to comment on the instant case.
12. Apart from this, the Appellant again sent further written communication dated 23.06.2010 including annexures informing the CIC of how the appeal is linked with thousands of lives and food security in the country. The Appellant discussed in detail as to how symptoms of iodine deficiency were wrongly being linked with Endosulfan holding that the said drug is carcinogenic. In this very context, the Appellant mentioned that organisations called PAN (Pesticide Action Network) and NRDC (Natural Resources Defense Council) had filed petitions with US EPA to ban Endosulfan. PAN had also submitted a document to Stockholm Convention Secretariat in order to influence the decision to impose global ban on Endosulfan. Since the NIOH report formed a supporting document in the petition of PAN, therefore checking contents of the said report was imperative to analyse the situation. The Respondent NIOH has not submitted any further argument to oppose the submissions of the Appellant.
13. Considering that the information sought is not barred by any particular provision of the RTI Act 2005 as discussed hereinabove in details, the only probable opposition could be raised by the Third Party viz. NHRC in this case. However, despite having been given an opportunity, the NHRC, in their submission did not mention about any confidentiality with respect to the said report. The information sought has been contended to be relevant and in fact pertinent in larger public interest and there seems to be no specific hindrance in the disclosure, as already discussed hereinabove. Therefore, the Commission is of the considered opinion that the information as sought by the Appellant should be provided to her by 30 th August 2010. A Report indicating compliance of this order be placed by the Respondent CPIO by 30th August 2010 before the Commission.
(Annapurna Dixit) Information Commissioner Authenticated true copy:
(G. Subramanian) Deputy Registrar Cc:
1. Dr. Jyotsna Kapadia 22, Kripa Sadan, Kasturba Cross Road, No. 9 Borivalli East, Mumbai
2. The PIO National Institute of Occupational Health WHO Collaboratice Centre for Occupational Health & IPCS Participating Institute PB No. 2031 Meghani Nagar, Ahmedabad
3. The Appellate Authority National Institute of Occupational Health WHO Collaboratice Centre for Occupational Health & IPCS Participating Institute PB No. 2031 Meghani Nagar, Ahmedabad
4. Officer in charge NIC
5. Press E Group, CIC