RTI Judgement Series: PIO cannot deny information citing “commercial confidence”
Moneylife Digital Team 14 December 2012

Any agreement entered into by the government is an agreement deemed to have been entered into on behalf of the and in the interest of “We the people” and the PIO cannot deny this information to a citizen. This is the eleventh in a series of important judgements given by Shailesh Gandhi, former CIC that can be used or quoted in an RTI application

 
Under the Right to Information (RTI) Act, the Public Information Officer (PIO) cannot deny information citing commercial confidence for agreements between a public authority and private party. While giving this judgement, Shailesh Gandhi, former Central Information Commissioner said “The claim of 'commercial confidence' in denying access to agreements between private parties and the masters of the public authorities—citizens—runs counter to the principles of the Right to Information.
 
“Any agreement entered into by the government is an agreement deemed to have been entered into on behalf of the and in the interest of ‘We the people’. Hence if any citizen wants to know the contents of such an agreement he is in the position of a principal asking his agent to disclose to him the terms of the agreement entered into by the agent on behalf of the principal. No agent can refuse to disclose any such information to his principal,” the Central Information Commission (CIC) said in its order dated 27 July 2009.
 
Delhi resident Gita Dewan Verma, on 23 April 2007, sought information regarding agreement between the Government of National Capital Territory (NCT) Delhi and IL&FS Ecosmart, a consultant of the City Development Plan (CDP). Here are the points on which she sought the information from Additional Secretary (UD) of the Government of NCT Delhi...
 
1. Copy on CD of Delhi Govt's CDP, along with authentication letter and authorization for private publication.
2.  For each of the 102 individuals name in “List of Individuals invited for CDP workshop” at Annexure - 15.3 of the CDP, information related to decision to invite (including decision to prefer over others similarly qualified/ experienced / situated).
3. For each of those besides IL&FS who responded to CDP tender dt. 23/02/06 information relating to decision to involve/not involve in the consultation process described in Chapter 15 of CDP. 
4. List of all others named in the list of 102 invitees at Annexure- 15.3 besides Centre for Civil society (whose director is named at no. 65) who have given copies of CDP with and without publication authorizations.
5. Particulars (date, number, from, to , subject) / copies of the following:
a) Letter commissioning CDP to IL&FS Ecosmart Ltd.
b) Letter by which IL&FS submitted final CDP to Urban Development Dept.
c) Letter /OM by which Dept submitted the CDP for State Govt. approval.
d) resolution/OM by which State Govt. approved the CDP.
e) Letter by which State Govt submitted the CDP to GOI
6. Particulars of official publication of CDP.
 
The PIO said the CDP of the Delhi government is also available on the website of the department and hence is not advisable for private publication. Regarding points 2, 3 and 4, he stated that “Is regarding inviting individuals for consultation workshop was organized by IL&FS Ecosmart Ltd as a part of the preparation of CDP. The firm was free to select the individuals for the workshop. It may be one of the reasons for not inviting you that the firm was unknown about you.”
 
The First Appellate Authority (FAA), disposed off Ms Verma’s appeal saying that “After going through the records of the case and appeal of the appellant, I am of the opinion that nothing more could have been provided to the appellant than what has already been informed to appellant vide letter dated 22 June 2007. In view of the above, Appeal stands disposed off.”
 
She then filed second appeal with the Commission. During a hearing on 14 November 2008, the Commission identified key issues in the appeal and gave its interim order. Here are the issues and interim orders given by Mr Gandhi...
 
(a) Does the agreement between GNCTD and CDP Consultant come under S.8(1)(d) or could it have been given with the Work Order (based on/in continuation of the Agreement) for complete reply to my request no. 5a (“Letter commissioning CDP to IL&FS Ecosmart Ltd”)?
 
CIC: The Commission asked the respondent to justify how Section 8(1)(d) would apply to the agreement between GNCTD & CDP Consultants. The respondent stated that agreements are matters where commercial information of the consultant is shared. The Commission asked the respondent to give a note giving its arguments in support of using this exemption. The Commission did not see this exemption as very obvious as made out by the respondent. Besides the respondent has not given any reasoning as to how Section 8(1)(d) applies in this case. 
 
(b) Do CDP Consultants’ submissions for various stages of payment come under S.8(1)(d) or could copies/particulars have been given in reply to my request no.5b (“Letter by which IL&FS submitted final CDP”)?
 
CIC: The appellant seeks to know if there were covering letters attached to various submissions. The Commission has asked the PIO to supply the covering letters accompanied with any of the submissions. In case there are no covering letters with some of the submissions this will be stated categorically. 
 
(c) Does information about “State Level Steering Committee” and its procedures (whereby notice for its meeting is channel of submission and its 'endorsement' in unconfirmed minutes is approval) come under S.4(1)(b) and should it have been given for complete reply to my request nos.5c, d&e (records of submission and approval of CDP)?
 
CIC: The PIO has been asked to give the information to the appellant whether there is any written procedure for the State Level Steering Committee. If there is no such procedure the PIO will state this clearly. 
 
(d) Was GNCTD obliged to obtain under S.2(f) and supply on my requests nos.2 & 3 information "for  each of" who were consulted or submitted EOI/myself rather than general remarks about all, as given?
 
CIC: The PIO has been asked to send the letter to IL&FS asking if there was any written down criteria by which participants were selected or rejected for the work shop and provide the answer to the appellant. 
 
(e) Is supply of CDP on CD “subject to condition” of no publication (to me) same “without publication authorization” (to Centre for Civil Society, on website of which CDP is published and which has also distributed further copies on CD) and, if CDP copyright “is with the government”, ought copy on CD to have been refused (to all) under Section 8(1)(d)?
 
CIC: The appellant’s query insisting that the PIO must give a reply authorising her to publish the CD given to her cannot be considered as a request for information as defined under the Act. The appellant is actually seeking a decision from the PIO and the way she has worded it cannot be construed as seeking information under the Act. 
 
Following the order, the PIO provided information on points b, c and d while claiming exemption for point a under Section 8(1)(d). The PIO stated “...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 that larger public interest warrants the disclosure of such information”.
 
He further contended that IL&FS Ecosmart was bound of confidentiality that it shall not at anytime, without the consent of the government, disclose or divulge or make public any information regarding the city development plans prepared by it as one of the terms of the reference. Therefore, as a gesture of reciprocity, the Urban Development Department also considered itself morally bound not to divulge any information on the agreement, which may harm the interest of the consultancy firm, he added.
 
However the Commission was of the view that the stand taken by the respondent is not tenable in law. “The objectives of the RTI Act would be defeated if public authorities claim exemption based on a claim that ‘terms and condition were much more favourable to the government’, and therefore these must be kept away from the Public. In fact public feels that quite often the contrary is the case,” the Commission noted.
 
Mr Gandhi said, “Any so called imaginary moral or reciprocal obligation cannot be permitted to subvert a solemn constitutional and legal obligation.”
 
The Commission directed the PIO to provide copy of the agreement between GNCTD and CDP Consultant to Ms Verma before 15 February 2009.
 
CENTRAL INFORMATION COMMISSION
 
Decision No. CIC /WB/A/2007/00830/SG/ 1286
 
Appeal No. CIC/WB/A/2007/00830
 
 
Appellant                                     :  Gita Dewan Verma
                                                                New Delhi-110070
 
Respondent                                : Additional Secretary (UD)
                                                               Govt. of NCT Delhi
                                                               10th Level, Delhi Sachivalaya, 
                                                               I.P. Estate, New Delhi-110002
 

 

Comments
Ashok Das
10 years ago
Respected Sir / Madam,

While the particular case has its own specific features, I feel that the statement

'Any agreement entered into by the government is an agreement deemed to have been entered into on behalf of the and in the interest of “We the people” and the PIO cannot deny this information to a citizen.'

is too general a statement as many agreements contain intellectual property, trade secrets, etc., that may not be disclosed under the RTI Act. Please note that such issues are mentioned later in the text. While it is true that All agreements cannot be withheld under RTI Act by citing 'commercial confidence', there are indeed provisions in which many agreements cannot be divulged for reasons spelt out in the RTI Act itself. For example, if ISRO / Ministry of Earth Sciences has a project agreement with another company to develop certain technology which it funds the and details of the problem and plans, designs, etc are there in the agreement,which form intellectual property, trade secrets, etc., can they not be withheld under RTI Act? Then there is scope of loss of valuable intellectual property!! I would therefore request Money Life to make sure that this is clarified or else RTI applicants will cite this in wrong places and then get confused when refused information with a proper reason by some other CIC.

Thanks and Regards
MDT
Replied to Ashok Das comment 10 years ago
Thanks Mr Das for your comment.
Section 8 (1) (d) of the RTI Act, 2005 states:

“ 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 that larger public interest warrants the disclosure of such information;”

Using the same, the PIO had contented that there is no obligation to give any citizen an information, the disclosure of which could harm the competitive position of a competitor. This was ruled out by the Commission.

Here is what the Commission noted (You would find it in the order as well)...

"The PIOs contention that ‘If such terms are made public, the firm may be put at disadvantage in negotiating the terms in the matter of any other similar job for which it may be competitor in future.’ is not supported by any reasoning. If the terms are not in the interests of the Public good, this argument could well be used to hide corrupt dealings and agreements which are against Public interest. Even if we take the argument that some very favourable terms have been obtained by the Public authority, there certainly is a larger Public interest in disclosing these, so that the Public authority could get such favourable terms from others as well. The objective of the RTI act is to promote transparency and accountability and contain corruption. The objectives of the Act would be defeated if Public authorities claim exemption based on a claim that ‘terms and condition were much more favourable to the Government’, and therefore these must be kept away from the Public. In fact Public feels that quite often the contrary is the case. Citizens own the Government and all information belongs to them. The claim of ‘commercial confidence’ in denying access to agreements between private parties and the masters of the Public authorities,- Citizens, - runs counter to the principles of the Right to Information."

Hope this clarifies your doubt.

Moneylife Team
Ashok Das
Replied to MDT comment 10 years ago
Thank you Sir / Madam for your immediate response. The above case is well understood. I have a doubt on the general impression conveyed in the headings. Does

'Any agreement entered into by the government is an agreement deemed to have been entered into on behalf of the and in the interest of “We the people” and the PIO cannot deny this information to a citizen.'

mean any and every kind of agreement and supercedes Section 8(1) d of RTI Act 2005?


Kindly consider the situation where there is a design project agreement between say ISRO and another organization (public or private). This consists of developing or implementing a unique indigenous technology the concept and details of which is enshrined in the agreement and which if made public under RTI prior to securing formal rights (or retaining them as trade secrets), would potentially lead to loss of IPR for one or both parties of the agreement.

Please let us know if this also falls in the category of rights of 'We the people' as mentioned earlier and must be provided under RTI and whether there are any specific cases to support this?

Thank you again,
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