CIC: If public authorities, involved in commercial dealings & faced with litigation concerning contractual issues, are made to reveal their internal documents connected to the dispute, it would have the potential to harm their competitive position
This matter, pertaining to an RTI application dated 9.10.2013 filed by the Appellant, seeking information under eleven points concerning some general issues and some matters between the Respondents and M/s Nandan Petrochem Ltd. (NPL), came up today. The Appellant stated that he did not receive our notice for today’s hearing. On being asked whether he would like us to adjourn the matter, he replied in the negative and stated that the points made by him in his second appeal be taken into account while deciding it. He also stated that he has sought the information as a citizen and the Respondents as a public sector organization ought to provide it. However, they have failed to provide the complete information. He prayed for direction to the Respondents to provide information on all the points of the RTI application. In his second appeal, the Appellant had stated that being a citizen of India, he had every right under the RTI Act to seek information on all public issues with a view to protect the overall interest of the public. He also stated that the Respondents, a public sector company, invited tender for outsourcing Toll Blending and Filling of MAK Lubricants for a period of two years vide a tender floated in 2009. M/s Nandan Petrochem Ltd. (NPL) was the successful bidder and a letter of intent was issued to them on 23.6.2010. However, the Respondents failed to supply timely inputs to NPL during the contract period and as NPL could perform contractual obligations only to the extent of 30% and sustained heavy losses of Rs. 6.5 crores.
2. The Respondents submitted that the Appellant was not one of the bidders in the tender, in the context of which information has been sought in the RTI application. The matter, which is between them and M/s Nandan Petrochem Ltd. (NPL) has gone to arbitration and the arbitrator has held sixteen sittings. Therefore, some of the information sought by the Appellant was denied under Section 8 (1) (d) as it is a matter of commercial confidence for them.
3. We have considered the records and the submissions made by both the parties before us and would briefly deal with the points of the RTI application in response to which information was denied by the CPIO in his letter dated 28.10.2013, i.e. points No. 4, 5, 6, 8, 10 and 11 of the RTI application. The information on points No. 4, 5, 8 and 10 was denied on the ground that the queries of the Appellant were in the nature of seeking the opinion of the CPIO and did not fall within the ambit of information under Section 2 (f) of the RTI Act. It is seen that at point No. 4, the Appellant had not sought any specific information. Having perused points No. 5, 8 and 10 of the RTI application, we see no ground to interfere with the reply of the CPIO in these cases. At point No. 6, the Appellant had sought a copy of the inspection report on infrastructure carried out by BPCL authorities in respect of the successful bidder, viz. M/s Nandan Petrochem Ltd. (NPL). The information was denied by the CPIO under Section 8 (1) (h) on the ground that arbitration proceedings were in progress. At point No. 11, the information sought was regarding a copy of the internal note of the Respondents, indicating the basis / working of the new toll blending tender floated by them. The information was denied by the CPIO under Section 8 (1) (d) in this case. The Respondents reiterated that information on the above two points cannot be provided to the Appellant as they are in the midst of an arbitration with M/s Nandan Petrochem Ltd. (NPL). In the above context, we note that the matter before us concerns a contractual agreement between M/s Nandan Petrochem Ltd. (NPL) and the Respondents, who are being called upon to reveal copies of an inspection report and their internal note leading to the floating of the tender, even though the matter is under arbitration. Therefore, we are of the view that the Respondents should have the right to defend their interests. Such right cannot be denied to them simply because they are a public sector company and a public authority under the RTI Act. If public authorities, involved in commercial dealings and faced with litigation / arbitration concerning contractual issues, are made to reveal their internal documents connected to the contractual issues at dispute, it would have the potential to harm their competitive position, attracting Section 8 (1) (d) of the RTI Act which reads as follows:
“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;”
With reference to the expression “third party” in Section 8 (1) (d), we also note that Section 2 (n) of the RTI Act states: "third party” means a person other than the citizen making a request for information and includes a public authority.” The invocation of Section 8 (1) (h) by the Respondents in the case of point No. 6 was not justified. However, on account of the reasons mentioned above, the information sought, both at points No. 6 and 11, is exempted from disclosure under Section 8 (1) (d) of the RTI Act.
4. In view of the foregoing, we would refrain from directing disclosure of any further information to the Appellant in response to his RTI application dated 9.10.2013.
5. With the above observations, the appeal is disposed of.
6. Copies of this order be given free of cost to the parties.
Citation: Shri Jeevan W Deshmukh v. Bharat Petroleum Corporation Ltd., in File No. CIC/SH/A/2014/001140