CIC: the term “all” used by the Appellant is very vague and does not pin point the particular document she wants to obtain from the Respondents; appellant advised to be more specific and identify the documents she desires & make a de novo request to PIO
16 May, 2014ORDER
This matter was earlier heard on 03.02.2014 when the Commission had issued an interim order dated 03.02.2014, which is reproduced below: “The present appeal, filed by Ms. Sarika Jain against National Hydroelectric Power Corporation Limited, was taken up for hearing on 03.02.2014 when the Respondents were present through S.K. Dubey, CE, Shri S.C. Sharma, SM, Shri Deepak Kumar, DM (E&C) and Shri Manish Jain, DM(E). The Appellant was, however, not present. 2. The Appellant through an RTI application dated 13.12.2012 sought following information: “Copy of all documents, notesheets, minutes of meetings, bills & payment details available with NHPC, Faridabad for the contracts no. NH/Cont. (E&M)III/ RE32/ PR345/ 747/08/C758/ I and contracts No. NH/Cont. (E&M)III/ RE32/ PR345/ 747/08/CCIC/ 758/II awarded to M/s Genus Power Infrastructures Limited, Jaipur for Boudh (Orissa) project by NHPC.” 3. The CPIO vide his letter dated 23.01.2013 conveyed the reply given by the Contract (E&M)/deemed CPIO to the Appellant wherein the deemed CPIO had stated that the Appellant may be asked to specify the documents required by them. 4. In response, the Appellant wrote a letter dated 04.02.2013 to the CPIO clarifying her requirement for information. 5. The Appellant, however, did not receive any response either from the CPIO or the deemed CPIO and therefore she proceeded to file an appeal dated 14.03.2013 before the Appellate Authority. 6. The CPIO then vide his letter dated 19.03.2013 forwarded the reply dated 13.03.2013 of the deemed CPIO to the Appellant by which the deemed CPIO had declined the disclosure of information to the Appellant citing exemption under section 8(1)(d) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, 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; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, 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; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, 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; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, 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; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, 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; of the RTI Act. 7. The Appellate Authority also disposed of the Appellant’s appeal vide his order dated 29.04.2013 observing that “pointwise requisite information/reply” has already been provided to the Appellant by the CPIO. He enclosed copies of the CPIO’s replies dated 23.01.2013 and 19.03.2013 with his order. 8. The Appellant thereafter filed the present appeal before the Commission challenging the denial of information by the Respondents. 9. During the hearing, the Respondents inform the Commission that the award of contract, about which the information has been sought by the Appellant, was subsequently terminated by the public authority and that at present the matter is under arbitration. They, however, when asked, are not able to categorically state as to how the disclosure of information in question (upto the award of contract) would harm the competitive position of third party within the meaning of section 8(1)(d) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, 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; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, 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; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, 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; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, 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; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, 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; of the RTI Act. The reply of the CPIO too does not contain any justification for denial of information as required by the provisions of section 19(5) In any appeal proceedings, the onus to prove that a denial of a request was justified shall be on the Central Public Information Officer or State Public Information Officer, as the case may be, who denied the request. of the RTI Act. The Appellate Authority has also failed to examine this fact in first appeal stage and has simply forwarded copies of replies of the CPIO to the Appellant holding that information/reply has been given. 10. In view of the above, the Commission hereby directs the Appellate Authority to file a written submission before the Commission clearly mentioning therein: i) the documents sought by the Appellant as per her clarification letter dated 04.02.2013; ii) nature of these documents; and iii) the justification (for each document) as to how disclosure of them would harm the competitive position of third party as per section 8(1)(d) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, 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; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, 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; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, 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; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, 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; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, 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; of the RTI Act. The written submission should be submitted to the Commission within 3 weeks of receipt of this order. A copy of this written submission may also be sent to the Appellant for her to file rejoinder, if any. 11. The matter shall now be heard on March 25, 2014 at 1445 hrs. The Respondents are directed to appear before the Commission at its Court Room No. 306 on the scheduled date.”
2. Pursuant to the above direction, the Respondents filed their written submission dated 11.03.2014 before the Commission wherein they while explaining the nature of the documents sought for by the Appellant has also given justification for denial of the information under section 8(1)(d) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, 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; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, 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; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, 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; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, 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; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, 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; of the RTI Act, They have inter alia stated that the “documents sought also contain details of past experience of vendors, technical specification, Equipment Drawing, Guaranteed Technical Particular, which are of proprietary in nature of individual bidder and this information would harm their competitive position.” They further point out that tender documents of various bidders contained their financial details viz., Income tax details, turn over, financial capacity, commercial detail, technical particulars and drawings which if disclosed to third party would tantamount to disclosure of financial/commercial information, trade secret and intellectual property which would certainly harm the competitive position of the contractors with respect to other tenders. They have also taken the plea of section 7(9) An information shall ordinarily be provided in the form in which it is sought unless it would disproportionately divert the resources of the public authority or would be detrimental to the safety or preservation of the record in question. of the RTI Act claiming that information sought is voluminous in nature which runs into thousands of pages, compilation of which shall disproportionately divert the resources of the public authority. They have also mentioned that above two contracts were terminated and that the Contractor M/s Genus Power Infrastructure Ltd has gone for arbitration which is still current.
3. Thereafter as scheduled the matter was heard on 25.03.2014 in the presence of Shri S.K. Dubey, CE, Shri B.P. Rao, CE and Shri M Gurunath, CE. The Appellant was however not present.
4. Heard submissions.
5. The Commission notes that the information sought by the Appellant consists of four parts viz.,
1) copies of all documents in relation to the award of aforesaid contracts;
2) copies of note sheets;
3) copies of minutes of meeting; and
4) copies of bills & payment details.
6. As regards the first part i.e. copies of all documents in relation to the contracts mentioned in the RTI application, the Commission finds that the term “all” used by the Appellant here is very vague and does not pin point the particular document she wants to obtain from the Respondents. The Appellant is, therefore, advised to be more specific and identify the documents she wants to obtain from the Respondents and make a de novo request to the CPIO for the same, if she so desires. The Appellant may do so within 2 weeks from the date of receipt of this order, in which case the CPIO, within 2 weeks from the date of receipt of such request from the Appellant, shall furnish an appropriate reply to the Appellant as per the provisions of the RTI Act.
7. As for the second part i.e. copies of note sheets in relation to the award of aforesaid contracts, the Commission is of the view that this information can be disclosed to the Appellant by applying the doctrine of severability under section 10(1) Where a request for access to information is rejected on the ground that it is in relation to information which is exempt from disclosure, then, notwithstanding anything contained in this Act, access may be provided to that part of the record which does not contain any information which is exempt from disclosure under this Act and which can reasonably be severed from any part that contains exempt information. Where a request for access to information is rejected on the ground that it is in relation to information which is exempt from disclosure, then, notwithstanding anything contained in this Act, access may be provided to that part of the record which does not contain any information which is exempt from disclosure under this Act and which can reasonably be severed from any part that contains exempt information. Where a request for access to information is rejected on the ground that it is in relation to information which is exempt from disclosure, then, notwithstanding anything contained in this Act, access may be provided to that part of the record which does not contain any information which is exempt from disclosure under this Act and which can reasonably be severed from any part that contains exempt information. of the RTI Act. The CPIO is therefore directed to furnish the attested copy of note portion to the Appellant within 2 weeks of receipt of this order on payment of requisite fees. However, those parts of the note sheets which contain elements of commercial confidence and trade secret of third party and therefore cannot be disclosed under section 8(1)(d) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, 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; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, 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; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, 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; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, 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; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, 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; of the RTI Act can be severed under the provision of section 10(1) Where a request for access to information is rejected on the ground that it is in relation to information which is exempt from disclosure, then, notwithstanding anything contained in this Act, access may be provided to that part of the record which does not contain any information which is exempt from disclosure under this Act and which can reasonably be severed from any part that contains exempt information. Where a request for access to information is rejected on the ground that it is in relation to information which is exempt from disclosure, then, notwithstanding anything contained in this Act, access may be provided to that part of the record which does not contain any information which is exempt from disclosure under this Act and which can reasonably be severed from any part that contains exempt information. Where a request for access to information is rejected on the ground that it is in relation to information which is exempt from disclosure, then, notwithstanding anything contained in this Act, access may be provided to that part of the record which does not contain any information which is exempt from disclosure under this Act and which can reasonably be severed from any part that contains exempt information. of the RTI Act. Therefore there shall be no disclosure obligation on the Respondents with regard to this part of information.
8. As regards the third part i.e. copies of minutes of meeting, the Commission is not convinced of the Respondents plea that entire minutes of meeting consist of information related to commercial secret and trade secret of third party having potential to harm the competitive position of third party, if disclosed. Therefore the matter is hereby remanded back to the Appellate Authority with a direction that he shall examine this part of information de novo and pass a speaking order with respect to the same. If the Appellate Authority, after examination of the matter, is of the view that part information can be disclosed to the Appellant, he may disclose the same to the Appellant after invoking section 10(1) Where a request for access to information is rejected on the ground that it is in relation to information which is exempt from disclosure, then, notwithstanding anything contained in this Act, access may be provided to that part of the record which does not contain any information which is exempt from disclosure under this Act and which can reasonably be severed from any part that contains exempt information. Where a request for access to information is rejected on the ground that it is in relation to information which is exempt from disclosure, then, notwithstanding anything contained in this Act, access may be provided to that part of the record which does not contain any information which is exempt from disclosure under this Act and which can reasonably be severed from any part that contains exempt information. Where a request for access to information is rejected on the ground that it is in relation to information which is exempt from disclosure, then, notwithstanding anything contained in this Act, access may be provided to that part of the record which does not contain any information which is exempt from disclosure under this Act and which can reasonably be severed from any part that contains exempt information. of the RTI Act. The Appellate Authority should pass a speaking order with regard to this information within 4 weeks of receipt of this order.
9. As regards the fourth part i.e. copies of bills & payment details in respect of said tender, the Commission finds merit in the Respondents’ plea that this information runs into thousands of pages and that it would not be possible for them to provide it to the Appellant without disproportionately diverting the resources of the public authority. However, considering the Respondents’ suggestion made during the hearing that if the Appellant specifies the bills and payment details, and limits her requirement for information to a reasonable number of pages, they would be willing to provide the information to her. The Appellant is hereby advised to be specific and to limit her requirement for information to a reasonable number of pages and communicate the same to the CPIO, if she so desires. The Appellant may do so within 2 weeks from the date of receipt of this order, in which case the CPIO, within 2 weeks from the date of receipt of such request from the Appellant, as agreed, shall furnish the information to the Appellant on payment of requisite fees.
10. Appeal is disposed of accordingly.
(Sushma Singh)
Chief Information Commissioner
Citation: Ms. Sarika Jain v. National Hydroelectric Power Corporation Limited in Case No. CIC/SS/A/2013/002489