Copies of certain documents in connection with Regency Convention Centre & Hotels Pvt. Ltd., Mumbai were sought - CIC: It is a matter of internal confidential official communications which is well protected under the RTI Act & the Evidence Act, 1882
11 Nov, 2017ORDER
1. Shri Snehasish Mukherjee, the appellant, had sought copies of certain documents in connection with Regency Convention Centre & Hotels Pvt. Ltd., Mumbai (RCC), in respect of area measuring 31,000 sq. mts. of land situated at Village Sahar. The appellant sought the copies of entire file related to RCC; copies of file notes; copies of all internal legal notes/written view and all the legal opinions in respect of the said land; copies of correspondences in relation to the said land, exchanged between AAI, RCC and any other party/entity; etc., through seven points.
2. The Central Public Information Officer (CPIO) informed the appellant that the information sought by him was voluminous and the copies as required by him would be provided only after the appellant deposited a lump sum amount of Rs. 5000/- as per the RTI Rules, towards photocopying charges. The appellant was, therefore, advised to personally visit the office of the respondent authority to inspect the relevant files/records/documents, as available and as sought by the appellant and obtain the desired copies after deposit of requisite fees. Subsequently, the appellant approached the First Appellate Authority (FAA) stating that he had visited the office of the AAI on 15.3.2016 to deposit the requisite fees as stated by the CPIO in his reply. However, the DD was refused by the person sitting at the counter and the CPIO, in his letter dated 28.3.2016, denied information to the appellant u/s 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; of the RTI Act, 2005 and also since the matter was sub judice before the court. The appellant requested the FAA to direct the CPIO to provide the information as sought by the appellant in his RTI application. The FAA also upheld the decision of the CPIO. Not satisfied with the FAA’s response, the appellant came in appeal before the Commission with a request to direct the CPIO to furnish the information/documents which had been incorrectly denied to the appellant and which were already in public domain.
3. The matter was heard by the Commission. The appellant submitted that he did not receive the PIO’s reply dated 8.2.2016 initially and received the same only after he had sent a reminder to the PIO and therefore, there was delay in filing first appeal before the FAA. The appellant added that the PIO had initially asked to inspect the relevant records, as sought by the appellant and to obtain the desired documents after depositing a fees of Rs. 5000/- under the RTI Act, 2005. However, later when the appellant visited the office in pursuance of the CPIO’s reply, he was declined the information on the ground that the matter was sub judice before the Court and also the disclosure of the information sought was exempt u/s 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; . the appellant submitted that the CPIO, being a qualified person holding a position of responsibility had applied his mind in adjudicating upon the RTI application which gave the appellant a vested right to seek the information originally agreed to be given to him and the CPIO can’t approbate and reprobate. Moreover, the documents sought were submitted before the Court which became a part of public record and anyone from the general public could access and inspect the same and that there was no provision under the RTI Act, 2005, which stated that information could be denied to the information seeker by the CPIO merely on the ground that the matter was sub judice before the Court. He reiterated that the CPIO had taken a complete u-turn from his initial position where he had offered the document sought to the appellant.
4. The respondent stated that the Regency Convention Centre & Hotels Pvt. Ltd., Mumbai (RCC), had entered into a commercial contract with AAI for construction of Hotel at Chhatrapati Shivaji Airport, Mumbai. However, Letter of Intent (LOI) given to RCC by AAI to construct the Hotel was later withdrawn and RCC had filed suit against AAI for non-performance of agreement and therefore, the matter was sub judice before the Court. Further, all the documents including the entire file notings, legal opinion, as sought by the appellant, was related to RCC which included trade secret, commercial confidence, disclosure of which could harm the competitive position of third party and therefore, was exempt from disclosure u/s 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; of the RTI Act, 2005. The respondents added that the appellant was not a party to the case pending before the High Court and disclosure could have been made to third party only if the appellant could have established that larger public interest was involved in the matter. Later, on revising his decision, the CPIO concluded that the matter in the present case involved commercial confidence and trade secret and therefore, decision to deny disclosure of information to the appellant was arrived at.
5. On hearing both the parties and going through the available records, the Commission observes that the CPIO has appropriately responded in the matter and correctly denied information to the appellant, who was not a party to the legal proceedings between RCC and AAI, as he had sought information which relates to or had been “supplied” by a third party (RCC in the present case) to AAI and has been treated as confidential which also included commercial confidence and trade secret and held by AAI in the fiduciary capacity and therefore, it cannot be provided to the appellant in view 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; , 8(1)(e) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information; & 8(1)(j) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information: Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person. Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information: Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person. Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information: Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person. of the RTI Act, 2005. The term “fiduciary” and “fiduciary relationship” has been examined in detail by the Hon’ble Supreme Court in the case of CBSE vs. Aditya Bandopadhyay (Civil Appeal No. 6454 of 2011) which has held as under:
“21. The term ‘fiduciary’ refers to a person having a duty to act for the benefit of another, showing good faith and candour, where such other person reposes trust and special confidence in the person owing or discharging the duty. The term ‘fiduciary relationship’ is used to describe a situation or transaction where one person (beneficiary) places complete confidence in another person (fiduciary) in regard to his affairs, business or transaction/s. The term also refers to a person who holds a thing in trust for another (beneficiary). The fiduciary is expected to act in confidence and for the benefit and advantage of the beneficiary, and use good faith and fairness in dealing with the beneficiary or the things belonging to the beneficiary. If the beneficiary has entrusted anything to the fiduciary, to hold the thing in trust or to execute certain acts in regard to or with reference to the entrusted thing, the fiduciary has to act in confidence and expected not to disclose the thing or information to any third party.”
Moreover, in view of the appellant having failed to establish any larger public interest involved in the matter for the disclosure of the information/documents to him, to the satisfaction of the Commission, no directions can be given to the CPIO in that regard. The Commission, however, observes that denial of information merely on the ground that matter was sub-judice was not tenable. In this context the decision of the High Court of Delhi in Municipal Corporation of Delhi v. R.K. Jain in W.P. (C) 14120/ 2009 dated 23.09.2010 can be cited:
“5...........The matter being sub judice before a court is not one of the categories of information which is exempt from disclosure under any of the clauses of Section 8(1) of the RTI Act.”
Further, copies of file notes and notings, internal legal notes/written view and all the legal opinions in respect of the said land; copies of correspondences in relation to the said land, exchanged between AAI and RCC, etc., as sought by the appellant are non-disclosable u/s 124 & 129 of the Evidence Act, 1882. Sections 124 and 129 of the Indian Evidence Act read as follows:
124. Official communications - No public officer shall be compelled to disclose communications made to him in official confidence, when he considers that the public interests would suffer by the disclosure.
129. Confidential communication with Legal Advisers - No one shall be compelled to disclose to the Court any confidential communication which has taken place between him and his legal professional adviser, unless he offers himself as a witness in which case he may be compelled to disclose any such communication as may appear to the Court necessary to be known in order to explain any evidence which he has given, but not others.
Further, Full Bench of this Commission, vide order dated 27.07.2009, in the case of Shri Milap Choraria vs. Central Board of Direct Taxes, Department of Revenue (Complaint No. CIC/AT/C/2008/00025) had upheld that Section 22 The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. of the RTI Act, 2005, did not override the provisions of the Section 124 & 129 of the Evidence Act, 1882, which read as under:
“21. Similar is the relationship between Section 124 of the Indian Evidence Act and the RTI Act. A public officer cannot be compelled to disclose communication made to him in official confidence when he considers that it would jeopardize public interest. The disclosure of any such information, which is a part of official confidence, is therefore, permissible only when larger public interest commands it. Read in this context, there is no inconsistency between the RTI Act and Section 124 of Evidence Act. The only issue that needs be decided is whether it would be in larger public interest if the information requested by the appellant is disclosed.
27. There may be circumstances, however, where, as in Section 8(1)(j) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information: Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person. Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information: Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person. Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information: Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person. of the RTI Act, a personal information can be held to be non-disclosable unless warranted by public interest. If such personal information is also held confidential under any Section of the Indian Evidence Act on grounds of public interest, there shall be perfect compatibility / harmony between that withholding of the information or any order to withhold the information under Section 8(1)(j) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information: Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person. Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information: Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person. Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information: Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person. of the RTI Act.”
Therefore, what the appellant had sought is a matter of internal confidential official communications/information which is well protected under the RTI Act, 2005 and the Evidence Act, 1882 and the appellant has been unable to substantiate any public interest that would commend superseding the protected interest in the matter of disclosure of the requested information.
The appeal is disposed of.
(Manjula Prasher)
Information Commissioner
Citation: Shri Snehasish Mukherjee v. Airport Authority of India in Appeal No. CIC/AAOIN/A/2017/309776/MP, Date of Decision : September 18, 2017