Copy of License agreement between Cochin Port Trust and India Gateway Terminal Private Ltd denied u/s 8(1)(d) - CIC: provide the copy of the agreement after severing the information which would harm the competitive position of the third party
13 Oct, 2013ORDER
1. The appellant filed an RTI application dated 19.12.2011 addressed to the CPIO, Cochin Port Trust, seeking information relating to the License agreement entered into between Cochin Port Trust and India Gateway Terminal Private Ltd for development and operation of RGCT and construction and operation of ICTT at Vallarpadam.
At point no. (1) he sought the copy of the said License Agreement
At point no. (2) the appellant has sought to know the list of changes that were incorporated in the terms of contract incorporated after acceptance of financial bid from Dubai Port International (DPI/now D.P World) that differed from draft license agreement which formed a part of tender document.
At point no. (3) the appellant sought to know amount paid up in cash as Foreign Direct Investment by DPI/DP world for subscribing to shares of India Gateway Terminal Private Ltd.
2. The CPIO vide reply dated 18.2.2012 informed the appellant as per section 11(1) Where a Central Public Information Officer or a State Public Information Officer, as the case may be, intends to disclose any information or record, or part thereof on a request made under this Act, which relates to or has been supplied by a third party and has been treated as confidential by that third party, the Central Public Information Officer or State Public Information Officer, as the case may be, shall, within five days from the receipt of the request, give a written notice to such third party of the request and of the fact that the Central Public Information Officer or State Public Information Officer, as the case may be, intends to disclose the information or record, or part thereof, and invite the third party to make a submission in writing or orally, regarding whether the information should be disclosed, and such submission of the third party shall be kept in view while taking a decision about disclosure of information: third party notice was issued and that they have expressed their objection for providing a copy of the License Agreement of ICTT as it contains references to information submitted by them in “commercial confidence”. The appellant also invited attention to the Article 7.3.b(iii) of the License agreement which stipulates that “all confidential information and documents including the agreement (whether financial, technical or otherwise) provided by either party to the other shall not unless compelled by law or the process of a Government Authority, be disclosed to any person without the consent of the other party”. The appellant filed first appeal which was disposed off vide order dated 31.3.2012 wherein the first appellate authority relying on the order of the Commission denied 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; of the RTI Act. The first appellate authority has relied on the order of the Commission in the case of Shri Pramod Kumar Aggarwal Vs Container Corporation of India dated 26.7.2010 wherein it is held that:
“The Commission holds that disclosure of information pertaining to the Agreements depicting commercial secrets including sensitive issues like Pricing Policy and terms of agreement would adversely affect the business and commercial interests of the Respondent Public Authority and therefore denies the same 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; of the RTI Act. Therefore, the Commission rejects the particular request of the Appellant seeking copies of such Agreements or any such confidential information”.
3. The appellant submits that no clause or article in any agreement can override the provisions of law and that 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; of the RTI Act may be invoked where the information in the contract includes “commercial confidence, trade secrets or intellectual property” the disclosure of which would harm the competitive position of a third party.
4. During the hearing the appellant submits that the said agreement contains how the rates have been worked out and the disclosure of the same would harm the competitive position of the party with whom the agreement has been entered into. The respondent also submits that the shipping activities and container terminal handling activities are highly competitive field and if trade and commercial secrets are divulged it will adversely affect the terminal itself.. Further, the respondent also submits that the appellant has filed a case in Kochi High Court in relation to this bid.
5. 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; of the RTI Act the information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party is exempt from disclosure unless larger public interest warrants disclosure of such information. With respect to the present appeal before the Commission, and in view of the above exemption clause and submissions made by the respondent, the respondent is hereby directed to provide the copy of the said agreement after severing the information which would harm the competitive position of the third party as in accordance with section 10 of the RTI Act, 2005. Directions of the Commission shall be complied within two weeks from the receipt of the order. The appeal is disposed off accordingly.
Sushma Singh
Information Commissioner
Citation: B. Hamza v. Cochin Port Trust in Case No. CIC/SS/A/12/0002278