Information regarding registration issued by CIB and RC to a company to manufacture Chlorpropham HN 50 % and the related bio-effectiveness study was denied - CIC: provide the records regarding relaxation in norms granted, if any
Information regarding registration issued by CIB and RC to a company to manufacture Chlorpropham HN 50 % and the related bio-effectiveness study was denied stating that the information belonged to a third party & the disclosure would harm its competitive position – Appellant: he only wants to ascertain whether the applicable guidelines were followed by the Respondents while granting registration or some relaxation of norms was given, the basis on which such relaxation was provided – CIC: provide the records regarding relaxation, if any, granted concerning the norm information without revealing any data submitted by the company; the bio efficacy reports would reveal the data generated by the company, hence should not be disclosed
This matter pertains to an RTI application dated 20.5.2013 filed by the Appellant, seeking information under seven points regarding a registration issued by CIB and RC to M/s United Phosphorous Limited to manufacture Chlorpropham HN 50 % and the related bioeffectiveness study. The Appellant filed an appeal to the FAA on 1.7.2013. The CPIO responded on 3.7.2013 and provided information in response to points No. 4 and 7. He, however, denied the information in regard to points No. 1, 2, 3, 5, and 6 on the ground that the information belonged to a third party and could not be disclosed without the consent to that party. In his order dated 24.8.2013, the FAA upheld the CPIO’s reply. The Appellant filed second appeal dated 23.10.2013 to the CIC, which was received by the Commission on 25.10.2013.
Hearing on 11.12.2014
2. We heard the submissions of the Appellant and the Respondents. The Appellant submitted that the studies, about which information was sought in points No. 1 and 2 of the RTI application, were conducted during the same year (2003) and in one case, a part of the period of the two studies overlapped. Therefore, he wanted the Respondents to state on the basis of their records as to how a study conducted in one season on the same crop and with the same crop duration was considered equivalent to two seasons study. At point No. 3, he had sought information regarding the temperature at which the study was conducted to test the bioeffectiveness of the product. The Appellant was also not satisfied with the information provided to him in response to points No. 4 and 7 of the RTI application. With regard to points No. 5 and 6, the Appellant stated that he had sought information, based on the records of the Respondents, regarding relaxation of data requirement and bioefficacy reports, which were accepted and made the basis for approval by the Respondents.
3. The Respondents submitted that the issue related to a registration given by them to an anti sprouting agent in 2010. The registration was given to M/s United Phosphorous Limited (now M/s UPL Limited) on the basis of the data of bioeffectiveness studies produced by them. In response to our query, they stated that the registration was not the result of a tender process. They further submitted that the response to most of the queries of the RTI application would involve disclosure of the data generated and given to them by the third party, M/s UPL Limited. Therefore, they had denied the information.
4. Speaking on behalf of M/s UPL Limited, Advocate Ashish Kothari stated that as the third party, M/.s UPL Limited would like to make their submissions in the matter. He further submitted that they would need copies of the relevant documents before they make their submissions. The Appellant questioned the need for a submission by M/s UPL Limited and stated that he has not sought copies of the data generated by the above company, but information regarding the basis on which the registration was granted by the Respondents. In the above context, we note that the matter before us arises from a registration granted by the Respondents to M/s UPL Limited. Therefore, it would only be appropriate to give them an opportunity to make their submissions, before a final decision is made.
5. Having considered the records and the submissions made by the Appellant and the Respondents before us, we find nothing wrong with the reply of the CPIO to point No. 4 of the RTI application. He (CPIO) submitted that he provided the name of the bioefficacy expert who reviewed and accepted the reports concerning the studies of 2003. The Appellant wanted the names of all experts, who were involved in the process from 2003 to 2010. We note that this period was not mentioned in point No. 4 of his RTI application. With regard to point No. 7, we direct the CPIO to forward a copy of the relevant guidelines to the Appellant, free of cost, within seven days of the receipt of this order, under intimation to the Commission. Our order in regard to points No. 1 to 3, 5 and 6 will be issued after giving an opportunity to the third party to make their submissions.
6. The matter is adjourned to be heard again on 2 nd February 2015 at 2.40 p.m . The venue for the hearing on 2.2.2015 for the Appellant and the Respondents will be as follows:
For the Appellant
NIC, Computer Centre,
Collectorate Comppus, Moti Tabela,Indore – 452004.
The contact officer is Ms. Sunita Jain, ScientistD
& Contact No. 0713246161
For the Respondents
Room No. 305, 2nd Floor, BWing,
August Kranti Bhawan, Bhikaji Cama Place, New Delhi – 110066
7. A copy of the second appeal dated 23.10.2013 submitted by the Appellant to the CIC is enclosed with this order. The CPIO is directed to forward a copy of this order along with the following documents immediately by registered post A.D. to the third partyM/ s UPL Limited:copies of the RTI application, the reply of the CPIO, the appeal filed to the FAA, the order of the FAA on the above appeal and the second appeal of the Appellant to the CIC. M/s UPL Limited will be given an opportunity to be heard during the hearing on 2.2.2015 at Room No. 305, 2nd Floor, B Wing, August Kranti Bhawan, Bhikaji Cama Place, New Delhi110066. In case they make a written submission to the Commission, they should ensure that copies of the same are made available to the Appellant and the Respondents before the next hearing on 2.2.2015.
Hearing on 10.3.2015
8. The matter came up again on 10.3.2015. The written submissions of M/s UPL Limited were filed to the Commission vide the note dated 10.2.2015 of their advocates. The Appellant acknowledged having received a copy of the above submissions.
9. Making a submission on behalf of M/s UPL Limited, Advocate Ashish Kothari, stated that the Appellant’s RTI application dated 20.5.2013 seeks information falling in two categories:
(i) Information concerning the data provided by M/s UPL Limited during the process of registration. He submitted that the data was generated by M/s UPL Limited at considerable cost after extensive tests and trials and, therefore, it belongs to them and ought not to be divulged to a third party. He further submitted that this data is the intellectual property of M/s UPL Limited. Since its disclosure would harm the competitive position of M/s UPL Limited, it is exempted from disclosure 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; of the RTI Act. In the above context, Advocate Kothari also stated that the Appellant is the Director of M/s Rajhans Fertilizers Limited, a company which is involved in the business of manufacturing and marketing insecticides and is a competitor of M/s UPL Limited. He further submitted that M/s Rajhans Fertilizer Limited have also applied for grant of registration in respect of the same product i.e. Chlorpropham and their application for grant of registration is still pending with the Respondents. It was discussed in the 352ND meeting of the Registration Committee on 11.12.2014 and it was decided to ask M/s Rajhans Fertilizer Limited to generate the data again by freshly obtaining RTT permit and importing sample(s) and generating data as per the guidelines of the Registration Committee. Advocate Kothari stated that the Appellant wishes to obtain information regarding the data generated by M/s UPL Limited to advance his own case for registration. (ii) According to Advocate Kothari, the second category of queries in the RTI application seek reasons and explanation from the Respondents and, therefore, do not qualify as requests for information under the RTI Act. In this context, he referred to the following observations of the Supreme Court in its judgment dated 4.1.2010 in Khanapuram Gandaiah vs. Administrative Officer and Ors. [Special Leave Petition (Civil) No. 34868 of 2009]:
“ 5. At the outset, it must be noted that the petitioner has not challenged the order passed by the Respondent No. 4. Instead, he had filed the application under Section 6 of the RTI Act to know why and for what reasons Respondent No. 4 had come to a particular conclusion which was against the petitioner. The nature of the questions posed in the application was to the effect why and for what reason Respondent No. 4 omitted to examine certain documents and why he came to such a conclusion. Altogether, the petitioner had sought answers for about ten questions raised in his application and most of the questions were to the effect as to why Respondent No. 4 had ignored certain documents and why he had not taken note of certain arguments advanced by the petitioner's counsel.
6. Under the RTI Act "information" is defined under Section 2(f) “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; which provides: "information" means any material in any form, including records, documents, memos, emails, opinions, advices, press releases, circulars, orders, logbooks, contracts, report, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force." This definition shows that an applicant under Section 6 of the RTI Act can get any information which is already in existence and accessible to the public authority under law. Of course, under the RTI Act an applicant is entitled to get copy of the opinions, advices, circulars, orders, etc., but he cannot ask for any information as to why such opinions, advices, circulars, orders, etc. have been passed, especially in matters pertaining to judicial decisions. A judge speaks through his judgments or orders passed by him. If any party feels aggrieved by the order/judgment passed by a judge, the remedy available to such a party is either to challenge the same by way of appeal or by revision or any other legally permissible mode. No litigant can be allowed to seek information as to why and for what reasons the judge had come to a particular decision or conclusion. A judge is not bound to explain later on for what reasons he had come to such a conclusion.”
10. Advocate Kothari further stated that the Appellant has not established any larger public interest to warrant disclosure to him of the information, concerning the data generated by M/s UPL Limited, which is exempted from disclosure under Section 8 (1) (d) of the RTI Act.
11. The Appellant stated that he does not seek information concerning the data generated by M/s UPL Limited. The queries of his RTI application are aimed at ascertaining whether the applicable guidelines were followed by the Respondents while granting registration to M/s UPL Limited and in case, some relaxation of norms was given, the basis on which such relaxation was provided. He also stated that he has filed a representation to the Ministry of Agriculture against the decision of the Registration Committee to ask his company to regenerate the data. He alleged that he is being denied registration of his product by the Respondents in spite of the facts of his case being the same as that of M/s UPL Limited, to whom registration was granted. He submitted that since the registered product is used on potatoes, which are widely consumed by the public at large, this matter also involves larger public interest for disclosure of the information sought by him.
12. The Respondents stated that the Appellant has a grievance against the registration granted to M/s UPL Limited. He needs to follow it up by approaching the grievance redressal mechanism rather than through an RTI application.
13. We have examined the submissions made by the three parties before us. We agree with the submission of M/s UPL Limited that the data generated by them to get the registration for their product is exempted from disclosure under Section 8 (1) (d) of the RTI Act and ought not to be disclosed to the Appellant. We are also in agreement with their submission that the CPIO cannot explain the reasons for the actions taken by the public authority. However, in our view, this does not prevent the CPIO from providing information regarding such opinions and decisions, including regarding grant of relaxation from the prescribed norms, if any, that exist on the records of the public authority. We do not accept the argument concerning larger public interest, advanced by the Appellant, on account of the fact that he has not sought the information regarding a product used on potatoes as a disinterested party, but he is the Director of a company, which is involved in the business of manufacturing and marketing insecticides. Accordingly, we note that no larger public interest has been established for disclosure to the Appellant of the data generated by M/s UPL Limited for registration of their product.
14. As per paragraph 5 of our interim decision dated 11.12.2014, the following points of the RTI application are under our consideration:1 to 3, 5 and 6. These are examined in the succeeding paragraphs in the light of our findings mentioned in paragraph 13.
15. In points No. 1 and 2, the Appellant has sought information concerning the names of potato varieties which were used in the first and second studies conducted by BCKVV and PAU, Ludhiana for M/s UPL Limited and the period during which as well as the locations at which potatoes were grown for these studies. He has also stated that the BCKVV studies were conducted from February to June 2003 and May to August 2003, while the PAU, Ludhiana carried out the studies from June to September 2003 and October to December 2003. In the above context, he has sought information regarding the basis on which the studies conducted in one season on the same crop duration were considered equivalent to two seasons. Advocate Kothari opposed provision of the above information. The Respondents stated that different varieties of potatoes respond differently to antisprouting agents and, therefore, provision of information concerning the varieties of potatoes used in the studies would amount to providing information regarding the data generated by M/s UPL Limited. In response to our query, the Respondents stated that their norms require tests at three locations and in two seasons and that there is no provision for relaxation of these norms. We are not in agreement with the argument of the Respondents that provision of information regarding the varieties of potatoes used, the period and location of the studies would end up revealing the data generated by M/s UPL Limited. The Appellant seeks information regarding the varieties of potatoes used and not regarding the manner in which these varieties reacted to the product of M/s UPL Limited during the studies. Further, information concerning the period and location of the studies would also not disclose any information regarding the data generated. On the contrary, in view of the norms concerning three locations and two seasons mentioned by the Respondents and in the interest of transparency, such information should be available in regard to the products, for which registration is granted by the Respondents. Moreover, the CPIO also needs to provide such information, as exists on the records of the public authority, regarding relaxation, if any, granted concerning the norm of two seasons. In view of the foregoing, we direct the CPIO to provide to the Appellant information in response to points No. 1 and 2 of his RTI application dated 20.5.2013.
16. Further, we direct the CPIO to provide such information, as is available on the records of the public authority, in response to point No. 3 of the RTI application without, however, revealing any data submitted by M/s UPL Limited. If no such information is available on the records of the public authority, the CPIO should state so to the Appellant in writing.
17. In point No. 5, the Appellant has sought information regarding relaxation of the data requirement conditions, granted by the Respondents in according registration to M/s UPL Limited. We are of the view that the key aspects, about which the Appellant believes relaxation to have been given, are covered in the first three points of the RTI application, on which we have already directed the CPIO to provide the available information.
18. Point No. 6 of the RTI application seeks information regarding the list / details of the bio efficacy reports which were accepted by the Respondents and made the basis of “label claim of the product.” We are not in favour of disclosure of this information as it could end up revealing the data generated by M/s UPL Limited to obtain registration of their product.
19. The CPIO is further directed to comply with our directives in paragraphs 15 and 16 above, within twenty days of the receipt of this order, under intimation to the Commission. The information should be provided to the Appellant free of cost.
20. With the above directions and observations, the appeal is disposed of.
21. Copies of this order be given free of cost to the parties.
Citation: Shri Brajesh Shukla v. Directorate of Plant Protection, Quarantine & Storage, Secretariat of CIB & RC Office of Secretary (CIB&RC) in File No. CIC/SS/A/2013/002856/SH