Internal correspondence concerning a particular dealership was denied by BPCL u/s 8(1)(d) - CIC: It is not a public service rendered to a citizen, but a contractual matter; Public authority has the right to defend its interests which cannot be denied
This matter pertains to an RTI application dated 25.4.2013 filed by the Appellant, seeking information on seven points regarding a dealership. The CPIO responded on 3.5.2013 to points No. 1, 2 and 3. He denied the information in response to points No. 4 and 5 under Section 8 (1) (d) of the RTI Act. With regard to points No. 6 and 7, he stated that the Appellant had sought opinion of the Respondents and this did not qualify as information under Section 2 (f) of the RTI Act. Not satisfied with the reply of the CPIO, the Appellant filed an appeal to the First Appellate Authority. In his order dated 3.6.2013, the FAA upheld the CPIO’s reply, while also advising the Appellant to contact the Territory Manager, Bangalore and obtain copies of the correspondence with regard to the putting up of the ALPG station at Jayanagar @ Rs. 2/ per page. The Appellant filed second appeal dated 25.6.2013 to the CIC, which was received by the Commission on 3.7.2013.
2. We heard the submissions of the representative of the Appellant and the Respondents. The representative of the Appellant submitted that the guidelines provided by BPCL for auto LPG station commissioning (point No.2 of the RTI application) are not guidelines approved by Directors. The Appellant should be provided the guidelines approved by Directors. The Respondents submitted that in his RTI application, the Appellant had sought information regarding any independent guidelines formulated by BPCL for auto LPG station commissioning and a copy of the guidelines of the Respondents was provided to him. With regard to the advice of the Respondents to obtain copies of the correspondence concerning putting up ALPG station at Jayanagar @ Rs. 2/ per page, the representative of the Appellant stated that the Appellant had not obtained these copies because he was not informed about the exact correspondence available with the Respondents and the number of pages etc.
3. The representative of the Appellant challenged the decision of the Respondents to deny information in response to points No. 4 and 5 of the RTI application (inter office correspondence between BPCL Bangalore, Regional Office, Chennai and BPCL Headquarters regarding ALPG station at Jayanagar and the letter sent by the Territory Manager, BPCL Bangalore to their ED (Retail) Mumbai subsequent to their meeting with BDA Commissioner on 28.2.2006) under Section 8 (1) (d) of the RTI Act. The Respondents reiterated their decision concerning denial of information in response to the above points.
4. The representative of the Appellant stated that the Appellant had sought information and not opinion of the Respondents at points No. 6 and 7 of his RTI application. The Respondents reiterated that the Appellant had sought their opinion in these points.
5. On being asked whether there was any court case/ arbitration concerning the matter, the Respondents stated that the Appellant is BPCL dealer at Retail Outlet M/s Advaita at BTM layout Bangalore vide an agreement dated 1.10.2002. Subsequently, a new site was made operational with the same name and style at Jayanagar. It was later on found that the auto LPG site, Jayanagar was in violation of the guidelines and a termination process was initiated by serving a show causes notice to the dealership on 15.4.2013. This show cause notice resulted in litigation and an arbitration suit. The Respondents also handed over their written submissions dated 25.8.2014 during the proceedings. The representative of the Appellant stated that the Appellant’s request for information should be decided in keeping with the provisions of the RTI Act and in the light of the situation as it prevailed when the Appellant filed his RTI application. He further submitted that the subsequent developments by way of court cases and arbitration should not have a bearing on a decision in the matter.
6. The Registry is directed to forward a copy of the written submissions dated 25.8.2014 of the Respondents to the Appellant. We will hear this matter again on 20 th October, 2014 at 10.00 a.m through videoconferencing to give an opportunity to the Appellant to make his submissions, if any, in response to the written submissions made by the Respondents. The Appellant’s written submissions, if any, should reach us by 13.10.2014. The venue for videoconferencing for the Appellant and the Respondents will be as follows: For the Appellant and the Respondents NIC, VC Studio, State Centre, 7th Floor, Mini Tower, Viveshwaraya Building, Dr. Ambedkar Veedhi, Bengaluru – 56000 The Contact Officer is Mr. M. Subramanian, ScientistC, & Contact No. 08022863218 & 22863790
Hearing on 20.10.2014
7. The matter came up before us again today. The Appellant was not present and no written submission has been received from him. The Respondents reiterated the arguments advanced by them during the hearing on 27.8.2014 and stated that on 16.9.2014, they wrote to the Appellant, giving the list of documents that can be provided in response to point No. 2 of the RTI application and asking him to deposit Rs. 16/ as photocopying charges to obtain the above mentioned documents running into eight pages. They further submitted that their letter dated 16.9.2014 was sent to the Appellant by registered post A.D. However, so far, neither the Appellant has got in touch with them to obtain the documents in question, nor has the acknowledgment in respect of delivery of the above letter been received.
8. We have considered the records and the submissions made before us by both the parties. The Appellant is dissatisfied with the response of the Respondents to points No. 2 to 7 of the RTI application.
9. With regard to point No. 2, the Respondents reiterated during the hearing on 20.10.2014 that a copy of their guidelines has been provided to the Appellant and that that they have no other guidelines on the issue. During the hearing on 27.8.2014, the representative of the Appellant had submitted that the Appellant should be provided the guidelines approved by the Directors. We note that in his second appeal also, the Appellant has stated that in case the CPIO has no information of existence of any resolution concerning the guidelines passed by the Board of Directors, he should state that no such policies were made. However, we note that in his RTI application, the Appellant had asked for a copy of the independent guidelines formulated by the Respondents for auto LPG station commissioning and had not raised the issue of guidelines approved / resolution passed by the Board of Directors. Accordingly, direction of the Commission to the Respondents to provide any further information in response to point No. 2 is not considered necessary.
10. As for point No. 3, in their letter dated 16.9.2014, the Respondents have already listed the documents that they are in a position to provide. It is up to the Appellant to avail himself of the offer made by the Respondents in their above mentioned letter.
11. With regard to points No. 4 and 5 of the RTI application, the Appellant has questioned the decision of the Respondents to deny the information under Section 8 (1) (d) of the RTI Act. During the hearing on 27.8.2014, the representative of the Appellant stated that the Appellant’s request for information should be decided in keeping with the provisions of the RTI Act and in the light of the situation as it prevailed when the Appellant filed his RTI application. He further submitted that the subsequent developments by way of court cases and arbitration should not have a bearing on a decision in the matter. In the above context, we note that the matter before us concerns a contractual agreement concerning a retail outlet dealership in which the Respondents, who are being called upon to reveal their internal correspondence concerning the particular dealership, served a termination notice on 15.4.2013. In such cases, the possibility of litigation is always present. As far as the instant case is concerned, we note from the written submissions dated 25.8.2014 made by the Respondents that instead of replying to their show cause notice dated 15.4.2013, the Appellant filed a writ petition at the High Court of Karnataka, which was disposed of by the court vide its order dated 22.4.2013, whereby, inter alia, two weeks time was granted to the petitioner for filing objection to the show cause notice. The existence of litigation, therefore, preceded the RTI application dated 25.4.2013. In his second appeal the Appellant has stated that he should be provided the information, sought by him vide points No. 4 and 5, concerning the internal correspondence of the Respondents, to defend his rights. In the above context, we note that we are not dealing here with a public service rendered by the Respondents to a citizen, but a contractual matter. We, therefore, believe that the Respondents should also have the right to defend their interests. Such right cannot be denied to them simply because they are a public authority. If public authorities, involved in commercial dealings and faced with litigation concerning contractual issues, are made to reveal their internal correspondence concerning the contractual issues at dispute, it would have the potential to harm their competitive position, attracting Section 8 (1) (d) of the RTI Act. Section 8 (1) (d) 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.
In the light of the foregoing, we uphold the decision of the Respondents to deny the information in response to points No. 4 and 5 of the RTI application, under Section 8 (1) (d) of the RTI Act.
12. Regarding point No. 6, we direct the CPIO to provide a certified copy of the dealership guidelines to the Appellant. We also direct the CPIO to respond to point No. 7 of the RTI application on the basis of the records held by the public authority. We further direct the CPIO to complete action on our above directives within twenty days of the receipt of this order, under intimation to the Commission.
13. With the above directions and observations, the appeal is disposed of.
14. Copies of this order be given free of cost to the parties.
Citation: Shri B G Arun Kumar v. Bharat Petroleum Corporation Ltd., in File No. CIC/LS/A/2013/001809/SH