Salary paid to staff at toll plazas on Delhi-Gurgaon Expressway was denied u/s 8(1)(d) & (j), claiming that concessionaire is not obliged to share such information with NHAI even under the MoU - CIC: information cannot be accessed from the third party
15 Jun, 2015Information sought:
The appellant sought details of monthly salaries of salary paid to each staff of all ranks assigned at three toll plaza situated at Delhi-Gurgaon Expressway.
Relevant facts emerging during hearing:
Both parties are present. The appellant filed an RTI application on 14.06.2013, seeking the above information. GM (T)/PD/PIO provided information received from Concessionaire M/s Delhi Gurgaon Super Connectivity Ltd. (DGSCL) vide letter dt. 17.07.2013. The FAA in his order stated that the information sought cannot be provided as the same is covered 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; 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; & (j).
The appellant stated that the CPIO has denied the information by stating that the Concessionaire (DGSCL) has denied the information stating that the employees are hired on competitive remuneration of international standards which might put DGSCL in a disadvantageous position, affecting the overall operations and maintenance work of the project and information cannot be provided. The appellant alleged that the respondent authority has shifted the onus of answering on the private organisation. The respondent stated that since information pertained to Concessionaire DGSCL, the organisation was requested to provide the information, in reply to which they expressed their inability to furnish the information. On query by the Commission whether NHAI can access the information from the Concessionaire, the respondent stated that the Concessionaire is not obliged to share such information with NHAI even under the MoU/Agreement. The appellant stated that the FAA’s denial for disclosure of information 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; 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; & (j) is wrong as the appellant does not want names of employees but only the total remunerations paid to the staff, to which the respondent stated that since they do not have access to such information sought, it cannot be provided.
Interim Decision: 27.10.2014
After hearing both the parties and on perusal of record, the Commission directs PIO/Manager (Tech.) to furnish written submission, latest by 13th November, 2014 as to how the respondent public authority does not have access to the information sought along with justifications for invoking sections 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; & (j). A copy of the same be sent to the appellant, latest by 13th November, 2014. Written submissions from Concessionaire (DGSCL), if any, may be called for and copies be provided to both the Commission and the appellant. The appellant shall file his written submissions, latest by 23rd November, 2014. Final decision shall be taken and fresh notices will be issued, if desired.
The order is reserved.
Final Decision: 06.05.2015
Written submission dt. 20.11.2014 was filed by Shri Ashok Kumar Sharma, PIO/GM(T)-cum- PD. The same has been perused. It has been stated therein that the information sought by the appellant pertains to the Build-Operate-Transfer (BOT) project for conversion of Delhi- Gurgaon Section of NH-8 into access controlled 8/6 lane highway, which was being implemented by the Concessionaire DGSCL upto 19.02.2014. On account of contractual breach by DGSCL, they were substituted by a new Concessionaire namely Millennium City Expressway Pvt. Ltd. (MCEPL), who are now implementing the operation and maintenance activities of the project. The substitution of concessionaire was done in implementation of Delhi High Court’s order dt. 19.02.2014. It is the respondent authority’s plea that since DGSCL is not a Concessionaire anymore, it is not possible to obtain any further written submission from them.
Further, the CPIO has stated in his written submission that assistance of MSV International Inc., Gurgaon was sought vide letter dt. 22.10.2014 for interpretation of provisions of the Concessionaire Agreement. Comments from MSV International Inc. were forwarded to NHAI vide letter dt. 22.10.2014, wherein their Team Leader has stated that no such clause is available in the Concessionaire Agreement dt. 18.04.2002 with respect to the Concessionaire’s obligation to furnish details of salary/allowances of their staff in their monthly report or otherwise. The CPIO has stated that the respondent authority cannot compel the concessionaire to furnish information.
No written submission has been filed by the appellant.
The Commission finds that the issue, in the instant case, is whether the information is accessible by the respondent authority from the concessionaire. As per the CPIO’s submission, the respondent authority cannot access the information sought from the concessionaire, as there is no such clause available in the Concessionaire Agreement. Moreover, the earlier Concessionaire, i.e. DGSCL, has been substituted by a new Concessionaire namely Millennium City Expressway Pvt. Ltd. (MCEPL). Therefore, the question of invoking exemptions 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; 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)(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. by the respondent authority does not arise. In the light of the above facts, the Commission finds that the respondent authority cannot access information, sought by the appellant, from the third party and hence, the same cannot be provided.
The appeal is disposed of accordingly.
(Yashovardhan Azad)
Information Commissioner
Citation: Shri Aseem Takyar v. National Highways Authority of India in F.No. CIC/YA/A/2014/000088