Third Party: Providing the end-user details in Form H could harm their commercial competitive interest; shipping bill details reflect important trade transaction details which could harm their business interest - CIC: Apply severability as per Section 10
3 Jan, 2018O R D E R
FACTS:
The Appellant vide his RTI application sought information regarding the attested copy of the shipping bill of M/s Ruby International Traders, B-12, Sector-6, Noida (U.P) for the accounting Year 2014-2015. The CPIO vide its letter dated 22.12.2015 denied 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; of the RTI Act,2005 stating that the information sought pertained to a Third Party, disclosure of which could harm its competitive position. Dissatisfied by the response of the CPIO, the Appellant approached the FAA. The FAA vide its order dated 26.05.2016 upheld the reply of the CPIO. The CPIO vide its letter dated 04.12.2015 sought consent from the concerned Third Party, M/s Ruby International Traders for their consent to disclose such information sought which was denied by the third party vide letter dated 17.12.2015.
HEARING:
Facts emerging during the hearing:
The following were present:
Appellant: Mr. Anand Bhushan alongwith Advocate Ms. Ananya Datta Majumdar;
Respondent: Mr. T. Manjunath, Dy. Commissioner and Mr. R. Singh, Inspector; Mr. Praveen Kumar, Manager (Tender & Legal Dept.)/ Authorized Representative of M/s Ruby International Traders;
The Appellant reiterated the contents of his RTI application and stated that information sought had wrongly been denied to him by the CPIO/FAA. It was further explained that the information sought was pertaining to the copies of the shipping bill which was a public document and could not be denied 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; 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. It was also informed that such information was required in order to claim exemption under the Sales Tax and to provide proof of exports. Explaining the background of the case, it was stated that he had commercial relationship with M/s Ruby International Traders whereby goods were supplied by him to the concerned party in the past. However, due to some consignment and payment irregularity in the last order, the relevant Shipping bill was not provided to him despite the contractual agreement. Attention of the Commission was drawn to Page 23 of the additional documents submitted by the Appellant, which stipulated that as per the contractual terms and conditions of M/s Ruby International Traders, Form H which pertained to shipping bill had to be provided to the party. Moreover, it was informed that similar nature of information had been provided by the Respondent Public Authority in the past and in the present matter this information was denied 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; of the RTI Act, 2005. In addition, the Appellant’s representative referred to the Policy Circular no. 18(RE-2006)/2004-2009 dated 04.09.2006 issued by the M/o Commerce & Industry, D/o Commerce, Directorate General of Foreign Trade which pertained to the defacement of shipping bill in order to prevent leakage of confidential information wherein it had been encapsulated that “shipping bills where the name of the foreign buyers are defaced, may be accepted for processing by Regional Authorities under various export promotion schemes, if the applications are otherwise in order”. Therefore, it was requested that information by severing the confidential details of the concerned third party should be provided to them by invoking Section 10 of the RTI Act, 2005.
In its reply, the Respondent submitted that the information sought pertained to the third party and therefore keeping in view the expressed provisions of the RTI Act, 2005, consent was sought from M/s Ruby International Traders who had denied their consent for disclosure of said information. Moreover, it was contended that shipping bills were not public documents and were received in their Department through a unique Login Id. Furthermore, it was argued that the information sought by the Appellant did not involve any larger public interest and was more in nature of personal interest of the party.
The Representative of the concerned third party, M/s Ruby International Traders, present during the hearing submitted that the Appellant had trade relation with them in the past and in the last consignment, an inferior quality of goods were supplied by the Appellant due to which they incurred heavy loss. Moreover, it was informed that by providing the end-user details in Form H, as claimed by the Appellant, it could harm their commercial competitive interest. The shipping bill details was also claimed to reflect important trade transaction details which could harm their business interest. The Appellant’ Representative reiterated her submissions and clarified that such information could be provided by severing any confidential details of the Third Party.
In this context, the Commission referred to the decision of the Hon’ble HIGH COURT of Delhi dated 30/11/2009 [W.P. (C) 8396/2009 Union of India Thr Director, vs Central Information Commission] with respect to applicability of Section 10 of the RTI Act,2005 wherein it had held as under:
“15. The object behind Section 8(1) (e) is to protect the information because it is furnished in confidence and trust reposed. It serves public purpose and ensures that the confidence, trust and the confidentiality attached is not betrayed. Confidences are respected. This is the public interest which the exemption under Section 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; 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; 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; 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; 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; is designed to protect. It should not be expanded beyond what is desired to be protected. Keeping in view the object and purpose behind Section 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; 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; 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; 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; 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; of the RTI Act, where it is possible to protect the identity and confidentiality of the fiduciary, information can be furnished to the information seeker. This has to be examined in case to case basis, individually. The aforesaid view is in harmony and in consonance with Section 10 of the RTI Act
16. Thus, where information can be furnished without compromising or affecting the confidentiality and identity of the fiduciary, information should be supplied and the bar under Section 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; 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; 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; 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; 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; of the Act cannot be invoked. In some cases principle of severability can be applied and thereafter information can be furnished. A purposive interpretation to effectuate the intention of the legislation has to be applied while applying Section 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; 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; 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; 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; 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; of the RTI Act and the prohibition should not be extended beyond what is required to be protected. In cases where it is not possible to protect the identity and confidentiality of the fiduciary, the privileged information is protected under Section 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; 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; 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; 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; 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; of the RTI Act. In other cases, there is no jeopardy and the fiduciary relationship is not affected or can be protected by applying doctrine of severability.”
Moreover, The Hon’ble High Court of Delhi in its decision dated 7/10/2013 [W.P. (C) 4079/2013 Union Public Service Commission vs. G S Sandhu] has held as under:
“11. In my view, the apprehension of the petitioner that if the identity of the author of the file notings is revealed by his name, designation or in any other manner, there is a possibility of such an employee being targeted, harassed and even intimidated by the persons against whom an adverse noting is recorded by him on the file of UPSC, is fully justified. Though, ultimately it is for the members of the UPSC who are to accept or reject such notings, this can hardly be disputed that the notings do play a vital role in the advice which UPSC ultimately renders to the concerned department. Therefore, the person against whom an adverse advice is given may hold the employee of UPSC recording a note adverse to him on the file, responsible for an adverse advice given by UPSC against him and may, therefore, harass and sometime even harm such an employee/officer of UPSC, directly or indirectly. To this extent, the officers of UPSC need to be protected. However, the purpose can be fully achieved by blocking the name, designation or any other indication which would disclose or tend to disclose the identity of the author of the noting. Denying the notings altogether would not be justified when the intended objective can be fully achieved by adopting such safeguards.”
DECISION
Keeping in view the facts of the case and the submissions made by the parties, the Commission directs the Respondent to provide the information desired by the Appellant by following the procedure as per Section-10 of the RTI Act, 2005 to severe the confidential commercial details of the concerned Third Party in the relevant documents. The information should be provided within a period of 30 days, from the date of receipt of this order.
The Appeal stands disposed with the above direction
(Bimal Julka)
Information Commissioner
Citation: Mr. Anand Bhushan v. O/o. the Pr. Commissioner of Customs in Appeal No.:-CIC/CCEMT/A/2017/109765-BJ, Date of Decision: 30.11.2017