List of transporters & their bids regarding a contract was denied u/s 8(1)(d) - CIC: it is third party information; follow the procedure u/s 11(1) & provide information after severing information which is in the nature of commercial confidence

ORDER

FACTS

1. Vide RTI dt 27.2.13, appellant had sought information on 5 points numbered as 4-8, relating to contract/tender no.HWR/Limited Tender – 11/PTP/2012 pertaining to CDX department in regard to list of transporters and their bids.

2. CPIO vide letter dt 29.3.13, provided a response denying 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; of the RTI Act.

3. An appeal was filed on 3.4.13 and AA vide order dt 23.4.13, remitted the matter back to CPIO to re-examine the same (copy not enclosed).

4. CPIO vide another order dt 16.9.13, provided a response (copy provided by public authority during hearing).

5. Submissions made by public authority were heard and their written submissions dt 19.2.14 are taken on record. In the absence of the appellant, his views could not be ascertained.

DECISION

6. The Hon’ble High Court of Jharkhand in its judgementdt 8.8.2007 in the case of State of Jharkhand Vs Navin Kumar Singha& another has held as follows: “26. 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; is relevant so far instant case is concerned which, inter alia, provides that the authority may refuse to give information relating to commercial confidence, trade secrets or intellectual property, 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. The question, therefore, that calls for consideration is as to whether disclosure of various documents submitted by the bidders is a trade secret or commercial confidence or intellectual property. Prima facie, we are of the view that once a decision is taken in the matter of grant of tender, there is no justification to keep it secret. People have a right to know the basis on which the decision has been taken. If tenders are invited by the public authority and on the basis of tender document, the eligibility of a tender or a bidder is decided, then those tender documents cannot be kept secret, that too, after the tender is decided and work order is issued on the ground that it will amount to disclosure of trade secret or commercial confidence. If the authorities of government refuse to disclose the documents, the very purpose of the Act will be frustrated. Moreover, disclosure of information sought for by the petitioner, cannot and shall not be a trade secret or commercial confidence; rather disclosure of such information shall be in public interest, inasmuch as it will show the transparency in the activities of the government.”

7. In another judgementdt 23.3.2012, Hon’ble Delhi High Court in the case of BSNL Vs Shri Chander Shekhar has made the following observations: “15. Once we hold that the information of which disclosure is sought relates to or contains information supplied by a third party and which the third party may claim confidential, the third party information procedure laid down in section 11 of the Act is attracted.”

8. Keeping in view the above judgement, the CPIO is directed to follow the procedure under 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: of the RTI Act and pass a fresh order in respect of queries 7 and 8 of the RTI and provide information in respect of query 4 and 5 after severing the information which is in the nature of commercial confidence. The response in respect of query no.6 vide CPIO’s order dt 16.9.13 is upheld. The above directions be complied with within four weeks of receipt of this decision. The appeal is disposed of.

(Rajiv Mathur)

Central Information Commissioner

Citation: Shri Tirathpal Ravi v. BHEL in File No.CIC/LS/A/2013/001307/RM