TCS directed to disclose details of contract made for Pass Port Seva Kendra under RTI

Background

The appellant sought information regarding the construction of Pass port Seva Kendra (PSK) at private premises hired by the Passport office such as name of the officers who decided to hire the private premises, date of hiring, name of the organization which hired the premises, name of the public authorities whose permission is essential to open the Passport Seva Kendra along with the dates on which their permission / sanction was received. He also sought for the documents submitted to the Passport Office by the owner of the premises etc. The Public Information Officer (PIO) informed the appellant that the Ministry of External Affairs approves the location of the site for a particular PSK in relation to its size, area, accessibility and related amenities for the general public. The matter of hiring/leasing of the site for a particular PSK is done by the Service Provider under the Public Private Partnership (PPP) Scheme. He further informed that in the case of this particular PSK, the same procedures were followed.

Proceeding                                                                                                       

During the first hearing, the Central Information Commission (CIC) observed that it is not clear whether this is a PPP or a contract given to a service provider and directed the PIO to bring a copy of the agreement with the Service Provider along with an explanation about who decides on the selection of the site and the commercial term.

During the second hearing, the respondent brought a copy of the Master Service Agreement (MSA) with Tata Consultancy Services (TCS) (service providers) and raised an objection to the disclosure on the ground that the contract has been entered into by the Ministry with the Service Provider which is a private organization. Disclosure of the contract shall hamper the competitive position of the private party vis-à-vis his competitors. Therefore the information should not be disclosed 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; 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. Moreover lot of information about the service provider is being held by the public authority in a fiduciary capacity and hence it cannot be disclosed 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; of the RTI Act. The Commission agreed that the rate mentioned in the contract if disclosed could harm the competitive position of the Service Provider and directed to severe the rates mentioned in the agreement under section 10 of the RTI Act. The Commission also asked the respondent to specifically point out the information in the contract which could be said to be held in a fiduciary capacity. On the submission of the respondent that he needs to get instructions from the Ministry on the matter of disclosure of the Master Service Agreement, the Commission adjourned the matter.

During the two subsequent hearings, the appellant requested the Commission to direct the PIO to inform the authority who has permitted the third party to display the board that the said place is an office of Ministry of External Affairs. He also requested the Commission to order the PIO to give sworn affidavit as detailed by him. The Advocates representing the TCS requested for adjournment stating that their senior is traveling. The Commission rejected his request stating that their time is paid by the poorest man in India and it therefore does not have the luxury of giving another adjournment. The third party advocate submitted that the information is exempt 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; 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; & 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; as the information represents commercially competitive information and disclosing it would harm competitive interest of the TCS.

View of CIC

The Central Information Commission (CIC) observed that the Third Party (TCS) has not given any arguments to support its claim for exemption 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; 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; & 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; of the RTI Act. The Commission held that as no justification had been provided for the claim of exemptions, information cannot be denied to the appellant. Further, the Commission observed that this information can certainly be obtained by the Ministry from TCS if it is not available and would squarely fall in the definition of ‘information’ as 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; of the RTI Act. The Commission directed the PIO to provide the information to the appellant, stating that when the Government asks a private party to conduct any functions it certainly has to be able to access all information regarding the activity from the private body to which it has given the contract.

Comments

This case depicts that any callousness in defending the issue properly before the Central Information Commission by the third party may adversely affect their case.

Citation: Mr. A. K. Jain v. Ministry of External Affairs in Decision No. CIC/SG/A/2012/000628/19458