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RTI >> Judgments >> CIC >> Exemption >> Commercial Confidence etc..
Supreme Court(Commercial Confidence etc..)/ High Courts(Commercial Confidence etc..)
S.No. CIC CASE DATE OF JUDGMENT JUDGMENT
1 CIC/DTGHS/A/2017/173715-BJ
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02 May, 2019 Mr. Eashan Ghosh Vs. CPIO & Assistant Drugs Controller (I) Directorate general of Health Services, Office of DCG (I) (RTI Cell), FDA Bhawan Kotla Road, New Delhi – 110002

Information Sought
The Appellant vide his RTI application sought information on 02 points regarding the application of M/s Shantha Biotechnics Pvt. Ltd., Hyderabad and M/s Biological Evans Limited, Hyderabad for seeking permission to conduct Phase I/ II Clinical Trial for the Hexavalent (Dtwp-Hep-B-Hib-IPV) Vaccine to the DGHS, label claim, quantitative and qualitative composition and content of each antigen and preservative in the vaccine disclosed in the application, process of manufacture of bulk antigen (DS) and finished product (DP) disclosed in the application, etc.

Decision
The Appellant’s representative reiterated the contents of the RTI application and stated that the basic information as contained in the RTI application had not been disclosed under the shelter of proprietary details. In its reply, the Respondent categorically submitted that the details sought by the Appellant were part of the regulatory information already displayed on its website and that they had followed the prescribed procedure for grant of Drug Trial License as per extant guidelines. The Subject Expert Committee (SEC) Recommendations were also placed in public domain. With regard to the data regarding clinical trials and other details sought by the Appellant, it was submitted that such details were not permitted for disclosure till the final decision of the Expert Committee was taken and approved by the Ministry. A copy of the written submission filed by the Respondent was hand delivered to the Appellant during the hearing. The Third Party in the case of M/s Shantha Biotechnics Pvt. Ltd. and M/s Biological Evans Limited initially objected to any information being disclosed and sought adjournment to file written submission. However, keeping in view the stance of the Commission not to delve into the merits of the case, the representatives of Third Parties reiterated their objections and agreed to file a
written response to be sent through e-mail today itself.

The Commission was in receipt of a written submission from the Respondent (M/s Biological Evans Limited) dated 26.04.2019 wherein they requested for adjournment of hearing in the matter. The Commission referred to para 7 of the notice of hearing dated 11.04.2019 which clearly mentioned that in the default of the absence of the parties on the time and date mentioned in the notice, the case shall be heard and decided in their absence and that there will be no adjournment and review.

Subsequent to the hearing, the Commission was in receipt of a written submission from the Third party (M/s Shantha Biotechnics Pvt. Ltd.) dated 29.04.2019 wherein it was inter alia stated that in response to the Third Party notice, they had vide letter dated 30.05.2017 objected to the disclosure of information sought in as much as the information pertained to the confidential and proprietary information of the Company which if disclosed would cause irreparable harm to the business of the Company. Explaining the background of the matter, it was stated that the
Appellant was an Advocate with a leading law firm S. Majumdar and Co., that represented Panacea Biotech Ltd., which is one of the leading competitors of M/s Shantha Biotechnics Pvt. Ltd. The present application was filed shortly a month after M/s Shantha Biotechnics Pvt., Ltd., filed a post grant opposition against the Patent granted to Panacea Biotech Ltd., for its combination vaccine. The said proceedings went all the way up to the Hon’ble High Court of Bombay wherein vide order dated 13.02.2019 passed in WP 100/2019, it was sent back for the determination of disputes by the Controller of Patents. Thus, it was submitted that the information was not sought in public interest and was misuse of the provisions of the Act under the guise of seeking information purportedly beneficial for public interest. It is further submitted that queries raised were not “information” within the meaning of Section 2(f) of the Act. There was no larger public interest warranting disclosure of information and therefore, it was exempt from disclosure in view of Section 8(1)(d) of the Act particularly since the information sought was in respect of specifications of components, manufacturing processes and any change therein, details of pre-clinical tests, which were all information in the nature of commercial confidence, trade secrets and intellectual property of M/s Shantha Biotechnics Pvt. Ltd. Similarly, the information that is shared by M/s Shantha Biotechnics Pvt. Ltd. with the DGHS and DCGI, had been done in compliance of the regulatory regime under The Drugs and Cosmetics Act, 1940 and were shared with a view to comply with the statutory requirements therein in a fiduciary capacity. Moreover, M/s Shantha Biotechnics Pvt. Ltd. was not a Public Authority within the meaning of Section 2(h) of the Act, and the information sought was vague and a fishing and roving exercise to misuse the provision of the Act under the guise and ruse of public interest. It was further submitted that during the course of arguments, the Applicant submitted that the information sought pertained to merely statutory compliances and whether the same were done or not. In this regard, it was submitted that the information sought was far more than merely statutory compliances, and even on a demurrer, such information was available in the public domain since the procedure for grant of licenses was already laid down under The Drugs and Cosmetics Act, 1940 and rules made thereunder. Notwithstanding the same, information shared with the DGHS that was proprietary in nature cannot be disclosed to the Applicant even if the same was available with the Public Authority. It was therefore prayed that the Third Party M/s Shantha Biotechnics Pvt Ltd. ought to be provided a right of hearing before passing any order directing disclosure of information pertaining to them.

Subsequent to the hearing, the Commission was also in receipt of a written submission from M/s Biological E. Limited dated 29.04.2019 wherein it is submitted at the outset that, the information sought was covered under Section 11(1) and also the disclosure thereof was exempted under Section 8(1)(d) of The Right to Information Act, 2005. It was further submitted that a copy of documents alongwith an adjournment should have been provided, considering that it was the confidential information of the Third Party that had been requested by the Appellant. Without prejudice to the above, it is submitted that they were informed during the hearing that the Appellant now wanted answers to only questions d to g wherein he only desired to know if the procedure prescribed by The Drug and Cosmetics Act, 1940 and the accompanying rules has been followed. It was submitted that Biological E. Ltd. had followed all protocols and procedure as prescribed by the Act and Rules and it was believed that the DCGI office had also worked within the ambit and as per the rules and regulations prescribed by The Drug and Cosmetics Act, 1940 and the accompanying rules. They however strongly objected that any additional information, including commercial confidence, and trade secrets should not be disclosed to Sh. Eashan Ghosh as it could harm the competitive position of Biological E. As such it was clear that the case pertained to Third Party (Biological E herein) and information was covered under Section 11(1) and that any disclosure of detail in addition to that requested would be in contravention to Section 8(1)(d) of The Right to Information Act, 2005 and should not be supplied. They also placed reliance on the two decisions of the Commission, namely, (1) Shri K. Veera Reddy Vs. The Dy. Commissioner & CPIO, Central Excise, Customs and (2) Service and Shri Banarasi Rai Vs. Rajasthan Drugs & Pharmaceuticals Limited.

The Commission referred to the definition of information u/s 2(f) of the RTI Act, 2005 which is reproduced below:

“information” means any material in any form, including records, documents, memos, emails, opinions, advices, press releases, circulars, orders, logbooks, contracts, report, 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.”

Furthermore, a reference can also be made to the relevant extract of Section 2 (j) of the RTI Act, 2005 which reads as under:

“(j) right to information” means the right to information accessible under this Act which is held by or under the control of any public authority and includes ........”

In this context a reference was made to the Hon’ble Supreme Court decision in 2011 (8) SCC 497 (CBSE Vs. Aditya Bandopadhyay), wherein it was held as under:

35..... “It is also not required to provide ‘advice’ or ‘opinion’ to an applicant, nor required to obtain and furnish any ‘opinion’ or ‘advice’ to an applicant. The reference to ‘opinion’ or ‘advice’ in the definition of ‘information’ in section 2(f) of the Act, only refers to such material available in the records of the public authority. Many public authorities have, as a public relation exercise, provide advice, guidance and opinion to the citizens. But that is purely voluntary and should not be confused with any obligation under the RTI Act.”

Furthermore, the Hon’ble Supreme Court of India in Khanapuram Gandaiah Vs. Administrative Officer and Ors. Special Leave Petition (Civil) No.34868 OF 2009 (Decided on January 4, 2010) had held as under:
6. “….Under the RTI Act “information” is defined under Section 2(f) which provides:

“information” means any material in any form, including records, documents, memos, emails, opinions, advices, press releases, circulars, orders, logbooks, contracts, report, 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.”

This definition shows that an applicant under Section 6 of the RTI Act can get any information which is already in existence and accessible to the public authority under law. Of course, under the RTI Act an applicant is entitled to get copy of the opinions, advices, circulars, orders, etc., but he cannot ask for any information as to why such opinions, advices, circulars, orders, etc. have been passed.”

7. “....the Public Information Officer is not supposed to have any material which is not before him; or any information he could have obtained under law. Under Section 6 of the RTI Act, an applicant is entitled to get only such information which can be accessed by the “public authority” under any other law for the time being in force. The answers sought by the petitioner in the application could not have been with the public authority nor could he have had access to this information and Respondent No. 4 was not obliged to give any reasons as to why he had taken such a decision in the matter which was
before him.”

In the context of non disclosure of information under Section 8(1)(d) of the RTI Act, 2005, the decision in Naresh Trehan vs Rakesh Kumar Gupta (W.P(C) 85/2010) decided on 24.11.2014, was referred to, wherein it was held as under:

14. “...Such information would clearly disclose the pricing policy of the assessee and public disclosure of this information may clearly jeopardise the bargaining power available to the assessee since the data as to costs would be available to all agencies dealing with the assessee. It is, thus, essential that information relating to business affairs, which is considered to be confidential by an assessee must remain so, unless it is necessary in larger public interest to disclose the same. If the nature of information is such that disclosure of which may have the propensity of harming one's competitive interests, it would not be necessary to specifically show as to how disclosure of such information would, in fact, harm the competitive interest of a third party. In order to test the applicability of Section 8(1)(d) of the Act it is necessary to first and foremost determine the nature of information and if the nature of information is confidential information relating to the affairs of a private entity that is not obliged to be placed in public domain, then it is necessary to consider whether its disclosure can possibly have an adverse effect on third parties.”

Furthermore, with regard to non disclosure of information under Section 8(1)(e) of the RTI Act, 2005, the decision of the Hon’ble Supreme Court of India in Institute of Chartered Accountants of India Vs. Shaunak H. Satya and Ors) in Civil Appeal NO. 7571 of 2011- dated 02/09/2011 was referred to, wherein it was held that:

“The use of the words "person" shows that the holder of the information in a fiduciary relationship need not only be a 'public authority' as the word 'person' is of much wider import than the word 'public authority'. Therefore, the exemption under Section 8(1)(e) is available not only in regard to information that is held by a public authority (in this case the examining body) in a fiduciary capacity, but also to any information that is given or made available by a public authority to anyone else for being held in a fiduciary relationship. In other words, anything given and taken in confidence expecting confidentiality to be maintained will be information available to a person in fiduciary relationship”.

However, the information which is held and available with the Public Authority in its regulatory capacity and which does not infringe upon the provisions of Section 8 (1)/9 ought to be disclosed to the information seekers. In this context, the Commission referred to the following observation from the decision of the Hon’ble Supreme Court of India in Reserve Bank of India v. Jayantilal N.Mistry and Ors., dated 16.12.2015, wherein interpreting section 2(f) and 8 (1) (e) of the RTI Act, 2005, the following was held:

“62. The exemption contained in Section 8(1)(e) applies to exceptional cases and only
with regard to certain pieces of information, for which disclosure is unwarranted or undesirable. If information is available with a regulatory agency not in fiduciary relationship, there is no reason to withhold the disclosure of the same. However, where information is required by mandate of law to be provided to an authority, it cannot be said that such information is being provided in a fiduciary relationship. As in the instant case, the Financial institutions have an obligation to provide all the information to the RBI and such an information shared under an obligation/duty cannot be considered to come under the purview of being shared in fiduciary relationship. One of the main characteristic of a Fiduciary relationship is "Trust and Confidence". Something that RBI and the Banks lack between them.

65. And in this case the RBI and the Banks have sidestepped the General public's demand to give the requisite information on the pretext of "Fiduciary relationship" and "Economic Interest". This attitude of the RBI will only attract more suspicion and disbelief in them. RBI as a regulatory authority should work to make the Banks accountable to their actions.

67. From reading of the above section it can be inferred that the Legislature’s intent was to make available to the general public such information which had been obtained by the public authorities from the private body. Had it been the case where only information related to public authorities was to be provided, the Legislature would not have included the word “private body”. As in this case, the RBI is liable to provide information regarding inspection report and other documents to the general public.”

Moreover, the Commission observed that as per the provisions of Section 19 (5) of the RTI Act, 2005, in an Appeal proceeding, the onus to prove that a denial of a request was justified shall be on the CPIO. While observing that in order to deny information under any of the exemption mentioned under Section 8 (1) of the RTI Act, 2005, the Respondent is required to provide justification or establish the reason why such exemption was claimed, the Commission referred to the decision of the Hon’ble High Court of Delhi in the matter of Dy. Commissioner of Police v. D.K. Sharma, WP (C) No. 12428 of 2009 dated 15.12.2010, wherein it was held as under:

“6. This Court is inclined to concur with the view expressed by the CIC that in order to deny the information under the RTI Act the authority concerned would have to show a justification with reference to one of the specific clauses under Section 8 (1) of the RTI Act. In the instant case, the Petitioner has been unable to discharge that burden. The mere fact that a criminal case is pending may not by itself be sufficient unless there is a specific power to deny disclosure of the information concerning such case.”

Moreover, as per the provisions of Section 7 (8) (i) of the RTI Act, 2005, where a request for disclosure of information is rejected, the CPIO shall communicate the reasons for such rejection.

Keeping in view the facts of the case and the submissions made by both the parties, the Commission instructs the Respondent to re-examine the RTI application and disclose only Regulatory Information held and available with them after obliterating the information exempted u/s 8 (1)/9 of the RTI Act, 2005, within a period of 15 days from the date of receipt of this order, as agreed. No further intervention of the Commission is required in the matter.

2 CIC/POSTS/A/2018/102584
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25 Jun, 2018 BK Porwal Vs PIO, Deptt of Posts

ISSUE :The applicant, facing an inquiry for sexual harassment, requested for documents relating to the inquiry. The CPIO rejected the request under sections 8(1)(d) and (g).
DECISION : By denying the information the appellant was not only harassed by the public authority but also by the CPIO. While the public authority denied him the documents which he was entitled under SHW Act of 2013, the CPIO denied them under RTI Act.
…..the Commission concludes that denial of information to the appellant was without any reasonable cause and hence liable for maximum penalty of Rs 25,000/-
The Commission also finds it a fit case to recommend the public authority to initiate disciplinary action against the CPIO.
3 CIC/BSNLD/A/2016/297934
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24 Jul, 2017 Sh. Shiv Prakash Soni Vs. CPIO, Addl. GM (Admn. & Plng), BSNL, O/o .General Manager (Admn. & Plng), Jodhpur Telecom Dist., Jodhpur

The appellant filed RTI application dated 08.04.2016 seeking information regarding: rules and regulations of BSNL to open two franchises in same area for selling the BSNL sims; rules and regulations of BSNL for franchisees to sell the sims of BSNL, etc. Commission observed that the respondent has wrongly invoked section 8(1)(d) of the RTI Act. The information sought does not appear to be in the nature of commercial confidence. Hence, the respondent should transfer appellant’s RTI application to Jaipur Circle within 5 days of receipt of this order, who in turn shall give a reply to the appellant within 15 days. Further, the respondent is directed to show cause, within 15 days of receipt of this order, why action should not be taken against him for giving incorrect reply to the appellant.
4 CIC/SH/A/2016/000149
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13 Feb, 2017 Ashwani Arora vs CPIO, Union Bank of India, Mumbai

Section 8(1)(d) — Commercial Confidence — the Commission directed the CPIO to provide the information, in respect of the years 2015 and 2016, to the Appellant, after redacting from it, under section 10 of the RTI Act, the information concerning delegation of powers to the officers of the bank regarding OTS and the information that is exempted from disclosure under section 8(1)(d) of the RTI Act.
5 CIC/SB/A/2016/000528-BJ
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30 Jan, 2017 Karanjit Singh vs O/o the Commissioner of Customs Inland Container Deport, Vadodra

Section 8(1)(d) Commercial Confidence. Section 11 Third Party Information. The Commission held that the plea of exemption under section 8(1) (d) of the RTI Act cannot be blindly applied as the appellant is seeking information that involves public interest in the form of revenues earned by the government departments and therefore, the information in a generalized format needs to be disclosed. More so, in the light of inability of the respondent in providing suitable justification for claiming exemption from disclosure, the Commission is not convinced with the stand of the respondent. While disclosing the information sought by the appellant, the respondent could take recourse to section 10(1) of the RTI Act severing any kind of personal details pertaining to the third party.
6 CIC/SB/A/2016/000034
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10 Jan, 2017 Dr. D. Dhaya Devadas vs O/o Assistant Commissioner of Central Excise

Section 8(1)(d) — Commercial Confidence — the appellant filed RTI application before the CPIO, Central Excise, Tuticorin, seeking information on three points pertaining to M/S V.V. Minerals, including (i) details of Private Bonded Warehouse-wise, minerals-wise stock of Garnet, Ilmenite, Rutile, Zircon etc. available as on 08.082013 and 17.092013; and (ii) copies of monthly returns of mineral-wise inward receipt and outward movement of minerals from August, 2013 to April, 2015 — the Commission held that the information sought relates to third party information, the disclosure of which would harm the competitive position of a third party and no larger public interest would be served by the disclosure of the information sought. Hence, the information sought is exempted under section 8(1)(d) of the RTI Act and cannot be provided to the appellant.
7 CIC/MP/A/2016/001329
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15 Dec, 2016 Seema Verma vs Life Insurance Corporation of India, Gorakhpur

Section 8(1)(d) Commercial Confidence. Section Information the disclosure of which would endanger the life or physical safety of any person. The Commission held that no commercial confidence is involved in clearly intimating the cause of death or the decision from which the policy holder suffered, particularly if this is the reason or one of the reasons of the repudiation of the claim.

The Commission directed the CPIO to provide to the appellant the evidence that the deceased policyholder had been suffering from blood pressure keeping the provisions of section 10(1) of the RTI Act.
8 CIC/MP/A/2016/001412
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15 Dec, 2016 S.C. Bhardwaj vs IRDA, Hyderabad

Section 8(1)(d) — Commercial Confidence — the Commission held that the respondent authority had appropriately responded to the appellant. The information sought on points (A & B) i.e. copy of Raksha TPA Agreement and agreements executed between Raksha TPA and four nationalized insurance companies cannot be provided to the appellant under the provisions of section 8(1)(d) of the RTI Act, pertained to commercial confidence, trade secrets, which would harm the competitive position of the third party and no larger public interest warrants disclosure of the information to the appellant. However, the Commission directed the CPIO to provide annual report of Raksha TPA for the year 2014-15 to the appellant.
9 CIC/SH/A/2015/002006
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14 Dec, 2016 N P Sinha vs IDBI Bank limited, Mumbai

Section 8(1)(d) Commercial Confidence. Section 8(1)(j) Personal Information. The Commission directed the CPIO to provide the appellant a gist of the action taken on his application based on the records of the public authority. Regarding the notings etc. concerning the letters of the Appellant, relates to the transfer of his son. Such information cannot be provided to a third party, even if the third party happens to be the father of the employee, without a proper authorization from the employee concerned.

The Commission agreed with the Respondents that disclosure of the rules, circulars regarding the powers exercised by their executives, would compromise their internal decision making procedures, thereby harming their competitive position in the market. The Commission upheld the decision of the respondents to deny the information on points No. 2 and 3 under section 8(1)(d) of the RTI Act. However, in response to point No. I, the Commission directed the CPIO to provide to the Appellant only such information as is already available in the public domain
10 CIC/MP/A/2016/001648
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13 Dec, 2016 T.C. Bhandari vs State Bank of India, Panaji, Goa

Section 8(1)(d) — Commercial Confidence — the appellant, sought the certified copies of complete manual on loans and advances — the CPIO informed the appellant that the bank's loan manuals were for internal circulation for guidance of the bank's employees only and involved commercial confidence and therefore these were exempt u/s 8(l)(d) of the RTI Act — the Commission held that the respondents have provided an appropriate response in the matter and upheld the FAA's decision.
11 CIC/SH/A/2015/001672
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08 Dec, 2016 Arun Kumar Singh vs Bank of India, Kolkata

Section 8(1)(d) Commercial Confidence.


The appellant filed RTI application seeking information on ten points regarding properties mortgaged as security in respect of the loan account of M/s Adisons Construction Ltd., details of assignment of the loan to M/s ARCIL and related issues. The CPIO denied a copy of the assignment deed, concerning assignment of the loan account to M/S ARCIL, under sections 8(1)(d), (e) & (j) of the RTI Act. The Appellant sought information regarding the price at which the said properties were assigned to M/s ARCIL and a copy of the assignment agreement of the said properties by the bank to M/s ARCIL.

The Commission uphold the decision of the Respondents to deny the information on point (d) of the RTI application under section 8(I)(d) of the RTI Act.
12 CIC/MP/A/2016/001223
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28 Nov, 2016 Sushil Kejriwal vs The New India Assurance Co. Ltd., Mumbai

Section 8(1)(d) Commercial Confidence. Section 8(1)(e) Fiduciary Relationship. The Commission held that the appellant did not enclose any authorization from the Board of Directors to obtain information on behalf of the Company along with the RTI application and first appeal. The Commission upheld the decision of the FAA.
13 CIC/SH/A/2015/001705 CIC/SH/A/2015/002289
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23 Nov, 2016 Anil Basu vs Central Bank of India, Kolkata

Section 8(1) (d) Commercial Confidence.

The Commission held that in so far as the locus-standi of the Appellant to seek the information on behalf of the guarantor, M/S Anup India Ltd., is concerned, the Commission notes that he is willing to provide a board resolution, authorizing him to get the information. After the decision of 14.3.2006 cited by the Respondents, the Commission has taken a number of decisions to the effect that the mere fact of a matter being sub-judice cannot become the ground of denial of information. In fact, Section of the RTI Act exempts from disclosure only such information as has been expressly forbidden to be published by any court of law or tribunal or the disclosure of which may constitute contempt of court. No such express forbidding by any court of law/tribunal has been mentioned by the Respondents- The information sought in this case is covered by the exemption granted under Section 8(1)(d) of the RTI Act.
14 CIC/RK/A/2016/000884-AB
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17 Nov, 2016 Bir Singh vs M/o Defence, Garrison Engineer (A/F)

Section 8(1)(d) — held that the information sought by the appellant is relating to approval of the execution of works and date(s) of completion of the work as is not convinced by the plea of the CPIO that disclosure of information would hamper the competitive position of the third party or commercial confidence, However, the reason for extension of the work may be given only if the reasons are available in the form of documents. In the case on hand, as discussed earlier, the issues raised by the and cannot be equated with the commercial interest of certain third larger public interest more and more information should be disclosed. Since, the participation in public auction should encourage greater transparency, it is not discrimination against any party.
15 CIC/VS/A/2015/002051+2052+2053-AB
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19 Oct, 2016 Vishesh Abrol vs Integral Coach Factory, Chennai

Section 8(1) (d) Commercial Confidence.

The appellant filed RTI application and sought copy of the complete minutes of the meeting of the tender committee to decide on certain tender which was opened on 09.06.2014 for supply of rubber metal bonded items; name of the vendor to whom orders had been placed and the price at which the said tender was finalised.

The Commission directed the CPIO to mask technical specification(s), if any, which may exist in the tender committee minutes u/ s 10 of the RTI Act and to provide the rest of the said information in the form of certified copies, free of cost, under section 7(6) of the RTI Act to the appellant.
Total Case uploaded: 60