The Delhi High Court ruled that the RTI Act promotes greater transparency and access to information, the same cannot be held to be an inviolable rule.
Facts
The Petitioners jointly filed an application before the Designated Authority, Directorate General of Anti-Dumping and Allied Duties. The said complaint was filed for initiating investigation qua imports of Styrine Butadine Rubber of 1500 and 1700 series originating in or exporting from European Union, Korea RP and Thailand. Pursuant to the said complaint, the DA 2016 initiated an anti-dumping investigation.
Submissions
CGSC Digpaul, appearing for the Union of India, submitted that the only objection of the Petitioners is in respect of disclosure of the photocopy of the note sheet which contains confidential information of the complainants.
He contended that the information that is sought by the RTI Applicant is confidential in nature and, specifically, it is third party information given to the DA for the purpose of anti-dumping investigation.
Advocate Rajesh Sharma, appearing for one of the complainants reiterated this stand and submitted that the sensitive data of competitors including the Complainants, has been included in the complaint which was filed. The initiation notice has the required information which led to the issuance of the public notice. The domestic industry consisting of two companies i.e., M/s ISRPL and M/s Reliance Industries Limited which had jointly filed the complaint.
He submitted that a perusal of the initiation notice itself would show that there are various figures and facts which are sensitive in nature and at the stage of initiation of investigation, it is merely the prima facie satisfaction of the DA which is required.
Advocate Ankur Sharma, appearing for the RTI Applicant, submitted that the note-sheet, which is being sought, is the basis of the investigation which was commenced and the RTI Applicant and the industry is entitled to know the basis of initiation of the anti-dumping investigation.
He further submitted that if there is any confidential information in the same, the same can be redacted by the Anti-Dumping Authority. The manner in which final findings are published in confidential and nonconfidential versions, can also be adopted even for the initial order under Rules 5 & 6 initiating the investigation.
Decision
The single judge bench of Justice Prathiba M. Singh observed that it is the submission of the RTI Applicant itself that the Anti-Dumping Authority is acting as a quasi-judicial body when dealing with the complaint of the complainant in respect of dumping.
The Court said that it has no doubt in holding that the information that has been supplied by the Complainants has been given in the course of adjudication, in the capacity of a litigant. Thus, the information has been received by the AntiDumping Authority which now forms part of the record in discharge of its judicial/quasi-judicial function.
The court further added that there are specialised fields which are governed by specifically enacted Rules and Statutory frameworks so as to balance the interest of disclosure with the larger public interest relating to that field. Anti-dumping duty is one such field, which is governed by the Customs Tariff Act, 1975 and the AntiDumping Rules framed thereunder. The said Rules are a consequence of provisions of GATT and the Anti-Dumping Agreement, which also recognize the sensitivity of information disclosed under anti-dumping proceedings.
The court observed that none can claim an absolute right to get a certain piece of information, and the nature of the information that is sought would be material. The specific note sheet that has been sought by the RTI Applicant is the note sheet relating to initiation of anti-dumping investigation. From a bare perusal of the original file produced before the Court, it is evident that the note sheet contains various portions of information which may be confidential to the Complainants.
The court ordered that In the context of anti-dumping proceedings and information disclosed therein, the DA has to undertake a detailed enquiry into issues such as ‘competitive advantage’, ‘business sensitivity’, ‘productivity particulars’, ‘cost of raw materials’, ‘investments made’, ‘sales’, ‘market share’ etc.
It was further ordered that the DA also has to examine whether there is good cause for disclosure. The DA can also get non-confidential summaries prepared for the purpose of disclosure. All this exercise is to be undertaken by the DA having expertise in the matter.
The court opined that the imposition of anti-dumping duty and confidential information disclosed in such proceedings would have a significant impact on the economic interest and trade relations of India, as also would constitute information received by the authority in confidence, which cannot be subjected to disclosure. Section 11 of the RTI Act itself recognizes the intention to protect the information received from third parties. This principle is also the very basis of Rule 7 of the Anti-Dumping Rules, which requires specific authorization of the party providing the information. Thus, in effect, there is no inconsistency between the provisions of the RTI Act and the Anti-Dumping Rules.
“If any party, especially one who has already participated in the anti-dumping investigation, requires any information, the same would have to be governed and dealt with under the Anti-Dumping Rules, including Rule 7, and the said procedure cannot be bypassed by seeking resort to the provisions of RTI Act. The Anti-Dumping Authority is vested with specialised knowledge relating to the trade as also the exclusive knowledge in respect of anti-dumping proceedings. Such knowledge would enable the said Authority to take a considered decision as to whether the particular information is to be disclosed or not. Such expertise does not vest with the CPIO/PIO or other authorities under the RTI Act” the court held.
Case title: Union Of India V/S Arvind M Kapoor And Anr
Citation: W.P.(C) 8381/2016 and CMAPPL. 34681/2016