Delhi HC sets aside CIC's order directing Centre to provide information on anti-dumping proceedings

New Delhi [India], March 27 : The Delhi High Court has recently set aside an order passed by the Chief Information Commissioner directing the Ministry of Commerce to provide the information sought by an RTI applicant.
The RTI applicant had sought information related to anti-dumping initiated against two companies.
The High Court said that confidential information cannot be subjected to disclosure under the RTI Act.
Justice Prathiba M Singh allowed two petitions against the CIC's order.
"In the present case, this Court is of the opinion 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," Justice Singh said.
The order of the CIC of 29 July 2016, passed in favour of Arvind M. Kapoor, was challenged by two petitions. The CIC had directed the Directorate General of Anti-Dumping and Allied Duties to provide the information sought by the RTI Applicant.
The bench also rejected the contention of the RTI applicant. The court said, "The Court is also not impressed by the argument of the RTI Applicant that denial of providing information under the RTI Act would lead to a breach of principles of natural justice."
The parties to an anti-dumping proceeding ought to take recourse to the Rules and Regulations provided in respect of that nature of proceedings.
When the Anti-Dumping Rules themselves provide an exception to disclosure in view of the nature of the proceedings, the Court cannot allow the RTI Applicant to bypass the said barrier, justice Prathiba M Singh said in the judgement passed on March 23.
The court said that 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 from the party providing the information.
"Thus, in effect, there is no inconsistency between the provisions of the RTI Act and the Anti-Dumping Rules, the High Court said.
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 high court pointed out.
The court said that 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 Petitioners jointly filed an application (Complaint) before the Designated Authority, Directorate General of Anti-Dumping and Allied Duties (hereinafter 'DA').
The said complaint was filed for initiating investigation qua imports of Styrine Butadine Rubber (SBR) of 1500 and 1700 series originating in or exporting from the European Union, Korea RP and Thailand.
Pursuant to the said complaint, the DA initiated an anti-dumping investigation.
Almost immediately after the investigation was initiated, the RTI Applicant Arvind M. Kapoor filed an application on 29 January 2016 under the Right to Information (RTI) Act, 2005 seeking information qua seven issues in relation to the initiation of anti-dumping investigation concerning imports of SBR from European Union, Korea RP and Thailand.
The CPIO, on 11th February 2016 informed the RTI Applicant that the notification concerning the initiation of the anti-dumping investigation is available on the website of the Department of Commerce.
Thus, apart from the note sheet which was sought, almost all the information sought was provided by the CPIO to the RTI Applicant.
However, aggrieved by the non-supply of all the information as sought in the RTI application, the Applicant preferred an appeal dated 11th April 2016 to the First Appellate Authority.
The First Appellate Authority (FAA) on 3 June 2016 intimated that the note sheet sought by him comprised confidential information that cannot be summarised into a non-confidential version. For the other non-confidential information, the reply stated that if the RTI Applicant is an interested party as per the Anti-Dumping Rules, it may verify the public file of the concerned case.
Being dissatisfied with the reply given by the FAA, the RTI Applicant preferred a second appeal under Section 19(3) of the RTI Act to the CIC. The CIC has directed the Directorate General of Anti-Dumping and Allied Duties to provide the information, including the note sheet to the RTI Applicant.
The CIC had observed, "It is pertinent to mention here that the CPIO, vide his response dated 11.02.2016 denied the required information to the appellant by stating that the information is already available in Public Domain on the website."
The Commission is of the considered view that the appellant has been deprived by the respondents deliberately from having the benefits of the RTI Act 2005, even after a lapse of more than seven months period, CIC said.
Thus, the respondents have defeated the very purpose of the RTI Act 2005 for which it was legislated by the August Parliament of India, it opined.
The CIC had directed the respondents to provide complete and categorical information, against issues photocopy of the note sheet of the file pertaining to M/s Indian Synthetic Rubber Pvt Ltd (ISRPL) within 30 days.
The Petitioners the Union of India, ISRPL, and Reliance Industries Pvt. Ltd. seek quashing of the impugned order by way of the present two petitions.
Advocate Ajay Digpaul, Central Government Standing Counsel (CGSC) 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.
According to Digpaul and Rajesh Sharma, Counsels, the RTI Applicant is an importer of goods from various foreign countries and has participated in the enquiry and the proceedings for imposition of the anti-dumping duty before the DA. Though the note sheet and the basis of the decision to initiate an anti-dumping investigation are not disclosed, the findings are published by way of a public notice which is issued under Rule 7 of the Customs Tariff Rules, 1995 (Anti-Dumping Rules).
"The initiation of the investigation is publicised by means of a public notice issued under Rule 7. The said initiation leads to various persons being issued a notice for objecting to the imposition of anti-dumping duty. Preliminary findings are issued after determining the nature of the injury caused, if any. The final findings are then issued under Rule 17 of the Anti-Dumping Rules. The final findings are also published in the official gazette," the counsel submitted.