In the recent decision in the case of Union of India vs Arvind M. Kapoor1, the Hon'ble High Court of Delhi has held that confidentiality of information provided pursuant to anti-dumping investigations is protected from disclosure under the Anti-Dumping Rules. Such information, considered confidential during an anti-dumping investigation, cannot be disclosed under the RTI Act. The Court made these observations pursuant to an appeal by Union of India challenging the order of the Central Information Commission whereby it had directed the Directorate General of Trade Remedies to disclose certain information under the RTI Act.
Facts of the case
Indian Synthetics Rubber Private Limited and Reliance Industries Limited filed an application before the DGTR for initiation of investigation into imports of Styrene Butadiene Rubber from European Union, South Korea and Thailand. The DGTR initiated the investigation vide Notification No. 14/10/2015-DGAD, dated 14th January 2016. Following the initiation of the investigation, the respondent, Mr. Arvind M. Kapoor filed an application under the RTI Act seeking information under seven heads. The information sought under the application included date on which application was filed, copy of non-confidential version of the application, date on which decision to initiate the investigation was taken, photocopy of the Note Sheet put up for approval by the DGTR, copy of intimation to foreign governments and exporters and the details of notification published by the Government of India.
The concerned CPIO provided the required information vide replies dated 11th February 2016 and 31st March 2016. However, the Note Sheet put up for approval of the DGTR was not provided in reply, citing that such information was confidential. Aggrieved by non-supply of information, the respondent approached the First Appellate Authority, who provided the same response. Thereafter, the respondent approached the CIC in appeal.
The CIC held that non-disclosure of information sought by the respondent deprived them of their rights under the RTI Act. Upon examination, the CIC also held that the Note Sheet did not contain any information which cannot be disclosed under the RTI Act and thus, directed the DGTR to provide the Note Sheet to the respondent. Aggrieved by the order and direction of the CIC, the Union of India, along with Reliance Industries Limited and Indian Synthetic Rubber Private Limited, approached the Hon'ble High Court of Delhi for quashing the order of the CIC.
Issue before the Court
The main issue that arose for consideration before the Court was whether the DGTR is obliged to provide information under the RTI Act, particularly since the Anti-Dumping Rules provided for a framework governing the confidentiality of information submitted to the DGTR and sharing of such information between parties.
The petitioners, through the counsel for the government and Adv. Rajesh Sharma, submitted that the information sought by the respondent was confidential in nature, containing business sensitive information of the applicant producers before the DGTR. The confidentiality of such information was protected under Rule 7 of the Anti-Dumping Rules. It was further submitted that the RTI mechanism could not be used to obtain sensitive and confidential commercial data of the applicant producers, who were direct competitors of the respondent. On the other hand, the respondent argued that the RTI Act would prevail over the Anti-Dumping Rules and the DGTR is under a legal obligation to provide the information sought under the RTI Act.
Decision of the Court
The Court referred to the decisions of the Hon'ble Supreme Court in the cases of Registrar of Supreme Court of India vs. R.S. Misra and Chief Information Commissions vs. High Court of Gujarat, wherein it was held that Rules made by specific authorities to deal with information provided by parties in judicial proceedings cannot per se be held to be inconsistent with the provisions of the RTI Act. In the same vein, the Court held that the confidential information submitted before the DGTR was in the course of adjudication.
The Court further held that the WTO Anti-Dumping Agreement and Rule 7 of the Anti-Dumping Rules provided for treatment of information as confidential, considering the sensitivity and competitive advantage that can be gained by third parties, if such confidential data is disclosed. Further, the Designated Authority examined the impact of disclosure of confidential information such as sales, cost of raw materials, investments, etc. on the competitive advantage of the supplier of the information. Having considered the impact of disclosure, the Designated Authority exercised their expertise to determine whether there is a good cause preventing disclosure of such confidential information. In comparison, the authorities under the RTI Act did not have the requisite expertise to determine the impact of disclosure of confidential information submitted or obtained in anti-dumping proceedings.
Furthermore, the Court held that anti-dumping proceedings have national and international dimensions and also have an impact on the country's economy. Thus, the entire purpose of a comprehensive provision for disclosure of confidential information under the Anti-Dumping Rules would be defeated if interested parties are allowed to indirectly seek information under the RTI Act. The Court also recognized that Section 11 of the RTI Act itself provided for protection of information received from third parties.
In view of the foregoing, the Court allowed the writ petitions and set aside the order of the CIC directing the DGTR to provide confidential information to the respondent.
1 W.P.(C) 8381/2016 and CMAPPL. 34681/2016, dated 23rd March 2023
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