Advertisement concessionaire agreement issued by Airport Authority denied on the ground of commercial confidence - CIC: The First Appeals had not been dealt with appropriately & were disposed off with rather vague and generic orders; Cases remanded to FAA
19 Oct, 2021Information sought and background of the case:
(1) CIC/AAOIN/A/2019/658732
The Appellant filed an RTI application dated09.08.2019 seeking information on the following 03 points related to the advertisement concessionaire agreement issued by Airport Authority of India for Chennai Airport:-
Please provide details of amount received by AAI from the existing concessionaire for the following time period:
- 01.04.2018-31.03.2019
- 01.04.2019-31.06.2019
- Please provide a copy of the letter of award issued to the successful bidder / concessionaire by AAI
- Please provide information regarding the license fee received by AAI FROM 1.1.2019 to 31.12.2019
The CPIO vide online reply dated 06.09.2019 stated that the information sought for is of commercial confidence and the disclosure of which would harm the competitive position of a third party, hence the same cannot be disclosed as per clause 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; 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, 2005.
Dissatisfied with the response received from the CPIO, the Appellant filed a First Appeal dated 11.09.2019. The FAA vide online order dated 09.10.2019 upheld the reply of the CPIO.
Aggrieved and dissatisfied, the Appellant approached the Commission with the instant Second Appeal.
Facts emerging in Course of Hearing:
A written submission has been received from CPIO/AAI vide letter dated 13.08.2021, furnishing the following reasons for denial of information:
The license for exclusive advertisement right is awarded through competitive bidding. The concessionaire quotes per sq. ft license fee/ month payable to AAI in their bid. The contract is awarded to H1 bidder. In case if the amount paid by the concessionaire for a period is disclosed, the per sq. ft. rate paid by them to AAI will be disclosed thereby. It may affect their competitive position in the market (With the clients of the concessionaire to whom the advertisement sites are sold). Hence the information was denied under clause 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; 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 RTI Act 2005.
The award letter issued successful bidder/concessionaire contains the per sq. ft. license fee/month payable by them to AAI. In case if the amount paid by the concessionaire is disclosed, it may affect their competitive position in the market (With the clients of the concessionaire to whom the advertisement sites are sold).Hence the information was denied under clause 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; 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 RTI Act 2005.
A reply dated 30.08.2019 is also found on record whereby the information was denied by Jt. GM (Comml) citing Section 8(1)(j) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information: Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person. of the RTI Act, 2005.
(2) CIC/AAOIN/A/2019/658737
The Appellant filed an RTI application dated 09.08.2019 seeking information on following 04 points related to the advertisement concessionaire agreement issued by Airport Authority of India for Chennai Airport:-
- Please provide the information regarding the utilised advertisement area and if AAI has received any additional fee for the surplus area beyond 16,000 sqft.
- Please share the media layout plan the sizes installed at the Chennai Airport.
- Please share details of outstanding dues to be received by AAI from the existing concessionaire as on date and if any Notice of Dissatisfaction has been issued in this regard.
- Please provide details regarding the amount of security deposit received by AAI and its validity.
The CPIO vide online reply dated 06.09.2019 stated that the information sought for is of commercial confidence, the disclosure of which would harm the competitive position of a third party, the same cannot be disclosed as per clause 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; 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, 2005.
Dissatisfied with the response received from the CPIO, the Appellant filed a First Appeal dated 11.09.2019. The FAA vide online order dated 09.10.2019 upheld the reply of the CPIO.
Aggrieved and dissatisfied, the Appellant approached the Commission with the instant Second Appeal.
Facts emerging in Course of Hearing:
A written submission has been received from CPIO/AAI vide letter dated 13.08.2021, furnishing the following reasons for denial of information:
Media planning and utilization of space is the information pertaining to the concessionaire. It is depending upon their business strategy. Disclosing it may affect their competitive position in the market (With the clients of the concessionaire to whom the advertisement sites are sold). Hence the information was denied under clause 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; 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 RTI Act 2005.
Media planning and utilization of space is the information pertaining to the concessionaire. It is depending upon their business strategy. Disclosing it may affect their competitive position in the market (With the clients of the concessionaire to whom the advertisement sites are sold). Hence the information was denied under clause 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; 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 RTI Act 2005.
In order to ensure social distancing and prevent the spread of the pandemic, COVID-19, hearing through video conference was scheduled after giving prior notice to both the parties. Appellant states she is seeking the information as a public spirited person to enquire about the expenditure incurred by a public authority, which affects the public exchequer. She further averred that once the tender process is complete and the tender has been awarded, the information pertaining to the process cannot be treated as confidential.
Respondent reiterated the contentions as already submitted vide the aforementioned written submissions pleading exemption on the ground of commercial confidence, explaining that once the advertisement concessionaire agreement is awarded to the master concessionaire, the tender is delegated by the master concessionaire to separate smaller vendors and disclosure of information as sought by the Appellant may compromise the competitive position of the master concessionaire. Hence, disclosure of the information had been declined by the Respondent, to protect the interest and competitive position of the third party.
Decision:
On analysis the factual position of the cases, the Commission is unable to accept the argument put forth by the Respondent for denial of information and finds it pertinent to refer to the judgment of the Division Bench of the Hon’ble High Court of Jharkhand in the matter of State of Jharkhand vs. Navin Kumar Sinha & Anr. Dated 08.08.2007, wherein it was held that:
“26..….Prima facie, we are of the view that once a decision is taken in the matter of grant of tender, there is no justification to keep it secret. People have a right to know the basis on which the decision has been taken. If tenders are invited by the public authority and on the basis of tender documents, the eligibility of a tender or a bidder is decided, then those tender documents cannot be kept secret, that too, after the tender is decided and work order is issued on the ground that it will amount to disclosure of trade secret or commercial confidence. If the authorities of Government refuse to disclose the document, the very purpose of the Act will be frustrated. Moreover, disclosure of information, sought for by the petitioner, cannot and shall not be a trade secret or commercial confidence; rather disclosure of such information shall be in public interest, inasmuch as it will show the transparency in the activities of the Government.
27. As stated in the supplementary counter affidavit, the documents were provided to the Legislative Assembly as per the reports submitted by one M.L.A., Chairman of Jharkhand Vidhan Sabha Committee. The document, disclosure of which sought for, is the experience certificate issued by one company in favour of successful bidder and also the document related to turn over and profit of the limited company. Since the tender process is completed and contract has been awarded, it will not influence the contract. Besides the above, a citizen has a right to know the genuineness of a document submitted by the tenderer in the mater of grant of tender for consultancy work or for any other work. As noticed above, the tender process is completed and the contract has been awarded, therefore, it will not influence the contract. In any view of the matter, the document in question cannot be treated as trade secret or commercial confidence. In our considered opinion a contract entered into by the public authority with a private person cannot be treated as confidential after completion of contract…”
The above decision stood confirmed by the Apex Court’s order dated 05.10.2007, upon dismissal of the SLP filed against the abovementioned order.
In the light of the above position, the Commission notes that the First Appeals filed by the Appellant in the above cases had not been dealt with appropriately and were disposed off with rather vague and generic orders. It appears that the issues should have been adjudicated at length upon addressing the contentions of the parties appropriately and then passing a detailed order.
In the given circumstances, it is hereby directed that the appeals shall be remanded to the FAA – Dr. Sharad Kumar, Airport Director, Chennai Airport, for proper adjudication of the issues upon granting fair hearing to both parties and passing a reasoned speaking order addressing the relevant contentions of the parties, appropriately. The Respondent is directed to ensure that a copy of the FAA’s order should be submitted before the Commission by 30.09.2021, in compliance with the above directions.
The appeals are disposed off with the above directions.
Y. K. Sinha
Chief Information Commissioner
Citation: Ms. Daisy Hannah v. Airports Authority of India in Second Appeal No. CIC/AAOIN/A/2019/658732 and CIC/AAOIN/A/2019/658737, Date of Decision: 18.08.2021