Report regarding merger of Air India and Indian Airlines - disclosure of “business plan” can harm commercial interest of the Company, as it would allow competitive insight into the entire merger process and planning
7 Aug, 2013Facts of the case:
1. The Appellant, through his RTI application dated 20.04.2012, filed with the CPIO, Air India Ltd., New Delhi, wanted to obtain “a copy of the full report submitted by the Ms. Accenture on the merger of Air India and Indian Airlines”.
2. The CPIO vide his letter dated 20.06.2012 informed the Appellant that “as per the Confidentiality Agreement of the Consultancy Agreement entered between Air India and M/s Accenture, such data cannot be given to any outsider, being confidential.” The CPIO cited exemption under section 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; of the RTI Act.
3. The Appellant, being aggrieved by the CPIO’s reply, filed an appeal before the Appellate Authority on 03.07.2012 which the Appellate Authority decided vide his order dated 31.07.2012 upholding the CPIO’s decision.
4. The Appellant then filed the present appeal before the Commission challenging the denial of information by the Respondents.
Decision:
5. During the hearing, the Respondents submitted that the information sought by the Appellant here [i.e. copy of the full report submitted by the Ms. Accenture on the merger of Air India and Indian Airlines] contains “business plan” of the company which may harm the competitive position of the public authority in the market, if allowed to be disclosed. They also produced before the Commission Confidentiality Agreement of the Consultancy Agreement entered between Air India and M/s Accenture which prohibits revelation of such information to any outsider. They also brought to the Commission’s notice that the Appellant here is seeking this information on behalf of Lal Bhahadur Shastri National Academy of Administration, Mussoorie for training purpose of participants in their training programmes. The Appellant, present during the hearing, while conceding this fact, also added that this report would be circulated to all the trainees of academy as study material, if provided.
6. Since the Respondents, in their replies to the Appellant, had not explained as to how disclosure of the present information attracts exemption under section 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; of the RTI Act, the Commission directed them to file a written submission before the Commission in support of their claim that information sought here falls under the exemption category of section 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; of the RTI Act.
7. The Respondent CPIO & General Manager (Finance), Shri Sarit Sharma accordingly sent his written submission dated 31.07.2013 to the Commission (through fax) which reads as follows:
“The Consulting Services Agreement with M/s Accenture contains terms and conditions of the contract that was entered into with M/s Accenture. As per the agreement, once the Report is delivered by M/s Accenture, the Report becomes the property of Air India and Air India has exclusive jurisdiction relating to its disclosure or otherwise. The Agreement as such with M/s Accenture contains: . Service and Deliverables to be given by Accenture; . Payment for services and Expenses; . Responsibilities of M/s Accenture; . Rights in Deliverables; . Handling of confidential information given to M/s Accenture by AI; . Representation and Warranties given by M/s Accenture; . Indemnification of both parties; . Relationship between the parties; . Limitation of liability . Termination . Dispute Resolution and miscellaneous. M/s Accenture were engaged for examining the background of the merger with the following deliverables: . Directional strategy for merger . Business case and justification for the merger. . Merger Conceptualisation, valuation and planning; . Develop business strategy and operating plan for merged entity to initiate operation integration. . Network, fleet and schedules . Branding . Alliances . Sales and Marketing . Plans for integration . Procurement, planning etc. . Ground Handling Operations . Airport Operations . Information Technology plan . Facilities and Infrastructure. It is submitted that, from the Scope of work as stated above, it is evident that these issues are of a confidential nature and disclosure of this to competitors would be prejudicial to the interest of the Company, as it would allow competitive insight into the entire merger process and planning. Hence, publication of information would not be in the interest of the national carrier. Further since the report being a confidential property of Air India, we may be exempted from disclosing the same to public domain under the RTI Act section 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; .”
8. On consideration of the submission above and on perusal of records, the Commission is of the view that the information in question here has characteristic of ‘commercial confidence’ and trade secret’, disclosure of which may harm the competitive position of the third party. The Appellant also has not shown any bona fide ‘public interest’ warranting the disclosure of this information.
9. In view of the above, the Respondents’ decision denying the disclosure of present information to the Appellant under section 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; of the RTI Act is hereby upheld.
(Sushma Singh)
Information Commissioner
Citation: Shri T.C. Pant v. Air India Limited in Case No. CIC/SS/A/2012/003873