2023 (3) TMI 1291 - HC - Customs

Scope of discloser of information under RTI - Interplay of anti-dumping proceedings under the Customs Tariff Act, 1975 and Anti-Dumping Rules with the Right to Information Act, 2005 - only objection of the Petitioners is in respect of disclosure of the photocopy of the note sheet which contains confidential information of the complainants - It is the submission of ld. Counsels for the Petitioners 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. HELD THAT - A perusal of the provision of the Anti-Dumping Agreement would show that countries were conscious of the need to preserve confidentiality of the information disclosed during proceedings relating to anti-dumping duties. Authorities are permitted to treat the information, which could be commercially sensitive, as confidential and the same is not to be disclosed to any third party, without permission of the party providing the information. The above provisions, in fact, recognised the concept of confidential documents and information on the one hand and non-confidential summary on the other hand. The latter is meant to ensure that requisite information is still provided to third parties to comply with the principles of natural justice while maintaining confidentiality of specific information. The ultimate discretion under the Anti-Dumping Agreement is to be vested in the authority concerned to decide as to whether any information is to be disclosed or not - The scheme of the Anti-Dumping Rules is that as per Rule 5, a written complaint can be filed on behalf of the domestic industry, as defined in Rule 2(b), to the effect that injury is being caused to the domestic industry by furnishing evidence of dumping. The Anti-Dumping Rules require a link between the dumped imports and the alleged injury to be established. The Court needs to examine whether the Anti-Dumping Rules are inconsistent with the provisions of the RTI Act. The legal issue in the context of specific Rules framed by various authorities in respect of disclosure of information, in different contexts, has been subject matter of at least two decisions. In the case of Registrar of THE REGISTRAR, SUPREME COURT OF INDIA VERSUS RS MISRA 2017 (11) TMI 2022 - DELHI HIGH COURT , a ld. Single Judge of this Court was dealing with a request for information under the RTI Act in the context of Supreme Court Rules, 1966/2013 framed by the Supreme Court. In the said decision, the Court considered the framework of the said Rules framed under Article 145 of the Constitution of India, 1950. In the said judgment, the Court drew a distinction between the administrative functioning and the judicial functioning of the Supreme Court. perusal of the above two decisions shows that the Rules which are made by specific authorities to deal with information provided by parties on the judicial side cannot per se be held to be inconsistent with the provisions of the RTI Act. Moreover, the Supreme Court has specifically held that on the judicial side the information is held by courts as a trustee for litigants in order to adjudicate upon the matter and the same cannot be permitted to be accessed by third parties. A proper balance is to be maintained in order to ensure the confidentiality of documents and other information pertaining to the litigants to the proceedings. In the case at hand, 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. This Court 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 Anti-Dumping Authority which now forms part of the record in discharge of its judicial/quasi-judicial function. 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 - For good cause the said information can be refused to be disclosed. A perusal of the note sheet sought would also show that the disclosure of the same under the RTI Act, especially in a case where the RTI Applicant was a party to the anti-dumping investigations and is a competitor of the Petitioners could cause serious prejudice and adversely affect various sections of the domestic industry. 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. 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. 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. Petition allowed.

Summary

Issues Involved:
1. Disclosure of confidential information under the RTI Act.
2. Interplay between the Anti-Dumping Rules and the RTI Act.
3. Confidentiality of information in anti-dumping proceedings.

Summary:

Issue 1: Disclosure of Confidential Information under the RTI Act
The RTI Applicant sought information regarding the initiation of anti-dumping investigations, including a copy of the note sheet from the Directorate General of Anti-Dumping and Allied Duties (DGAD). The Central Information Commission (CIC) directed the DGAD to provide this information. The Union of India and the complainants (ISRPL and Reliance Industries Pvt. Ltd.) challenged this order, arguing that the note sheet contained confidential information. The Court noted that the Anti-Dumping Rules, specifically Rule 7, protect confidential information provided during such investigations and require a non-confidential summary if possible.

Issue 2: Interplay between the Anti-Dumping Rules and the RTI Act
The Court examined whether the Anti-Dumping Rules were inconsistent with the RTI Act. Section 22 of the RTI Act states that its provisions override other laws unless there is an inconsistency. The Court referenced previous judgments, including Registrar of Supreme Court of India v. R.S. Misra and Chief Information Commissioner v. High Court of Gujarat, which held that specific rules governing judicial or quasi-judicial bodies are not inherently inconsistent with the RTI Act. The Court concluded that the Anti-Dumping Rules provide a specialized framework for handling confidential information, which is not inconsistent with the RTI Act.

Issue 3: Confidentiality of Information in Anti-Dumping Proceedings
The Court emphasized the importance of maintaining confidentiality in anti-dumping proceedings due to the sensitive nature of the information involved, which can impact trade relations and the economic interests of the country. The Anti-Dumping Agreement and the Anti-Dumping Rules recognize the need to protect such information. The Court held that the DGAD, with its specialized knowledge, is better equipped to determine the confidentiality of information than the authorities under the RTI Act. The Court found that the disclosure of the note sheet could harm the commercial interests of the complainants and the domestic industry.

Conclusion:
The Court allowed the writ petitions, setting aside the CIC's order. It held that the RTI Applicant must seek information through the Anti-Dumping Rules and not bypass this procedure using the RTI Act. The remedies under the Anti-Dumping Rules for the RTI Applicant were left open.