Moneylife: Pune: Thursday, April 04, 2013.
While
allowing an appeal, the CIC noted that refusal of the information in the first
instance had been in good faith and hence there will be no costs. This is the
69th in a series of important judgements given by former Central Information
Commissioner Shailesh Gandhi (this decision was given by a two-member bench)
that can be used or quoted in an RTI application
A two-member
bench of the Central Information Commission (CIC), while allowing an appeal
directed the Public Information Officer (PIO) of Indian Institute of Management,
Ahmedabad to provide information agreed upon to the appellant.
While giving
this important judgement on 20 April 2010, the bench of Wajahat Habibullah, the
then Chief Information Commissioner and Shailesh Gandhi, the then Central
Information Commissioner said, “The information, as agreed, will now be
provided to appellant Rakesh Kumar Dubbudu within 10 working days of the
receipt of this Decision Notice. But because the refusal of the information in
the first instance had been in good faith, there will be no costs.”
Hyderabad
resident Rakesh Kumar Dubbudu, on 5 September 2009, sought information under
the Right to Information (RTI) Act from the PIO of Indian Institute of
Management, Ahmedabad. He sought information about the grant of contract to
conduct online Common Admission Test (CAT) to Prometric. Here is the
information he sought and the reply provided by the PIO...
1.
Copy
of the tender notice
PIO's
Reply: Enclosed.
2.
List
of companies that put in tenders for this contract.
PIO's
Reply: Enclosed.
3.
Copies
of all tender documents put in by the various companies.
PIO's
Reply: Information is
exempt from disclosure under Section 8(1)(d)
4. Copy
of all complete file including the file noting of the tender finalization and
selection of Prometric.
5.
Copy
of the contract document signed with Prometric.
6.
Value
of the Contract signed with Prometric.
7.
Copy
of the concessional agreements signed with Prometric.
PIO's
Reply: There is no
concessional agreement signed with Prometric.
8.
Is
HRD ministry funding this initiative and providing the contract amount?
PIO's
Reply: The HRD ministry is not funding this initiative and not providing the
contract amount.
9.
Provide
breakup of amount and parties that are sharing the contract funding.
PIO's
Reply: There is no
sharing of the contract funding.
10. Reasons for selection of
Prometric.
PIO's
Reply: Reasoning of
decision does not come under the ambit of RTI Act.
Not satisfied
with the reply, Dubbudu approached the CIC, which remanded the matter to the
First Appellate Authority (FAA) of IIM, Ahmedabad.
The FAA in
its order noted that the PIO had informed that the CAT Centre had written to
the fourteen firms which had applied for the contract asking them to respond if
they had any objections if their tender documents were disclosed to the RTI
Applicant. Nine firms did not respond and therefore it was assumed that these
firms had no objection to parting with this information.
Accordingly,
the PIO informed the applicant (Dubbudu) that he could obtain the photocopy of
the documents on payment of additional fees of Rs1,326. The PIO informed the
applicant that the remaining five firms had categorically stated that the
documents relating to them should not be revealed. The technical details,
computerization processes laid out and financial modalities are service
provider specific and are proprietary information and therefore, disclosing
this information would breach commercial confidentiality, and by providing this
information, the Institute may be exposed to potential legal action by firms,
the PIO said.
The Appellate
Authority ordered that information on nine service providers which had not
responded to the CAT centre query may be given to the applicant once he makes
the payment @ Rs2 page. Regarding other information on the other five service
providers, the PIO was requested to take up the matter with the CAT centre
keeping in mind the spirit of the Act as well as section 10(1) of the Act.
The matter
then came to the CIC. During a hearing on 22 January 2010, both the parties
submitted various arguments. Both Dubbudu and Prof Satish Deodhar, Convener of
CAT sent the submission.
In his
submission, Dubbudu, the applicant stated that “There is huge public interest
involved in this case. The 2.41-lakh students who took CAT this year and the
public in general have a right to know how and why Prometric was selected and
the basis on which the others were rejected. The way CAT was conducted this
year and the number of court cases already pending on this matter further
strengthen the argument for disclosure.”
Prof Deodhar,
in his submission stated “Disclosure of the information would harm the
competitive position of the IIMs. In the absence of maintaining the
confidentiality, private institutes would access to IIMs innovative ideas.
Other stakeholders in the society would be interested in misusing the
confidential information that is being requested for by the appellant. For
example, the coaching class industry would certainly like to know more about
how IIMs generate questions for the computerised test, how they are securely
stored, and what the methodology of delivering them to the candidates is. If
the confidentially of such information were violated then that would compromise
the ability to discriminate candidates.”
“Given the
market dynamics, continued intention of IIMs to hold computerized test and the
possibility of knowing of each other's financial strategies, collusion may
emerge among firms when the contract is to be renewed, re-negotiated, or fresh
proposals are sought. Revealing rival financial strategies may lead to weak
bargaining position for IIMs. As a result, financial considerations may turn
out to be expensive for public institutions like IIMs. This certainly will not
be in the larger public interest,” he added.
The
Commission said, on consideration of the facts during the hearing and through
the written submissions received from the parties, the bench was of the opinion
that the matter warrants the constitution of a larger bench as there is
considerable public interest involved and the legal position is not entirely
clear-cut. The matter was then reserved for decision.
The Division
Bench then heard the appeal on 23 February 2010 through videoconference.
During the
hearing, Prof Deodhar submitted that it is not in the public interest to
disclose how the test is conducted and if the coaching classes were to learn of
these details, it would disrupt the entire process of the CAT examination
structure.
Prof Deodhar
further submitted that CAT examination is intellectual property of the IIM and
if the manner of existing tender offers together with the costs accepted from
year to year is known; this could lead to collusion in rising of prices.
In a separate
letter, Prof Deodhar brought to the notice of the Commission that the appellant
Dubbudu was an employee of Oracle India (P) Ltd, one of the competition firms,
which is the address that he has given in his RTI application.
Dubbudu took
objection accusing the respondent of character assassination and stated that he
has mentioned that address of Oracle India (P) Ltd. because that is his
official address, but as he has clarified in the initial application “this
application is in my personal capacity as a citizen of India”.
Prof Deodhar
then clarified that this fact had been given only for the information of the
Commission to make of it as it would and that no accusation was made.
During the
hearing, Mr Gandhi enquired of the respondents whether this system was unique
to IIMs to which he received the response that there are other organizations
that also rely on the CAT system.
The
Commission noted that in the information sought, the impugned response was only
with questions 3,4,5 and 10.
In its
earlier decision in other matters, the Commission had ruled on the question of
disclosure of bids on offer after the contract has been awarded, in light of
the exemption allowed under Section 8(1)(d).
In a decision
(Complaint No CIC/WB/C/2006/00176) on 13 June 2006, the Commission had held
that...
“A contract
with a public authority cannot be categorised as 'confidential' after
completion. Even if some confidentiality is involved, public interest in a
matter of the nature of the present case will warrant disclosure. Had it been a
case of quotations, bid or tender or any other information prior to conclusion
of a contract, it could be categorized as trade secret, but once concluded the
confidentiality of such transactions cannot be claimed. Any public authority
claiming exemption must be put to strictest proof that the exemption is
justifiably claimed. This is not so in the present case.”
Similarly,
in a decision (CIC/SM/A/2009/000981) on 4 November 2009, the CIC ruled that...
“The
Respondent reiterated the same arguments and claimed that the quotations
offered by various bidders for the renovation/repair work as well as the bills
which were reimbursed to the contractor were in the nature of commercial
confidence, the disclosure of which would affect the competitive position of
the concerned parties and, therefore, should not be disclosed. We do not at all
agree with this line of argument. The tender process cannot remain a
confidential affair after the tender is finalized and the successful bidder
selected and appointed. When the bidders take part in a tender process, they do
so in response to an open public invitation of bids.
“To argue
that their quotation is a confidential transaction between them and the public
authority even after the tender is finalized is totally contrary to the objective
of transparency expressly sought to be promoted by the government in the area
of procurements of goods and services. In fact, such information should be suo
moto placed in the public domain by the public authority without having to be
told to do so. Similarly, the application of an individual for securing a job
cannot be a confidential document by itself. If it contains details other than
what was strictly excepted as per the recruitment rules for the post, those
details can, however, be severed before parting with the document.”
The
Commission said, in light of the above decisions, and in view of the
submissions of both parties before the CIC, it felt that in this case the IIM
claiming exemption must in its turn be put to strictest proof that the
exemption is justifiably claimed. The CIC then directed Prof Deodhar to present
these documents before the Commission on 12 April 2010.
On 12
April 2010, Prof Deodhar presented the documents sought by the Commission. He
also submitted a petition, in which he showed willingness to share some
documents, like...
1.
Pre-qualification
proposals by nine service providers who did not respond to us to withhold their
proposals (pages 707).
2.
Minutes
of the meeting held to short-list service providers (pages 5).
3.
Minutes
of the meeting held for final selection of a service provider including all the
appendices except appendix II (pages 9).
While
refusing to provide remaining information, Prof Deodhar made following
arguments.
1.
B
1. Harms competitive position of third
parties—Section 8 (1) (d)
a.
Five
service providers have sent official letters clearly mentioning their
reservation for information disclosure. Some clearly allude to harming of their
competitive position.
b.
Both
at the pre-qualification stage and short-listing stage, service providers have
printed clear instructions at the bottom of each page of their proposals that
the information provided in the pages is private, confidential and proprietary.
2.
B2. Harms competitive position of IIMs—Section
8 (1) (d)
a.
Domestic
competition: There are quite a few domestic organisations in private sector
with their own entrance tests for management education (e.g. XMAT, NMAT, MAT,
etc). IIMs certainly do not want them to
know the financial and technical strategies followed for CAT computerization as
brought out in the proposals and contract documents. Under the garb of RTI public are
asymmetrically duty bound, vis-à-vis domestic private institutions and are
completely disarmed in their efforts to retain competitive edge.
b.
Foreign
competition: International organizations which conduct their own aptitude/
entrance tests for management education (e.g. GMAT) are vying with CAT to
capture the Indian educational testing market institutions like IIMs. For
example, after establishing their offices in US and UK, GMAT has recently set
up its third international office in India.
IIMs certainly do not want them to know the financial and technical
strategies followed for CAT computerization which are quite India
specific. Leads and hints of these
strategies get revealed in the proposals and contract documents. Under the garb of RTI, Indian, national,
public institutions like IIMs are asymmetrically duty bound vis-à-vis foreign
institutions and is completely disarmed in their efforts to retain competitive
edge.
3.
B
3. Not Serving (Harming) Larger Public
Interest—Section 8 (2)
c.
IIMs
are established to serve larger interest of society.CAT is conducted to select
thousands of innately good candidates and train them for a few years so that
they will serve the society. Moreover, CAT scores are also used by 155 non-IIM
institutions spread all over India to select many more thousands of candidates
who will get training in management education. If CAT processes and
computerization strategies become available to stakeholders such as coaching
classes and candidates, ability of 155 management institutions and of IIMs in
selecting innately good candidates will be thwarted and this is not in the
larger public interest.
d.
As
academic institutions, IIMs and their faculty have the responsibility to come
up with novel, innovative concepts that will enhance their contribution to
society. Computerization of CAT,
particularly in the typical Indian market conditions, is one such concept
initiated by IIMs. Under the garb of RTI queries, if their ideas get shared
with free riding stakeholders of the society (competing testing organizations,
coaching classes and candidates), IIMs ability to build ability to intellectual
capital in the area will be seriously compromised. This will affect their
ability to improve processes to select innately good candidates not only for
themselves but for 155 non-IIM member institutions. Public interest is harmed
in the process by thwarting improvements in selection process for IIMs and
non-IIM member institutions.
e.
As
public institutions serving the society, IIMs would like to economize on the
nations resources. While engaging with private service providers, public
institutions serving the society, IIMs would like to economize on the nations
resources. While engaging with private service providers, public institutions
negotiate hard to get best possible pecuniary and technical benefits and save
precious resources for the society. It is important to know that even now the
competing service providers who bid for the computerization contract do not
know each other's financial or technical strategies. If these are made public,
then there is distinct possibility that when the contract is due for renewal or
fresh bids, the competing service providers may either collude or will not
submit financial proposals as economical as they would have if they had not
known the financial strategies of others. In the process additional, precious
financial resources of the society would be wasted as the bargaining position
of public institutions like IIMs would be weakened due to the disclosure.
4.
B4. Applying Severability is extremely
difficult & risky—Section 10 (1)
f.
We
understand that a public institution may part with those texts of the
documents, which can be severed from the ones that are confidential and/ or the
eligible for exemption from disclosure. However, in our opinion,
disproportionately large and substantive texts are confidential in nature and
any attempt to sever such text from about 2500 pages would be extremely
difficult and risky.
g.
Technical
details regarding server and lab security standards, Applying Severability is
extremely difficult & risky (Section 10 (1)
h.
infrastructure
solutions, test centre networking, organizational structure and execution plans,
statistical procedures, equations, sealing of scores, phasing and scheduling of
test days, description of process to assist in generating thousands of
questions ,discussion about ownership of questions ,tests, software programmes,
data collection, key descriptions of specialized personnel and their
responsibilities in the execution of project, and candidate care services are
highly confidential, and, important are spread and cross-referenced throughout
the documents. It is extremely difficult and risky to attempt severing two
kinds of information.
i.
Details
of financial strategies in terms of fees, method and duration of fee
collection, pecuniary incentives for psychometric research, project management,
question bank development, public relations, and extent of liabilities
negotiated by each of the service provider are highly confidential, and
importantly, are spread and cross-referenced throughout the documents. It is
extremely difficult and risky to attempt severing two kinds of information.
5.
B5. Risk of exposure due to petitioner's work
place association.
Mr
Dubbudu works for the US based multinational firm Oracle and has provided his
Oracle address in all his correspondence. It is of interest to know that Oracle
has partnered with Pearson to deliver their online certification examination,
and, importantly, it is the same Pearson, which lost the IIM contract to
Prometric. It is also relevant to know that Oracle had partnered with Prometric
in the past for their online tests. Thus, Mr Dubbudu may or may not represent
the firm Oracle in this RTI, however, his association with that work place
creates possibilities of harm to competitive position of other service
providers, inadvertent or otherwise. As you are aware, five service providers
have written to us about their reservation to share documents and that most of
them printed 'confidential and proprietary' message on each page.”
The
Commission noted that the entire case hinges around the subject of
computerization of CAT exams. Prof Deodhar also submitted that the competitive
position of the party does not end with the award of contract, since contracts
are also subject to review and this could compromise the competitive position
of the winner of the contract.
Prof Deodhar
also submitted the computerization of the CAT exam is a new experiment and is
looked upon with a degree of jealousy by institutions across the world. In this
context, he cited the example of US based G-MAT which has recently opened its
offices in India and would wish to compete with CAT in supplying computerized
examination systems to IIMs and other institutions. He also submitted that at
the time of the initial response to the application of appellant (Dubbudu), he
had spoken to the third parties only on the telephone. Subsequently, he had written to third parties
and obtained their responses.
On the
question of the highly competitive area of computerization of examinations,
although it would be ready to disclose the information, if and as directed by
the Commission, Prof Deodhar was of the view that this could dangerously
compromise the whole examination structure,
given the positions of competitive vendors, those using the systems to
obtain the best quality of student material and the candidates themselves.
Prof Deodhar
also sought an opportunity to consult with other experts in the field and to
revert to the Commission with the report through email addressed to
whabibullah@nic.in and shaileshgandhi@nic.in by or before 20 April 2010, after
which the Commission would be free to issue its decision. The Commission agreed
to the request.
The bench of
Mr Habibullah and Mr Gandhi, accordingly allowed the appeal filed by Dubbudu.
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