Moneylife: Pune: Wednesday,
April 16, 2014.
The Nuclear
Power Corp must display suo moto the Safety Analysis and Site Evaluation Report
of KKNP Plant I & II as per Section 4(1)(c) of the RTI Act, the CIC said.
This is the 199th in a series of important RTI judgements given by former
Central Information Commissioner Shailesh Gandhi
The Central
Information Commission (CIC), while allowing an appeal, directed the Public
Information Officer (PIO) of Nuclear Power Corp of India Ltd (NPCIL) to provide
a to provide an attested photocopy of the Safety Analysis Report and Site
Evaluation Report after severing any proprietary details of designs provided by
the suppliers.
While giving
the judgement on 30 April 2012, under the Right to Information (RTI) Act,
Shailesh Gandhi, the then Central Information Commissioner, said, "...the
Nuclear Power Corp of India shall publish all Safety Analysis Reports and Site
Evaluation Reports and Environmental Impact Assessment reports prepared by the
Department before setting up Nuclear Plants within 30 days of receiving them,
unless it feels that any part of such report is exempt under the provisions of
Section 8(1) or 9 of the RTI Act.."
Nagercoil,
Tamil Nadu resident, Dr SP Udayakumar, on 25 April 2010, sought from the PIO
information regarding Koodankulam Nuclear Power Plant (KKNPP), Reactor I &
II in Tamil Nadu. For reactor I and II, he sought copies of Safety Analysis Report,
Site Evaluation Report and Environment Impact Assessment report.
In his reply,
the PIO said, the 339-pages Environment Impact Assessment report was available
and the appellant can have a copy after paying Rs678 (Rs2 per page). "The
Safety Analysis Report and the Site Evaluation Study Report were not public
documents and contained design details that are proprietary in nature. As such
the information was exempt under Sections 8(1)(a) and (d) of the RTI Act,"
the PIO said.
Citing PIO
provided incomplete information, Dr Udayakumar filed his first appeal. The
First Appellate Authority (FAA) agree with the PIO and observed that both the
Safety Analysis Report and the Site Evaluation Study Report for KKNPP I &
II were classified documents held by NPCIL.
Not satisfied
with the FAA's ruling Dr Udayakumar approached the CIC with his second appeal.
In his appeal, he said, safety and wellbeing of Indian citizens is very
important and information must be provided (by NPCIL).
During the
hearing, Mr Gandhi, the then Central Information Commissioner, observed that
the copies of copies of the Safety Analysis Report and Site Evaluation Report
of reactors I & II (collectively referred to as Reports) of the Koodankulam
Nuclear Power Plant in Tamil Nadu were not provided to the appellant.
The PIO
argued that the Reports were classified information and the concerned public
authority had not taken a decision to release it in to the public domain. He
submitted that the Reports were protected from disclosure under Sections
8(1)(a) and (d) of the RTI Act.
The Bench
repeatedly asked the PIO the specific reasons for claiming the said exemptions.
As regards Section 8(1)(a) of the RTI Act, the PIO stated that the security,
strategic and scientific interests of the State would be affected on disclosure
of the information. However, he did not give any explanations as to how the
security, strategic and scientific interests of the State would be affected on
disclosure of the said reports. Further, in relation to Section 8(1)(d) of the
RTI Act, the PIO claimed that the Reports comprised of commercial confidence.
However, he did not explain how disclosure of the said reports could be
considered 'commercial confidence' and how it could harm the competitive
position of a third party.
On the other
hand, Dr Udayakumar, the appellant, contended that the exemptions under
Sections 8(1)(a) and (d) of the RTI Act were not applicable to the present
matter. He argued that a larger public interest would certainly be served on
disclosure of the Reports. He also placed reliance upon the agreement between
India and the International Atomic Energy Agency (IAEA) which lays down the
safety and maintenance standards for nuclear activities.
Dr Udayakumar
further submitted that reports of the same nature were classified as public
documents in countries such as US, UK and Canada in order to ensure public
debate. He also gave written submissions along with a CD detailing the
arguments.
The Bench of
Mr Gandhi then reserved its order.
During the
next hearing on 30 April 2012, the Bench said it is legally well-established
that information under the RTI Act can be denied only on the basis of Sections
8 and 9 of the RTI Act. "The fact that a record has been termed as
'classified', or that it shall be disclosed subject only to an executive decision
to that effect-have not been stipulated as exemptions under the RTI Act.
Therefore, the PIO cannot use such grounds for denying the information sought
under the RTI Act; denial of information shall be on the basis of Sections 8
and 9 of the RTI Act only," Mr Gandhi said.
The Bench
then examined the PIO's contention that the Reports were exempt from disclosure
under Sections 8(1)(a) and (d) of the RTI Act.
Section
8(1)(a) of the RTI Act exempts from disclosure-"information, disclosure of
which would prejudicially affect the sovereignty and integrity of India, the
security, strategic, scientific or economic interests of the State, relation
with foreign State or lead to incitement of an offence".
Mr Gandhi
noted that during the last hearing on 23 April 2012, even after repeatedly
asking the basis for seeking exemption under Section 8(1)(a), the PIO gave no
reasons.
Section
8(1)(d) of the RTI Act exempts from disclosure- "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;".
Mr Gandhi
said, "In order to claim the exemption under Section 8(1)(d) of the RTI
Act, the PIO must establish that disclosure of the information sought (which
may include commercial or trade secrets, intellectual property or similar
information) would result in harming the competitive position of a third party.
At the hearing held on 23/04/2012, the Commission repeatedly asked the PIO the
specific reasons for claiming the said exemption. The PIO simply stated that
the information was commercial confidence; he provided no explanation as to how
disclosure of the said reports would harm the competitive position of a third
party, except mentioning that the designs were of Russian manufacturers."
"From
this statement and the PIOs contention that the reports contained design
details, it appears that the contention was that design details of the plant
were in these reports and divulging them may be considered disclosing
commercial confidence, trade secret or intellectual property and such
disclosure may harm the competitive position of the supplier," he said.
As per
Section 19(5) of the RTI Act, in any appeal proceedings, the onus to prove that
a denial of request was justified shall be on the PIO who denied the request.
"In the
instant matter, the PIO has not given any justification for showing how the
security, strategic and scientific interests of the State would be
prejudicially affected if the Reports were disclosed-under Section 8(1)(a) of
the RTI Act. Further, the PIO's argument indicates that exemption under Section
8 (1) (d) may be attracted if the design details of the plant were disclosed.
It follows that the burden required to be discharged by the PIO under Section
19(5) of the RTI Act has not been done as far as exemption under Section 8 (1)
(a) is concerned," the Bench noted.
After
perusing documents submitted by Dr Udayakumar, the Bench observed that India
was a member of the IAEA and had entered into the Application of Safeguards to
Civilian Nuclear Facilities Agreement with IAEA in 2009. The KKNPP-Reactors I
& II are included in the list of nuclear power facilities and installations
annexed to the agreement for application of the safeguards prescribed by IAEA.
IAEA has, in
its Safety Standards Series, issued a set of standards to be adhered to while
undertaking a site evaluation for nuclear installations. IAEA has issued
standards for the safety of nuclear power plants vis-à-vis design, operation
and mitigating circumstances that could jeopardize safety. It prescribes safety
assessment which is carried out in order to identify the potential hazards that
may arise from the operation of the plant.
Dr Udayakumar
had also referred to the Vienna Convention on Nuclear Safety, 1994
(Convention), to which India is a signatory. Article 5 of the Convention
requires India to submit for review a report on the measures it has taken to
implement each of its obligations under the Convention including evaluation of
safeguards and safety standards in place for nuclear power plants.
He also cited
the report of 2010 for India and referred to certain parts therein. It has been
submitted that the report is required to be made in accordance with each
Article listed in the Convention. "Reporting in relation to Article
17-which refers to 'Siting' makes it clear that site evaluation does not relate
to national security matters under Section 8(1)(a) or anything protected under
Section 8(1)(d) of the RTI Act. It purely relates to geography, environment,
meteorology, geology etc. These are all connected with the environment directly
and inextricably and have a huge bearing on public health and safety," the
Bench noted.
It said,
"Reliance has also been placed upon Article 14-'Assessment and
Verification of Safety' and Article 18-'Design and Construction'. The appellant
had also referred to a government of India monograph mandating what is involved
in site evaluation study and contends that the monograph makes it clear that
the entire exercise of site evaluation is for ensuring safety of the
environment and the people from any danger or fallouts."
Mr Gandhi
said the Bench found merit in Dr Udayakumar's contention. "The purpose of
a site evaluation for nuclear installation in terms of nuclear safety is to
protect the public and the environment from the radiological consequences of
radioactive releases due to accidents, etc. The Bench notes that the site
evaluation report not only provides the technical basis of the safety analysis
report, it contains technical information useful for fulfilling the
environmental impact assessment for radiological hazards. Therefore, it follows
that the site evaluation report forms an important basis of the environmental
impact assessment report as well. In order to appreciate the conclusions
reached in the environmental impact assessment report, a citizen must have
access to the site evaluation report as well. This will enable the public to
obtain a comprehensive understanding of the likely environmental impact of the
KKNP Project," he said.
"Given
the serious implications of the internal and external safety factors relating
to nuclear reactors there is a great public interest in disclosing the safety
evaluation report of the KKNP Project. Disclosure of the site evaluation and
safety assessment reports will enable citizens to get a holistic understanding
of the KKNP Project including environment and safety concerns," the Bench
added.
Section 4 of
the RTI Act contains a statutory direction to all public authorities "to
provide as much information suo moto to the public at regular intervals through
various means of communications, including internet, so that the public have
minimum resort to the use of this Act to obtain information".
More
specifically, Section 4(1)(c) of the RTI Act mandates that all public
authorities shall- "publish all relevant facts while formulating important
policies or announcing the decisions which affect public".
It follows
from the above that citizens have a right to know about the Safety Analysis and
the Site Evaluation Study Report, which has been prepared with public money.
Mr Gandhi
said, the PIO has not justified the denial of the information in terms of
Section 8 (1) (a) as required by Section 19 (5) of the Act. The PIO did not
give any reasoning to the appellant initially, nor did he provide any cogent
explanation during the hearing to the Bench, he added.
Section 8(2)
of the RTI Act states, "Notwithstanding anything in the Official Secrets
Act, 1923 nor any of the exemptions permissible in accordance with sub-section
(1), a public authority may allow access to information, if public interest in
disclosure outweighs the harm to the protected interests".
"The
Bench is of the view that the denial of Section 8 (1) (a) of the RTI Act has
not been established, and there is certainly a larger public interest in the
disclosure of these reports. Section 8 (1) (d) may be attracted if the said
reports have details of designs of the plant which are specially provided by
the suppliers. In that event the PIO can severe such design details which have
been provided by the supplier as per the provisions of Section 10 of the
Act," Mr Gandhi said.
Talking about
safety evaluation reports, the Bench said, where worldwide, site evaluation and
safety analysis reports of nuclear power plants and installations are being put
in public domain to elicit public views, India can have no reason to treat its
citizens differently.
"If such
reports are put in public domain, citizens' views and concerns can be
articulated in a scientific and reasonable manner. If the Government has
reasons to ignore the reports, these should logically be put before people.
Otherwise, citizens would believe that the Government's decisions are arbitrary
or corrupt. Such a trust deficit would never be in the interest of the
Nation," the Bench said.
While
allowing the appeal, the Bench directed the PIO to provide an attested
photocopy of the Safety Analysis Report and Site Evaluation Report after
severing any proprietary details of designs provided by the suppliers to the
appellant before 25 May 2012. "Further, the PIO will also ensure that the
complete Safety Analysis Report and Site Evaluation Report and the Environmental
Impact report are placed on website before 30 May 2012, the order said.
Mr Gandhi
also said, "all Safety Analysis Reports and Site Evaluation Reports and
Environmental Impact Assessment reports prepared by the Department before
setting up Nuclear Plants must be
displayed suo moto as per the mandate of Section 4 (1)(c ) & (d) read with
4 (2). If parts of such report are exempt as per the RTI Act, this should be
stated and the exempt parts could be severed, after providing the reasons for
such severance. Such a practice would be in accordance with the provisions of
Section 4 of the RTI Act and would result in greater trust in the Government
and its actions."
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