11 March 2016

RTI Act & disclosure of information in anti-dumping investigations

by T.D. Satish

Access to information is a cornerstone in any administrative or quasi-judicial proceeding and non-availability of the relied upon documents to the affected parties have been condemned for long by the highest Court of this country.

Designated Authority is a quasi-judicial authority, which conducts anti-dumping investigations in India, based on evidences gathered by it during the course of the investigation. Being a quasi-judicial authority , it is obligated to follow the principles of natural justice, which inter-alia, includes making available the relied upon information. Not making the same available to affected parties may render the order passed by it as void, as being in violation of the principles of natural justice.

In an antidumping investigation, the disclosure of information by the Designated Authority is regulated to a large extent by Rule 6(7) as well as Rule 7 of the AD Rules. Rule 6(7) provides that the Designated Authority shall make available the evidence presented to it by one interested party to the other interested parties, participating in the investigation. This rule, however, seems restrictive in the sense that it relates only to such evidence, which are provided by interested parties, who are participating in the investigation. Thus, an interested party may find it difficult to get information obtained by the Designated Authority from a third party, though there is nothing confidential about the same. Rule 7(1) on the other hand allows Designated Authority to treat certain information provided by the parties as confidential subject to fulfillment of conditions prescribed. Rule 7(2) further provides that Designated Authority may ask the party submitting confidential information to submit non-confidential summary and if such information is not amenable to summarization, then a statement of reasons for claiming confidentiality may be filed.

Hon’ble Supreme Court has held in the case of Reliance Industries vs The Designated Authority  that Designated Authority does not have the right to claim confidentiality on its own volition and unless the party claims confidentiality. It has also been made clear by the Hon’ble Supreme Court that where confidentiality has been claimed, party has to provide a non-confidential summary or a statement of reason for claiming confidentiality, as the case may be, since not making the relevant material available handicaps other side in filing an effective appeal.

Though Hon’ble Supreme Court has had a chance to interpret Rule 7, the debate still goes on in anti-dumping investigations as to who can seek information from the Designated Authority and whether Designated Authority can refuse to share such information which has been obtained from a third party.  If the information provided by or obtained from the third party contains no confidential information, whether the Designated Authority would be compelled to make available such information to the interested parties is a question for which there can be only one answer.  The answer is yes and the authority shall share such information to facilitate transparency in the investigation and to protect the rights of interested parties who may be adversely affected by the use of such information. Whether the law mandates the same positive answer needs to be considered in the light of the various provisions. The information in question may contain both business sensitive information as well as non-sensitive information, which can easily be shared. Whether in such cases, Designated Authority may provide such information in a redacted form (i.e. authority will prepare and make available a non-confidential version that gives the gist of the information obtained confidentially) is a question. AD Rules do not have a direct answer.
So, should a party interested in such information be at the mercy of the Designated Authority’s discretionary power and remain confined to the boundary walls of AD Rules?

One need not venture too far to find an answer. The Right to Information Act 2005 (Hereinafter “RTI Act”) may perhaps answer a few of the problems indicated above if the same is pressed into service by any party seeking information from the Designated Authority.
At the outset, a question may arise that since a specific law and provision has been enacted in the form of AD Rules to regulate anti-dumping investigations, whether RTI Act will still be applicable?

We may find an answer in Section 22 of the RTI Act, which provides that the provisions of this Act shall have overriding effect over any other law for the time being in force or in any instrument having effect by virtue of any law other than the RTI Act. Thus, where a party has applied for information under the RTI Act and if such information is available for disclosure and is required to be provided by a public authority, then in such a case, Rule 7 or any other provision of AD Rules may not protect the Designated Authority. One needs to keep in mind that both the laws provide a mechanism for obtaining information and hence, a party’s request will be governed by that law, under which such party has sought information.

Assuming an application is filed before the Designated Authority under Section 6 of the RTI Act, let us apply the provisions of RTI Act and see if the above lingering questions arising out of anti-dumping proceedings can be answered independently by the RTI Act.

Whether anyone can seek information from Designated Authority or only the interested parties are allowed to seek information?

While Section 3 provides that all citizens have the right to information, Section 6 provides that a person, desirous of obtaining information may make a request in writing in the prescribed mode and manner. Thus, if application is made in terms of RTI Act, then it is immaterial whether the party is an interested party to the investigation or has notified its interest to the Designated Authority. Further, though Section 3 uses the word “citizen”, Section 6 provides that “a person” may make a request. Interpretation of both the provisions seems to suggest that Section 6 is wider in its ambit than Section 3. Thus, a bare reading suggests that though an Indian party can claim to have a right to information, an exporter based out of India, may also file an application under Section 6 but not seek information as a right.

Whether despite being a public authority, Designated Authority can keep relied upon information as confidential?

Designated Authority constitutes a public authority in terms of Section 2(h) and thus a person is entitled to seek information from Designated Authority. However, there may be two impediments – Section 8 and Section 11.

Among other things, Section 8(1)(d) provides that there is no obligation to disclose, inter-alia, 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.

Section 11 relates to third party information. The section covers information that relates to or has been supplied by a third party and has been treated as confidential by that third party.  In such cases, Section 11 requires that such third party should be given notice and time period to respond. Any submission made by such third parties shall be kept in view while taking a decision about disclosure of the information in question.

It is interesting to note that while Section 8(1)(d) does give a wide scope to public authority to treat information such as commercial confidence, trade secrets or intellectual property, there are two conditions which need to be taken care of by the public authority-

1)         Would the disclosure harm the competitive position of a third party? and;
2)         The decision to treat information as confidential or not has to be taken by ‘competent authority’.

‘Competent Authority’ has been defined under Section 2(e) to mean – (a) speaker in case of Lok Sabha or Legislative Assembly in case of State or Union Territory and Chairman in case of Rajya Sabha or Legislative Council in case of States; (b) Chief Justice of India in case of Supreme Court; (c) Chief Justice of High Court in case of High Court, (d) the President or the Governer, as the case may be, in case of other authorities established or constituted by or under the Constitution and (e) administrator appointed under Article 239 of the Constitution, i.e., in regards to Union Territories.
Applying the above definition, it remains to be seen as to who will be the ‘competent authority’ where public authority is Designated Authority and it will be interesting to see how this provision gets applied.

Resultantly, unless public authority is able to show that disclosure would harm the competitive position of a third party concerned, the information would have to be disclosed.  Even if the disclosure would harm the competitive position of the third party, but if larger public interest warrants disclosure of information, the same may be disclosed.  The competent authority has to be satisfied as to the harm to the competitive position and/or the larger public interest while taking a decision regarding disclosure of information.

As regards Section 11, it relates to third party information and it is that third party alone, which can oppose the disclosure of information. Public Authority cannot decide the issue on its own.

Thus, it seems that where an application is made by any person, Designated Authority will have to disclose the information, if Section 8 and Section 11 are not attracted. Such a person need not be an interested party to the investigation conducted by Designated Authority.
Can the confidential information be severed into two parts – redaction of confidential information and disclosure of rest of the information?
Section 10(1) gives a direct answer regarding severability of information. Section 10 reads as follows:

“10(1).  Where a request for access to information is rejected on the ground that it is in relation to information which is exempt from disclosure, then, notwithstanding anything contained in this Act, access may be provided to that part of the record which does not contain any information which is exempt from disclosure under this Act and which can reasonably be severed from any part that contains exempt information.”

This section provides that where a request for access to information is rejected on the ground that it is in relation to information which is exempt from disclosure, then, notwithstanding any contained in the Act, access may be provided to that part of the record which does not contain any information which is exempt from disclosure and can reasonably be severed from any part that contains exempt information.
Thus, Section 10(1) seems to a very useful provision insofar as those information are concerned, which contain both confidential and non-confidential information.

It is also relevant to note that RTI Act has specifically obligated the public authority to provide reasons for its administrative or quasi-judicial decisions to the affected persons in terms of Section 4(1)(c) of the Act.

To conclude, with RTI Act coming into picture, a quasi-judicial authority may find it increasingly difficult to withhold publicly available information from the parties. As the preamble of RTI Act says, the purpose of the Act is to set out a practical regime of right to information to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority.

In short, apart from in-built provisions under AD Rules and the principles of natural justice coming to play, RTI Act seems to be an additional tool in the hands of the affected parties to ensure transparency and accountability in the functioning of Designated Authority.

[The author is a Principal Associate, International Trade Practice, Lakshmikumaran & Sridharan, Delhi]

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