RTI Judgement Series
RTI Judgement Series: PIO cannot deny information citing “commercial confidence”

Any agreement entered into by the government is an agreement deemed to have been entered into on behalf of the and in the interest of “We the people” and the PIO cannot deny this information to a citizen. This is the eleventh in a series of important judgements given by Shailesh Gandhi, former CIC that can be used or quoted in an RTI application

Under the Right to Information (RTI) Act, the Public Information Officer (PIO) cannot deny information citing commercial confidence for agreements between a public authority and private party. While giving this judgement, Shailesh Gandhi, former Central Information Commissioner said “The claim of 'commercial confidence' in denying access to agreements between private parties and the masters of the public authorities—citizens—runs counter to the principles of the Right to Information.
“Any agreement entered into by the government is an agreement deemed to have been entered into on behalf of the and in the interest of ‘We the people’. Hence if any citizen wants to know the contents of such an agreement he is in the position of a principal asking his agent to disclose to him the terms of the agreement entered into by the agent on behalf of the principal. No agent can refuse to disclose any such information to his principal,” the Central Information Commission (CIC) said in its order dated 27 July 2009.
Delhi resident Gita Dewan Verma, on 23 April 2007, sought information regarding agreement between the Government of National Capital Territory (NCT) Delhi and IL&FS Ecosmart, a consultant of the City Development Plan (CDP). Here are the points on which she sought the information from Additional Secretary (UD) of the Government of NCT Delhi...
1. Copy on CD of Delhi Govt's CDP, along with authentication letter and authorization for private publication.
2.  For each of the 102 individuals name in “List of Individuals invited for CDP workshop” at Annexure - 15.3 of the CDP, information related to decision to invite (including decision to prefer over others similarly qualified/ experienced / situated).
3. For each of those besides IL&FS who responded to CDP tender dt. 23/02/06 information relating to decision to involve/not involve in the consultation process described in Chapter 15 of CDP. 
4. List of all others named in the list of 102 invitees at Annexure- 15.3 besides Centre for Civil society (whose director is named at no. 65) who have given copies of CDP with and without publication authorizations.
5. Particulars (date, number, from, to , subject) / copies of the following:
a) Letter commissioning CDP to IL&FS Ecosmart Ltd.
b) Letter by which IL&FS submitted final CDP to Urban Development Dept.
c) Letter /OM by which Dept submitted the CDP for State Govt. approval.
d) resolution/OM by which State Govt. approved the CDP.
e) Letter by which State Govt submitted the CDP to GOI
6. Particulars of official publication of CDP.
The PIO said the CDP of the Delhi government is also available on the website of the department and hence is not advisable for private publication. Regarding points 2, 3 and 4, he stated that “Is regarding inviting individuals for consultation workshop was organized by IL&FS Ecosmart Ltd as a part of the preparation of CDP. The firm was free to select the individuals for the workshop. It may be one of the reasons for not inviting you that the firm was unknown about you.”
The First Appellate Authority (FAA), disposed off Ms Verma’s appeal saying that “After going through the records of the case and appeal of the appellant, I am of the opinion that nothing more could have been provided to the appellant than what has already been informed to appellant vide letter dated 22 June 2007. In view of the above, Appeal stands disposed off.”
She then filed second appeal with the Commission. During a hearing on 14 November 2008, the Commission identified key issues in the appeal and gave its interim order. Here are the issues and interim orders given by Mr Gandhi...
(a) Does the agreement between GNCTD and CDP Consultant come under S.8(1)(d) or could it have been given with the Work Order (based on/in continuation of the Agreement) for complete reply to my request no. 5a (“Letter commissioning CDP to IL&FS Ecosmart Ltd”)?
CIC: The Commission asked the respondent to justify how Section 8(1)(d) would apply to the agreement between GNCTD & CDP Consultants. The respondent stated that agreements are matters where commercial information of the consultant is shared. The Commission asked the respondent to give a note giving its arguments in support of using this exemption. The Commission did not see this exemption as very obvious as made out by the respondent. Besides the respondent has not given any reasoning as to how Section 8(1)(d) applies in this case. 
(b) Do CDP Consultants’ submissions for various stages of payment come under S.8(1)(d) or could copies/particulars have been given in reply to my request no.5b (“Letter by which IL&FS submitted final CDP”)?
CIC: The appellant seeks to know if there were covering letters attached to various submissions. The Commission has asked the PIO to supply the covering letters accompanied with any of the submissions. In case there are no covering letters with some of the submissions this will be stated categorically. 
(c) Does information about “State Level Steering Committee” and its procedures (whereby notice for its meeting is channel of submission and its 'endorsement' in unconfirmed minutes is approval) come under S.4(1)(b) and should it have been given for complete reply to my request nos.5c, d&e (records of submission and approval of CDP)?
CIC: The PIO has been asked to give the information to the appellant whether there is any written procedure for the State Level Steering Committee. If there is no such procedure the PIO will state this clearly. 
(d) Was GNCTD obliged to obtain under S.2(f) and supply on my requests nos.2 & 3 information "for  each of" who were consulted or submitted EOI/myself rather than general remarks about all, as given?
CIC: The PIO has been asked to send the letter to IL&FS asking if there was any written down criteria by which participants were selected or rejected for the work shop and provide the answer to the appellant. 
(e) Is supply of CDP on CD “subject to condition” of no publication (to me) same “without publication authorization” (to Centre for Civil Society, on website of which CDP is published and which has also distributed further copies on CD) and, if CDP copyright “is with the government”, ought copy on CD to have been refused (to all) under Section 8(1)(d)?
CIC: The appellant’s query insisting that the PIO must give a reply authorising her to publish the CD given to her cannot be considered as a request for information as defined under the Act. The appellant is actually seeking a decision from the PIO and the way she has worded it cannot be construed as seeking information under the Act. 
Following the order, the PIO provided information on points b, c and d while claiming exemption for point a under Section 8(1)(d). The PIO stated “...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”.
He further contended that IL&FS Ecosmart was bound of confidentiality that it shall not at anytime, without the consent of the government, disclose or divulge or make public any information regarding the city development plans prepared by it as one of the terms of the reference. Therefore, as a gesture of reciprocity, the Urban Development Department also considered itself morally bound not to divulge any information on the agreement, which may harm the interest of the consultancy firm, he added.
However the Commission was of the view that the stand taken by the respondent is not tenable in law. “The objectives of the RTI Act would be defeated if public authorities claim exemption based on a claim that ‘terms and condition were much more favourable to the government’, and therefore these must be kept away from the Public. In fact public feels that quite often the contrary is the case,” the Commission noted.
Mr Gandhi said, “Any so called imaginary moral or reciprocal obligation cannot be permitted to subvert a solemn constitutional and legal obligation.”
The Commission directed the PIO to provide copy of the agreement between GNCTD and CDP Consultant to Ms Verma before 15 February 2009.
Decision No. CIC /WB/A/2007/00830/SG/ 1286
Appeal No. CIC/WB/A/2007/00830
Appellant                                     :  Gita Dewan Verma
                                                                New Delhi-110070
Respondent                                : Additional Secretary (UD)
                                                               Govt. of NCT Delhi
                                                               10th Level, Delhi Sachivalaya, 
                                                               I.P. Estate, New Delhi-110002




Ashok Das

4 years ago

Respected Sir / Madam,

While the particular case has its own specific features, I feel that the statement

'Any agreement entered into by the government is an agreement deemed to have been entered into on behalf of the and in the interest of “We the people” and the PIO cannot deny this information to a citizen.'

is too general a statement as many agreements contain intellectual property, trade secrets, etc., that may not be disclosed under the RTI Act. Please note that such issues are mentioned later in the text. While it is true that All agreements cannot be withheld under RTI Act by citing 'commercial confidence', there are indeed provisions in which many agreements cannot be divulged for reasons spelt out in the RTI Act itself. For example, if ISRO / Ministry of Earth Sciences has a project agreement with another company to develop certain technology which it funds the and details of the problem and plans, designs, etc are there in the agreement,which form intellectual property, trade secrets, etc., can they not be withheld under RTI Act? Then there is scope of loss of valuable intellectual property!! I would therefore request Money Life to make sure that this is clarified or else RTI applicants will cite this in wrong places and then get confused when refused information with a proper reason by some other CIC.

Thanks and Regards



In Reply to Ashok Das 4 years ago

Thanks Mr Das for your comment.
Section 8 (1) (d) of the RTI Act, 2005 states:

“ 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;”

Using the same, the PIO had contented that there is no obligation to give any citizen an information, the disclosure of which could harm the competitive position of a competitor. This was ruled out by the Commission.

Here is what the Commission noted (You would find it in the order as well)...

"The PIOs contention that ‘If such terms are made public, the firm may be put at disadvantage in negotiating the terms in the matter of any other similar job for which it may be competitor in future.’ is not supported by any reasoning. If the terms are not in the interests of the Public good, this argument could well be used to hide corrupt dealings and agreements which are against Public interest. Even if we take the argument that some very favourable terms have been obtained by the Public authority, there certainly is a larger Public interest in disclosing these, so that the Public authority could get such favourable terms from others as well. The objective of the RTI act is to promote transparency and accountability and contain corruption. The objectives of the Act would be defeated if Public authorities claim exemption based on a claim that ‘terms and condition were much more favourable to the Government’, and therefore these must be kept away from the Public. In fact Public feels that quite often the contrary is the case. Citizens own the Government and all information belongs to them. The claim of ‘commercial confidence’ in denying access to agreements between private parties and the masters of the Public authorities,- Citizens, - runs counter to the principles of the Right to Information."

Hope this clarifies your doubt.

Moneylife Team

Ashok Das

In Reply to MDT 4 years ago

Thank you Sir / Madam for your immediate response. The above case is well understood. I have a doubt on the general impression conveyed in the headings. Does

'Any agreement entered into by the government is an agreement deemed to have been entered into on behalf of the and in the interest of “We the people” and the PIO cannot deny this information to a citizen.'

mean any and every kind of agreement and supercedes Section 8(1) d of RTI Act 2005?

Kindly consider the situation where there is a design project agreement between say ISRO and another organization (public or private). This consists of developing or implementing a unique indigenous technology the concept and details of which is enshrined in the agreement and which if made public under RTI prior to securing formal rights (or retaining them as trade secrets), would potentially lead to loss of IPR for one or both parties of the agreement.

Please let us know if this also falls in the category of rights of 'We the people' as mentioned earlier and must be provided under RTI and whether there are any specific cases to support this?

Thank you again,

Kotak ‘positive’ On NBFCs after RBI released draft guidelines

Kotak Institutional Equities maintains a ‘positive’ outlook on NBFCs and expects Mahindra Finance, Shriram Transport, IDFC and Reliance Capital while bearish on HDFC, Rural Electrification Corporation (REC), Bajaj Finserv

Kotak Institutional Equities (Kotak) has voiced positive sentiments on Non-Banking Financial Companies (NBFCs) on the back of the recently announced draft guidelines issued by the banking regulator, the Reserve Bank of India (RBI). The report released on 13 December 2012 stated, “We are positive on the business of asset-finance NBFCs even as the recent rally caps upside.” In other words, it is positive on the sector even though the market has discounted the upside movement because it believe the guidelines will make NBFC fundamentally stronger over the long-term. It expects most of the NBFCs under coverage to report 7%-10% lower pre-tax earnings if these guidelines are to be implemented straightaway instead of in 2015 as stipulated in the draft guidelines. It bullish on Mahindra Finance, Shriram Transport, IDFC and Reliance Capital while it is bearish on HDFC, Rural Electrification Corporation (REC), Bajaj Finserv.


Check here for some of our write ups on NBFCs.


Some of the highlights of the draft guidelines are:

  1. 90-day non-performing loan (NPL) recognition: The current practice is 180 days; which means that if a loan has not been recovered within 180 days of its due date, it has to be recognized as bad loan or NPL and be written off. Now the RBI has made this 90 days, which means NBFCs need to tighten their screws if they are to recover loans quickly, else they will just keep piling up. It will be implemented after March 2015. One could expect cleaner and healthier balance sheet and a safer industry but a possibly impacted bottom-line on account of more NPL and higher provisioning.
  2. 10% Tier-I Capital Adequacy Ratio (CAR) for most NBFCs: Infrastructure Financing Companies (IFCs) are required to have a minimum CAR of 10%, which is lower than the 12% mentioned in the Usha Thorat Committee Report. This is somewhat more lenient and provides some breathing space, in terms of capital requirements. However, gold-loan NBFCs and captive finance companies would need to maintain CAR of 12%. While NBFC-NDs are required to have a higher threshold of 15%. This should be implemented by March 2015.
  3. NBFCs would need to take permission of RBI of shareholding changes by over 25%: Sometimes, NBFCs, from time to time, may need capital infusion if there is a crisis or urgent need of capital. In this case, it might need to sell stake. But if the stake sale is more than 25% or there’s change in control in a NBFCs, it would need to seek RBI’s permission. This is to ensure that RBI has some level of understanding and control over the industry.


Kotak stated, “RBI’s proposed guidelines for NBFCs are marginally better than expected.” The final guidelines are slated for January 2013, which will be implemented by NBFCs. Other than impact on pre-tax earnings, it finds that its universe of NBFCs has CAR of over 15% (as of September 2012) which is well above stipulated norms. For instance, according to the report, Shriram Transport has 16.8% Tier-I CAR, Muthoot Finance has 14% tier-I CAR (this is flirting with the 12% norm and could go lower if gold prices crash). Mahindra Finance has around 14% tier-I CAR. IFDC is well placed with tier-I CAR of 19.2%.


According to the Kotak report, some of the companies likely to be impacted on account of higher provisioning due to stringent NPL norms are Power Finance Corporation, Rural Electrification Corporation and L&T Finance Holdings. The table below shows which companies are likely to be impacted and their overall loan picture.

However, Kotak said that these guidelines will not impact significantly the companies it covers. It says, “We don’t find a significant impact of the draft guidelines on sustainable earnings of NBFCs under our coverage”. It furthermore said, “While M&A activity in the sector will be exposed to higher regulatory scrutiny, higher regulatory control will provide comfort to stakeholders”.


On 12th December, RBI released draft guidelines to address issues and concerns in the NBFC sector. The draft guidelines are based on recommendations on the basis of Usha Thorat Committee Report. The Committee reviewed existing regulatory and supervisory framework of non-banking finance companies (NBFCs) and to strengthen the overall regulatory framework. The draft revised guidelines relate to entry point norms, principal business criteria, prudential regulations, liquidity requirements for NBFCs and corporate governance.


Check here for our take on some of our Kotak Institutional Equities reports.


Excitement over banking sector bills placed before Parliament unlikely to yield immediate positive results: Kotak

The amendment bill (banking) is a step towards issuing new licenses for banks, but not the final step, says Kotak Institutional Equities update on the banking sector

Kotak Institutional Equities, in its banking sector update, is guarded about the recent excitement surrounding bills placed before the Parliament. The amendment bill (banking) is a step towards issuing new licenses for banks, but not the final step. There are very few positives in the amendments. 
However, the changes in the SARFAESI Bill are positive as they increase the strength of banks to initiate recovery of bad loans, says the Kotak update. (SARFAESI stands for Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest).
The Kotak update maintains its cautious outlook as there is no strong RoE (Return on Equity) improvement as slowdown in revenue growth may be accentuated and credit costs are unlikely to decline sharply over FY2013-14. The RoE is estimated to be 14%-15% for public banks and 16%-17% for private banks. 
SBI (State Bank of India) and ICICI Bank are the preferred stocks, conclude the analysts of the Kotak update regarding the performance of major players on the banking sector in the stock market.
On the proposed banking sector legislation and its consequences, the Kotak update says that new licenses are to take time; and new instruments will be allowed to raise capital for public banks. The likely delay in passing the bill implies that RBI (Reserve Bank of India) could extend the timeframe to take the next step towards issuing fresh bank licenses. The RBI is looking to have the power to supersede the board and/or inspect books of entities that are not directly supervised. 
The amendment bill (banking), according to the Kotak analysts, has some positives, though: (a) Nationalized banks can issue bonus/rights shares, which would be important as investors and regulators can expect a strong capital-raising exercise ($20 billion) over the next few years as banks transition to Basel-III; and (b) increased shareholder voting rights (10% for public banks and proportionate holding for private banks) is a positive as it gives shareholders better representation.
According to the amendment bill (banking), the RBI will be given powers to supersede the board of directors for a period and to appoint an administrator for a period not exceeding 12 months. Currently the RBI has the power to remove a director or any other officer. The RBI will also have the power to seek information, inspect books and returns of associate companies. There will also be increased fines and penalties for violation of the Banking Regulation Act, 1949. Depositor Education and Awareness Fund will have access to deposits that have been unclaimed or non-operative for more than 10 years. Mergers in banks will be exempt from the Competition Commission Act, 2002, as these activities are closely monitored/regulated by the RBI. All these factors are likely to improve the safety of the money brought into the banking sector by many small customers.
SARFAESI (amendment) Bill will put banks in a better position to recover bad loans, according to the Kotak update. The passing of the SARFAESI (amendment) Bill is positive in the current environment. The amendment  bill (a) reduces the time at the DRT (Debt Recovery Tribunal) by giving banks a fair representation by filing a caveat before granting any stay and (b) the period to respond to borrowers (after notice) will be extended to 15 days from seven days currently. Time-bound disposal of cases (as mandated in the Act) should improve after the new amendment, says Kotak. Asset reconstruction companies would be allowed to convert the debt (all or part of it) of borrower companies into equity/ shares.
The other bills pending before Parliament include: (1) Insurance: A hike in FDI in the sector to 49% from 26%; (2) Pension Fund: Statutory powers to the interim authority set up earlier; (3) Micro Finance: Development and regulation of these entities; (4) National Housing Bank: Transfer of ownership and increase in RBI’s power (5) SIDBI: Expansion of definition of activities. 
Of these bills, Kotak feels that the insurance bill could have a positive impact on the market as it gives an opportunity to select insurance companies to unlock value of their investments.
The Kotak update points out that the banks listed in the stock market are fairly valued at the current levels. It maintains a cautious outlook on select recent developments as broader concerns about asset quality and slow growth persist. Revenue slowdown (less than 15% growth due to slower loan growth and higher margin pressure) will be accentuated in FY2014E and credit costs (1.3% of loans) are unlikely to decline from their peaks. 
Apart from restructuring of the SEB (state electricity boards) portfolio, Kotak analysts do not see any large impairment from the infrastructure space, especially loans taken by private companies for power generation. From historically low levels of delinquency, Kotak expects to see higher slippages in the retail portfolio of banks but this would not be a serious cause for concern in the medium term.
NPLs (non-performing loans), which have risen sharply in recent quarters, are likely to remain elevated in the priority sector, predict Kotak analysts. They believe slippages may remain elevated (more than 2.5% over FY2012-14E) as the NPL (non-performing loan) cycle is yet to peak, especially from corporate balance sheets, infrastructure and iron and steel. 
The Kotak update maintains the view of there being higher credit costs due to (a) higher slippages (b) improving coverage ratio, which has deteriorated in recent quarters, and (c) dynamic provisions. Implementation of dynamic provisions may result in a situation in which the asset-quality cycle and loan-loss provisioning cycle could be different.


We are listening!

Solve the equation and enter in the Captcha field.

To continue

Sign Up or Sign In


To continue

Sign Up or Sign In



The Scam
24 Year Of The Scam: The Perennial Bestseller, reads like a Thriller!
Moneylife Magazine
Fiercely independent and pro-consumer information on personal finance
Stockletters in 3 Flavours
Outstanding research that beats mutual funds year after year
MAS: Complete Online Financial Advisory
(Includes Moneylife Magazine and Lion Stockletter)