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."

CENTRAL INFORMATION COMMISSION

Decision No. CIC/SG/A/2012/000544/18674
http://ciconline.nic.in/cic_decisions/CIC_SG_A_2012_000544_18674_M_81559.pdf
Appeal No. CIC/SG/A/2012/000544


Appellant                    : Dr SP Udayakumar,
                                        42/27, Esankai Mani Veethy,
                                       Parakkai Road Junction,
                                        Nagercoil, Tamil Nadu-629002
                        
Respondent               : SK Srivastava,
                                         PIO & Deputy Chief Engineer (Projects),
                                        Nuclear Power Corporation of India Limited,
                                        Vikram Sarabhai Bhawan,
                                        Central Avenue Road, Anushakti Nagar,
                                         Mumbai-400094