CIC refuses to allow disclosure of NHPC records

The CIC has rejected an RTI plea seeking disclosure of records related to the discussions on the demand for handing over by the Centre seven NHPC projects in Jammu and Kashmir to the state government, citing exemption clauses of "commercial confidence" and "third party".
The case pertains to an RTI application filed by activist Venkatesh Nayak seeking communication exchanged between the Centre and the state regarding the buyback of hydro power projects, feasibility of the proposal and file notings.
"The Jammu and Kashmir government had signed a memorandum of understanding with the Centre in the year 2000. It states that seven hydro electric projects in the state would be transferred to NHPC Limited for a period of 10 years for funding, execution and operation," Nayak said.

Giving details of the case, he said both the Centre and the state agreed in the MoU that they would work out a mutually acceptable methodology for handing over these projects back to the state.
Nayak's application filed with the Union power ministry was transferred to NHPC limited, a mini-ratna public sector undertaking, which refused to disclose the information, saying it is a listed company and "disclosure would lead to unwanted speculations and confusion among shareholders and "affect the commercial confidence" of the NHPC.
"...the Commission (Central Information Commission) discerns that the information sought by the appellant is in the nature of commercially sensitive information, the disclosure of which would not serve any public interest and would lead to unwarranted speculations amongst the shareholders of the respondent PSU and shall affect the commercial confidence of the NHPC Limited," Information Commissioner Sudhir Bhargava said.

He said the information sought is, therefore exempted from disclosure under sections of the RTI Act pertaining to 'commercial confidence' and 'third party'.

Questioning the decision, Nayak said the clause of third party does not apply as the public authority which receives the information request and makes a decision on it through its Central Public Information Officer (CPIO), is the 'second party'.
He said it cannot also be a third party in its own case.
"It may be noted here that NHPC generates more than 40 per cent of the hydel power from plants situated in Jammu and Kashmir," Naik said.

He said 12 per cent of the power generated is supplied to Jammu and Kashmir free of cost and the state government is required to buy at commercial rates, between 19-20 per cent of the power so generated by NHPC, to meet local demands.
"...Treating one public authority as both 'respondent' and 'third party' in relation to one RTI application leads to an absurdity in law. If this becomes a popular trend, any senior officer in a public authority can claim to be a 'third party' to every RTI application and frustrate every information request by objecting to disclosure," Naik said.

According to Section 11 of the RTI Act, if an applicant seeks information from a public authority about a third party, the concerned official must take views of that party before disclosure.
However, final decision rests with the concerned official who may overrule objections raised by the third party.