Anti Dumping Rules Not Inconsistent With RTI Act, Disclosure Of Confidential Information Can Impact India's Economic Interests: Delhi High Court

Observing that disclosure of confidential information in anti-dumping proceedings can have a significant impact on country’s economic interest and trade relations, the Delhi High Court has said that same cannot be sought or subjected to disclosure under the Right to Information Act, 2005.

Justice Prathiba M Singh observed that when the Anti-Dumping Rules themselves provide an exception to disclosure of information in view of the nature of anti-dumping proceedings, the court cannot allow the RTI applicant to “bypass such a barrier.”

“The entire purpose of having a complete and self-sufficient scheme for disclosure of confidential information under the Anti-Dumping Rules would be defeated if persons who are participating in anti-dumping investigation are permitted to tangentially seek information under the RTI Act,” the court said.

The court noted that Anti-Dumping Agreement of various countries after post General Agreement on Tariffs and Trade (GATT) recognises the sensitivity and competitive advantage that can be gained by third parties if confidential data is disclosed, adding that such information can be disclosed for “good cause.”

“In the context of anti-dumping proceedings and information disclosed therein, the DA has to undertake a detailed enquiry into issues such as ‘competitive advantage’, ‘business sensitivity’, ‘productivity particulars’, ‘cost of raw materials’, ‘investments made’, ‘sales’, ‘market share’ etc. The DA also has to examine whether there is good cause for disclosure. The DA can also get non-confidential summaries prepared for the purpose of disclosure. All this exercise is to be undertaken by the DA having expertise in the matter,” the court said.

Justice Singh further observed that the authorities under the RTI Act including CPIO, PIO, First Appellate Authority and the CIC would not have the requisite expertise or wherewithal to comment upon or assess the impact of disclosure of confidential information submitted or obtained in anti-dumping proceedings.

“Anti-dumping proceedings by their very nature are proceedings which have national and international dimensions and also have an impact on the country’s economy. The proceedings involve dealing with business sensitive and confidential information relating to a particular industry,” the court said.

The court was dealing with two pleas moved by Union of India and M/s Indian Synthetics Rubber Private Ltd. and Reliance Industries Pvt. Ltd. The petitioners challenged an order passed by Central Information Commission dated July 29, 2016, directing the Directorate General of Anti-Dumping and Allied Duties to provide certain information sought under RTI Act.

The RTI applicant had sought information qua seven issues in relation to initiation of an anti-dumping investigation concerning imports of Styrine Butadine Rubber from European Union, Korea RP and Thailand.

Setting aside the impugned order, the court noted that section 11 of the RTI Act itself recognizes the intention to protect the information received from third parties.

“This principle is also the very basis of Rule 7 of the Anti-Dumping Rules, which requires specific authorization of the party providing the information. Thus, in effect, there is no inconsistency between the provisions of the RTI Act and the Anti-Dumping Rules,” it added.

Justice Singh observed that if any party, especially one who has already participated in the anti-dumping investigation, requires any information, it would have to be governed and dealt with under Anti-Dumping Rules. The court said that such a procedure cannot be bypassed by seeking resort to the provisions of RTI Act.

“The Anti-Dumping Authority is vested with specialised knowledge relating to the trade as also the exclusive knowledge in respect of anti-dumping proceedings. Such knowledge would enable the said Authority to take a considered decision as to whether the particular information is to be disclosed or not. Such expertise does not vest with the CPIO/PIO or other authorities under the RTI Act,” it added.

However, the court said that the remedies of the RTI applicant under the Anti-Dumping Rules, if any, are left open.

Title: UNION OF INDIA v. ARVIND M KAPOOR AND ANR & other connected matter

Citation: 2023 LiveLaw (Del) 269

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